Do Undocumented Immigrants Have Constitutional Rights?
Familia America attorneys are well-versed in immigration law. Learn more abou the constitutional rights of undocumented immigrants.
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Do Undocumented Immigrants Have Constitutional Rights?

May 5, 2018 Familia America Immigration

Although it may not feel like it, undocumented immigrants do have some constitutional rights, but they may not be as wide-ranging as the rights that citizens have. Although some politicians and every-day Americans will argue that non-citizens do not have constitutional rights, that is absolutely untrue. In fact, there is virtually no debate among legal scholars that undocumented immigrants have constitutional rights. Once someone is in the U.S., they have many of the same rights as citizens.

While a Utah immigration attorney will be able to explain these rights fully, this brief post gives you an idea of what types of constitutional rights are available to immigrants.

The Distinction Between Citizens and Non-Citizens

The language in the constitution and the following amendments sometimes distinguishes between rights that citizens have and rights that any “person” has. Presumably, these words were chosen for a reason—to protect even noncitizens in many situations.

For example, the Equal Protection Clause of the Fourteenth Amendment states:

“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 any person within its jurisdiction the equal protection of the laws.”

The Supreme Court has told us, even as early as 1896, that the “any person” language means that those protections extend beyond just those who are considered citizens of a state or of the U.S.

Rights Available to Everyone in the U.S.

Both citizens and non-citizens have the following general rights:

  • Freedom of speech
  • Freedom of religion
  • Right to free K-12 education
  • Protection against unreasonable search and seizure under the Fourth Amendment
  • Right to just compensation if property is taken by the government under the Fifth Amendment
  • Right to assert a lawsuit, including personal injury claims and workers’ compensation
  • Right to a jury trial
  • Right to an attorney in criminal matters
  • Freedom from cruel and unusual punishment
  • Fifth Amendment right to avoid self-incrimination

Supreme Court cases that have been in place for years ban states and local governments from creating laws or rules that discriminate against non-citizens as well. The same restrictions apply to the federal government too.

Non-citizens do not have all of the same rights as citizens. Most notably, they cannot vote in local, state, or national elections.

Rights in Immigration Matters

While non-citizens do have rights, those benefits seem to be significantly undercut in the context of immigration issues. For example, although an undocumented immigrant has the right to a free, court-appointed attorney in a criminal matter, he or she is not entitled to have an immigration lawyer if they cannot afford one themselves. Obviously, this puts immigrants at a severe disadvantage when dealing with the immigration court or related processes.

Although your rights are limited, you still have some in the immigration context. You should talk to a Utah immigration attorney if you are attempting to address anything related to immigration on your own. Contact our team for more information on how Familia America can help.

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