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What to do in legal situations


Life Events

^ I am undocumented and was injured in a car accident. Can I file for a personal injury claim and collect medical benefits?

Yes, undocumented people who are injured can sue for medical bills, lost wages, pain and suffering and other compensation, regardless of their legal status. You do not need a Social Security number or a driver's license and you do not need to be a citizen or permanent resident (or even have legal status) to obtain an insurance settlement for a personal injury or workplace accident injury that is due to a someone else’s negligence. These rights are available to anyone within the United States under the Equal Protection clause of the Fourteenth Amendment, which provides that no state shall deny any person the benefit of jurisdiction under the equal protection of the laws.

Note, however, that with President Trump’s continuing crackdown on immigration, virtually any illegal immigrant could potentially be arrested by Immigrations and Customs Enforcement (ICE), and it is unclear as of this writing what kinds of information ICE is reviewing to identify persons they believe may be in violation of U.S. immigration laws.

^ I am undocumented and got stopped by the police with an expired license and got a court date. Will I be deported?

Note that with President Trump’s continuing crackdown on immigration, virtually any illegal immigrant could potentially be arrested by Immigrations and Customs Enforcement (ICE), and it is unclear as of this writing what kinds of information ICE is reviewing to identify persons they believe may be in violation of U.S. immigration laws.

If you go to court and are convicted, there is a risk that the judge or probation department could report your status to ICE. There are some judges who order defendants to report their status to Ice as a condition of probation (which may be a violation of your Fifth Amendment privilege against self-incrimination). Failing to appear in court will only compound your problems, because police may obtain a warrant to arrest you, and if you are arrested in this manner, it may be more difficult to obtain bond, as well as any leniency from the prosecutor and/or judge.

Consider just one example of the kinds of incidents that have occurred since President Trump took office. In March, 2017, in Galveston County, Texas, an undocumented man was pulled over by police for a broken tail light. The police discovered he was driving on an expired license and took him to jail. When the man was booked, he was asked such questions as to his place of birth (he replied that it was Mexico) and whether he had a social security number (no).

Based on the man’s responses, police contacted immigration officers, and ICE placed an immigration detainer with the Galveston Police Department following his arrest on criminal charges. A few days later he was transferred to ICE custody. His attorney filed a stay of deportation to keep the man in the U.S. but was then notified that he had already been deported. Note that this man had previously been deported to Mexico in 2004. Because this was the second time he was deported, he cannot return to the U.S. for 20 years, though after ten years has elapsed, he can apply for a waiver or pardon.

^ I am an undocumented immigrant and victim of domestic violence. Can I report my spouse to the police and seek help without getting deported?

Many illegal immigrant victims don’t realize they are protected under the Violence Against Women Act (VAWA). VAWA allows for the protection of undocumented immigrant victims of domestic abuse. The expansion protects from deportation those who are the former or current spouse, parent or child of a resident of a U.S. citizen and are being abused by that resident or citizen. VAWA also offers these victims the protections of shelters and restraining orders, regardless of immigration status. In order to to qualify under VAWA, you must be in, or was in, a qualifying relationship with the abuser, reside or resided with the abuser, and be of good moral character.

U Visa

One important additional benefit of VAWA relates to the U visa. This is a nonimmigrant visa offering immigration protection to victims of crimes (and their immediate family members) who have suffered substantial mental or physical abuse and are willing to assist law enforcement and government officials in the investigation or prosecution of the criminal activity. An undocumented immigrant and victim of domestic abuse may also be eligible to apply for a green card without needing the abuser to file for immigration benefits on their behalf. Victims can self-petition for this visa by filing Form I-918, Petition for U Nonimmigrant Status.

^ Can I get a driver’s license even if I’m undocumented?

Some states do allow undocumented immigrants to obtain a driver’s license. In Texas, however, undocumented persons cannot obtain a driver’s license. Only U.S. citizens and those who can prove they are lawfully present in the U.S. can do so.

^ What legal rights do I have in the U.S. as an undocumented immigrant?

(See also, Criminal Background; Dealings with ICE – “If I am detained by ICE, what are my rights?”)

Undocumented immigrants living in the U.S. have some legal rights. Parts of the Constitution that address certain basic human rights apply to everyone, even people without proper documentation. These rights are intended to protect all U.S. residents from discrimination and arbitrary government action. These include such rights as:

  • First Amendment:

    Free exercise of religion

  • Fourth Amendment:

    Protection against unreasonable searches and seizures of property by the government; protects against arbitrary arrests (probable cause and a warrant required)

  • Fifth Amendment:

    This amendment is part of the Bill of Rights and establishes a number of legal rights that apply to both civil and criminal proceedings. Those most relevant to undocumented immigrants: (1) right to a grand jury (where impartial jurors determine whether there is enough evidence to try a person); (2) forbids “double jeopardy (being tried again for the same crime after being found innocent in the first trial); (3) protection against self-incrimination (being a witness against your-self)—often called “pleading the fifth; and (4) requirement of “due process” in any case where someone may be deprived of life, liberty, or property

  • Sixth Amendment:

    In all criminal prosecutions, the right to a speedy and public trial by an impartial jury, right to a lawyer, and the right to know who your accusers are and the nature of the charges and evidence against you

  • Fourteenth Amendment:

    Among other provisions—the Due Process Clause (prohibiting state and local governments from depriving persons of life, liberty, or property with legislative authorization) and the Equal Protection Clause (requires each state to provide equal protection under the law to all people within its jurisdiction)

Specific rights:

  • Right to public education:

    The Supreme Court has held that all children, regardless of their immigration status, are entitled to free public education, as required under the Equal Protection Clause of the Fourteenth Amendment.

  • Emergency medical services:

    Under federal law publicly funded hospitals must provide emergency medical services to all patients, regardless of their immigration status.

  • Worker rights:

    While it is against federal law for an employer to hire an undocumented immigrant, if you are hired, you have the right to be paid for your work, the right to healthy and safe conditions on the job, in some states the right to collect worker’s compensation for injuries, the right to organize or join a worker’s union, and the right to collect disability insurance if premiums were taken out of your paychecks.

  • Protection from workplace discrimination:

    Undocumented immigrants are legally protected against discrimination on the basis of race or nationality, by employers or anyone else. Employers must ask you for your legal authorization to be in the U.S. before they can hire you, but they can't single you out and ask only you or only individuals of your nationality.

  • Right to file lawsuits

    In federal court (for example, a discrimination suit). State laws vary, but some allow an undocumented immigrant to sue in state court.

  • Defense against removal:

    If immigration officials discover that you're living in the country illegally, you have the right to defend yourself against deportation or removal in a hearing before an immigration judge.

  • Driver’s license:

    A handful of U.S. states also offer drivers licenses to undocu-mented immigrants who live there. Note that this does not confer any form of legal status; it merely says you are allowed to drive a car in that state. The states whose laws allow this, as of 2016, include California, Colorado, Connecticut, the District of Columbia, Delaware, Hawaii, Illinois, Maryland, New Mexico, Nevada, Utah, Vermont and Washington.

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