Do Illegal Immigrants Have Constitutional Rights In America

Are illegal immigrants protected under the Constitution of the United States

  • The Constitution is worded to protect a jurisdiction instead of a specific people

  • Crossing the border illegally was a civil matter before the Trump administration’s zero tolerance policy

  • Immigration courts hold a much lower standard in regards to proving guilt than most US courts

Ever since it was discovered that Immigration and Customs Enforcement agents were separating families trying to enter the country illegally, America has entered one of the most significant legal debates in modern history.

With the help of social media, people around the country can chime in and give their opinion. Unfortunately, all too often we see these opinions come with little to no knowledge of the subject even though they still spread like wildfire across the Web.

One of the most common debates, does the Constitution protect illegal immigrants? For the most part, yes. Legal and illegal immigrants are protected by the Constitution and the Bill of Rights. There are very few rights that are exclusive to a United States citizen. Some of those rights include obtaining a federal job and running for political office.

Interestingly, the Constitution does not prohibit anybody, even an illegal citizen, from voting. Instead, the 14th, 15th and 19th Amendments clarify who cannot be denied to vote. It was not until 1926 that Congress passed a law that prohibited illegal immigrants from voting for “the office of President, Vice President, Presidential elector, Member of the Senate, Member of the House of Representatives, Delegate from the District of Columbia, or Resident Commissioner.”

Cristina Rodriguez, a professor at Yale Law School, told PBS, “Most of the provisions of the Constitution apply on the basis of personhood and jurisdiction in the United States.” Rodriguez went on to note that many areas of the Constitution use the terms “people” or “person” rather than “citizen.”

Whether one’s citizenship is that of legal or illegal, they are protected under the Fifth and Sixth Amendments, which allows due process, right to a speedy and public trial when being prosecuted under the criminal code. However, applying these rights to the subject of immigration becomes a bit more complicated.

People who believe that people caught entering the country illegally should do jail time do not fully understand the law that is being broken. Before the Trump administration, immigration was not a matter of criminal law; it was administrative law. Being administrative law, the punishment is not jail time, but instead deportation.

With the offense falling under administrative law, this means the Fifth and Sixth Amendments no longer fully apply to the situation. Congress has full right to regulate immigration without any interference from the courts. The Supreme Court has given immigration law almost full immunity against the courts since it is considered a matter of national security and foreign policy.

Since the Trump administration revealed their zero-tolerance policy—which requires most border crossings to be tried as criminal cases—immigrants caught illegally crossing the border are once again protected under the Constitution. However, the government is only required to provide legal counsel for someone accused of committing a felony. Crossing the border illegally is a misdemeanor.

After public outcry, the head of Borders and Customs Protection stated that families would no longer be referred for prosecution. Other immigrants caught illegally crossing the border will still be recommended for prosecution.

To make the question of legal rights for an immigrant a bit more complicated, if an illegal immigrant did not go to court before deportation it does not necessarily mean their due process rights were violated. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 gave birth to the “expedited removal” process.

The expedited removal process states that immigrants who have been in the country illegally for under two years or if they are apprehended within 100 miles of the border can be deported almost immediately without having a court date. The exception to expedited removal is asylum seekers, who must be granted a hearing.

As far as immigration court goes, an illegal immigrant still holds some rights. They still have the right to an attorney, but the government will not pay. A translator must be provided for those that do not speak English. Once in the courtroom, the government must present “clear and convincing” evidence to deport someone, which is much easier than proving “beyond a reasonable doubt” as is required in criminal court.

The lower standards found in immigration court allow documents to be entered as evidence without being authenticated. Hearsay from outside the courtroom is also admissible. In most U.S. courts, hearsay is not admissible but in immigration court it does not even have to be spoken on the witness stand. A statement that somebody made outside of court counts as admissible evidence.

So while areas of rights for an illegal citizen are definitely blurred, anybody that argues someone who entered America illegally has no rights are simply wrong. Section One of the 14th Amendment clearly reads as follows:

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.

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About Meko Haze

Meko Haze is an independent journalist by day... and an independent journalist by night.

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