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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

Related Reading

(Photo Credit: doomko / iStockphoto)

Countable

Written by Countable

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(163)
  • operaman
    08/31/2017
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    Illegal undocumented immigrants who arrive in the United States have broken Federal Law. They are not citizens and lack any documentation proving their right to have entered the US. Doesn't matter if these undocumented have friends, family or cousins legally in the US. Just by stepping over the border is illegal. Mexico is just one country that supports their citizens to cross the border so they can benefit from money being sent back to aid Mexico's GDP. And keep in mind that Mexico has very strict immigration laws. If a US citizen were caught in Mexico, they are not sent back, but jailed, fined or both. Let's solve this problem once and for all. The taxpayers are being bleed dry supporting this shadow economy.

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  • Janene
    08/31/2017
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    Illegal immigrants ( Yes, they are illegal because they are breaking the law. You don't call a drug dealer an undocumented pharmacist) have the right to be granted any emergency medical treatment needed and then deported back to their country of origin; It doesn't matter if it's China, Afghanistan, South America or England. Come in the legal way or be deported. You have no rights here. Rights under the constitution are for CITIZENS ONLY!

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  • Andy1
    08/31/2017
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    They have a right to be treated with respect and compassion just like all humans

    Like (42)
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  • Javonna
    08/31/2017
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    None. They are here illegally.

    Like (34)
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  • Plegian
    08/31/2017
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    Human rights are universal.

    Like (33)
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  • Ibew575
    08/31/2017
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    None. They broke the law getting here. That by definition makes them criminals.

    Like (28)
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  • Christine
    09/01/2017
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    Human beings have human rights no matter where on the planet they are. Tragically, some would rather not treat humans humanely. It is ultra tragic when the people leading the United States of America make that choice. 😞

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  • Keith
    08/31/2017
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    Everyone who said illegal immigrants have no rights your great grandmother is probably a immigrant so think way before u speak an thank u

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  • jxpx777
    09/01/2017
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    I choose to approach issues like immigration and other issues that affect human lives from a place of compassion first. For those that counter this compassion with absolutism, i.e. "The law is the law," let's make sure we apply this consistently. While it is true that undocumented immigrants have broken laws, the criminal justice system has a huge amount of latitude in whether and what crimes are charged as well as sentencing. Our criminal justice system has time and again shown white wealthy men compassion and leniency: • Ethan Couch, the ""affluenza"" teenager, was given probation after he killed four people while driving drunk. https://en.wikipedia.org/wiki/Ethan_Couch • Brock Turner, the "promising" Stanford swimmer that raped a woman behind a dumpster, was sentenced to just 6 months in jail and served only 3 because the judge did not want to "ruin his future" • Not a single Wall Street banker, who caused the greatest financial crisis in 100 years and made billions in the process, has ever been charged for their crimes • John Stumpf, who led and lauded a culture of fraud at Wells Fargo, lost his job but after 6 months was paid almost $20M in "supplemental cash balance", whatever that means… In contrast, immigration hardliners vilify vulnerable people that leave everything they have ever known and risk life and limb to escape violence, corruption, and poverty in search of opportunity. Opportunity to make a life for them and their families. Opportunity to work hard. Opportunity to love a new home. Opportunity to strengthen a great country. Opportunity merely to stay alive. Ignoring all of that, so many in this country sanctimoniously clutch their pearls at the thought that one of these—ugh—immigrants… would dare to step a toe over our border without going through the years- and sometimes decades-long process of immigration. What this country needs is common sense immigration reform that starts from a place of compassion and empathy and a belief that we can be stronger by being more diverse and more loving to each other. We need to reject the notion that society is a zero-sum effort and embrace the idea that there is plenty to go around and room for us to be welcoming to people that want the same things we do.

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  • Karen
    08/31/2017
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    None they are illegal aliens. Just because their parents brought them to this country when they were kids doesn't make them any less illegal. They have known since they were 16 when they wanted to obtain a drivers license that they are illegal & breaking US laws. Instead of voluntarily leaving this country they stayed & illegally went to college paid by American taxpayers & started a family. They must be deported immediately.

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  • Terri
    09/01/2017
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    They have the right to be treated humanly. I do not believe in the sins of the father so if they were brought here as a child and have lived in this country for 7/10+ years then we must understand that this is their home. These young people do not remember Mexico through no fault of their own, have no other home but here. They should be given the opportunity to work or go to school with the understanding that they are working towards a Green Card, and if no felony acts are committed, towards their citizenship. The parents, it is harder. How long have they been here? Have they committed any other criminal acts other than illegal entry? Have they maintained employment or are they a drain to the economy? Do they own property or their own businesses? And, what do they want, do they want to work towards a green card and citizenship or do they want a legal work visa? I do believe that everyone who lives here has the right for their children to be educated, but no other taxpayer benefits should be available until they are working toward a legal solution.

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  • James
    08/31/2017
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    I agree with most everybody! Citizenship here is a privilege not a right! Illegals should be guaranteed basic human rights like medical attention! Also the promise of deportation! Where the Constitution mentions that the States shall not deny any person it means any person who is a citizen! Period! If you want to be here then come here legally as nobody likes a sneak as we already have too many of those especially in government!

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  • Bob
    09/01/2017
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    Wow! liberal slant much? Legally, via the constitution; you know, that rule of law that you seem to want to ignore constantly? Illegal Aliens have no Legal rights within the USA with the exception of basic human rights. They have the right to leave and apply legally like everyone else. Like it or not; that's how the constitution reads and that is the law of the land. Move to Mexico if you don't like it, and renounce your citizenship. The base premise of this entire article is false; misleading fantasy. The law isn't what you wish it would be; the law is what it is in black and white.

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  • Phylos
    09/01/2017
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    Illegal immigrants by definition have no rights in any country they are overstaying beyond basic human rights. Basic human rights do not entitle them to any services reserved for lawful residents and citizens. At the most they deserve a safe but expedient process of expulsion. Anything else is an insult to every lawful immigrant that has ever gone through the process and paid their dues to become lawful residents and citizens of this nation. Every other country has and enforces these rules and you don't hear anyone criticizing them. But when the United States tries to enforce it's lawful immigration rules, everyone screams bloody murder. How hypocritical is that.

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  • Karen
    08/31/2017
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    Wrong John. They aren't American citizens. They are illegal aliens who must be deported immediately

    Like (14)
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  • Dara
    09/01/2017
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    They have rights that the U S Constitution affords them. Follow the laws of the nation.

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  • Jesse
    08/31/2017
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    Yes they should be allowed in america

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  • Mike
    09/01/2017
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    They have a right to be sent back to the country from which they come from as soon as possible. Immigration should be reformed to make it easier for folks with skills to be fast tracked and the everyday person to affordably immigrate and assimilate. Coming here illegally is unacceptable, it punishes the people that waited in line.

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  • Carol
    08/31/2017
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    Human rights.

    Like (10)
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  • Michelle
    09/01/2017
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    If you entered this country " undocumented ", you entered this country illegally. You broke our laws, disrespected our boundaries, and your "rights" should be no more than others who have broken our laws. Every human being deserves to be treated with respect and compassion, but stepping foot on American soil does not give anyone all the rights of a US citizen. People deserve to be treated with respect and dignity because they are created in the image of God. With that said, people should not expect to be taken care of just because you made it here, because there is a limited amount of resources. Our country is trillions of dollars in debt, therefore we cannot give away what we do not have!

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