Do Immigrants Have Rights? A Starter Guide
After several decisions of the current administration, many immigrants to the U.S. may be feeling particularly unsure about what to do if a visa’s time is almost over or what they can do if they are stopped at an entry point into the country. More broadly, we hear a lot of immigrants asking a bigger-picture question, “Do I have any rights?” It might feel like the answer is no, but there’s good news: a person in the U.S. does not have to be a citizen to be granted some rights under the U.S. Constitution. If you or a loved one is facing an immigration-related concern, it’s important to understand your protections as well as the legal processes. Start by connecting with the Law Office of Diron Rutty to speak with an immigration lawyer about your specific concerns. Read on to learn what rights and protections you are granted by the U.S. Constitution.
THE VALUE OF WORDS
One starting point for looking at immigrants’ rights is the Constitution itself. Specifically, the phrasing used in the writing of the Constitution refers to “people” or “a person” in the U.S. rather than specifically referring to a “citizen” or “citizens.” In terms of legal processes, it can be taken to mean that many provisions of the Constitution extend to any person within the U.S., not just those who are U.S. citizens. If a person is physically on U.S. soil, it can feasibly be argued that they are granted many basic rights granted by the Constitution. These rights include things like freedom of speech, freedom of religion, the right to due process, and even equal protection under the law, just as a citizen would receive.
Due Process
When we talk about due process, it may sound like a fancy legal term with a complicated meaning. Due process of law, in essence, is a way of saying “fair treatment in the legal system.” The most important part of this is that immigrants are afforded the right to take part in legal processing. It goes against the Constitution for anyone on U.S. soil to be removed from the country, put in prison, or have their freedom affected without initiating and following through on the legal process in the same way a U.S. citizen would receive.
This was upheld during the 1993 Supreme Court case Reno v. Flores. During the case, Justice Scalia ruled that, “the Fifth Amendment entitles aliens to due process of law in deportation proceedings.” This case found that deporting an immigrant without first following legal processes to do so was denying the unalienable right to due process of law. The assumption, by extension, can be seen that immigrants have the right to due process of law in any case, not just deportation.
What This Means
The big, overarching importance is that it can be viewed as unlawful for immigrants to be deported without due process of the law. However, there are some caveats to this. The first is that we don’t actually have a hard-and-fast law or Constitutional Amendment that grants immigrants the same rights as citizens. This means it’s up to an individual court to decide how to interpret the Constitution as immigration cases arise. Despite the precedent set with Reno v. Flores, immigrants can still face deportation without due process of law being fully followed.
The bigger caveat to immigrants being granted due process of law comes from the Immigration Reform and Immigrant Responsibility Act of 1996, which created a process commonly called “expedited removal.” With this measure, immigrants who are caught within 100 miles of any U.S. border, and who have been in the country less than two years, can be deported without going through a court hearing — except for asylum seekers, who must still be given a hearing before deportation. However, if immigrants aren’t asylum seekers and don’t fall under the restrictions for expedited removal, they still have the rights to due process in immigration court.
Legal Counsel
The Sixth Amendment created the provision granting legal assistance to anyone undergoing criminal prosecution. Additionally, Supreme Court case Gideon v. Wainwright ruled that anyone too poor to afford an attorney would be granted one by the government. What this means, broadly, is that those who can’t afford a lawyer can have one appointed by the courts. However, this only extends to criminal cases, and deportation cases are typically considered civil cases.
What This Means
In general, overarching terms, the Sixth Amendment gives anyone the right to legal counsel. It doesn’t mean the court has to provide that counsel in all cases, but it does mean that non-citizens also have the right to hire an immigration lawyer if they choose. If you know of someone facing an immigration trial, there are options to provide them with legal counsel, which is something they have the right to obtain.
The other potentially interesting thing to note is that recently, under the Trump administration, many deportation cases involving illegal border crossings are being tried as criminal cases. The exception to this is illegal border crossings involving parents with children. In a general sense, these cases being tried as criminal cases could be seen as a positive, since that opens up a larger potential for government-appointed help for those who need an immigration lawyer. The caveat to that is that immigration cases being tried as criminal cases are considered misdemeanors, not felonies, so they are not guaranteed the right to a government-provided immigration lawyer. However an immigration case is being tried, however, an individual has the right to a lawyer there are also funds out there to help immigrants pay for an immigration lawyer when the courts don’t appoint one.
Family Divisions
Anyone paying attention to the news in recent months will have seen coverage concerning children being separated from their parents. While there is no Constitutional Amendment regarding family rights, there are several legal precedents set through court rulings. Generally, the U.S. government can’t separate children from their parents or legal guardians without a very good reason to do so, such as abuse. Even then, children can’t be removed from their families without the case going through the full legal process.
What This Means
This means there is legal precedent that supports keeping families together, potentially even in instances like illegal border crossings. There is currently a case being brought by the ACLU to protect families separated by immigration cases. There is no ruling yet, but there is a strong argument in favor of immigrants being granted the right to “familial association” under U.S. law.
Voters’ Rights
The U.S. Constitution doesn’t provide rights to non-citizens in terms of voting. The only thing the Constitution does say concerning voting is who cannot be prohibited from voting. The 14th Amendment grants voting rights to any male U.S. citizen over the age of 21, unless he has committed a crime. The 15th Amendment says that no one can be denied the right to vote based on skin color, and the 19th Amendment says that no one can be denied the right to vote based on sex.
What That Means
In terms of voting, the Constitution does not give non-citizens any rights, and any non-citizen caught voting can face imprisonment or deportation. However, states have the right to set their own rules in regard to local elections. Some states make it even harder and take harsher, more punitive actions to vote as a non-citizen, but some states and cities permit non-citizens to vote in local elections. You will need to check on the laws in your area to see if voting as a non-citizen is permitted in some elections. Generally, however, non-citizens cannot vote.
Search and Seizure
The Fourth Amendment provides protection against “unreasonable searches and seizures,” which means the law protects a person from being searched and their property from being seized without reason. However, the focus here should be on the term “unreasonable.” As far back as the first Congress, the idea of making exceptions to this along the U.S. borders came into being because border searches allowed searchers to collect duties from those crossing.
What This Means
The idea of the “border search exception” is an old one that has worked its way into legal precedent. Add to it the 100-mile border in which illegal crossers can be seized and deported with minimal legal processing (as we described above), and we see a lot of leniency pertaining unlawful searches and seizures. Since border crossings also include seaports, airports, and other points of entry and not just physical borders, Border Patrol can conduct searches of anyone coming into the country provided they meet certain criteria. There isn’t much protection from the law in these cases.
Seeking Legal Help
As we mentioned above, non-citizens have the right to legal help in much the same way that citizens do. If you or a loved one has legal concerns regarding immigration, visas, citizenship, or anything else like this, an immigration lawyer can help. Connect with the Law Offices of Diron Rutty, LLC in the Bronx and across New York City to speak with an immigration lawyer today.