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Can an Undocumented Immigrant File a Wrongful Death Lawsuit?

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Jonathan Rosenfeld

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Undocumented immigrants face potential problems when involved in legal actions. If the government finds out about their immigration status, there is a chance they may be detained and deported if the right agency is informed of their status. 

However, immigrants are legally protected by the U.S. legal system and have certain rights that everyone else shares. You can even file a wrongful death lawsuit despite being undocumented. 

A wrongful death case happens when a person is killed in an accident caused by someone else’s negligence, and their family files a lawsuit. This is common in cases involving a severe car accident. However, it can happen in the workplace, when someone is hit by a company car or any other way where negligence leads to someone’s death. 

The family directly impacted by the loss (i.e. spouses, children, and possibly dependent parents) can file a wrongful death claim. You can file a wrongful death lawsuit regardless of your immigration status. To do this, consider hiring personal injury lawyers to represent you throughout the legal process. 

Equal Protection by Law

The reason why undocumented immigrants can file wrongful death claims is because they have legal protections under the law. The U.S. legal system extends the same personal injury claim rights to everyone, regardless of status. 

This was affirmed in 1982 by the U.S. Supreme Court who ruled that illegal immigrants are considered “people” and share the same protections all people are entitled to under the law. This means any law outlining the protection of people regardless of their citizenship applies to everyone, including people who may have entered the country illegally. 

For example, non-citizens from anywhere in the world can file a personal injury claim in a U.S. court when certain conditions are met. Undocumented immigrants who make their home in the U.S. can easily file the same type of claim.

However, there are certain considerations that should be included in any decision to file legal action. Because you are undocumented, taking legal action comes with additional risks. But you can file a claim since there is no legal reason to keep you from doing so. 

Still, it is important to understand there are risks in taking legal action if you are undocumented. The risk does not come from taking those actions, but by being identified as undocumented during the proceedings. 

It is not legal to disclose the status of anyone participating in legal proceedings, but the information could be leaked to an organization like Immigration and Customs Enforcement (ICE), which is obligated to investigate and take appropriate action. 

Damages Awarded to Undocumented Immigrants in Wrongful Death Lawsuits

The goal in your case is to collect compensation for the damages you suffered. These damages can be economic, such as bills related to the accident. They can also be non-economic, such as the emotional impact of losing a loved one and how it impacted your life. 

The damages awarded in the case can include:

  • Loss of income/wages
  • Loss of benefits
  • Pain and suffering
  • Final expenses

There are many other damage claims that can be filed based on the facts of the case. You can file the same damage claims as anyone else. Your attorney has a process for identifying potential claims and developing the evidence needed to support them. 

The more types of damages you claim, the higher the potential total compensation you could receive. There are few limits on the amount of compensation unless there is an applicable state-specific law.

State-Specific Considerations

Although anyone can file the same wrongful death claims, there are a few state-specific considerations to think about first. An example of this is state limits on damages. Some states limit the amount you can collect for different types of damages. 

Illinois does not have a limit on the amount you can collect in damages in a personal injury lawsuit (which includes wrongful death claims). However, Illinois does have a comparative negligence system that can potentially lower your compensation. 

Under comparative negligence, the court determines who is responsible for the accident that led to your loved one’s death. If your loved one is at all responsible for the accident, then the compensation you receive is reduced accordingly.

For example, your loved one could be 20% at fault while a construction company is 80% at fault. In this case, the total amount of compensation you are awarded is reduced by 20%. If your loved one is more than 50% at fault, you cannot collect compensation. It all depends on the specifics of your case. 

Filing a Wrongful Death Lawsuit

In the unfortunate event you need to file a wrongful death lawsuit, there are a few steps you should take to make the process manageable. Follow these steps to file your wrongful death lawsuit. 

A wrongful death lawsuit falls under personal injury law. For this, you can hire personal injury lawyers to handle your case. Make sure you choose a personal injury lawyer with experience in wrongful death claims, as well as a willingness to work with someone with undocumented status. 

Establish Eligibility

Before you can actually file a claim, you have to establish eligibility. There are only a few specific people who can file a wrongful death claim. Specifically, the spouse, children, and parents of the deceased are eligible. This connection is the foundation of filing a claim, and you will have to establish you are eligible. 

This can be difficult for undocumented individuals in some cases since they may lack the documentation usually used to show family connections to the deceased. However, it is not impossible to show the connection in other ways and prove eligibility. 

Gather Evidence

The next step to work through with your attorney is gathering evidence. Your claims need to be backed up by documentation and evidence of the damages you have suffered. 

For this, start to collect things like medical bills, medical records, police reports, witness statements, and other financial records to name a few. You want to have as much documentation as you can to support your claims, and your attorney will work with you to find the right evidence. 

File the Lawsuit

Finally, your attorney can file the lawsuit with the court. A wrongful death lawyer knows how to file the case and when it needs to be filed. This is called the statute of limitations and it is the legal time limit for filing court cases. In Illinois, you have two years from the date of the accident to have your case filed, or you miss your chance to take action at all. 

Challenges Undocumented Immigrants Face When Filing Wrongful Death Claims

Everyone has the right to certain personal injury protections under the law, which includes taking legal action for the wrongful death of a loved one. While everyone can file a wrongful death lawsuit, not everyone has a similar situation at the start. 

Undocumented immigrants face additional challenges when trying to take legal action, which is why many struggle to begin the process or avoid taking legal action entirely. 

Rosenfeld Injury Lawyers works with anyone trying to file a personal injury or wrongful death claim in court. We have worked with undocumented immigrants and their families, giving us the experience and expertise to help you. Read on to discover some of the unique challenges undocumented immigrants face when filing wrongful death claims. 

Fear of Deportation

The biggest fear any undocumented immigrant has is that they will be deported. Deportation for filing a personal injury lawsuit is not legal, but there is a risk that being involved in a legal action could lead to being deported. 

Your undocumented status is considered protected information and your lawyer is not allowed to disclose it under confidentiality laws. However, there is a chance it could be disclosed to the immigration agency, ICE, which is required to investigate and possibly deport you. 

Intimidation or Retaliation

Intimidation and retaliation are also possible, depending on where you are located and who is involved in the case. If you take legal action, opposing counsel, their clients, or even some government officials could investigate your status and try to use it against you. 

Fortunately, there are protections for undocumented immigrants against retaliation in the workplace and other areas to help you overcome this problem. 

U.S. law has protections against things like retaliation based on your immigration status. You can report violations to the government, who will investigate and punish the offending company. 

The Illinois Department of Human Rights also offers protections against discrimination and retaliation in the state through the Illinois Human Rights Act [1].  Essentially, it is illegal to retaliate or discriminate based on immigration status, among other categories. 

Reduced Compensation Offers

Insurance companies also create issues when it comes to car accidents, wrongful death lawsuits, and undocumented immigrants. Many immigrants are offered lower settlements because they are undocumented since the insurance company hopes you will take the offer without fighting back. 

A good personal injury lawyer can step in and fight this, handling the negotiations with the insurance company and protecting your rights. Having legal counsel on your side can make a difference in the outcome of your wrongful death lawsuit. An attorney can help in several ways, including:

  • Keeping your immigration status confidential
  • Negotiating with insurance companies
  • Helping with documentation and legal processes
  • Protecting your rights throughout the legal process 

Your attorney can also help you file wrongful death lawsuits, which can be a complicated process if you try to do it on your own. A lawyer with the right experience can effectively manage your case and offer you specific advice on how to proceed to get the outcome you are looking for. 

Contact Rosenfeld Injury Lawyers for a free consultation by filling out our contact form or calling us toll-free at (888) 424-5757. A free consultation lets us get to know your situation better and help you find the best way to manage your wrongful death lawsuit. 

Resources:  [1] Illinois Department of Human Rights



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