Undocumented Immigrants: Navigating in the Shadows of the Legal System

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Non-citizens in the U.S. have the same right to sue and to be sued as native and naturalized citizens. But that’s not to say immigration status doesn’t complicate courtroom proceedings. 

“A lawsuit, regardless of its nature, does not provide any protection against deportation,” explains Aron Solomon, JD. “If an undocumented person is involved in an ongoing legal case, it will not influence or delay deportation proceedings. Even the severity of the allegations in the lawsuit does not change this reality—immigration enforcement operates independently from civil or criminal legal matters.”

The Office of Homeland Security estimates that about 11 million undocumented immigrants are living in the U.S. As of January 21, 2025, the federal government expanded expedited removal to ramp up deportations throughout the country.

Given the existing migrant population and call for crackdowns, legal experts expect an uptick in lawsuits that are entangled with immigration issues. Here are some unanswered questions they believe courtrooms are more likely to face in the coming years.

Improper Deportation or Custody Concerns

Illegal immigration is a hot-button issue for politicians. But regardless of political standing, stories of legal residents mistakenly swept into the deportation machine are enough to give anyone goosebumps.

Michael J. Epstein of the Epstein Law Firm suspects an oncoming surge in controversial deportations. “Akin to false arrest and imprisonment, an improper deportation or custody could lead to causes of action for individuals wrongfully detained or who are here legally or are legal citizens,” explains Epstein.

One such high-profile case involves a man named Kilmar Abrego Garcia. Garcia was legally employed on a work permit in the U.S. when he was sent back to El Salvador aboard a flight of violent criminals. Judges and advocacy groups jumped on this nightmarish story, demanding justice for Garcia. However, a suspicious 2019 encounter with law enforcement has resurfaced. This “bombshell” government report alleges Garcia’s affiliation with MS-13 and possible participation in human trafficking. How the media, government, and courtroom handle this case could set the tone for similar situations going forward.

Criminal Accusations and the Risk of Deportation

Undocumented people are free to engage with the U.S. legal system regardless of whether they may be deported. Nothing has changed in this regard. According to Epstein, “Historically, illegal immigrants still had the protections of the law.” For example, they may bring forward personal injury lawsuits or other cases.

Solomon notes, “While a lawsuit itself does not impact immigration status, being accused of a crime does. If an undocumented person is in the U.S. illegally and is charged with a crime, there is a high likelihood of deportation.”

Solomon says a conviction further increases deportation risk and often leads to immediate removal proceedings. “Whether the individual is deported immediately or must go through the immigration court system depends on the specific circumstances of the case,” he explains.

However, for those accused of crimes, deportation isn’t an escape from pending legal proceedings, even if the deportation is ultimately deemed erroneous. Solomon clarifies, “Whether the deportation was accurate and valid has no bearing on the pendency of cases in the U.S.”

Extending Beyond the Borders of the U.S. Courtroom

The right to an attorney is granted to everyone in the U.S., including undocumented people. However, are court-appointed lawyers obligated to continue representing a client who has been removed from the country?

“There is no clear legal precedent dictating what happens to a lawsuit if the plaintiff is deported,” shares Solomon. “In many cases, undocumented individuals may have valid legal claims but face difficulties in pursuing them after removal. Without the ability to participate in proceedings, cases often stall or become difficult to litigate. This legal gray area leaves many questions unanswered.”

Epstein explains that undocumented people can initiate legal claims, but what happens after deportation remains ambiguous. “How does the person testify? Is it through video calls like Zoom? Is that permissible?” asks Epstein.

Courtrooms Under Pressure of Mounting Scrutiny

Undocumented status has long presented unique legal hurdles. But today’s heightened political spotlight on immigration enforcement will task the legal system to make blurry lines clear.

Deportation itself does not erase pending proceedings in the U.S. Although undocumented people have certain protections, unresolved questions remain about how lawsuits should continue when plaintiffs are no longer in the country. 

Epstein explains, “Other considerations include how juries will view people who are undocumented, and how a judge ensures a fair and impartial jury. Courts will be presented with new causes of action and issues. They will need to assess these situations against analogous cases.”

Sources

Baker B, Warren R. Estimates of the Unauthorized Immigrant Population Residing in the United States:  January 2018–January 2022. Office of Homeland Security Statistics. Accessed April 2025

Know Your Rights: Expedited Removal Expansion. National Immigration Law Center. January 2025.

DHS Releases Bombshell Investigative Report on Kilmar Abrego Garcia Suspected Human Trafficking Incident. Department of Homeland Security. April 18, 2025.