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Do Non-Citizens have Constitutional Rights?
There is a misconception that the U.S. Constitution applies only to U.S. citizens. Some passages and phrases in our laws explicitly state only “citizens” are afforded certain rights, such as the right to vote. When the terms “resident” or “person” is used instead of citizen, the rights and privileges afforded are extended to protect citizens and non-citizens alike. Moreover, protections under the 14th Amendment ensure that no particular group is discriminated against unlawfully.
Bill of Rights of non-us citizens
Nowhere in the first 10 amendments to the Constitution is the word “citizen.” Often it is written “The right of the people…” The Bill of Rights protects everyone, including undocumented immigrants, to exercise free speech, religion, assembly, and to be free from unlawful government interference.
Undocumented immigrants charged with a criminal offense have the same due process protections as everyone else, the right to a speedy and public trial by jury, the right against unlawful searches and seizures, and the right to an attorney among others. Status as a non-citizen in no way affects the procedure of a criminal trial, such as the burden of proof that the State must meet, or the presumption of innocence.
Those facing deportation are involved in a civil lawsuit, but even then they are entitled to a hearing before an immigration judge, to be present at the hearing, to be represented by a lawyer, to put forth witnesses and defenses, and are afforded interpretation for non-English speakers. Any non-citizen can be placed in immigration proceedings, including long time permanent residents, and even former U.S. citizens whose citizenship is revoked. Our Constitution ensures that these procedures are handled fairly and in line with the law.
What constitutional rights do undocumented immigrants have?
Many parts of the Constitution use the term “people” or “person” rather than “citizen.” Rodriguez said those laws apply to everyone physically on U.S. soil, whether or not they are a citizen.
As a result, many of the basic rights, such as the freedom of religion and speech, the right to due process and equal protection under the law apply to citizens and noncitizens. How those rights play out in practice is more complex.
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Right to due process
What the law says: The Fifth Amendment states that “no person … shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law.”
The issue of due process is at the heart of many immigration cases, including Reno v. Flores, the 1993 Supreme Court case that has returned to the spotlight with the surge in family separations. The case led to an agreement requiring the government to release children to their parents, a relative or a licensed program within 20 days.
In the ruling, Justice Antonin Scalia wrote “it is well established that the Fifth Amendment entitles aliens to due process of law in deportation proceedings.”
How it works in practice: Immigrants have the right to due process. But in reality, says, Andrew Arthur, a resident fellow in law and policy at the conservative Center for Immigration Studies, “courts of law run the gamut.”
In some cases, immigrants are not granted a hearing at all. When asked about the president’s tweet, White House Press Secretary Sarah Sanders pointed to the process of “expedited removal,” which was created by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.
The right to legal counsel for non-us citizens
What the law says: The Sixth Amendment states that “In all criminal prosecutions, the accused shall…have the assistance of counsel for his defense.”
The Supreme Court ruled in the 1963 case Gideon v Wainwright that if a person is too poor to hire an attorney, the government must appoint one.
How it works in practice: Because most deportation proceedings are civil rather than criminal cases, the right to legal counsel often doesn’t apply.
The Trump administration’s zero-tolerance policy now requires most illegal border crossings to be tried as criminal cases, the exception being parents who cross the border illegally with children. After public outcry about separating families, the head of Customs and Border Protection said Monday the agency has stopped referring parents for prosecution. Other immigrants will still be charged with a crime.
Under the law, anyone facing a criminal charge has the right to counsel. However, the government is only required to provide counsel if the person is accused of a felony. Crossing the border illegally is a misdemeanor.
In recent weeks, people have donated millions of dollars to nonprofit groups to pay for immigrants’ legal fees.
The Trump administration’s decision to criminally charge immigrants has overwhelmed the courts, as demonstrated last month by a leaked photo of a trial in Pecos, Texas.
The image shows dozens of men in orange jumpsuits being tried en masse. In such proceedings, reports the Intercept, which originally published the photo, trials can last only minutes per defendant.
The right to be with your family
What the law says: Critics of family separation have pointed to the legal right to “family integrity.” This right is not spelled out in the Constitution but was established through court rulings in the early 20th century, Rodriguez said.
“People have a right to be with and commune with their family. It’s a very basic principle,” she said.
The government can split up families in extraordinary circumstances, such as in the case of child abuse, but it cannot do so without going through a legal process.
How it works in practice: Before Trump signed the executive order Wednesday, the administration had divided families as a matter of course, without considering the individual cases. The ACLU sued, arguing the policy was unconstitutional.
The court has not issued a final ruling, and the president’s executive order could change the case. But a judge did rule earlier this month that the case could proceed, saying immigrants have a right to “familial association” under the Constitution.
This is not intended to relay that undocumented immigrants enjoy the same rights and privileges as citizens or legal residents of the United States. That would be false because the enjoyment of certain rights, such as the rights to vote, run for office, and hold certain federal jobs, are reserved exclusively for United States citizens. These also happen to be the only rights exclusively enjoyed by U.S. citizens. However, the rights of aliens and undocumented immigrants are not restricted to “basic human rights,” but also extend to rights protected by the U.S. Constitution by virtue of being physically present in the country. For instance, here is a non-exhaustive list of some rights undocumented immigrants may enjoy stemming from the United States Constitution:
- Right to jury trial;
- Right to Miranda warning;
- Right to defend against charges and deportation;
- Right to counsel in criminal proceedings;
- Right to protection from unlawful search and seizure;
- Right to protection against self-incrimination;
- Right to file civil lawsuits;
- Right to payment for work performed;
- Right to a healthy and safe work environment; and
- Right to k-12 education.
Upon reflection, public awareness of the constitutional rights of undocumented immigrants does not appear to be widespread knowledge. This leads me to a further reflection as to the possible ignorance of undocumented immigrants of the rights they possess fundamentally and constitutionally. If this is the case, the rights of this group of people may not be appropriately protected, as ignorance of a right is only the first step to violation of that right.