Rights of Undocumented Bay Area Immigrants to Bring Personal Injury Action Without Risk of Deportation

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In representing personal injury accident victims throughout the San Jose and across California, our firm has recently been getting a lot of questions from injured victims as to whether they can either pursue an insurance claim or file a lawsuit if they lack proper INS documentation – especially in recent weeks and months following the election of President Donald Trump. I often hear, “I’m scared to go back to Mexico – I’m losing hope.”

Immigration arrests rose by over 30% in the first weeks of the Trump presidential administration with newly empowered federal immigration agents intensifying their pursuit of not just undocumented immigrants with criminal records but also thousands of illegal immigrants across the nation who have been otherwise law-abiding. This is unfortunate: it all has to do with politics – more specifically, the president.

Sadly, with all the draconian, sudden and unexpected executive orders constantly coming down at the federal level, it seems that a lot of people injured in an accident who lack the proper immigration papers are confused and actually concerned about being “rounded up” and possibly deported by Immigration and Customs Enforcement (ICE) if they file a claim or a lawsuit or otherwise speak out if their rights have been violated.

What we stress to our clients who are undocumented immigrants is that they are still afforded the same rights as US citizens when injured. The Trump administration and his Justice Dept. are always talking about “illegal aliens” in the news. At Mitchell & Danoff Law Firm, however, our belief and our philosophy is that no human being is “illegal” just because they are undocumented and our firm takes tremendous pride in advancing that argument on behalf of all our valued clients.

California injury laws apply to all persons injured in our state, regardless of immigration status. Thus, it is important for undocumented immigrants who have been injured in an accident to understand that you need not worry that the moment you file a lawsuit, it becomes possible to be sent home.

President Trump likes to make the news by bragging about his executive orders for stricter immigration enforcement and fiscal consequences for local governments with “sanctuary policies.” I think the source of a lot of the confusion out there comes from all the rhetoric in the national news blowing from the Trump administration and the new US Attorney General, former Alabama senator Jeff Sessions, that all illegal immigrants should be arrested and sent home “if they are one of the bad ones.” While the federal government has not precisely defined who the “bad ones” are, presumably this means a person with criminal tendencies or criminal convictions – or as Trump puts it, “we’re only going to target dangerous criminals, the gang bangers and the drug dealers; after all, we know who they are and where they’re hiding.”

Spokespersons for ICE say they only focus their efforts and enforcement resources on individuals who pose a threat to national security, public safety and border security.

But here in California, however, while all state and local law enforcement agencies obviously can and do the right thing by assisting ICE with deportation of undocumented immigrants who are serious and dangerous criminal offenders who should not be let off the hook despite their immigrant status, our more liberal state and local governmental authorities and even the west coast federal judiciary seem to be in strong disagreement with the new anti-immigration federal policy of the Trump administration and the emboldened ICE agents relative to people whose only infraction is being in the United States illegally.

In March, for example, the city of Richmond, one of the most racially diverse cities in the San Jose, filed a federal lawsuit against the US and President Trump challenging his executive order to withhold federal funding from so-called sanctuary jurisdictions, essentially cities that refuse to collaborate with federal immigration laws, including arresting people whose only infraction is the lack of appropriate INS documentation. And in January, San Francisco became the first city to sue Trump and the feds over the same executive order.

In fact, the chief justice of the California Supreme Court has more recently gone on record by requesting that ICE and other federal immigration agents stop making arrests at California courthouses, suggesting that “stalking undocumented immigrants” at state courthouses thwarts people’s access to justice and will affect the public’s confidence in the court system. The California Supreme Court’s request to Attorney General Jeff Sessions and Homeland Security Secretary John Kelly comes amid a series of reported instances of arrests in California, Oregon, Arizona and Texas as federal immigration agents have been called on to step up deportations under the Trump administration.

Further, a federal district judge in San Francisco just last week halted President Trump’s executive order stripping sanctuary cities and counties of federal funding in Santa Clara County and San Francisco for refusing to help ICE deport undocumented immigrants. Part of the confusion is the whole “sanctuary” idea. While the term “sanctuary” historically means a place of safety or protection, it is more recently used ambiguously by the feds with regard to immigration policies.

Cities like San Jose, San Francisco, Oakland, Santa Cruz, San Leandro and Fremont embrace the sanctuary city label and have more broadly protective policies. Self-designated sanctuary cities in the San Jose say they are taking this protective step to reassure immigrants who feel the most vulnerable during “uncertain times” that they stand behind them amidst fears that have been stoked by Trump’s campaign rhetoric and subsequent edicts calling for deportation of undocumented residents.

But more specifically, the San Jose policy that irks ICE is very common in California cities and many other cities across the United States which is that local members of the San Jose Police Dept. do not participate in ICE raids or otherwise enforce immigration laws. Also, Santa Clara County has a policy of not honoring ICE requests to hold minor offenders in jail past their sentence so that federal agents have time to pick them up. So local police and prosecutors are reaffirming their commitment to protect and maintain the trust of immigrant communities in Santa Clara County, amid fears they could become a deportation force in lockstep with the Trump administration that has been politically aggressive on the issue.

There is also discussion in Sacramento about the state legislature making this a statewide policy to limit communication between local law enforcement officers and federal immigration agents, as well as others bills to protect or assist undocumented immigrants. Thus, the stage seems to be set for our local California communities to be at the center of a national immigration showdown – possibly a prolonged battle between California and the feds unless Trump and Congress fix our “broken” immigration system.

Many sanctuary jurisdictions have pledged to protect their undocumented immigrant populations despite potential financial consequences from the Trump administration. For example, last week’s federal court ruling ensures that Santa Clara County will retain the $1.7 billion in federal funding previously at stake under the Trump executive order and so far, it remains unclear whether the Trump administration even plans to appeal this federal district court ruling.

Suffice it to say, however, that with Santa Clara County’s federal court victory for now, the spirit of America wins! After all, there is strength in numbers – the more cities and counties that sign on to sanctuary status, the more difficult it will be for the federal government to do anything about it.

I believe that as long as this is a nation of laws, cities and counties here in California can and will successfully defend themselves against the Trump administration’s efforts to “bully them” into changing policies on undocumented immigrants. And it would be hard to argue that this is anything other than a good thing. Just imagine what a tragedy it would be if California communities had to choose between upholding their values as respects the vast immigrant population that make up our wonderful diverse communities and getting the federal money they need and are entitled to.

So in conclusion, please do not worry about your immigration status if you have been the unfortunate victim seriously injured in an accident due to no fault of your own. Your immigration status is irrelevant and generally inadmissible in California civil court actions. The legal status of a plaintiff does not affect that person’s right to be justly compensated for personal injury. It makes me proud to see that California is a highly respected advocate for immigrants.

Anyone injured in California has a right to trial as well as fair and adequate compensation for their resulting injuries and damages and fortunately, the governmental powers that be in our great state of California are leading the way in ensuring the protection of the rights of all Californians – documented and undocumented alike.