By Parviz Malakouti-Fitzgerald, Esq.
California has long had a reputation as an immigrant-friendly state.
To that end, the California legislature has enacted a number of laws that help defend immigrants. These four laws are far from the only ones in California protecting immigrants, but in my view, these are four important ones because they arise in frequently occurring situations.
Knowing these laws can be useful for immigrants as well as lawyers practicing criminal defense, personal injury, employment and consumer protection.
Let’s dig in.
#1 - No Threatening an Immigrant’s Status for Extortion
In California, it is illegal to threaten to report someone’s immigration status in order to get property from them or get them to give or do something (“consideration”). Specifically, California penal code (PC) §519 states:
“Fear, such as will constitute extortion, may be induced by a threat of any of the following:...5. To report his, her, or their immigration status or suspected immigration status” (emphasis added).
But what exactly is the definition of “extortion?”
PC 518 gives the definition of extortion under California law, stating:
“518. (a) Extortion is the obtaining of property or other consideration from another, with his or her consent, or the obtaining of an official act of a public officer, induced by a wrongful use of force or fear, or under color of official right.” (emphasis added).
Combining the reading of PC §518 and PC §519 means that someone who threatens to report a suspected immigrant’s immigration status in order to get the immigrant to give something up or to do something, may be committing extortion under California law. This law can be a potent tool to shield an immigrant that’s being harassed, especially if the threats are in writing on email, text, or social media.
#2 - Prosecution Must Consider Immigration Consequences
In a California criminal case, the prosecution must take into consideration the avoidance of adverse immigration consequences for the defendant when plea bargaining. This means that the prosecutor should choose a plea that serves the interests of justice and avoids harming the immigrant’s immigration situation, when possible.
CA PC §1016.3(b) states:
(b) The prosecution, in the interests of justice, and in furtherance of the findings and declarations of Section 1016.2 , shall consider the avoidance of adverse immigration consequences in the plea negotiation process as one factor in an effort to reach a just resolution.
Obviously, this doesn’t mean an immigrant-defendant gets automatic leniency. But this law could be the difference between an immigrant getting a plea deal that allows them to stay in the country and pursue legal permanent residency or citizenship versus a conviction that leads to deportation or another immigraiton setback.
In practice, making the prosecution and the court aware of potential adverse immigration consequences can be done by getting a qualified immigration lawyer to write a short legal opinion letter explaining the potential immigration consequences of the different pleas being considered. In these cases, it can be beneficial to have a criminal defense lawyer working hand in hand with an immigraton lawyer.
#3 - No Mention of Immigration in Personal Injury Cases
In personal injury cases, including car accidents, slip and falls, an opposing party (or their lawyer) cannot bring up an immigrant’s immigration status.
CA Evidence Code §351.2(a) states:
(a) In a civil action for personal injury or wrongful death, evidence of a person’s immigration status shall not be admitted into evidence, nor shall discovery into a person’s immigration status be permitted.
Sometimes lawyers in personal injury cases try to use a person’s undocumented immigration status to “rattle” them in litigation. As an immigrant sitting in a deposition, it can be nerve-wracking to be asked about immigration status. It’s a tactic that’s not permissible. Mention of the immigration status can’t be entered into evidence at trial. Asking about immigration status also cannot be part of “discovery”, which includes interrogatories, requests for production of documents, or depositions.
#4 - No Immigration Questions in Work & Housing Disputes
Immigrants who have an employment, civil rights, housing or consumer protection dispute are guarded from exploitation by the California labor code.
In a nutshell, CA Labor Code (LC) § 1171.5(b) says that a person, company or entity can’t use a person’s immigration status against them or even ask about it in a dispute about employment, civil rights, housing or consumer protection.
LC §1171.5(b) states:
“(b) For purposes of enforcing state labor, employment, civil rights, consumer protection, and housing laws, a person’s immigration status is irrelevant to the issue of liability, and in proceedings or discovery undertaken to enforce those state laws no inquiry shall be permitted into a person’s immigration status unless the person seeking to make this inquiry has shown by clear and convincing evidence that the inquiry is necessary in order to comply with federal immigration law.”(emphasis added)
This law is an important tool because it can remove a barrier many immigrants have to asserting their legal rights - the fear that their immigration status will be used against them.
The Law Office of Parviz Malakouti does not guarantee the accuracy of information presented nor assume responsibility for actions taken in reliance of this information. The information in this page could become outdated. Each immigration case is particular and you should consult with a qualified, licensed immigration lawyer about your case before taking any steps.
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