IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-10865

ALBERTO SIFUENTES; JESUS RAMIREZ,

Plaintiffs - Appellants

v.

SALVADOR ABREO; THE CITY OF LITTLEFIELD, TEXAS; 

LEONEL PONCE,

Defendants - Appellees

JESUS RAMIREZ,

Plaintiff- Appellant

v.

SALVADOR ABREO; THE CITY OF LITTLEFIELD, TEXAS; 

LEONEL PONCE,

Defendants - Appellees

Appeal from the United States District Court 

for the Northern District of Texas

USDC No. 09-00190

United States Court of Appeals

Fifth Circuit

F I L E D

June 21, 2013

Lyle W. Cayce

Clerk

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Before JOLLY, BENAVIDES, and HIGGINSON, Circuit Judges.

PER CURIAM:*

This is an appeal from a take nothing judgment in a 42 U.S.C. § 1983 suit. 

The two Plaintiffs-Appellants, Alberto Sifuentes and Jesus Ramirez (“the

Plaintiffs”) had previously been convicted of murder and sentenced to life in

prison in Texas. Ultimately, the Texas Court of Criminal Appeals granted the

Plaintiffs habeas relief based upon the claim of ineffective assistance of trial

counsel. Thereafter, the Plaintiffs brought this 42 U.S.C. § 1983 suit alleging

several constitutional violations against the City of Littlefield, Lamb County and

various law enforcement officials involved in the investigation and prosecution

of the murder case. After more than five weeks of trial, the jury found for the

Defendants on all counts. The Plaintiffs-Appellants appeal, arguing that the

district court erred by allowing the Defendants’ counsel to question the

witnesses in such a way as to attempt to portray the Plaintiffs as “illegal aliens”

at the time of their arrests even though they both had lawful permanent resident

cards during the time relevant to their damages claim for lost earnings. Finding

no reversible error, we AFFIRM. 

I. FACTUAL AND PROCEDURAL HISTORY

The instant § 1983 lawsuit was filed in 2009. However, the suit stems

from a murder that occurred on August 6, 1996. At that time, the victim,

Evangelina Cruz, was working at a Jolly Roger convenience store in Littlefield,

Texas. Two men robbed the store and fatally shot Cruz. Subsequently,

Sifuentes and Ramirez were charged with and convicted of Cruz’s murder and

sentenced to life imprisonment in two separate trials. 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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After their convictions were affirmed on direct appeal, they pursued state

habeas relief, and the state trial court ruled that they had received ineffective

assistance and recommended granting the writ on that claim. The state trial

court did not recommend granting relief on their claims of unconstitutional

conduct on the part of the instant Defendants and their claim of actual

innocence. In two very short opinions, the Texas Court of Criminal Appeals

granted habeas relief based on trial counsel’s rendering ineffective assistance for

failure to investigate alibi witnesses and alternative suspects; however, it did not

reach the remaining claims.1 The murder case was again presented to a Lamb

County grand jury, which declined to charge them. Sifuentes and Ramirez were

released from custody in 2008, after nearly twelve years of incarceration.

Sifuentes and Ramirez (“the Plaintiffs”) filed the instant § 1983 suit on

April 27, 2009,2against Texas Ranger Salvador Abreo, Police Officer Leonel

Ponce, and the City of Littlefield, Texas.3 The Plaintiffs alleged, among other

things, that the Defendants denied their right to a fair trial in violation of the

Fourteenth Amendment and wrongfully arrested and incarcerated them without

probable cause in violation of the Fourth and Fourteenth Amendments. The

Plaintiffs also alleged that the City of Littlefield had a policy of employing

improper eyewitness identification procedures and failed to train or supervise

its officers with respect to proper eyewitness identification procedures.

Six months prior to trial, the Plaintiffs moved to exclude any evidence

regarding their pre-arrest immigration status or history. The Plaintiffs argued

that because they were lawful residents at the time of their arrests, such

1 Ex parte Sifuentes, No. AP-75815, 2008 WL 151087 (Tex. Crim. App. Jan. 16, 2008);

Ex parte Ramirez, No. AP-75816, 2008 WL 151128 (Tex. Crim. App. Jan. 16, 2008).

2 The complaints were filed separately but they were subsequently consolidated.

3 The Plaintiffs also filed suit against Mark Yarbrough, the District Attorney for Lamb

County, and Lamb County, Texas. Those Defendants are not parties to this appeal.

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evidence was irrelevant and prejudicial. The Defendants opposed the motion,

asserting that such evidence was relevant and probative. The district court

denied the motion. Shortly before trial, Plaintiffs again filed a motion in limine

to exclude evidence of alien status. In that motion, Plaintiffs requested the court

to instruct the Defendants to refrain from referencing thePlaintiffs’immigration

status without first approaching the bench and obtaining a ruling from the

district court outside the presence of the jury. Once again, the Defendants

opposed the motion, and the district court denied it. 

At trial, testimony with respect to the Plaintiffs’ illegal immigration status

was elicited from the following three witnesses: the Plaintiffs; Ramirez and

Sifuentes; and Dr. Bradley Ewing, the Plaintiffs’ economist expert witness.4

Both Plaintiffs testified using an interpreter. 

Ramirez’s testimony

During direct examination of Ramirez, his attorney elicited that Ramirez

was born in Mexico and that in 1975 he was stopped by immigration officials and

returned to Mexico when he attempted to enter the United States. Ramirez also

testified that he was a lawful permanent resident of the United States and had

a permanent resident card.5 

On cross examination, defense counsel asked Ramirez if his green card

was dated December 1, 1990 because he received it “through an amnesty

program for people who were previously here illegally.” Ramirez responded

“yes.” Defendants’ counsel then inquired whether his current lawyers assisted

4 Additionally, we note that, during voir dire, a potential juror inquired as to the

Plaintiffs’ immigration status, and Plaintiffs’ counsel responded that the Plaintiffs were here

lawfully.

5 Plaintiffs’ counsel stated that he wanted to show the jury the card, and the district

court responded that it was “not sure why we are taking the time to do that” because Ramirez

“testified he has got the green card. He is a permanent resident.” Apparently due to the

court’s response, counsel did not introduce the card at that point in time.

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him in obtaining the card, and Ramirez responded that he “already had another

card, but it expired while in the penitentiary.” Defendants’ counsel reiterated

that the “Haynes & Boone lawyers helped you get [the green card], didn’t they?” 

Defendants’ counsel further asked if he first met the Haynes & Boone lawyers

in 2001 after he had already been convicted of murder. Ramirez answered

affirmatively. Defendants’ counsel further inquired as follows: “Now, you say

that you had a green card before 2001, but do you have any proof of that?” 

Ramirez replied that “I don’t have it with me here but I do have proof of the

other card.” Defendants’ counsel then asked whether Ramirez went to prison as

an illegal alien in 1998, and he responded “No, I still had my other card,” but it

expired while he was in prison. Plaintiffs’ counsel objected to the questioning

based on its relevance and asserted it was prejudicial. The district court

overruled the objection. Defendants’ counsel then inquired whether the Texas

prison system classified him as an illegal alien, and Ramirez responded

affirmatively. Defendants’ counsel asked if Ramirez had informed the prison of

his green card, and Ramirez responded that “once one enters the penitentiary,

one loses all of your rights.” 

Defense counsel asserted that Ramirez “still didn’t have a green card even

as late as 2008 when you got out of prison, did you?” Ramirez stated that he

“had a card from before I went to prison. It’s in the records from when I paid my

taxes every year.” Counsel responded by asking “you know that some people

who are here illegally use false Social Security numbers?” Ramirez asked

counsel to repeat the question. Instead of repeating the question, counsel

insisted again that Ramirez “didn’t have those papers until 2009, did you?” To

which Ramirez answered: “How was I going to have them if I was in the

penitentiary?” Plaintiffs’ counsel again objected as to relevance, stating that he

had tried to introduce the card yesterday. The court stated “we probably need

to move on.” Defendants’ counsel asked the court if it could ask another

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question, and the court allowed it. Pointing to Ramirez’s deposition testimony

that he did not have his papers when he was released from prison in 2008,

counsel asked Ramirez whether he knew“that until somebody has authorization,

unless they are a U.S. citizen, it’s not legal for them to work in the United

States. You know that, don’t you?” Ramirez responded “That’s correct.” When

asked whether it was correct that he “couldn’t get a job in 2008 because you

didn’t have those papers,” Ramirez responded affirmatively. Counsel then

stated that “although it’s illegal for people who are not U.S. citizens or who do

not have proper authorization to work, we know some people do work illegally. 

You know that, don’t you?” Ramirez replied yes. Counsel further stated that

“when somebody is illegal that’s working, if they get caught, you understand

they have to stop working. You understand that, don’t you?” Ramirez said yes. 

Counsel then asked if Ramirez had been “deported three times for illegal

entry, haven’t you?” Ramirez replied that it happened twice “[m]any years ago.” 

Counsel then asked Ramirez whether he understood that “if people are illegal

and they get caught, whether they are working or not working, they can be

deported. You understand that. Right?” Ramirez agreed. Counsel once again

asked Ramirez whether he had been deported the three times he entered

illegally, and Ramirez responded that it happened twice in 1975. 

Counsel then asked whether Ramirez had been arrested for attempting to

bring two Mexican nationals across the border. Plaintiffs’ counsel objected as to

relevance, stating that it had nothing to do with whether Ramirez’s civil rights

were violated. Defendants’ counsel responded it was relevant as to damages

“because this gentleman has to acknowledge that he understands that if an

illegal person is working in this country, they can be stopped. They can be forced

to stop work and be deported and, therefore, not be able to work in this country

at any time, and therefore, it goes to the argument that he would have been

continually gainfully employed during the period that the jury may find that he

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was an illegal alien.” Counsel further said it was relevant because Ramirez had

testified that being in prison for the murder conviction was a terrible experience

and the jury should consider that Ramirez had been in prison previously when

it determines damages. The court overruled the objection, stating that Plaintiffs’

counsel could rehabilitate on redirect examination. 

Ramirez then agreed that he had been arrested for attempting to bring two

women across the border, one of whom was his wife. Counsel then asked

Ramirez whether he swore in an affidavit to the INS that he was married to

Connie Ramirez, and he said yes. Defense counsel asked whether Connie

Ramirez was Ramirez’s wife, and Ramirez said “[n]ot legally.” Ramirez denied

lying under oath, again stating that he was married but not legally. Counsel

asked Ramirez about an affidavit given to the INS on July 1, 1975 stating that

he was born in the United States. Ramirez admitted that was his signature. 

Ramirez admitted that he received a six-month prison sentence for attempting

to bring the two women across the border. Counsel asked Ramirez whether he

had filed income tax returns and Ramirez responded that he filed them from

1990 until 1995, prior to his arrest in 1996. 

On redirect, Plaintiffs’ counsel offered Ramirez’s permanent resident card,

and Defendants’ counsel objected, asserting that the date on the document was

not the date Ramirez became a lawful permanent resident because “[e]verybody

who got their green card, no matter when they got it, got it with that date on it

through the amnesty program.” Plaintiffs’ counsel responded that Ramirez “has

been called an illegal alien.” “[I]t’s been suggested that he did not have a card,

if you will, during the period of time he worked.” Plaintiffs’ counsel further

explained Ramirez has been a “resident since 1990. It expired when he was in

prison. He could do nothing about it until after that, after prison. All he had to

do was simply apply for the card that he has now, and for this jury not to be able

to hear and see, given the cross-examination, . . . would be awfully darn

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prejudicial to my client.” Defendants’ counsel reiterated his position that the

date on the card was the same for everyone who received the card pursuant to

the amnesty program and suggested that if the court called the Border Patrol,

that would be confirmed. Plaintiffs’ counsel responded that he would accept that

if the court would strike all the testimony with respect to Ramirez being an

illegal alien. The court then allowed admission of the card over Defendants’

objection and suggested to Defendants’ counsel that he might consider calling an

immigration official to explain the date on the card in his case-in-chief. 

Ramirez testified that the document in question was his permanent

resident card and that it provided that he has been a lawful permanent resident

since December 1, 1990. Ramirez testified that before he was arrested in 1996,

he had a permanent resident card and it expired while he was in prison. After

he was released, he renewed the card. 

Sifuentes’s testimony

On direct examination, Sifuentes testified that he was born in Mexico. At

17 years old, he came to the United States and began working with his

brother-in-law building pivots in Muleshoe, Texas. Sifuentes has been a lawful

permanent resident since 1993 and has approval to live and work in the United

States. Sifuentes was 23 when he was arrested for the murder of Cruz. When

Sifuentes went to jail they took his wallet and personal papers, which were not

returned when he was released 12 years later. 

During a sidebar before the court, Plaintiffs’ counsel stated that Sifuentes

had entered the United States illegally in 1991 and became legal in 1993. Thus,

counsel asked that any reference to his illegal entry be excluded because he was

a lawful resident when arrested, and he is a lawful resident today. Counsel

argued that the “only reason that such an issue would come up would be to inject

bias on this jury, and we just think it’s clearly unfairly prejudicial.” Defense

counsel responded that it is relevant “because if they were illegal, they had no

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legal ability to work under the law” and the “jury can take that into

consideration in terms of any claims for lost wages.” The court ruled that “on the

damage issues concerning earnings, it’s probably relevant to pursue that.” 

Defense counsel objected to the introduction of Sifuentes’ lawful permanent

resident card “because it was not produced in discovery.” The court overruled

the objection the same way it did the defense’s objection to Ramirez’s card,

stating that if “you want to bring in somebody during your case-in-chief to

explain or impeach that, I’ll let you do it.” 

Direct examination of Sifuentes continued with defense counsel asking

whether he had entered the country illegally in 1991. Sifuentes responded

affirmatively. Sifuentes became a legal resident on February 4, 1993, as shown

by his permanent resident card, which was introduced into evidence. It expires

May 11, 2020. 

During cross examination, defense counsel asked Sifuentes whether he

had contact with the Mexican Consulate’s Office, and Sifuentes indicated that

he did when he was released from prison. Defense counsel then inquired as

follows: “In fact, you had your picture taken for the newspaper, a picture of you

with a Mexican Consulate; isn’t that true?” Sifuentes responded that he did not

remember. Defense counsel subsequently inquired as follows: “From the time

that you came here illegally in 1991 up until the time you went to prison, you

never filed a tax return reporting any income at all, did you?” Sifuentes

responded that he did not remember. 

Dr. Bradley Ewing’s testimony

The Plaintiffs asked for damages based on, among other things, loss of

earnings capacity. The Plaintiffs called Dr. Bradley Ewing, an economics expert,

to testify about the Plaintiffs’ loss of earnings capacity while they were

incarcerated. Dr. Ewing performed an economic loss analysis for the period of

the Plaintiffs’ incarceration. Dr. Ewing estimated Ramirez’s earnings capacity

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loss over the 12-year period to be $305,782. Because Sifuentes was a much

younger worker with less experience and with less of an established work

history, Dr. Ewing used information from the Bureau of Labor Statistics to

calculate his earnings capacity loss, which for the same 12-year period was

$214,945. 

On cross examination, Abreo’s defense counsel asked Dr. Ewing whether

the earnings calculation took into account that Ramirez “may have not been a

legal working resident of the United States during the time that he was

incarcerated?” Dr. Ewing answered yes. When counsel asked whether Ramirez

was legally in the United States, Plaintiffs’ counsel objected based on relevance. 

Defense counsel responded that the question went to damages, “whether he’s

deported, whether he’s going to be earning or not.” The district court simply

stated the objection was “overruled.” Defense counsel continued to ask questions

of the witness regarding whether his calculations considered whether Ramirez

“doesn’t get deported.” 

Ponce’s defense counsel asked Dr. Ewing if he was “telling the ladies and

gentleman of this jury that illegal aliens that come into this country work at the

same pay scale as someone who is a legal resident?” Dr. Ewing responded that

he “presume[d] that some do and some don’t. But what I’m telling you is that

based upon earnings capacity, these are the best estimates that an economist

can come up with.” Defense counsel responded: “Then I suggest you probably–

would you expect– Well, you probably need to go out here in Southwest Lubbock

and talk to roofing crews and see which ones have legal workers and which ones

have illegal workers and compare the estimates that you get for the jobs.” 

Plaintiffs’ counsel objected to this statement as irrelevant and argumentative,

and the district court sustained the objection. Defense counsel disregarded the

court’s ruling and asked Dr. Ewing, “Have you ever done that?” Once again

Plaintiffs’ counsel objected, and the court sustained the objection. Counsel next

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asked the witness if he was “telling the ladies and gentleman of this jury that

immigration status has nothing to do with the pay scale?” Plaintiffs objected,

and the court overruled it. Dr. Ewing responded that their immigration “status

doesn’t have anything to do with their earnings capacity.” Dr. Ewing explained

that “just because they’re currently earning something less for whatever reason,

that does not necessarily represent their earnings capacity. That represents

their expected earnings. I was asked to estimate earnings capacity.” 

Defense counsel for Lamb County and Mark Yarbrough subsequently

inquired: “The number you have given us does not take into consideration

whether either of these gentlemen have the lawful right to work in the United

States. Correct?” Dr. Ewing answered: “I believe it does take that into

consideration.” Defense counsel later inquired whether Dr. Ewing had stated

that “people who are working illegally or, as you said, unlawfully, economists

think they make the same amount of money as somebody who is working legally

for the same job?” Plaintiffs’ counsel objected, and the district court overruled

it. Defense counsel again asked whether Dr. Ewing had previously testified that

“economists believe that people who are legal make the same amount of money

as people who work that job illegally?” Dr. Ewing responded that that may be

a mischaracterization of his testimony. Defense counsel then asked: “Your

calculations do not take into consideration the potential of anybody being

deported to Mexico, for example?” Dr. Ewing responded that such a factor was

taken into consideration in the data. Defense counsel then asked whether “for

example, over 11.7 years, you would say a fellow has an earning capacity of

$305,782 –that’s his earning capacity regardless of whether he’s in the United

States working or he’s in Mexico. Right?” Dr. Ewing testified that “that’s his

earnings capacity.” Defense counsel’s next question was: “Your calculation of

earning capacity would be the same whether Mr. Ramirez was working every

day or whether he voluntarily or involuntarily went back to Mexico?” Dr. Ewing

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again responded that that was Ramirez’s earnings capacity. Defense counsel

then asked the court to strike Dr. Ewing’s testimony as not helpful to the jury

because the expert admitted its calculation was not evidence of damages, and the

district court denied the request. 

At the conclusion of the 27-day trial, the court submitted the case to the

jury with instructions to answer whether the Defendants had caused the

Plaintiffs to suffer the following constitutional violations: wrongful arrest;

unlawful detention; constitutionally unfair criminal trial; a policy of not

disclosing exculpatory evidence;6and a policy of employing improper eyewitness

identification procedures. The jury found for the Defendants on all of the

Plaintiffs’ claims. The district court entered a take nothing judgment in favor

of the Defendants. The Plaintiffs now appeal.

II. ANALYSIS

The Plaintiffs contend that the district court violated Rule 403 of the

Federal Rules of Evidence by allowing evidence of their immigration status

because any probative value was substantially outweighed by a danger of unfair

prejudice. More specifically, the Plaintiffs argue that the district court abused

its discretion in allowing Defendants’ counsel to elicit testimony in an attempt

to show that the Plaintiffs were “illegal aliens” despite their documentary

evidence demonstrating they were lawful permanent residents during the

relevant time period. The relevant time period was their incarceration for the

murder conviction. The Plaintiffs are seeking damages for, among other things,

lost earnings during their incarceration. 

A. Waived Objection

The Defendants contend that the Plaintiffs waived their objection because

they were the first to introduce evidence of their own immigration status. As

6 This claim was brought against the Defendants not before this Court on appeal.

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previously set forth, six months prior to trial, Plaintiffs’ counsel filed a motion

to exclude evidence of any pre-arrest immigration status or history because at

the time of their arrests and at trial they were lawful residents. The Plaintiffs

argued that because they were lawful permanent residents at the time of their

arrest in 1996, their pre-arrest illegal immigration status was completely

irrelevant to the issues and had no bearing on their claim for damages based on

12 years of wrongful incarceration. Additionally, they argued that the issue of

immigration status is divisive, inflammatory, and extremely prejudicial. The

Defendants opposed the motion, arguing that such evidence was relevant and

probative. The district court denied the motion. 

Shortly before trial, Plaintiffs again filed a motion in limine to exclude

evidence of their pre-arrest illegal immigration status. In that motion, Plaintiffs

requested the court to instruct the Defendants to refrain from referencing the

Plaintiffs’immigration status without first approaching the bench and obtaining

a ruling from the district court outside the presence of the jury. Again, the

Defendants opposed the motion, and the district court denied it. 

The Plaintiffs assert that because the Defendants had made clear that

they considered the Plaintiffs’ immigration status “relevant and probative” and

because the district court refused to exclude any such evidence, they had “no

choice but to preemptively defend themselves at trial from any false allegations

that they were illegal aliens.” During trial, both Plaintiffs testified, and on

direct examination, Plaintiffs’ counsel elicited testimony that they were born in

Mexico and that, although they illegally entered the United States, they had

become lawful permanent residents prior to their arrest in 1996. 

To support their contention that the introduction of evidence regarding

their immigration status did not waive their objections, Plaintiffs rely on this

Court’s opinion in Reyes v. Missouri Pacific Railroad Co., 589 F.2d 791, 793 n.2

(5th Cir. 1979). In that case, this Court rejected the defendant’s claim that the

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plaintiff waived any error by first introducing evidence of prior convictions

during direct examination, explaining that the plaintiff “had no choice but to

elicit this information on direct examination in an effort to ameliorate its

prejudicial effect.” Id. 

Subsequently, however, the Supreme Court held that a “defendant who

preemptively introduces evidence of a prior conviction on direct examination

may not on appeal claim that the admission of such evidence was error.” Ohler

v. United States, 529 U.S. 753, 760 (2000). In Ohler, the district court had

granted the government’s motion in limine that sought to use the defendant’s

prior felony conviction as impeachment evidence. Id. at 754. In making its

determination that the evidentiary objection had been waived, the Supreme

Court relied on the general rule that “a party introducing evidence cannot

complain on appeal that the evidence was erroneously admitted.” Id. at 755

(citing 1 J. Weinstein & M. Berger, Weinstein’s Federal Evidence § 103.14, p.

103-30 (2d ed. 2000); 1 J. Strong, McCormick on Evidence § 55, p. 246 (5th ed.

1999)). Accordingly, the principle in Ohler dictates that the Plaintiffs’

preemptive introduction of evidence of their illegal immigration status prior to

their arrests waives any challenge to that evidence. Nonetheless, we conclude

that the Plaintiffs’ introduction of evidence regarding their illegal immigration

status prior to becoming legal residents does not waive the Plaintiffs’ right to

challenge defense counsel’s attempt to elicit testimony that they were illegally

in the United States aliens” after their arrests.

B. Preservation of Error

Ponce, but not Abreo, contends that the Plaintiffs failed to preserve the

error by failing to move for a mistrial or requesting a specific jury instruction to

address the issue.7 Thus, Ponce argues that this issue should be reviewed for

7 Ponce also states that the Plaintiffs failed to address the issue of immigration status

in their “48-point motion in limine.” Although the Plaintiffs did not raise the issue in that

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plain error. If a complaining party does not object at trial to the admission of

the evidence, this Court reviews the evidentiary challenge on appeal only for

plain error. See FED. R. EVID. 103(e); United States ex rel. Small Bus. Admin. v.

Commercial Tech., Inc., 354 F.3d 378, 389 (5th Cir. 2003).8

Contrary to Ponce’s assertion, the Plaintiffs did request a specific jury

instruction regarding their lawful permanent resident status, and the district

court denied it.9

In any event, we reject Ponce’s contention that the Plaintiffs’

failure to move for a mistrial requires plain error review. During the trial,

Plaintiffs’ counsel repeatedly objected to defense counsel’s questions involving

Plaintiffs’ illegal immigration status after their arrest.10 Thus, we conclude that

the Plaintiffs’ objections sufficiently preserved the claim. See FED. R. EVID.

103(b) (“Once the court rules definitively on the record—either before or at

trial—a party need not renew an objection or offer of proof to preserve a claim

of error for appeal.”). 

C. Merits of the Evidentiary Ruling

The Plaintiffs contend that the district court erred in allowing Defendants’ 

counsel to elicit testimony in an attempt to show that the Plaintiffs were “illegal

aliens” even though they were lawful permanent residents during the relevant

particular motion, as previously set forth, they did raise it in two other pretrial motions to

exclude.

8 Under the plain error standard, this Court generally reverses only for “obvious and

substantial errors that seriously affect the fairness, integrity, or public reputation of judicial

proceedings.” Reddin v. Robinson Prop. Gr., Ltd. P'ship, 239 F.3d 756, 760 (5th Cir. 2001).

9 The Plaintiffs requested the following instruction: “As permanent legal residents,

plaintiffs are entitled to bring this action. You may not treat them any differently nor deny

them a just recovery simply because they are permanent residents rather than citizens of the

United States.” 

10 Ponce points out that Plaintiffs’ counsel did not object to Ramirez’s mental health

records which provide that he is a Mexican national. Because the Plaintiffs first introduced

evidence demonstrating they are Mexican nationals, any challenge to that evidence has been

waived. Ohler, 529 U.S. at 755-58.

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time period. In their brief, the Plaintiffs argue that the questioning was

irrelevant and prejudicial. Relevant evidence is defined as evidence having any

tendency to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would be

without the evidence. FED. R. EVID. 401. Rule 403 provides that a district court

may exclude evidence, even if relevant, if its probative value is substantially

outweighed by a danger of unfair prejudice. A trial court’s ruling on

admissibility under Rule 403's balancing test will not be overturned on appeal

absent a clear abuse of discretion. United States v. Adcock, 651 F.2d 338, 343

(5th Cir. Unit B Jul. 1981).

At trial, the Plaintiffs objected to the defense’s line of questioning with

respect to their illegal immigration status. They argued that because they had

become legal residents by the time of their arrests, such questioning could only

serve to “inject bias” and be “unfairly prejudicial.” The district court allowed the

questioning, stating that “I think that on the damage issues concerning

earnings, it’s probably relevant to pursue that.” At trial, defense counsel asked

questions insinuating that the Plaintiffs were illegal aliens during the cross

examination of three witnesses: the two Plaintiffs, Ramirez and Sifuentes, and

Dr. Bradley Ewing, the Plaintiffs’ economist expert witness. 

At oral argument, Plaintiffs’ counsel conceded that whether the Plaintiffs

were illegal aliens (and thus unauthorized to work in the United States) at the

time of their arrests is relevant to the issue of damages. However, Plaintiffs’

counsel contended that the green cards conclusively proved they became lawful

permanent residents prior to their arrests. Nonetheless, Plaintiffs’ counsel also

conceded that defense counsel was entitled to cross examine the Plaintiffs with

respect to their green cards.

The Plaintiffs rely on Rojas v. Richardson, 703 F.2d 186 (5th Cir. 1983),

to show that comments about a party’s alien status may be highly prejudicial

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and require reversal. In that case, the plaintiff Rojas had brought a negligence

suit against Richardson. Id. at 187. Prior to trial, Rojas had filed a motion in

limine, seeking to bar the use of testimony regarding his status as an “illegal

alien.” Id. at 188. The district court denied the motion. Id. Although no

evidence was admitted during trial regarding Rojas’s immigration status, during

closing argument, defense counsel referred to him as an “illegal alien.” Id. at

190-91.

Because Rojas’ counsel did not object to this remark, this Court reviewed

the issue for plain error, opining that “allegations unsupported by the record

that Rojas was an illegal alien might well have a serious and negative effect on

his substantial right to an impartial jury.” Id. at 190. This Court opined that

“by introducing irrelevant and unproven allegations that Rojas was an illegal

alien, the defense clearly was appealing to the prejudice and bias of members of

the jury on the basis of national origin.” Id. at 191. Although admitting

evidence of Rojas’s Mexican citizenship was necessary to establish diversity

jurisdiction, “his status as an ‘illegal’ alien was completely irrelevant to the

negligence claims the jury was to evaluate.” Id. Ultimately, this Court held that

“the obvious and blatant appeal in this case to racial and ethnic prejudice is

plain error.” Id. at 192. Thus, this Court reversed the district court’s judgment

and ordered a new trial. Id. 

However, on rehearing, Defendant Richardson supplemented the record

with a transcript of the voir dire proceedings, which “made clear that it was

made known to the prospective jurors at that time that plaintiff, Rojas, was an

‘illegal alien.’” Rojas v. Richardson, 713 F.2d 116, 117 (5th Cir. 1983). Although

the Court on rehearing continued to find counsel’s remarks highly prejudicial

and a blatant appeal to bias, in light of the revelation that the jury had

knowledge of Rojas’s illegal status throughout the trial, it could not find that the

argument was so prejudicial as to constitute plain error. Id. at 118. The Court

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then granted the motion for rehearing and affirmed the district court’s

judgment. Id. Here, the Plaintiffs urge this Court to likewise find defense

counsel’s admission of evidence of illegal immigration status highly prejudicial

and an abuse of discretion.

The initial opinion in Rojas stands for the proposition that counsel’s

closing remarks referring to the plaintiff as an “illegal alien” rose to the level of

plain error because they were “unsupported by the record” and “completely

irrelevant to the negligence claims.” 703 F.2d at 190, 191. The opinion on

rehearing explains that because the jury had been aware of Rojas’s illegal status

throughout the trial, the Court could not find the attorney’s remark rose to the

level of plain error. Rojas, 713 F.2d at 117-18. Here, the Plaintiffs are not

bringing an improper closing argument claim; instead, they raise a claim of

evidentiary error under Rule 403. More importantly, unlike Rojas, in the instant

case, the Plaintiffs’ legal status has been conceded to be relevant to their claim

for damages for loss of earning capacity while incarcerated. Thus, although

Rojas informs us that the use of the term “illegal alien” can be highly prejudicial,

we do not find Rojas controlling in the instant case. 

1. Questioning of Ramirez and Sifuentes

The Plaintiffs both testified that although they had initially entered the

United States illegally, they had become lawful permanent residents prior to

their arrests for murder in 1996. Over the Defendants’ objection at trial, the

Plaintiffs introduced into evidence their lawful permanent resident cards. 

Ramirez obtained his card pursuant to an amnesty program, and the card

provides that it became effective on Dec. 1, 1990. Sifuentes’s card provides that

it became effective February 4, 1993. 

The Defendants have repeatedly disputed whether Ramirez had obtained

legal status by the time of his arrest because he had obtained his card through

an amnesty program. Before the trial court, Defendants asserted that Ramirez

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had received his green card during an amnesty program and that all green cards

received under that program had the same date, December 1, 1990. Thus, the

Defendants argued the card did not prove that Ramirez had become a lawful

permanent resident on that date. In their brief, Plaintiffs cite the amnesty

program statute that Ramirez used to obtain his green card. See 8 U.S.C.

§ 1160. Ramirez obtained his card through the Special Agricultural Workers

Program, an amnesty program that Congress created as part of the Immigration

Reform and Control Act of 1986. Under certain circumstances, the program

provided that an alien who had been admitted for temporary residence would be

admitted as a permanent resident if he applied by November 30, 1988. 8 U.S.C.

§ 1160(a)(1)(A); Ortiz v. Meissner, 179 F.3d 718, 720 (9th Cir. 1999). The statute

further provided that the adjustment would occur two years after the later of the

following events: (1) the date the alien was granted temporary resident status

or (2) the last day of the application period. 8 U.S.C. § 1160(a)(2)(B). Based on

the dates and deadlines in the amnesty statute, the Defendants’ contention that

Ramirez would not have had his permanent lawful resident card by the time he

was arrested in 1996 seems rather implausible.11 However, it is not apparent

from the transcript that the parties were aware of this particular amnesty

statute and its timeline.12

At trial and on appeal, defense counsel has argued that the Plaintiffs’

testimony demonstrated that they did not procure their green cards until after

their current counsel began assisting them in 2001, which would have been long

11 Obviously,the Defendants’ contention regarding the amnesty statute does not apply

to Sifuentes because he did not obtain his card through the amnesty program.

12 Defense counsel elicited testimony from Ramirez that the Texas prison system

classified him as an illegal alien. Although we do not find it improper to question him about

his classification in prison, we note that it is the federal government, not the State of Texas,

that determines a foreign national’s immigration status. 

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after their arrest for the murder in 1996. Our review of the record does not

support defense counsel’s interpretation of the Plaintiffs’ testimony. Although

the Plaintiffs’ testimony through their interpreter is not crystal clear, a fair

reading of their testimony is that their current counsel assisted the Plaintiffs in

renewing their green cards after the initial cards had expired13 while they were

in prison. Ramirez testified that he “already had another card, but it expired

while in the penitentiary” and that his current lawyers helped him obtain the

card that he had at the instant trial. Sifuentes testified that he became a lawful

permanent resident in 1993 and that his current lawyers helped him obtain the

permanent resident card that was submitted at trial. Further, the Defendants’

contention that current counsel assisted Ramirez in obtaining his card pursuant

to the amnesty program appears untenable because the amnesty application

deadline was in 1988, and current counsel began representing Ramirez in 2001.

2. Questioning of Plaintiffs’ Expert Witness Dr. Ewing

During Dr. Ewing’s cross examination, defense counsel asked whether his

earnings calculation for the Plaintiffs took into consideration that they may not

have been legal residents at the time of their incarceration. Defense counsel

further inquired whether illegal aliens are paid on the same scale as legal

residents. Dr. Ewing explained that immigration status has nothing to do with

earnings capacity. Defense counsel also inquired whether the earnings

calculation took into account that the Plaintiffs could be deported. Dr. Ewing

responded that the analysis did take into consideration this factor. 

13 Relying on a United States Department of Justice online press release, the Plaintiffs

explain that, although a green card may expire, the legal status of the alien does not. Brief at

28 & n.3 (citing U.S. Dept. of Justice, Immigration and Naturalization Service, Questions and

Answers, available at http://uscis.gov/files/pressrelease/GreenCardRenewal_110702.pdf (last

accessed Jun. 5, 2013) (“Q. Will I lose my permanent resident status if I do not renew my

Green Card? A. No, you will not lose your permanent resident status if you do not renew your

Green Card—permanent resident status will not expire or change.”)).

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As previously set forth, at oral argument, Plaintiffs’ counsel conceded that

whether the Plaintiffs were illegal aliens (and thus unauthorized to work in the

United States) at the time of their arrests is relevant to the issue of damages.

Although the cross examination of Dr. Ewing was somewhat repetitive with

respect to this issue, that occurred in part because there were three defense

attorneys that questioned Dr. Ewing.14It also appears that the questions

regarding possible deportation are relevant to damages because lawful

permanent residents can be deported. 

Assuming arguendo that the district court erred in allowing the continued

questioning of these three witnesses with respect to the Plaintiffs’ “illegal”

immigration status at the time of their arrests, we turn to whether the error was

harmless. Price v. Rosiek Constr. Co., 509 F.3d 704, 707 (5th Cir. 2007). The

“evidentiary ruling will be affirmed unless the district court abused its discretion

and a substantial right of the complaining party was affected.” Id. (citation and

internal quotation marks omitted) (emphasis added); see FED. R. EVID. 103(a) 

(requiring that the “error affects a substantial right of the party”). “An error

does not affect substantial rights if the court is sure, after reviewing the entire

record, that the error did not influence the jury or had but a very slight effect on

its verdict.” Id. at 707-08 (citation and internal quotation marks omitted). 

We begin by noting that the Plaintiffs have only preserved their challenge

to any testimony that was elicited regarding the Plaintiffs’ illegal immigration

status at the time of their arrests and subsequent incarcerations. As previously

explained, any challenge to the testimony regarding their illegal immigration

status prior to that time has been waived. 

14 We note that the district court sustained the Plaintiff’s objection to defense counsel’s

suggestion to Dr. Ewing that he “talk to roofing crews” to determine the difference in pay for

illegal and legal residents.

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With respect to Ramirez, our conclusion after reviewing the evidence is

that his testimony regarding his illegal status prior to his arrest is much more

damaging than any testimony elicited regarding his post-arrest status. For

example, during defense counsel’s cross examination of Ramirez regarding his

pre-arrest immigration status, he admitted that when he was illegally in the

United States, he had lied in an affidavit submitted to the INS, claiming that he

had been born in the United States. Ramirez admitted that he had been sent to

prison for bringing two women across the border when he was an illegal alien. 

Ramirez further admitted that he had represented under oath that one of the

women was his wife, but that they were not legally married. Ramirez also

admitted that he had been deported twice for illegally entering the United

States.

On the other hand, Ramirez’s testimony on cross examination with respect

to the relevant time period was not very prejudicial. For example, when

Ramirez was asked whether he went to prison in 1998 as an illegal alien,

Ramirez responded: “No, I still had my other card.” Although defense counsel

attempted to elicit testimony that Ramirez was in the United States illegally at

the time of his arrest and incarceration, the record reveals that Ramirez

consistently testified that he had his card at the time of his arrest, it expired

while he was incarcerated, and he renewed it once he was released. In any

event, to the extent that the Plaintiffs are relying on defense counsel’s remarks,

we note the district court instructed the jury that the attorney’s comments do

not constitute evidence.15

With respect to Sifuentes, there was little testimony elicited from him

regarding his immigration status. On direct examination, Sifuentes testified

that he entered the country illegally in 1991 and became a legal resident in

15 The court instructed the jury as follows: “Remember that any statements,

objections, or arguments made by the lawyers are not evidence in the case.” 

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1993, as evidenced by his permanent resident card. During cross examination,

Sifuentes testified that he had contact with the Mexican Consulate’s Office

following his release from prison. Of course, the jury was already aware that

Sifuentes was a Mexican national from his direct testimony. When asked on

cross examination whether he had filed a tax return from the time he entered

the United States illegally in 1991 until he was sent to prison, Sifuentes

responded that he did not remember. Although there was little prejudicial

testimony regarding his illegal immigration status, defense counsel was able to

elicit highly prejudicial testimony from Sifuentes in which he admitted pleading

guilty to assaulting his girlfriend. Defense counsel was also able to introduce

evidence that Sifuentes had taken a polygraph test that indicated deception

when he was questioned whether he was present when the murder victim was

shot. This evidence is not challenged on appeal and is clearly prejudicial.

With respect to Dr. Ewing, although defense counsel asked questions

regarding whether the Plaintiffs’ immigration status would affect the earnings

capacity analysis, no new prejudicial evidence was elicited. Our conclusion is

supported by Plaintiffs’ counsel’s response at oral argument to this Court’s

inquiry with respect to what constituted the most damaging testimony elicited

at trial. Counsel pointed to Dr. Ewing’s testimony that he was not an attorney

and did not know whether the Plaintiffs had legal resident status. 

Moreover, our review of the record does not persuade us that the Plaintiffs

made a strong case in support of their claims of constitutional violations.16 For

example, one of the Plaintiffs’ claims is that they were arrested without probable

16 We disagree with Plaintiffs’ contention that they made a strong showing on their 

constitutional claims. We note that the Plaintiffs’ brief makes no argument regarding the

strength of their claim that the City of Littlefield had a policy of employing improper

eyewitness identification procedures. In any event, the record does not support a finding that

there was a persistent policy or practice that was maintained with deliberate indifference with

respect to eyewitness identification procedures.

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cause. Contrary to the Plaintiffs’ assertion, the evidence demonstrated probable

cause to arrest them. Less than an hour after the murder, a police officer

stopped the Plaintiffs in their vehicle a few miles from the crime scene at about

3 o’clock in the morning because the officer thought their vehicle matched the

description given by the dying murder victim. The officer let them go after

stopping them. Subsequently, Ayala identified a photograph of Sifuentes,

stating that he was at the murder scene a few moments before the victim was

shot. Also, Janie Ramirez17 made an unsolicited call to the police stating that

Sifuentes matched the description of the murder suspect and had been at her

home in Littlefield around midnight the night of the murder. Further, while

being questioned about the robbery/murder, Ramirez asked the police why they

thought he would steal $300 or $400 when he had a job. The evidence

demonstrated that the robbers had taken nearly $300 from the store. 

Knowledge of these facts support the determination that there was probable

cause to arrest the Plaintiffs.

Additionally, although thePlaintiffs claimed that Defendant Texas Ranger

Abreo falsified his investigation report, at trial Abreo explained that he

mistakenly attributed other witnesses’ statements at the crime scene to Officer

Thompson. However, the evidence showed that the witnesses did indeed make

the statements contained in Abreo’s report. In other words, the mistake Abreo

made was in his representation of who had made that statement. The Plaintiffs

also claimed that the testimony of Mary Davila Wood at their criminal trial was

coerced. Wood’s testimony at the trial in the instant suit does not support the

Plaintiffs’ claim of coercion. Wood testified that Abreo never asked her to lie and

that she has always told law enforcement officers the truth about what

happened on the night of the murder. Further, we note that, consistent with her

17

 She is not related to the Plaintiff Ramirez.

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testimony at the criminal trial, Wood’s testimony during the instant trial placed

the Plaintiffs at the scene of the murder on the night in question.18 The

Plaintiffs also relied on a memo written by the prosecutor stating that Abreo had

lied to him in order to have him file the case; however, at the instant trial, the

prosecutor explained that although he initially believed that Abreo lied about a

witness’s statement, after he read the transcript of the statement, he no longer

believed that Abreo had lied to him. The Plaintiffs also claimed that the

eyewitness identification procedure rendered their criminal trial unfair. 

However, in the criminal trial, the jury was made aware of the identification

procedure used by the police.

After reviewing the entire record, we do not believe the Plaintiffs carried

their burden of proving that their constitutional rights were violated during

their criminal proceedings. We note that, in a post-judgment ruling, the district

judge, who presided over this 27-day trial, opined as follows: “Plaintiffs initiated

this case by suing almost everyone remotely involved in the underlying criminal

investigation and trials and asserted numerous claims that were either tenuous

at best or even fanciful in light of established civil rights law.” We further note

that defense counsel made no mention of the Plaintiffs’ illegal immigration

status during closing arguments. United States v. Farias-Farias, 925 F.2d 805,

812 (5th Cir. 1991) (concluding that any error in admitting the evidence was

harmless after noting, among other things, that opposing counsel did not

mention the challenged evidence in closing argument). In sum, in view of the

more prejudicial evidence that is either waived or not challenged and the

weakness of the Plaintiffs’ case, we do not believe that the challenged evidence

affected the Plaintiffs’ substantial rights. Accordingly, we are persuaded that

18 We, of course, express no opinion with respect to the innocence or guilt of the

Plaintiffs as that is not before us on appeal.

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any error “had but a very slight effect on [the jury’s] verdict.” Price, 509 F.3d at

708. 

That said, we feel compelled to express our disapproval of defense

counsel’s cross-examination of the witnesses with respect to whether the

Plaintiffs were legal residents at the time of their arrest even after the Plaintiffs’

lawful permanent resident cards had been admitted into evidence. It appears

that counsel proceeded with this line of questioning in an attempt to mislead the

jurors regarding the Plaintiffs’ immigration status. Nonetheless, as explained

above, our review of the record convinces us that any error that was not waived

was harmless. 

III. CONCLUSION

For all the above reasons, the district court’s judgment is AFFIRMED.

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