No announcement yet.

Do Illegal Immigrants Have Constitutional Rights?

  • Filter
  • Time
  • Show
Clear All
new posts

  • Do Illegal Immigrants Have Constitutional Rights?

    Do Illegal Immigrants Have Constitutional Rights

    I made a comment taking exception to another author's claim that illegal immigrants have no rights. I suggested that it is important to distinguish between constitutional rights and privileges reserved to citizens. The responses to my comment indicate that a great many people do not know what their constitutionally protected rights are.

    The following comes from

    "........the Bill of Rights applies to everyone, even illegal immigrants. So an immigrant, legal or illegal, prosecuted under the criminal code has the right to due process, a speedy and public trial, and other rights protected by the Fifth and Sixth Amendments. This fact sheet from the National Lawyers Guild outlines a host of rights afforded to immigrants and citizens alike.

    (There are a few rights reserved for citizens. Among them are the right to vote, the right to hold most federal jobs, and the right to run for political office.)"

    The following is taken from National Lawyers Guild website:

    I. What rights do I have?

    Whether or not you're a citizen, you have these constitutional rights:

    The Right to Remain Silent. The Fifth Amendment to the U.S. Constitution gives every person the right not to answer questions asked by a police officer or government agent.

    The Right to be Free from "Unreasonable Searches and Seizures". The Fourth Amendment is supposed to protect your privacy. Without a warrant, police or government agents may not search your home or office without your consent, and you have the right to refuse to let them in. They can enter and search without a warrant in an emergency. New laws have expanded the government's authority to conduct surveillance. It is possible that your e-mail, cell and other telephone calls, and conversations in your home, office, car or meeting place are being monitored without your knowledge.

    The Right to Advocate for Change. The First Amendment to the U.S. Constitution protects the rights of groups and individuals who advocate changes in laws, government practices, and even the form of government. However, the INS can target non-citizens for deportation because of their First Amendment activities, as long as it could deport them for other reasons.

    Note the italics of the last statement. We are all aware that INS is not actively pursuing every illegal immigrant in this country but clearly they can single out individuals who are engaged in exercising their rights.

    The legal protections afforded by the constitution do not apply to simple deportation proceedings.

    Once again from

    But immigration proceedings are matters of administrative law, not criminal law. (As a result, the consequence of violating your immigration status is not jail but deportation.) And Congress has nearly full authority to regulate immigration without interference from the courts. Because immigration is considered a matter of national security and foreign policy, the Supreme Court has long held that immigration law is largely immune from judicial review. Congress can make rules for immigrants that would be unacceptable if applied to citizens.

    In conclusion, while in this country, illegal immigrants are covered by all the rights guaranteed by the Bill of Rights. Exercising those rights may subject them to deportation because of their alien status. Additional laws apply if the illegal immigrant is suspected of being a terrorist but that is not the subject I am attempting to address.

    When illegal entry is treated as a matter of criminal law, instead of being expelled through an administrative proceeding, those accused have the right to a jury trial and all the rules of evidence apply. The government is burdened with "proof beyond a reasonable doubt." Imagine the cost and the caseload.

    (This article was revised on December 6, 2007, to reflect the information provided by Mr. Hardin in a comment below.)

    In pursuing Mr. Hardin's comment further I came across another interesting point. While illegal entry is subject to criminal prosecution under the statute cited, illegal presence is not a crime under the statute cited. Someone picked up for over staying a visa would be subject to deportation proceedings under administrative law but would not be subject to criminal prosecution simply for being here.

  • #2
    Do Illegal Aliens Have Constitutional Rights?

    In the recent debate over local enforcement of immigration law, the issue that seems to have caused the most shock is the assertion that illegal aliens have rights. A simple reading of the Constitution will not reveal the words "illegal alien," so many people assume the constitution does not apply in this debate.

    Unfortunately, Constitutional Law is not that easy. The Constitution has been
    described as a "Living Document" that is continuously interpreted to meet the
    changing circumstances of American life. The Courts of Appeal and/or the
    Supreme Court rule on the application of laws in particular situations and these
    rulings become precedents we must all follow. Congress is free to write or
    modify laws in response to these rulings, but those new laws are again subject to
    court scrutiny.

    One of the arguments against the idea of rights for illegal aliens is the wording of
    the Constitution itself. People focus on use of the words "the people" in the
    Constitution, and say this means it applies only to citizens. The courts have
    disagreed with this approach, as cited in Johnson v. Eisentrager, (339 U.S. 763,
    771(1950)) where the court said, "in extending constitutional protections beyond
    the citizenry, the Court has been at pains to point out that it was the alien's
    presence within its territorial jurisdiction that gave the Judiciary power to act."

    There are several Court opinions mentioning "resident aliens." A surface reading
    may tempt one to interpret this as applying to aliens who have the administrative
    classification under immigration law as "Resident Alien." In fact, deeper research
    shows the court refers to resident aliens as those who have established a form of
    practical residency in the US, regardless of their status as undocumented or
    "illegal" aliens. Court of Appeal and the Supreme Court have consistently
    extended constitutional protections to these "resident aliens."

    An exhaustive discussion of court rulings regarding the rights of illegal aliens
    would take tens of pages, and would be so full of legalese it would be difficult to
    understand. In the interest of brevity and readability, I have summarized below
    some of the court precedents that affirmed the rights of illegal aliens.

    The right of Habeus Corpus has been raised many times in the courts, usually
    relating to long-term detention of illegal or criminal aliens awaiting hearings or
    deportation. The courts have consistently held that aliens within the United
    States, regardless of legal status, do have a right to Due Process and Habeus
    Corpus. To be sure, their rights follow a different path than US Citizens because
    citizens are not subject to removal, but the basic rights still apply to illegal aliens.
    In Wong Wing v. U S, 163 U.S. 228 (1896), the Supreme Court stated (in citing a
    previous case and affirming 14th Amendment rights):
    "The fourteenth amendment to the constitution is not confined to the protection of
    citizens. It says: '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 law.' 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.' Applying this reasoning to the fifth and sixth
    amendments, it must be concluded that all persons within the territory of the
    United States are entitled to the protection guarantied by those amendments,
    and that even aliens shall not be held to answer for a capital or other infamous
    crime, unless on a presentment or indictment of a grand jury, nor be deprived of
    life, liberty, or property without due process of law. "

    Other Supreme Court cases on First Amendment rights repeatedly refer to the 5th
    and 14th Amendments to provide guidance based on the principle of "Equal Protection." In other words, the Equal Protection clause helps extend First Amendment protections for everyone protected by the 5th and 14th Amendments.
    Since the Court has ruled that illegal aliens are protected by the 5th and 14th
    Amendments, they also have First Amendment rights.

    In fact, in the Plyler V. Doe, 457 U.S. 202 (1982), the Supreme Court struck
    down a Texas law prohibiting enrollment of illegal aliens in public school. In its
    ruling, the Court said:
    "The illegal aliens who are plaintiffs in these cases challenging the statute may
    claim the benefit of the Equal Protection Clause, which provides that no State
    shall ˜deny to any person within its jurisdiction the equal protection of the laws.'
    Whatever his status under the immigration laws, an alien is a ˜person' in any
    ordinary sense of that term... The undocumented status of these children vel non
    does not establish a sufficient rational basis for denying them benefits that the
    State affords other residents."

    Some have argued the intent of Congress in drafting the 14th Amendment was to
    limit protection to citizens, and the use of the word "persons" was merely semantic. The Court has rejected this argument, and referred to the language used by the Congressional Committee drafting the amendment:
    "The last two clauses of the first section of the amendment disable a State from
    depriving not merely a citizen of the United States, but any person, whoever he
    may be, of life, liberty, or property without due process of law, or from denying to
    him the equal protection of the laws of the State. This abolishes all class
    legislation in the States and does away with the injustice of subjecting one caste
    of persons to a code not applicable to another. . . . It will, if adopted by the
    States, forever disable every one of them from passing laws trenching upon those fundamental rights and privileges which pertain to citizens of the United States, and to all persons who may happen to be within their jurisdiction."
    Courts of Appeal have consistently found that illegal aliens within the boundaries
    of the United States are protected from unreasonable search and seizure. This
    is affirmed by assumption in the Supreme Court case of INS v. Lopez-Mendoza,
    468 U.S. 1032 , and again in US v. Verdugo-Urquidez, 494 U.S. 259 (1990).

    While it is true illegal aliens do not have all the rights enumerated under the
    Constitution, such as the right to vote and the right to keep and bear arms, it is
    also true that not all Americans have those rights. When one examines the rights
    actually enjoyed by ALL Americans, including convicted felons for example,
    illegal aliens enjoy the same rights while they are within the boundaries of the
    United States.

    An example of this comes from the U.S. Equal Employment Opportunity commission. In a 1999 memo, the EEOC stated that while it is illegal to hire undocumented aliens, "if an employer does hire an undocumented worker, and
    harasses or otherwise exploits or abuses that worker because of, for example, race, color, ***, religion, national origin, age or disability, it must pay the consequences of that discrimination."

    It is also clear that an alien's rights differ at the border and after they successfully
    cross the border. When crossing the border, immigration authorities have the
    unfettered authority to stop, detain, and demand identification. Once inside the
    United States, however, the aliens have the same protections as all Americans.
    George Collins, OCSO


    • #3
      It is also clear that an alien's rights differ at the border and after they successfully
      cross the border. When crossing the border, immigration authorities have the
      unfettered authority to stop, detain, and demand identification. Once inside the
      United States, however, the aliens have the same protections as all Americans.
      I remember that there's that 100-mile & 14-day rule for illegal entrants before accruing such "rights." But of course, it could easily be superseded by ICE's powers to categorize illegals as "arriving aliens" however deep they're situated in the US or for how long they've been here. Add to that their sheer numbers and incapability to afford (or even fathom) proper legal assistance. If indeed laws have been written to promote the nation's interests as well as to protect the well being of "persons within its jurisdiction," the resulting imbalance is the huge mess that we are all immersed in right now.

      A cool weekend to all!


      • #4
        In no instance could one expect perfections or absolutes in this life. No never. It's not meant to be. And it never will. Yeah, even in the greatest nation on earth.


        • #5
          ok proudusc....what "right" does any illegal alien have to even be in the US of A?????Find it in our laws, $hit-for-brain$.


          • #6
            You can keep on whining you're same tired tune, and by the way, your obsession with me is getting old. So what if they have no right to be here - they're here! And, they do have certain rights under our Constitution. At least I have enough class not to resort to name calling. Please stop stalking me. It's getting tiresome.


            • #7
              sorry wimp, but you keep dodging the issues and refuse to support any of your blather with I will keep pestering you if I choose....wimp.


              • #8
                Well, keep stalking me then. I don't care how pathetic you want to appear on this forum. After all, we're both power members now, eh?