There are over 55 million immigrants (legal and illegal) living in the United States. And while the Constitution doesn’t permit foreigners to enter the US without going through the proper channels, it does protect their human rights once they’re here.
By legal definition, an undocumented immigrant is a foreign national who has entered the United States without the government’s permission or has stayed beyond their visa’s expiration date. Many undocumented immigrants often face discrimination and mistreatment since they’re not legally recognized by the US government, making their stay even more difficult.
But, do undocumented immigrants have any rights in the United States? Do their families, friends, and employers have any obligations to them? Immigration law experts at Clearwater Law Group help shed some light on the subject.
Does the US Constitution Protect Undocumented Immigrants?
The Constitution protects all people living in the United States, regardless of immigration status. Most constitutional provisions apply based on personhood, not citizenship. In other words, if an individual is physically present in the US, they are entitled to the protections granted by the Constitution. This includes the right to due process and equal protection under the law.
The Fifth Amendment, for example, states that “No person shall be deprived of life, liberty, or property, without due process of law.” And the Fourteenth Amendment uses the Due Process Clause that describes the legal obligation of all state governments to provide equal protection of the laws to all persons, regardless of immigration status. So while undocumented immigrants are not specifically mentioned in the Constitution, they are still protected by its principles.
What Are an Undocumented Immigrant’s Rights?
Being an undocumented immigrant in the United States does not mean you have no rights. The US government has an obligation to uphold the human rights of everyone within its borders, including undocumented immigrants. Here are five of the most important rights that undocumented immigrants have in the United States:
The Right to Due Process
The issue of due process is often at the forefront of debates surrounding immigration law. Due process is the legal principle that ensures that everyone is given a fair and impartial hearing before the government takes away their life, liberty, or property.
This right is guaranteed by the Fifth and Fourteenth Amendments of the Constitution. Undocumented immigrants have the right to be informed of the charges against them, the right to an attorney, and the right to present evidence in their defense.
Illegal immigrants who have been in the country for less than two years and apprehended within 100 miles of the US border may be subject to expedited removal proceedings, which do not include a hearing before an immigration judge. However, if they are asylum seekers, they must be granted a chance to present their case before an immigration judge.
The Right to Legal Counsel
The Sixth Amendment of the Constitution guarantees the right to legal counsel in all criminal proceedings. Under this amendment, “In all criminal prosecutions, the accused shall…have the assistance of counsel for his defense.”
If an undocumented immigrant faces deportation, they have the right to legal representation. The government must provide them with an attorney if they cannot afford one. Since most deportation proceedings are civil rather than criminal, the right to counsel is not always guaranteed.
Under the Zero-Tolerance Policy signed by President Trump in 2018, all undocumented immigrants caught crossing the border illegally are criminally prosecuted. As a result, they are entitled to legal counsel.
The Right to be with Family
The right to live with one’s family is recognized as a fundamental human right by multiple international treaties and declarations, including the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.
While the US Constitution does not expressly guarantee this right, the Supreme Court has recognized it as a fundamental right protected by the Due Process Clause of the Fifth and Fourteenth Amendments. This means that the government cannot take away this right without going through a legal process and providing a compelling justification.
The courts have used the right to be with one’s family to strike down various immigration laws and policies, including the Trump administration’s family separation policy. Since the family unity of undocumented immigrants is often disrupted by deportation, the US government must prevent such separations whenever possible and provide reunification services when they do occur.
The Right Against Unreasonable Searches and Seizures
The Fourth Amendment of the Constitution guarantees the right of everyone in the United States against unreasonable searches and seizures by the government. This means that the government cannot enter your home or search your belongings without a warrant or probable cause.
The Supreme Court has extended this right to undocumented immigrants, holding that they have the same Fourth Amendment protections as US citizens and legal residents. One caveat exists, however – “border search exception.”
This exception allows the government to conduct warrantless searches within a 100-mile radius of any US border, including airports. As a result, undocumented immigrants in this area may be subject to warrantless searches of their persons, homes, and belongings.
The Right to Education
While there is no federal law guaranteeing the right to education, two sections of the Constitution come into play. In the case of Plyler v. Doe, the Supreme Court held that if children who are citizens or legal residents have the right to attend public schools, then undocumented children also have this right.
This is based on the Equal Protection Clause of the Fourteenth Amendment, which prohibits discrimination by the government based on race, ethnicity, or national origin. And what if a child is detained and has no access to a public school?
Under the Flores settlement, the facilities where the children are detained must meet the minimum requirements for providing education, healthcare, recreation, and other services. This includes hiring qualified teachers, providing adequate classroom space and materials, and ensuring that the children have access to appropriate education programs.
Although undocumented immigrants are not guaranteed all the same rights as US citizens and legal residents, they have certain protections under the Constitution. These include the right to due process, the right to be with family, the right against unreasonable searches and seizures, and the right to education.
If you are an undocumented immigrant, it is important to know your rights so that you can assert them if necessary. At Clearwater Law Group, we are a team of experienced deportation defense lawyers who can help you understand your rights and options. Schedule your free consultation with us today to learn more about your rights in greater detail.