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Fearing arrest, undocumented litigant wants to testify remotely

Mike Mosedale//February 19, 2018//

Fearing arrest, undocumented litigant wants to testify remotely

Mike Mosedale//February 19, 2018//

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In what appears to be a case of first impression for Minnesota, an undocumented immigrant who is suing his former employer wants to testify via closed circuit video from an undisclosed location because he fears he will be deported if he shows up at the courthouse.

Joshua Newville
Joshua Newville

Joshua Newville, a lawyer at the Minneapolis-based Madia Law, made the unusual request in a Feb. 8 motion to Anoka County Judge Lawrence Johnson on behalf of his client, Anibal Sanchez.

Sanchez’s retaliatory discharge claim against Dahlke Trailer Sales is set to go to trial April 23.

But that won’t happen if Sanchez is forced to testify in person because, in Newville’s words, he is worried “that an agent for Dahlke will contact immigration officials in an effort to block Sanchez from submitting his case to the jury.”

In an interview, Newville said an increasing number of employers across the country are leveraging President Donald Trump’s immigration crackdown as a means of derailing legal claims brought by undocumented workers.

In support of that contention, Newville submitted an affidavit from Scott Teplinsky, a veteran workers’ compensation lawyer in Minneapolis.

In the affidavit, Teplinsky described how one of his clients was arrested by plainclothes immigration officers last July after showing up for a mandated mediation at the Office of Administrative Hearings in St. Paul.

“The officials were clearly waiting for my client, and it was obvious that someone informed them that he would be there at that date and time. Sadly, my client has now been deported,” said Teplinsky.

Teplinsky stated that it was the first time in his 33-year-plus practice of employment law that he had heard of immigration officials arresting an undocumented worker under such circumstances. Since then, he has become aware of “many other similar reports.”

“I don’t believe undocumented workers should have to risk their safety and family integrity in order to protect their rights under the law and pursue valid legal claims at government venues,” Teplinsky continued, adding that he is “gravely concerned about the resulting chilling effect in immigrant communities.”

Newville said he does not have hard evidence of Dahlke’s intention to drop a dime on his client. But Newville said that the company’s conduct throughout the course of the four-year-long legal fight has given him cause for suspicion.

Although Dahlke ultimately settled Sanchez’s workers’ comp claims for medical expenses and lost wages arising from a workplace injury, in Newville’s telling, the company’s initial refusal to pay is particularly revealing.

“The eligibility requirement for workers’ comp in Minnesota is very straightforward: Is it an injury arising out of work? That’s the only analysis applied to these claims,” said Newville. “How could they argue it wasn’t an injury arising out of work?”

Even after the Minnesota Court of Appeals reversed an earlier dismissal of Sanchez’s lawsuit for retaliatory discharge, Newville noted, Dahlke refused to entertain “serious settlement discussions.”

That Appeals Court ruling was subsequently affirmed by a divided Minnesota Supreme Court, which rejected Dahlke’s argument that federal immigration law pre-empted Sanchez’s claim of retaliatory dismissal.

“It is very surprising to me that that Dahlke hasn’t offered a single dollar to settle this case,” said Newville. “They tried to use [my client’s] immigration status as a liability shield. Because they lost that defense, our concern is that they will now use it as a retaliatory sword.”

Though a spokeswoman, Todd Nissen, the attorney for Dahlke, declined to discuss the case.

In an email exchange between the attorneys in January, Nissen explained that his client viewed Sanchez’s last demand of $140,000 “as an indication that the parties are too far apart to meaningfully discuss settlement.”

The legal fight stretches back to October 2013, when Sanchez suffered a bloody injury to his leg while operating a sandblaster in Dahlke’s body shop, which put him out of work for three weeks and left him with hefty hospital bills.

After the company initially declined to pay those claims, Sanchez hired a workers’ compensation lawyer.

According to the lawsuit, Dahlke fired Sanchez after learning that he had retained counsel, thus violating both the anti-retaliation provisions of Minnesota’s worker’s compensation law and anti-discrimination clause of the Minnesota Human Rights Act.

Dahlke, meanwhile, has maintained that it only placed Sanchez “on leave” after he admitted during a deposition that he was not a legal resident.

Newville described that argument as both disingenuous and a red herring.

He said Dahlke had known for years that Sanchez was not a legal resident but continued to employ him – that is, until he pursued his workers’ compensation claim.

Before the litigation began, according to Newville, a manager at Dahlke even tried to help Sanchez with his immigration status, drafting a letter that outlined the circumstances of an assault Sanchez suffered at the hands of a co-worker. The unrealized hope, Newville said, was that Sanchez’s status as a crime victim would lead to leniency from immigration authorities.

Newville said Dahlke had previously been put on notice by the government that Sanchez’s Social Security number was not valid and that Sanchez was frank with his employers about the reason why.

Sanchez came to the United States with his parents as a minor in 1998 but was a few months too old to qualify for the Deferred Action for Childhood Arrivals program, according to Newville, who described his client in sympathetic terms.

“He’s never been I trouble. He finished high school, he paid his taxes and he did everything he could to fix his immigration status,” Newville said.

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