The number of undocumented persons entering California has actually declined in recent years, but the state still has the highest population of immigrants (both documented and undocumented) in the country, and the rights of undocumented individuals are tested far more often here than they are anywhere else in America. One of those basic rights is the right to financial compensation after being involved in an accident.
For years, undocumented persons were discouraged from filing personal injury claims in California due to an unfortunate court precedent set in 1986, in which the undocumented plaintiff was awarded damages based on the cost of healthcare and the prevailing wages in his country of origin. Because the plaintiff's immigration status was also recorded in the court record, undocumented persons could also potentially be subject to deportation in such cases.
Recent changes in the California state legislature, in addition to new regulations in various cities across the state, have radically changed the situation. Since 2017, the immigration status of a plaintiff is not admissible in a trial, nor are a defendant or the defense attorneys allowed to seek discovery of this information.
Thus, trial awards in personal injury cases are based on the plaintiff's U.S. wages and healthcare costs regardless of their immigration status, and the plaintiff does not have to fear deportation as a result of a personal injury trial, as their immigration status cannot become a part of the court record.
Nevertheless, getting compensation for injuries as an undocumented person in California can be challenging in certain ways. Below, you'll find information to get you started on the road to recovery and help you select the right California personal injury lawyer to represent an undocumented person with serious personal injuries resulting from another person's negligence.
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According to the Pew Research Center, there are roughly 2.2 million undocumented immigrants living in California - nearly 6% of the population, and an estimated 14-20% of California's total immigrant population.
The actual local percentage varies greatly by county and municipality. The undocumented population of Los Angeles, for example, is estimated at over 9%, while the undocumented populations of Del Norte, Siskiyou, Modoc and Lassen counties (with much smaller overall populations), less than 1%.
While the rates of immigration from Mexico and Central & South America have declined since 2007, the number of undocumented people entering the state from other regions, including Asia, has grown.
Immigrants and their children make up over half the population of California, and California lawmakers have in some ways embraced its immigrant population to a degree that other states have not.
One recent piece of legislation which has created a major positive change for undocumented persons in California is Assembly Bill 2159.
Authored by Congresswoman Lorena Gonzalez, and signed into law by Governor Jerry Brown, the law provides protection from discovery or admission in court of the immigration status of a person who is injured in a personal injury accident such as a car accident, bicycle accident, motorcycle accident or pedestrian accident.
San Francisco has proudly designated itself a sanctuary city since 1989. San Francisco's Sanctuary Ordinance prohibits city employees from using city funds or resources to assist Immigration and Customs Enforcement (ICE) in the enforcement of federal immigration law, unless such assistance is required by federal or state law.
In 2013, the city also passed the “Due Process for All” Ordinance, which limits when city law enforcement officers may give ICE advance notice of a person’s release from local jail, and prohibits cooperation with ICE detainer requests (“ICE holds”).
Together, these laws make it unlikely for undocumented persons to be detained or prosecuted as a result of seeking compensation after an accident, and help to ensure that such individuals receive the full compensation to which they are entitled.
Fear of deportation or being reported to ICE is the primary reason that some undocumented persons do not report personal injury accidents and don't try to collect the financial compensation they are entitled to under the law. Indeed, according to a survey conducted in New York City by the Immigrant Defense Project, 75 percent of lawyers in the survey reported that their clients feared going to court because of ICE. 29 percent of those clients didn't show in in court because of that fear.
In California, however, undocumented individuals will not be reported to immigration authorities when they seek legal assistance from an attorney.
Your legal immigration status is not admissible in court, so it cannot be used against you by opposing attorneys or entered in the trial record. In fact, they are prevented by law from even trying to discover your immigration status.
Now that you know that your immigration status cannot be held against you in a personal injury case, what sort of damages can you seek compensation for?
Undocumented persons can file personal injury lawsuits in order to get financial compensation for:
It may be challenging for some undocumented individuals to secure compensation for lost wages, due to the difficulty of producing W2 forms or other evidence of legal employment, but it may still be possible for your personal injury attorney to secure a settlement amount partially based on estimated future earnings.
If you have suffered serious injuries in an accident due to another person's negligence, you should file a personal injury claim in order to get financial compensation for the losses associated with your accident and ease the stress associated with your recovery.
Do not let the person who caused your injury talk you out of it or try to pay you cash on the spot to make you go away. Understand that you do not have to go to go to court or even file a lawsuit to make a personal injury claim. You can simply have your attorney make a claim with the responsible party’s insurance company and negotiate a settlement with them.
Once you decide to make a personal injury claim for compensation for your injuries, you need to determine whether you need a personal injury attorney for your case.
The benefits of filing a personal injury claim using an attorney experienced in undocumented persons' cases include:
Limitations on Undocumented Persons’ Claims
Under a California legal precedent set in 1986, undocumented individuals often received far less during the compensation process than documented residents. Since 2017, however, undocumented individuals are entitled to the same level of compensation as anyone else, regardless of immigration status.
Although an undocumented resident can obtain a driver's license and auto insurance in California as required by law, the law enabling such residents to obtain a license is relatively new and some undocumented Californians may not be aware of it or for various reasons choose to drive without a license.
California's Proposition 213 changed the way individuals can seek compensation after being injured in car accidents based on whether or not they were insured at the time of the crash.
Even if the accident was caused by another driver, if you were the driver of an uninsured automobile involved in a crash, Prop 213 limits the the amount of financial compensation to which you are entitled to directly calculable "economic" damages, which include:
Under these circumstances, you are not entitled to collect financial compensation for "noneconomic" damages, such as:
There are certain exceptions to Prop 213, however, which may entitle you to full compensation for all economic and noneconomic damages, even if you were not insured at the time of the accident, such as:
The insurance status of the vehicle you were driving can make it more complicated to get the compensation you deserve after being involved in a traffic accident in California. We recommend that such injured persons seek qualified legal assistance from a personal injury attorney with experience representing undocumented persons in serious personal injury cases.
Look for a personal injury lawyer who is focused on your interests and not just the fee they will earn from your case. If you have serious injuries, it is best to choose a law firm that does not operate on a “high-volume” business model, so they have the time and resources available to give your case the attention it deserves. Here are some qualities you should look for when finding a lawyer for your personal injury case.
Be sure to ask ask good questions when interviewing lawyers to represent you.
Whatever you do, we encourage you to take action right away, to maximize your ability to secure full and fair compensation for your injuries.