How to Properly Represent Injured Undocumented Immigrants in New York


Photo above: Me putting a  farmworker injury case into storage.

I am one of the only personal injury lawyers in Upstate New York (Syracuse, Rochester, Buffalo) who speaks fluent Spanish. I’m also married to a Guatemalan and move comfortably in the Latino community here. It’s no wonder, then, that over my 30 years or so of representing personal injury victims in Upstate, many of my clients have been “undocumented” Mexicans and Central Americans.

If you are a personal injury lawyer seeking to represent an undocumented Spanish speaking immigrant, here is what you need to know:

  • First, you need to gain your client’s trust. He will likely fear you will turn him into “la Migra” (immigration authorities) if you find out he is here “illegally”. To gain his trust, you need to speak fluent Spanish, or have someone with you who does. Using your Spanish, you need to find out whether he is legally present in this country or not.
  • You’d better either speak Spanish or have staff member who speaks it for another reason: Communicating with your client throughout the litigation will be next to impossible if you don’t. Many of Mexican and Central American undocumented migrant workers don’t even read and write in Spanish much, since they have such a low level of education. They are going to CALL you when they want to communicate with you, not write.  And they won’t be able to read what you write to them, either.
  • The first thing you need to explain to your new undocumented personal injury client is that he has a legal right to bring a claim for personal injuries even if he is hear without permission. Bringing a claim will not usually expose him to greater risks of being picked up by immigration authorities (but you never know . . .).
  • Second, you need to explain that even if he is deported, you can continue to represent him. You will be able to take his testimony remotely both for deposition and trial if you can’t bring him back for either.
  • Your client’s work records to prove his lost income are likely to be under a fictitious name. That’s because the only way he could find work here was to buy and use a fake “green card” (“mica” in Spanish slang). The name on the fake ID is not usually his real name. Same for the date of birth. The fake “green card” is bought from fake ID dealers, who are easy to find near communities with heavy immigration.  Welcome to the world of representing undocumented immigrants:  They have two names and two dates of birth.
  • Why do undocumented workers use fake ID’s? Because they can’t get work, even as a low-paid farmworker, without one.
  • You should get a copy of both his true national ID from Mexico or wherever he comes from as well as a copy of his fake green card ID.  Often the “fake” ID is the one the hospital got the name and date of birth from. Therefore, if you write the hospital for his records, you need to have him sign an authorization using the fake ID and birthdate. There is no other way to get those records.
  • His fake name will not only be on his hospital records, but on his employment records as well.
  • When you draft your Summons and Complaint, you are going to have use both names. “Juan Torres Rodriguez, a/k/a Jose Castillo Gomez”. The “fake” name comes second after the “a/k/a”.
  • Be prepared to fly to Mexico or Central America to take depositions and trial testimony should your client be deported pending your representation of him.
  • If you are claiming lost income, watch out: In New York, the measuring stick for lost income for an “illegal immigrant” is not the wages he was making and would have continued making up here – illegally – but the wages he would have made and continued making in his home country had he not committed the crime of presenting fake ID and working illegally here. That’s because judges are loath to “reward” an “illegal immigrant” by awarding him his illegal US wages. That means his wage loss will be literally “decimated” (1/10 of what his lost wages would have been had he been a legal worker in the USA).
  • Your client will love you and be forever loyal to you for navigating him through this very scary process. I still get yearly Christmas-time phone calls from Guatemala and Mexico more than a decade after I represented some badly injured workers from down there.

Buena suerte!

Keep safe!

Mike Bersani

Email me at:     I’d love to hear from you!

Michaels Bersani Kalabank, P.C.
Syracuse NY Personal Injury and Malpractice Lawyers

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