Every alien, weather in this country legally or not, has a right to sue those who  physically injure  them.  Sugarman v Dougall, 412 US 634 (1973). An illegal/undocumented alien working off the books can recover for their loss of earnings.  Balbuena v IDR Realty, 6 N.Y.3d 338 (2006). In Balbuena, the Court of Appeals noted that a jury may be permitted to consider the plaintiff’s immigration status as one factor in its determination of the damages, if any. The court held that “in the absence of proof that plaintiffs tendered false work authorization documents to obtain employment, the 1986 Immigration Reform and Control Act (IRCA) does not bar maintenance of a claim for lost wages by an undocumented alien. The IRCA is a Federal statute intended to dissuade and penalize employers who knowingly hire workers who are in the country illegally.

In  Madeira v Affordable Housing Foundation, Inc., 315 F.Supp 2d 504, the court held that “plaintiff’s alien status does not prevent him from recovering compensatory damages for defendant’s violation of New York Labor Laws. A plaintiff’s status as an illegal alien, in and of itself, cannot be used to rebut a claim for future lost earnings.  Hagl v Stern & Sons, 296 F.Supp 779 (E.D.Pa 1975).

The fact that a plaintiff is deportable does not mean that deportation will actually occur. Further, whatever probative value illegal alien status may have is far outweighed by its prejudicial impact.  See Hagl, supra. Similarly, in  Kapla v O&Y Liberty Plaza Company, 645 N.Y.S.2d 281, the court held that plaintiff’s status as an illegal alien could not be used to rebut his claim for future lost earnings, where there was no evidence that deportation proceedings had begun or were contemplated.

Although New York is fairly liberal jurisdiction with regard to recovery and admissibility of immigration status, other jurisdictions are not as favorable to the immigrant worker. Moreover, the United States Supreme Court has not issued a recent decision on these matters. A plaintiff will need to confirm the extent of the ability to recover future earnings based on the jurisdiction, but otherwise will not be barred from commencing a lawsuit for the tortious act against them.