Can an Undocumented Person Make a Personal Injury Claim?
Undocumented individuals in California are entitled to the same level of compensation as any other residents.
As you know, your status as an undocumented person is somewhat controversial in the United States, especially as our nation’s leaders and laws have changed over time. However, California has a long history of protecting the rights of undocumented people - especially when it comes to making personal injury claims.
California leads the nation in the number of documented and undocumented immigrants. Many people don’t realize that California’s number of undocumented people has actually declined in recent years and now represents about 2 million people statewide, down from an estimated 2.3 million in the early 2000s.
Here, the rights of undocumented individuals are tested far more often here than they are anywhere else in the United States. One of those basic rights is the right to financial compensation after being involved in an accident.
For years, undocumented people were discouraged from filing personal injury claims in California due to an unfortunate court precedent set in 1986. In that case, the undocumented plaintiff was awarded damages based on the cost of healthcare and the prevailing wages in his country of origin. Because his immigration status was in the court record, he was subject to deportation.
Good News: Your Immigration Status Isn’t a Barrier in California
More recent changes in the California state legislature, in addition to new regulations in various cities across the state, have altered the situation. Since 2017, the immigration status of a plaintiff is not admissible in a California trial, nor are a defendant or the defense attorneys allowed to seek discovery of this information.
This means undocumented people are entitled to full recovery in personal injury claims. Trial awards are based on the plaintiff's U.S. wages and healthcare costs, regardless of immigration status, and the plaintiff does not have to fear deportation as a result of a personal injury trial. Your immigration status cannot become a part of the court record.
Nevertheless, getting compensation for injuries as an undocumented person in California can be challenging. At the federal level, new changes to the law have left undocumented people feeling unsure and scared about pursuing legal claims.
It’s important to select the right California personal injury lawyer to represent you as an undocumented person with serious personal injuries due to someone else’s negligence. Please read on to learn more about what your status means for a potential personal injury claim.
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"Sally Morin and her team were instrumental in resolving my personal injury case (doored by a car while biking, resulting in spine and elbow injuries that required two surgeries). They held my hand as I traversed car insurance and personal health insurance claims over the course of two years. Sally, Lauren and co. worked tirelessly to resolve my case and protected my settlement to assure I recovered enough for future medical expenses related to my injury. Sally and her team will fight for your personal interests. I cannot recommend them enough."
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California's Current Undocumented Population
According to the Pew Research Center, there are about 2 million undocumented immigrants living in California, which is nearly 6% of the population, and an estimated 14% to 20% of California's total immigrant population.
The actual local percentages of undocumented residents varies greatly by county and municipality. The overall undocumented population of Los Angeles, for example, is estimated at 9%, while the undocumented populations of Del Norte, Siskiyou, Modoc and Lassen counties - which have much smaller populations - are at less than 1%.
California has 6 of the nation’s top 20 metro areas for undocumented people: Los Angeles, San Francisco/Oakland, Riverside/San Bernardino, San Diego/Carlsbad, and San Jose/Sunnyvale/Santa Clara. In some smaller communities, undocumented people and their children make up fully 50% of the population.
The diversity of immigrants is also changing in California. While the rates of immigration from Mexico, Central America, and South America have been on the decline since the early 2000s, the number of undocumented people entering California from other regions, including Asia, has grown.
A Look at Laws Affecting the Rights of Undocumented People
California Assembly Bill 2159
In 2016, California Assembly Bill 2159 made a major change to the law for undocumented people. 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.
This means your documentation and immigration status is protected during legal proceedings involving a personal injury lawsuit for a car accident, bicycle accident, motorcycle accident or pedestrian accident.
San Francisco's Sanctuary City Laws
San Francisco has proudly designated itself a sanctuary city since 1989 with an ordinance that 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. Los Angeles and San Diego are also sanctuary cities.
In 2013, San Francisco also passed the Due Process for All Ordinance, which limited when city law enforcement officers could give ICE advance notice of a person’s release from local jail. It prohibited law enforcement cooperation with ICE detainer requests (ICE holds) under certain circumstances.
President Trump’s Executive Order
Things changed somewhat in 2017, when President Donald Trump issued an executive order impacting all sanctuary cities called Enhancing Public Safety in the Interior of the United States. Among other changes, this order made it easier for officials to deport undocumented people without due process and drastically expanded who is considered a priority for deportation.
To understand whether your immigration and documentation status may be at risk depending on the legal action you take, contact a lawyer who has experience working with undocumented people and immigration cases. In the next section, we’ll look at whether contacting a lawyer involves a risk of being reported to the authorities.
Will I Be Reported if I Contact an Attorney?
Fear of deportation or being reported to ICE is the primary reason that some undocumented people do not report personal injury accidents or try to collect the compensation they deserve by law. According to a survey by the Immigrant Defense Project, 75% of lawyers say their clients fear going to court because of ICE and 29% of them didn't show in court because of that fear.
California has a history of protecting undocumented people from being reported to immigration authorities when they seek legal assistance from an attorney. In this state, your legal immigration status remains inadmissible in court and can’t be used against you in determining the amount of your compensation in a personal injury case.
However, recent changes initiated by President Donald Trump’s executive order have reignited fear among undocumented people that they may face consequences for exposing their status. U.S. Immigration and Customs Enforcement (ICE) runs a tip line and online reporting page that encourages people to report suspected criminal activity, including alleged cases of illegal residency. ICE has stepped up its efforts to take action against undocumented people.
This doesn’t change the fact that threatening to report someone as undocumented is a crime in California. State law still prohibits anyone other than federal authorities from trying to discover and expose your immigration status.
Types of Personal Injury Claims Undocumented Persons Can Make
Just like anyone else in the state of California, undocumented persons can file personal injury traffic accident 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. However, it may still be possible for your personal injury attorney to secure a settlement amount partially based on your estimated future earnings.
You Don’t Have to Go to Court to Secure Compensation
Worried about going to court? Don’t be. And don’t let the person who caused your injury talk you out of making a claim - even if they offer you cash on the spot to make you go away.
Let’s put your mind at ease: Most personal injury cases never go to court. They are settled out of court with the help of a talented attorney who represents injured victims like you.
You do not have 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.
The Benefits of Hiring a Personal Injury Lawyer for Your Claim
When you decide to make a personal injury claim for compensation, you need to determine whether you need a personal injury attorney for your case. For an undocumented person, the benefits include:
What if I’m Undocumented, Unlicensed, Uninsured, and Injured in a Car Accident?
An undocumented resident can obtain an AB 60 driver's license and auto insurance in California. You don’t have to be a legal citizen to make a car accident personal injury claim. However, whether or not you have insurance does affect how you can seek compensation.
Even if the accident was caused by another driver, if you were the driver of an uninsured automobile involved in a crash, California Proposition 213 limits the amount of financial compensation you can receive. Although Prop 213 has been challenged many times, it remains in effect and means people in this situation can only receive directly calculable economic damages.
This means you can still receive compensation for:
Under these circumstances, you are not entitled to collect financial compensation for noneconomic damages, which include things like:
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. This includes situations where:
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 you seek qualified legal assistance from a personal injury attorney with experience representing undocumented persons in serious personal injury cases.
How to Choose an Attorney as an Undocumented Person
You have a special situation that deserves special care. 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 where their main concern is seeing the maximum number of clients. You need a law firm where the attorney can focus on you as an individual.
We’d like to leave you with two helpful resources for researching your legal options as an undocumented person in California. Please take a look at:
- 6 important qualities you should look for when finding a lawyer.
- 8 of the best questions to ask when interviewing lawyers.
Whatever you choose to do, we encourage you to take action right away to maximize your ability to secure full and fair compensation for your injuries. At Sally Morin Personal Injury Lawyers, we’re here to help you make a claim safely and securely whenever you need us.
We Handle Your Personal Injury Claim So You Can Focus on Your Life
After an injury, contact the attorneys at Sally Morin Personal Injury Lawyers. We handle many areas of the law, including accidents involving undocumented people. We believe you should be able to focus on recovering while we handle the legal details.
We truly care about the people of California. Contact us today for a free online case evaluation.