July 10, 2019

Immigrants fearing deportation are increasingly being targeted in courthouses, and creating hesitance in an immigrant to testify in court.  However, your immigration status should not affect your ability to bring a valid claim to court.  California law provides substantial protection for employees from having to disclose their immigration status in a courtroom and in legal discovery.

The prejudicial nature of inquiries bearing on one’s immigration status was clearly stated by the Ninth Circuit Court of Appeals in NIBCO Inc. v. Rivera (2004) 364 F.3d 1057.  NIBCO was an employment discrimination case in which a judge entered a protective order precluding an employer from using discovery to inquire into the plaintiff’s immigration status.  The court held that such disclosures would severely chill employees’ willingness to testify, because it would allow employers to raise implicitly the threat of deportation and criminal prosecution every time a worker reported illegal practices.  [Id. at 1065.]  The court held that inquiry into immigration matters unduly burdens employees and the public interest, and outweighs the employer’s interest in discovering such information.  [Id. at 1066.]

Moreover, courts have prohibited parties from inquiring as to witnesses’ social security numbers, as permitting such questioning would serve as a roundabout way of inquiry as to witnesses’ immigration status and would impliedly threaten employees, preventing them from testifying at trial.  Though not controlling authority in California, Flores v. Amigon (E.D.N.Y. 2002) 233 F. Supp.2d 462 is highly suggestive.  In Flores, the district court issued a protective order preventing defendant’s discovery of employees’ immigration documents, social security numbers, and passports in a suit seeking unpaid wages under the Fair Labor Standards Act (“FLSA”).  The court held that such information was not relevant to an FLSA claim for unpaid wages for work already performed, and the potential for prejudice from disclosure far outweighed whatever minimum value the information might have.  [Id. at 464.]  The court also noted that such disclosure would place persons in fear and would deter individuals from pursuing legitimate wage claims thereby effectively eliminating the FLSA as a means for protecting workers from exploitation and retaliation.  [Id. at 464.]

Likewise, any questioning whatsoever regarding an inquiry into witnesses’ driver license or tax information would serve as a roundabout way of inquiring into witnesses’ immigration status and would make witnesses afraid to testify at trial.

As the above overwhelmingly suggests, any inquiry into the immigration status, social security number, tax identification information, or driver license information of any witnesses would accomplish nothing more than scaring undocumented witnesses from coming forth and giving testimony in trial.  Such disclosures would severely chill employees’ willingness to testify, because they would fear deportation and criminal prosecution.  [NIBCO Inc. v. Rivera (2004) 364 F.3d 1057, 1065.]

On May 17, 2018, California Governor Jerry Brown signed Senate Bill No. 785, imposing new restrictions on when and how someone’s immigration status could be admitted into evidence, or even mentioned in court.  Before an attorney may mention immigration status in court, the judge must hold a separate “in camera” hearing, in order to determine if the questioning should be admissible.  The goal of the bill is simple:  to insure that immigrants feel safe to testify as a victim or a witness in the courts of California.

ESKRIDGE LAW may be contacted by phone (310/303-3951), by fax (310/303-3952) or by email (geskridge@eskridgelaw.net).  Please visit our website at eskridge.hv-dev.com.

This article is based on the law as of the date posted at the top of the article.  This article does not constitute the provision of legal advice, and does not by itself create an attorney-client relationship with Eskridge Law.