“But Your Honor, He’s an Illegal!”: The Inadmissibility of a Worker’s Undocumented Immigration Status

In court battles, the desire to win at times compromises ethics, fair play, and overall adherence to the rules of evidence. In that litigation frenzy, whether the battle involves a civil or a criminal case, the desire to obtain victory can contribute to deviations from the lawyer’s oath to follow the rules or to a prosecutor’s duty not to convict but to see that justice is done.1 In our evolution as a nation, "blatant forms of racism have increasingly been replaced by newer, more elusive, but equally injurious forms of derision."2 The danger that a litigant will appeal to prejudice, that "thirteenth juror,"3 exists.

Thus, our system of justice has to be ever so vigilant to protect against efforts to tarnish a person by character attacks or by direct and subtle appeals to prejudices based on racial or ethnic background, religion, or immigration status. When the immigration issue enters the equation, the emotions of the governing majority can be provoked.4 At times, the passions have resulted in hate crimes on the basis of perceived or actual undocumented status.

For example, in the small coal town of Shenandoah, Pennsylvania,5 several white teenagers brutally and fatally attacked an undocumented Mexican immigrant in 2008.6 Luis Ramirez lost his life to the hands and feet of teenagers who attacked him because he was Mexican.7 Witnesses testified as to the use of ethnic slurs as the men attacked Ramirez, which included “Go back to Mexico” and “Tell your [expletive] Mexican friends to get the [expletive] out of Shenandoah.”8  

Even before the increased hysteria over 9/11 and immigration, Latinos received threats and beatings based on their appearance of being “Mexican.” Joshua Ramirez, a fourth generation U.S. citizen of Mexican descent, complained of assumptions that he is undocumented: “I get the wetback comments . . . I’m asked to produce proof of citizenship when I apply for a job—and I don’t even speak Spanish.”9 Ramirez remembers the night he was kicked and punched by a gang of boys who swore at him and told him they do not like “illegal aliens.”10

Our judicial encounters have documented circumstances where resident aliens have been limited in or denied their employment opportunities.11 However, our law protects the rights of persons who are present in the United States in an undocumented condition.12

Dangers of unfair prejudice generally surface where the evidence is probative of a violent or immoral character or the evidence suggests unpopular associations or beliefs and appeals to a juror’s emotions or predispositions.13 In a recent case, for example, defense counsel attempted to impugn a witness’s credibility by bringing up his immigration status.14 “But your honor, he’s an illegal,” the basis for this article’s title, was ruled inadmissible and prejudicial, but the attempt to appeal to one’s prejudice is not unusual.

This article addresses the treatment of the undocumented worker in the civil courts of the United States. The primary focus of the discussion is on the admissibility of the undocumented status of a litigant. In order to better understand the development of the United States immigrant population, both documented and undocumented, the article begins with some background information as to our nation’s immigration history. The article concludes by examining the recent increase in civil cases that discuss the right of this undocumented alien population not to be subjected to discriminatory treatment and their eligibility to receive a remedy for lost future wages or other similar benefits. 

Should a trial practitioner bring up the alien status of his or her client? In short, no, because doing so means waiving any question on appeal. 

Development of the American Immigrant Population

In the early twentieth century, America entered into an economy considered by ranchers to be highly compatible with sharecroppers from Mexico who worked for low wages.15 The history of this labor migration has been one of constant flow at least since the Mexican Revolution of 1910.16 However, in the 1930s, with the economic crisis during the Great Depression, America sponsored Operation Repatriation to remove its Mexican population.17

Yet, consistent with the theory of economic dependence, when America entered World War II in 1942, Congress enacted the Bracero Program to import Mexican agricultural workers to pick crops.18 However, by 1954, America’s recession led to new efforts to remove undocumented Mexican aliens in what was dubbed Operation Wetback:

Assisted by federal, state, county and municipal authorities—including railroad police officers, custom officials, the FBI, and the Army and Navy—and supported by aircraft, watercraft, automobiles, radio units, special task forces, and, perhaps most important of all, public sentiment, including that of growers, the Border Patrol launched the greatest maximum peacetime offensive against a highly exploited, unorganized and unstructured “invading force” of Mexican migrants.19 

Operation Wetback unfortunately resulted again in the deportation of not only undocumented persons but also permanent resident aliens and citizens by birth or naturalization.20 It has been estimated that more than one million Mexicans were deported.21

Efforts to enforce immigration laws have confirmed the difficulty of determining who is an undocumented alien and who is a documented resident or citizen of Latino descent.22 The Border Patrol and local police agencies have indiscriminately seized a number of resident aliens and United States citizens.

One of the biggest problems facing many Latinos today involves the latent prejudice evoked by simply hearing the term “illegal alien.” The word “illegal” automatically sends out a negative connotation of people who entered the country without legal authority and who should therefore be labeled as criminals. While use of the terms “undocumented” and “unauthorized” may soften the impact, the reality is that the debate is dominated by conservative talk show radio and television hosts who continuously refer to the “illegal” as if this adjective has become a noun.

“Foreignness discrimination” is problematic and difficult to assess for many reasons.24 As a juror sits inside the courtroom, hundreds of thoughts run through his or her mind. In today’s society, where immigration is a hot topic, there are strong views toward undocumented immigrants. When jurors hear “illegal,” they think about increased taxes for schools and medical care and the increase in the unemployment rates, even if such beliefs are without factual support.

A perceived threat or concern among white Americans, as confirmed by a prominent Anglo historian, is the rapid growth of the Latino population.25 According to the 2010 census, Latinos account for over 48.4 million residents of the United States.26

After the 1994 congressional election, GOP gains led to the passage in Congress of two harsh antiimmigrant statutes, the 1996 Immigration Acts.27 The statutes expanded the definition of what constitutes an aggravated felony for removal (deportation) purposes and made the statute retroactive to include convictions that occurred prior to the 1996 effective date of the act.28

Politically, both parties engage in efforts to curtail and control undocumented entries. There are obvious exceptions. For instance, under the Obama administration, the federal government grants a suspension from deportation to college students who came to the United States without papers when they were children.29

In the process of carrying out a massive enforcement effort, such as is required if the federal government desires to remove all undocumented persons from the United States, the government has resorted to collaborating with local law enforcement. The most common and notorious fashion is to enter into what is referred to as a 287(g) agreement with a state or political subdivision of a state. The name of the program derives from the section of the Immigration and Nationality Act, which authorizes the plan.30 Congress enacted Section 287(g) of the Immigration and Nationality Act in 1996 as part of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA).31 

The enforcement results under Section 287(g) and under Arizona-type local legislation have been shocking to the American concept of liberty and justice. One horrific example involves Chandler, Arizona, and their local police cooperation with the Tucson Border Patrol Sector in July 1997. The “Chandler Roundup” operation resulted in many complaints of civil rights violations that typified the unreasonable seizures and racial insults Mexican American citizens and legal residents are subjected to during immigration raids.32 In some cases, these enforcement efforts have even led to deportations. Another involves an East Coast accent that landed an American citizen in jail on an immigration hold.33

Yet these horror stories of the violations of the rights of American Latinos have not diminished the drive to make all efforts to question “suspects” of their right to be in the United States. The group State Legislators for Legal Immigration (SLLI), founded in 2007, attributes to “illegal aliens” what it describes as “[i]ncreasingly documented incidences of homicide, identity theft, property theft, serious infectious diseases, drug running, gang violence, human trafficking, terrorism and growing cost to taxpayers.”34 Its founder, Republican Pennsylvania State Representative Daryl Metcalfe, writes on SLLI’s website that “the personal and economic safety” of all Americans is threatened by “the ongoing invasion of illegal aliens” and compares the situation to that facing the settlers during the American Revolution.35 Perhaps he engages in a bit of hyperbole, but press accounts of the anti-immigrant xenophobia indicate the group is quite serious. 

Treatment of Undocumented Persons in Civil Cases

The immigration debate. As the United States Supreme Court stated in the March 2010 decision of Padilla v. Kentucky, “The landscape of federal immigration law has changed dramatically over the last 90 years. . . . The Nation’s first 100 years was ‘a period of unimpeded immigration.’”36 According to a report by the U.S. Department of Homeland Security, it was estimated that 8.5 million unauthorized immigrants were living in the United States in 2000.37 This figure grew by approximately 250,000 persons each year. As of 2009, the number of unauthorized immigrants living in the United States was approximately 10.8 million. Immigrants from Mexico accounted for about 6.7 million of the total unauthorized immigrants living in the United States.38 It is estimated that between 2000 and 2009, approximately two million people illegally entered the United States from Mexico.39 Another report indicates that the number of unauthorized immigrants living in the United States remained unchanged through 2011, with immigration from Mexico (legal and unauthorized) actually declining.40 These numbers are the spark that has produced a firestorm of controversy.

Migrant workers, whether legal or illegal, play an important role in the United States’ economy. The average undocumented family pays more than $4,200 in annual federal taxes while earning less than the average annual salary of $36,700.41 Fifty to 85 percent of the country’s 1.6 million farm workers are undocumented. Immigrant workers play a critical service in keeping hotels operating affordably by taking jobs American-born workers do not want. Of the 12 million food service workers in the United States, 1.4 million are believed to be immigrants, with 500,000 of them from Mexico. Forty percent of the workers in the New York restaurant industry are undocumented. Undocumented workers from Mexico tend to be young, predominately male, struggling with the English language, and employed in the construction, manufacturing, and hospitality industries.42 The reality of undocumented workers in America stands in stark contrast to the fears engendered by their presence. 

The fear associated with undocumented workers is not new. Courts throughout the nation have examined, and attempted to insulate against, the prejudices that a plaintiff, who is an injured undocumented worker, encounters in trying to obtain a fair trial. The debate over illegal immigration, however, is currently at the forefront of policy in the United States. Thus, attorneys who represent injured undocumented workers must be acutely cognizant of the prejudices that the American people are exposed to during this debate.43 

Evidence of an individual’s alien status in the courts. In the course of a hotly contested trial, lawyers often “pull off the gloves.” Professional and ethical conduct, however, requires that there be limitations on the extent to which counsel may go into prejudicial and inadmissible matters. Rule 403 of the Federal Rules of Evidence, as well as the Texas Rules of Evidence, requires that the trial court balance the risk of unfair prejudice against the probative value of the evidence seeking to be admitted.44 Most courts across the country following Rule 403 have determined that the trial court is to admit relevant evidence unless the probative value of that extraneous evidence is substantially outweighed by the danger of unfair prejudice. 

Evidence used to inflame the jury. During the last 100 years, the Texas appellate courts have uniformly condemned arguments that invoke prejudice based on race, ethnicity, religion, or national origin: “Cases ought to be tried in a court of justice upon the facts proved; and whether a party be a Jew or gentile, white or black, is a matter of indifference.”45 This condemnation extends to arguments that seek to highlight or give weight to a person’s alien status. Although the manner in which the prejudicial appeal is presented has varied through the years and from case to case, the response thereto has remained relatively unchanged. 

Texas Supreme Court case—TXI Transportation Co. v. Hughes. In this historic case, decided in 2010, Justice David Medina, writing for a unanimous Texas Supreme Court, held that the trial court erred in admitting evidence impugning defendant Ricardo Rodriguez’s character on the basis of his immigration status.46 According to the court, “Such error was harmful, not only because its prejudice far outweighed any probative value, but also because it fostered the impression that Rodriguez’s employer [TXI] should be held liable because it hired an illegal immigrant.”47  

In TXI, Kimberly Hughes was driving with several members of her family when her vehicle collided with a TXI gravel truck driven by Ricardo Rodriguez. The collision killed everyone in Hughes’s vehicle except for one passenger. Hughes’s husband sued TXI and Rodriguez.48

At trial, evidence of Rodriguez’s immigration status was admitted over TXI’s objections. Evidence was introduced regarding Rodriguez’s prior deportation and the fact that he lied to obtain a commercial driver’s license by using a false Social Security number, among other evidence.49 TXI complained that Rodriguez’s immigration status was not relevant to any issue in the case, and that evidence of his status was highly prejudicial. Hughes argued that evidence of Rodriguez’s immigration status was relevant to the issues of negligent hiring and negligent entrustment, and also as impeachment evidence.50 

Justice Medina analyzed whether evidence of Rodriguez’s immigration status was relevant to the issues of negligent hiring and negligent entrustment. The court concluded that neither Rodriguez’s immigration status nor his use of a fake Social Security number to obtain a commercial driver’s license caused the collision. Thus, his immigration status was not relevant to either issue.51

The court then went on to analyze whether evidence of Rodriguez’s immigration status, offered for impeachment purposes as prior inconsistent statements, was admissible. Justice Medina concluded it was not, for at least two different reasons. The court first pointed out that Rodriguez’s immigration status was a collateral matter—that is, it did not relate to any of the claims. Thus, it was inadmissible impeachment evidence.52

Second, the immigration-related evidence was also inadmissible under Texas Rule of Evidence 608(b). This rule provides that specific instances of conduct of a witness for the purpose of attacking his or her credibility may not be proved by extrinsic evidence. As the court noted, “For over 150 years, ‘Texas civil courts have consistently rejected evidence of specific instances of conduct for impeachment purposes, no matter how probative of truthfulness.’”53 Thus, evidence of Rodriguez’s immigration status and deportation were inadmissible.54

The court held that even if evidence of Rodriguez’s immigration status had some relevance, its probative value was outweighed by the risk of unfair prejudice. Therefore, the trial court erred in admitting evidence of Rodriguez’s immigration status, and the error was harmful. As Justice Medina so eloquently wrote, “Such appeals to racial and ethnic prejudices, whether ‘explicit and brazen’ or ‘veiled  and subtle,’ cannot be tolerated because they undermine the very basis of our judicial process.”55 

Texas Court of Appeals case—Republic Waste Services, Ltd. v. Martinez. Following the Texas Supreme Court’s decision in TXI, the Court of Appeals for the First District of Texas, in a landmark case, affirmed a trial court’s ruling to exclude evidence of a decedent’s immigration status. In Republic, Elida Martinez sued Republic, a nonsubscriber to the Texas Worker’s Compensation Act, for the wrongful death of her common-law husband, Oscar Gomez. Gomez was an immigrant from El Salvador and was working for Republic in Houston, Texas, when a coworker ran over him with a garbage truck, killing him.56

Before trial, Martinez filed a motion in limine, which the trial court granted, to exclude evidence of Gomez’s illegal immigrant status, asserting that it was irrelevant and highly prejudicial. Republic relied on evidence of a federal immigration raid at its facilities just two weeks after Gomez’s death, which resulted in 50–55 workers being detained. Republic asserted that Gomez likely would have been deported after the raid and argued that this evidence was probative of whether Gomez’s future income would be earned in the United States, where he earned $33,000 per year, or in El Salvador, where he had earned $1,000 per year. The jury found for Martinez and awarded $1,408,491, including $1,275,000 in future pecuniary losses.57

Republic appealed, arguing that the trial court erred in excluding evidence of Gomez’s illegal immigrant status. The court of appeals noted that “the issue of immigration is a highly charged area of political debate” and then went on to state that “[t]he probative value of evidence showing only that the plaintiff is an illegal immigrant, who could possibly be deported, is slight because of the highly speculative nature of such evidence.”58 The only evidence presented by Republic of Gomez’s possible deportation was the federal immigration raid at its facilities, which did not, “without engaging in speculation and conjecture, rise to the conclusion that Gomez would have been deported, even if he had been detained.”59 The court concluded that the probative value of Gomez’s immigration status was slight and was outweighed by its prejudicial effect. Thus, the trial court did not abuse its discretion in excluding evidence of Gomez’s immigration status, and the judgment was affirmed.60 

Other states’ decisions on the admissibility of immigration status. Courts outside of Texas have rendered opinions espousing the same concerns as Texas courts on the issues of introducing evidence of a person’s status as an undocumented worker. For example, one Florida Court of Appeals held that any probative value of immigration status was “thoroughly outweighed by unfair prejudice, confusion of the issues, and misleading of the jury.”61 The California Supreme Court held in a 1985 decision that immigration status, “even if marginally relevant, was highly prejudicial.”62

Similarly, the Delaware Supreme Court held in 1999 that even if immigration status is relevant to impeach a witness, the court must still determine if the probative value is outweighed by unfair prejudice.63 A New York court excluded evidence of immigration status because any probative value of the evidence was far outweighed by its prejudicial impact.64 The Wisconsin Supreme Court, in a 1987 decision, affirmed the exclusion of undocumented status based on its prejudicial effect.65

A California Court of Appeals held that prejudice from evidence of undocumented status is “manifest and substantial” and noted “there is unequivocally an inherent bias among certain segments of society against illegal immigrants.”66 One Virginia court stated, “The danger of a jury unfairly denying [the plaintiff] relief based on his status alone outweighs the probative value of the evidence that he acted dishonestly in the past.”67

Courts in other jurisdictions have similarly held that the use of a witness’s immigration status to attack the witness’s character is not admissible. A New York court found that there was no authority to support the conclusion that evidence of undocumented status “impugns one’s credibility.”68 Thus, the evidence was not admissible for impeachment purposes. One Illinois court did not allow evidence of undocumented status to impeach a witness.69 Likewise, a California Court of Appeals found immigration status inadmissible to attack a party’s credibility.70 The Fourth Circuit held that “[a]n individual’s status as an alien, legal or otherwise,” did not brand the individual a liar.71 

Washington Supreme Court case—Salas v. Hi-Tech Erectors. In Hi-Tech, decided in 2010 by the Supreme Court of Washington, Alex Salas was working at a construction site when he slipped from a ladder erected by Hi-Tech.72 He fell more than 20 feet to the ground and was severely injured. He sued Hi-Tech for negligence. Salas sought to exclude evidence of his immigration status at the trial court. The trial court admitted evidence of his immigration status because Salas was seeking lost future income. The court determined that the evidence was probative of whether Salas’s future income would be in U.S. dollars or in his home country’s currency. The jury found that Hi-Tech was negligent but was not the proximate cause of Salas’s injuries. The court of appeals affirmed.73 

Justice Fairhurst, writing for the majority of the Supreme Court of Washington, noted that there was no evidence of pending deportation proceedings.74 In addition, Salas had been in the country since 1989, had lived without a visa since 1994, had purchased a home, and had children living in the United States. The only risk of Salas being deported was his immigration status. As the court pointed out, “immigration status alone is not a reliable indicator of whether someone will be deported,” considering that even when an undocumented alien is apprehended, he or she must still go through removal proceedings, which may or may not result in deportation.75 Based only on Salas’s immigration status, Salas’s risk of being deported was very low. Nonetheless, the court concluded that, although Salas’s immigration status only minimally increased the likelihood that his labor market would be outside the United States, that was enough to make his immigration status relevant to the issue of lost wages.76

However, the court then went on to analyze whether the low probative value of Salas’s immigration status was substantially outweighed by the risk of unfair prejudice. It pointed to California and Wisconsin cases where the courts found that evidence of immigration status was prejudicial.77 The court held that with regard to lost future earnings, the low probative value of immigration status was greatly outweighed by the danger of unfair prejudice. The Washington Supreme Court then reversed and remanded, and held that the trial court abused its discretion in admitting evidence of Salas’s immigration status.78 

Justice Fairhurst best articulated the argument in favor of excluding evidence of immigration status, writing for the majority in Salas:

We recognize that immigration is a politically sensitive issue. Issues involving immigration can inspire passionate responses that carry a significant danger of interfering with the fact finder’s duty to engage in reasoned deliberation. In light of the low probative value of immigration status with regard to lost future earnings, the risk of unfair prejudice brought about by the admission of a plaintiff’s immigration status is too great. Consequently, we are convinced that the probative value of a plaintiff’s undocumented status, by itself, is substantially outweighed by the danger of unfair prejudice.79 

Fifth Circuit case—Bollinger Shipyards, Inc. v. Rodriguez. In Bollinger, the Fifth Circuit held that undocumented immigrants are eligible for benefits under the Longshore and Harbor Workers’ Compensation Act (LHWCA).80 Jorge Rodriguez was working for Bollinger as a pipefitter when he fell while welding the wall of a ship. Due to the injury, he was only able to perform light duty work for about a month, and eventually he had to stop working. He sought benefits under the LHWCA.81

At the administrative trial, Bollinger’s vocational rehabilitation expert testified that because of Rodriguez’s status as “an undocumented immigrant,” he “had suffered no loss of legal earning capacity, as he had no legal earning capacity prior to being injured.”82

The administrative law judge (ALJ) held that undocumented immigrants are eligible for LHWCA benefits and ordered that Bollinger pay benefits from the date of the accident to the present, among other things. The Benefits Review Board (BRB) affirmed the ALJ’s order and also held that undocumented immigrants are entitled to benefits under the LHWCA. Bollinger petitioned for review of the BRB’s decision.83 

Bollinger argued that undocumented immigrants are “per se ineligible to receive indemnity benefits under the LHWCA, as any such benefits ‘would be based on illegally obtained wages.’”84 Bollinger went so far as to compare Rodriguez to a drug dealer, a pirate, and a Mafioso in regards to “ill-gotten wages.”85

The LHWCA provides workers’ compensation benefits to an “employee” if disability or death “results from an injury occurring upon the navigable waters of the United States.”86 “Employee” is defined in the Act as “any person engaged in maritime employment.”87 Further, the Act also states “compensation under [the LHWCA] to aliens not residents (or about to become nonresidents) of the United States or Canada shall be the same in amount as provided for residents.”88 As the Fifth Circuit pointed out, the Act makes no reference to “illegal” or “undocumented,” nor does it exclude undocumented immigrants from the definition of “employee.”89

The court reviewed its 1988 decision in Hernandez v. M/V Rajaan, where the court affirmed a district court’s award of lost future wages despite the plaintiff’s status as an undocumented immigrant.90 According to the court, Hernandez “stands for the proposition that undocumented immigrants are eligible to recover workers’ compensation benefits under the LHWCA.”91

Bollinger further argued that the BRB’s ruling undermines the Immigration Reform and Control Act of 1986 (IRCA).92 The court then reviewed the Supreme Court’s decision in Hoffman Plastic Compounds, 93 Inc. v. NLRB. In Hoffman, the Court held that the IRCA precluded the National Labor Relations Board from awarding back pay to an undocumented immigrant under the National Labor Relations Act (NLRA).94 The Court noted that (1) the employee qualified for the back pay award only by remaining in the United States illegally, and (2) the employee could not mitigate damages, as required, without violating the IRCA.95

The Fifth Circuit disagreed with Bollinger for three reasons.96 First, the LHWCA is a nondiscretionary, statutory remedy, unlike discretionary back pay under the NLRA. Second, the LHWCA is an injured longshoreman’s exclusive remedy, and thus is a substitute for tort claims. An undocumented immigrant would have the right to sue in tort. Therefore, “the remedy provided by the LHWCA is merely a substitute for the negligence claim that an employee could otherwise bring against his employer in tort.”97 Third, the plain language of the LHWCA provides for compensation to nonresident aliens and aliens who are about to become nonresidents. Also, unlike NLRA cases, an injured longshoreman does not have to mitigate damages under the LHWCA, nor does the employee have to remain in the United States to qualify for benefits. Therefore, awarding benefits to an undocumented immigrant under the LHWCA does not undermine the IRCA.98

After reviewing the statutory text of the LHWCA, previous Fifth Circuit decisions, and the Supreme Court’s decision in Hoffman, the Fifth Circuit was “convinced that Rodriguez [was] eligible to receive benefits under the LHWCA,” and therefore denied Bollinger’s petition for review in all respects.99  

Conclusion

The terms “illegal alien,” “illegal immigrant,” and “undocumented worker” now more than ever create a great deal of fear and distress in our society. This fear will, undoubtedly, find its way into a courtroom and prejudice an injured undocumented worker’s right to a fair trial. As illustrated by the decisions of the Texas Supreme Court, the Supreme Court of Washington, and other cases cited herein, courts throughout this nation recognize the prejudice that is engendered with terms like “illegal alien,” “illegal immigrant,” and “undocumented worker,” and have tried to strike a balance between this prejudice and its possible relevance. Texas and Washington, however, have made their position clear—any relevance that the alien status of an injured worker may have in a particular case is likely outweighed by its prejudicial effect. 

Notes

1. See, e.g., TEX. CODE CRIM. PROC. art. 2.01 (2010).
2. Elizabeth L. Earle, Banishing the Thirteenth Juror: An Approach to the Identification of Prosecutorial Racism, 92 COLUM. L. REV. 1212, 1222 (1992).
3. See generally id.
4. See, e.g., U.S. COMM’N ON CIVIL RIGHTS, THE TARNISHED GOLDEN DOOR: CIVIL RIGHTS ISSUES IN IMMIGRATION 10–12 (1980).
5. Shenandoah, a community of about 5,600, had a white population of 97.4 percent at the time of the 2000 census. Walter Brasch, Twelve Angry White People: Jury Nullification in a Pennsylvania Coal Town, OPEDNEWS (June 18, 2009), www.opednews.com/articles/Twelve-Angry-White-People-byBrasch-090618-304.html.
6. 3 Pa. Teens Charged in Fatal Beating of Immigrant, N.Y. DAILY NEWS (July 25, 2008), www.nydailynews.com/latino/3-pa-teens-charged-fatal-beating- immigrant-article-1.348734.
7. Michael Rubinkam, 2 Men Convicted in Hate-Crime Beating Death, MORNING CALL (Allentown, Pa.), Oct. 14, 2010, http://articles.mcall.com/2010-10-14/news/mc-hate-crimestrial-101410-20101014-11_1_piekarsky-and-donchak-crystal-dillman- justice-department.
8. Michael Rubinkam, Hate-Crime Trial Revisits ’08 Beating Death: Shenandoah Teens Return to Court Facing Federal Charges in the Death of an Illegal Immigrant from Mexico, PATRIOT-NEWS (Harrisburg, Pa.), Oct. 4, 2010, at A5.
9. Julie Amparano, Let’s Rid Our State of Hatred, ARIZ. REPUBLIC, Aug. 2, 1999, at SD5, cited in Mary Romero & Marwah Serag, Violation of Latino Civil Rights Resulting from INS and Local Police’s Use of Race, Culture and Class Profiling: The Case of the Chandler Roundup in Arizona, 52 CLEV. ST. L. REV. 75, 78–79 n.20 (2005).
10. Id.
11. See, e.g., Truax v. Raich, 239 U.S. 33, 43 (1915) (holding that an act protecting Arizona U.S. citizens in their employment against noncitizens violates the Fourteenth Amendment equal protection clause); Yick Wo v. Hopkins, 118 U.S. 356 (1886) (holding a city ordinance aimed at burdening Chinese residents in the laundry business unconstitutional).
12. See, e.g., Plyler v. Doe, 457 U.S. 202, 230 (1982) (finding a state’s denial of free public education to a discrete group of innocent children is justified only if it furthers some substantial state interest); United States v. Otherson, 637 F.2d 1276 (9th Cir. 1980) (finding that aliens who illegally enter the United States without authorization qualify as “inhabitants of any State, Territory, or District” and are protected by 18 U.S.C. § 242, the 1866 Civil Rights Act).
13. See D. Craig Lewis, Proof and Prejudice: A Constitutional Challenge to the Treatment of Prejudicial Evidence in Federal Criminal Cases, 64 WASH. L. REV. 289, 322 (1989).
14. Martinez v. Republic Waste Servs., Ltd., No. 200921136 (Tex. Harris Cnty. Dist. Ct. Apr. 3, 2009). 
15. SeeRODOLFO ACUNA, OCCUPIED AMERICA: THE CHICANO’S STRUGGLE TOWARD LIBERATION 142 (Canfield Press 1972) (noting that a farmer boasted of having a docile and wonderful Mexican named Pancho, whom he paid 60 cents a day before World War I).
16. See generallyJULIAN SAMORA, LOS MOJADOS: THE WETBACK STORY (1971).
17. ACUNA, supra note 15, at 190–91 (“The ‘send-the-Mexican-back-to-Mexico’ movement was inspired by President Herbert Hoover, who, after three years of depression, refused to acknowledge the failure of the U.S. economy. He made countless excuses; a favorite scapegoat was the presence of illegal workers in the United States.”); seeFRANCISCO E. BALDERRAMA & RAYMOND RODRÍGUEZ, DECADE OF BETRAYAL: MEXICAN REPATRIATION IN THE 1930S, at 98–107 (Univ. of N.M. Press 1995).
18. Agreement Between the United States of America and Mexico Respecting the Temporary Migration of Mexican Agricultural Workers, U.S.-Mex., Aug. 4, 1942, 56 Stat. 1759, amended by 57 Stat. 1152 (1943) (repealed 1964) (commonly known as the Bracero Program).
19. SAMORA, supra note 16, at 52.
20. F. ARTURO ROSALES, DICTIONARY OF LATINO CIVIL RIGHTS HISTORY 335 (Arte Publico Press 2006).
21. Jorge A. Bustamante, The Historical Context of Undocumented Mexican Immigration to the United States, 3 AZTLÁN 257, 270–71 (1972).
22. See, e.g., Susan Carroll, Wrongly Deported Citizen Is Home, HOUS. CHRON., Sept. 13, 2010, at A1. Luis Alberto Delgado, a United States citizen, was deported to Mexico even though he showed a Texas identification card and his birth certificate. He returned to the United States in September 2010 after 85 days of involuntary exile. In California, the ACLU filed a lawsuit on behalf of Pedro Guzman, a disabled American citizen who was mistakenly identified as a Mexican national and transferred to an Immigration and Customs Enforcement (ICE) detention center and later deported to Mexico because an employee of the Los Angeles County Sheriff’s Department erroneously determined that Guzman was undocumented. See Paloma Esquivel, Suit Filed over Man’s Deportation Ordeal, L.A. TIMES, Feb. 28, 2008, http:// articles.latimes.com/2008/feb/28/local/me-guzman28.
23. ACUNA, supra note 15, at 190; Patricia Morgan, Shame of a Nation: A Documented Story of PoliceState Terror against Mexican-Americans in the USA, inTHE MEXICAN AMERICAN AND THE LAW 22–23 (Carlos E. Cortes ed., Arno Press 1974); ROSALES, supra note 20, at 335.
24. Natsu Taylor Saito, Alien and Non-Alien Alike: Citizenship, “Foreignness,” and Racial Hierarchy in American Law, 76 OR. L. REV. 261, 336 (1997).
25. See, e.g., SAMUEL P. HUNTINGTON, THE CLASH OF CIVILIZATIONS AND THE REMAKING OF WORLD ORDER 8 (Simon & Schuster 2003) (1996) (asserting that the increase of the Latino population will adversely impact American culture).
26. JEFFREY S. PASSEL, D’VERA COHN & MARK HUGO LOPEZ, PEW HISPANIC CTR., CENSUS 2010: 50 MILLION LATINOS, HISPANICS ACCOUNT FOR MORE THAN HALF OF NATION’S GROWTH IN PAST DECADE (2011), available athttp://pewhispanic.org/files/reports/140.pdf.
27. The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-142, §§ 401–43, 110 Stat. 1214, 1258–81 (codified at 8 U.S.C. §§ 1531 et seq. (2006)), combined with the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, div. C, 110 Stat. 3009, at 3009-546 through –724 (codified at 8 U.S.C. §§ 1101 et seq.), extensively amended the Immigration and Nationality Act of 1952 (INA), 66 Stat. 163 (codified at 8 U.S.C. §§ 1101 et seq.).
28. See 8 U.S.C. § 1101(a)(43) for the definition of an aggravated felony. For a constitutional assessment of this extremely punitive legislation, see Lupe S. Salinas, Deportations, Removals and the 1996 Immigration Acts: A Modern Look at the Ex Post Facto Clause, 22 B.U. INT’L L.J. 245 (2004).  
    
29. Julia Preston, Students Spared amid an Increase in Deportations, N.Y. TIMES, Aug. 8, 2010, www.nytimes.com/2010/08/09/us/09students.html.
30. 8 U.S.C. § 1357(g).
31. Pub. L. No. 104-208, div. C, 110 Stat. 3009, at 3009-546 through –724 (1996) (codified at 8 U.S.C. § 1101 et seq.)
32. Romero & Serag, supra note 9, at 76.
33. Rucks Russell, American Citizen Held in County Jail as Illegal Immigrant, KHOU (Aug. 15, 2009), www.khou.com/news/local/65845237.html.
34. Problems and Solutions, ST. LEGISLATORS FOR LEGAL IMMIGR., www.statelegislatorsforlegalimmigration.com/problemsandsolutions.aspx (last visited July 10, 2013).
35. A Message from the Founder, ST. LEGISLATORS FOR LEGAL IMMIGR., www.statelegislatorsforlegalimmigration.com/SiteMessage.aspx (last visited July 10, 2013); seeS. POVERTY LAW CTR., ATTACKING THE CONSTITUTION: STATE LEGISLATORS FOR LEGAL IMMIGRATION & THE ANTIIMMIGRANT MOVEMENT (2011), available atwww.splcenter.org/sites/default/files/downloads/publication/ Attacking-the-Constitution.pdf.
36. 130 S. Ct. 1473, 1478 (2010).
37. MICHAEL HOEFER, NANCY RYTINA & BRYAN C. BAKER, U.S. DEP’T OF HOMELAND SEC., OFFICE OF IMMIGRATION STATISTICS, ESTIMATES OF THE UNAUTHORIZED IMMIGRANT POPULATION RESIDING IN THE UNITED STATES: JANUARY 2009, at 2 (2010), available atwww.dhs.gov/xlibrary/assets/statistics/publications/ ois_ill_pe_2009.pdf.
38. Id. at 4.
39. Id.
40. Jeffrey Passel & D’Vera Cohn, Unauthorized Immigrants: 11.1 Million in 2011, PEW RES. HISP. CENTER (Dec. 6, 2012), www.pewhispanic.org/2012/12/ 06/unauthorized-immigrants-11-1- millionin-2011/.
41. Benny Agosto Jr. & Jason B. Ostrom, Can the Injured Migrant Worker’s Alien Status Be Introduced at Trial?, 30 T. MARSHALL L. REV. 383, 384 (2005).
42. Id.
43. See generally Lise Johnson, “You Can Violate the Rights of Undocumented Persons with Impunity”: The Shocking Message Arizona’s Constitution Sends and Its Inconsistency with International Law, 13 J. GENDER RACE & JUST. 491 (2010).
44. FED. R. EVID. 403; TEX. R. EVID. 403.
45. Moss v. Sanger, 12 S.W. 619, 620 (Tex. 1889).
46. TXI Transp. Co. v. Hughes, 306 S.W.3d 230, 245 (Tex. 2010).
47. Id.
48. Id. at 233–34.
49. Id. at 234.
50. Id. at 240.
51. Id. at 240–41.
52. Id. at 241–42.
53. Id. at 242 (citing CATHY COCHRAN, TEXAS RULES OF EVIDENCE HANDBOOK 597 (7th ed. 2007–08)).
54. Id.
55. Id. at 245.
56. Republic Waste Servs., Ltd. v. Martinez, 335 S.W.3d 401, 403 (Tex. App. 1st 2011).
57. Id. at 403–05. 
    
58. Id. at 409.
59. Id. at 410.
60. Id. at 411.
61. Maldonado v. Allstate Ins. Co., 789 So. 2d 464, 470 (Fla. Dist. Ct. App. 2001).
62. Clemente v. State, 707 P.2d 818, 829 (Cal. 1985).
63. Diaz v. State, 743 A.2d 1166, 1184 (Del. 1999).
64. Klapa v. O&Y Liberty Plaza Co., 645 N.Y.S.2d 281, 282 (Sup. Ct. 1996).
65. Gonzalez v. City of Franklin, 403 N.W.2d 747, 759–60 (Wis. 1987).
66. People v. Martin, No. B164978, 2004 WL 859187, at *6 (Cal. Ct. App. Apr. 22, 2004).
67. Romero v. Boyd Bros. Transp. Co., No. 93-0085-H, 1994 WL 287434, at *2 (W.D. Va. June 14, 1994).
68. Mischalski v. Ford Motor Co., 935 F. Supp. 203, 207–08 (E.D.N.Y. 1996).
69. First Am. Bank v. W. DuPage Landscaping, Inc., No. 00-C-4026, 2005 WL 2284265, at *1 (N.D. Ill. Sept. 19, 2005).
70. Hernandez v. Paicius, 134 Cal. Rptr. 2d 756, 760–61 (Ct. App. 2003).
71. Figeroa v. INS, 886 F.2d 76, 79 (4th Cir. 1989).
72. Salas v. Hi-Tech Erectors, 230 P.3d 583, 584 (Wash. 2010) (en banc).
73. Id.
74. Id. at 585.
75. Id.
76. Id. at 585–86.
77. Id.
78. Id. at 587.
79. Id. at 586–87.
80. Bollinger Shipyards, Inc. v. Rodriguez, 604 F.3d 864, 878 (5th Cir. 2010).
81. Id. at 867–68.
82. Id. at 868–69.
83. Id. at 869–70.
84. Id. at 871.
85. Id.
86. 33 U.S.C. § 903(a) (2006).
87. Id. § 902(3).
88. Id. § 909(g).
89. Bollinger, 604 F.3d at 872.
90. Id. at 873 (citing Hernandez v. M/V Rajaan, 841 F.2d 582, amended after rehearing, 848 F.2d 498 (5th Cir. 1988)).
91. Id. at 874.
92. Id.
93. Id. at 875 (citing Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002)).
94. Hoffman, 535 U.S. at 151.
95. Id. at 150.
96. Bollinger, 604 F.3d at 877–79.
97. Id. at 878.
98. Id. at 879.
99. Id.