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What Rights Do Undocumented Immigrants Have?

by Countable | 8.31.17

What’s the story

As the Trump administration decides how to process undocumented immigrants living in the United States – and how to prevent them from entering it – there’s a question that often comes up: What are the constitutional rights of undocumented immigrants?

Conservative commentator Glenn Beck, back in 2007, famously, and erroneously, said: "Let me get something straight here for those illegal aliens that might be watching the program. You have human rights. You do not have legal rights."

Ten years later, in March of this year, Rep. Dane Eagle, R-Cape Coral, Florida, said that it’s "unclear if non-citizens can enjoy the same constitutional rights as citizens."

Why does it matter?

For the most part, both Beck and Eagle are wrong.

As PBS member station KQED summarized, "With the exception of voting, traveling between states and running for president or Congress" and gun ownership, “the U.S. Constitution actually guarantees most of the same fundamental civil rights and liberties to everyone within the United States, citizens and non-citizens alike.” This includes the rights of free speech, religion, and if arrested, the right to a Miranda warning.

The legal rights of undocumented immigrants are largely grounded in the Equal Protection Clause of the Fourteenth Amendment (italics ours):

"No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

On multiple occasions, the Supreme Court has ruled that "any person" means non-citizens. Some of these SCOTUS decisions include:

  • Wong Wing v. United States (1896): "These provisions are universal in their application to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or nationality; and the equal protection of the laws is a pledge of the protection of equal laws."

  • Almeida-Sanchez v. United States (1973): according to KQED, this decision "stated that non-citizens, regardless of legal status, are protected by the Constitution’s criminal charge-related amendments, including search and seizure, self-incrimination, freedom of expression and trial by jury."

  • Plyler v. Doe (1982): The Supreme Court ruled that non-citizen children must get a free K-12 education.

  • Zadvydas v. Davis* *(2001): SCOTUS ruled that "once an alien enters the country, the legal circumstance changes, for the due process clause applies to all persons within the United States."

  • Boumediene v. Bush (2008): Regarding persons held in the U.S. base in Guantanamo Bay, Cuba, the Supreme Court ruled that the right of "habeas corpus" to challenge illegal detentions extends even to non-citizens on foreign territory.

While non-citizens enjoy most of the Constitutional rights of citizens, for those facing deportation, the law is different. "[the undocumented] are subject to immigration law, under which the executive branch has broad authority to determine whether it wants them in the country or not," Forbes wrote. “And until they've passed through immigration control, they aren't technically on U.S. soil.”

Also, besides emergency care and k-12 education, undocumented immigrants do not have a right to most public subsidies, including Medicare, Medicaid, public housing and Social Security. Obamacare specifically prohibits providing federally-subsidized coverage to immigrants who are here illegally.

What do you think?

Do undocumented immigrants have too many rights? Not enough? Hit the Take Action button, tell your reps, then comment below. You have the right—regardless of your immigration status.

—Josh Herman

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(Photo Credit: doomko / iStockphoto)

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