Immigration Status as Evidence

 – Disclosing Your Immigration Status Or Someone Else’s in Family Court

Effective May 17, 2018, the California Evidence Code was amended by supermajority approval of Senate Bill No. 785, which adds new Sections 351.3 and 351.4.

These two new statutes are “urgency” statutes and were effective immediately upon the Governor’s signature. Each of them sunsets on January 1, 2022.

This page focuses only on new Section 351.3 and potential effect on family law proceedings (which are civil actions) while Section 351.4 pertains to criminal proceedings.

According to the Legislative Counsel’s Digest, they “prohibit the disclosure of a person’s immigration status in open court by a party unless that party requests an in camera hearing [i.e., in the judge’s office rather than in the courtroom] and the presiding judge determines that the evidence is admissible.” The Legislature apparently seeks to prevent litigants from the disclosure of irrelevant and otherwise inadmissible and potentially harmful allegations of illegal immigration and potential deportation for having been a litigant with an opportunity to be heard in court.

Section 351.3 states:

(a)  In a civil action not governed by Section 351.2 [i.e., an action for personal injury or wrongful death], evidence of a person’s immigration status shall not be disclosed in open court by a party or his or her attorney unless the judge presiding over the matter first determines that the evidence is admissible in an in camera hearing requested by the party seeking disclosure of the person’s immigration status.

(b)  This section does not do any of the following:

(1)  Apply to cases in which a person’s immigration status is necessary to prove an element of a claim or an affirmative [complete] defense.

(2)  Impact otherwise applicable laws governing the relevance of immigration status to liability or the standards applicable to inquiries regarding immigration status in discovery or proceedings in a civil action, including Section 3339 of the Civil Code, Section 7285 of the Government Code, Section 24000 of the Health and Safety Code, and Section 1171.5 of the Labor Code.

(3)  Prohibit a person or his or her attorney from voluntarily revealing his or her immigration status to the court.

(c)  This section shall remain in effect only until January 1, 2022, and as of that date is repealed.

Under Section 351.3, subdivision (a), the Legislature has established the default position as no information about any person’s immigration status (not just a party to the lawsuit’s status) can be disclosed in open court. This would appear to include such information when a party does not intend to admit it into evidence. If a party or his or her attorney wants evidence of immigration status admitted, he or she must request an in-camera hearing to determine its admissibility under other provisions of the Evidence Code. Without such a hearing, the evidence of any person’s immigration status cannot be disclosed in the courtroom for any reason.

Section 351.3, subdivision (b) provides three exceptions to subdivision (a):

  • Where a claim or an element of a complete defense against the claim requires such a disclosure. A simple example would be in child support litigation where one of the parties has proof that the other part has a Permanent Resident (Green) Card and is therefore legally capable of working here, or the other party needs to defend against such a claim by showing he or she is in the United States under a Student or Visitor Visa only. Another example might be where a custody and visitation issue exists and one of the parties needs to prove that the other party’s Visitor is due to expire and an alternative parenting plan must be determined for international visitation.
  • Where it would have a direct effect on laws governing the relevance of immigration status to liability or to the standards applicable to inquiries of immigration status regarding discovery or proceedings in any civil action.  And,
  • Where one of the parties voluntarily discloses his or her immigration status. For instance, regardless of whether a party needs to disclose his or her immigration status to prove an element of a complete defense against a claim of his or her ability to legally work in California, he or she may disclose it anyway.

There has been a significant amount of controversy and media attention concerning federal agents lying in wait at the Superior Court to locate, detain, and deliver for trial or deportation the undocumented and others who may have overstayed their visas.  Evidence Code section 351.3, while not a panacea, may provide some relief for family court litigants who do not want their immigration status disclosed, at least without first having such information determined admissible by a judicial officer. The courtroom, and especially family court, is emotional enough without harmful accusations of illegal immigration that usually prove nothing except the ill-will of the person making them.