Undocumented Immigrants have Constitutional Rights too

By: Aisosa Osaretin

Disclaimer: The views expressed in this post are those of the author, and do not necessarily reflect views of the Journal, the William H. Bowen School of Law, or UA Little Rock.

Rights, as the Oxford dictionary defines it, are moral or legal entitlements to have or obtain something or to act in a certain way. It is a fundamental aspect of every society and factors into almost every sphere of our lives including our thought processes and how we express ourselves. I have come to the understanding that when talking about rights, our responses and understanding are to a great extent influenced by our environment and our classification in society. While there were varying answers as to what rights are and mean in the United States and who exactly is in the best position to enjoy those rights, there was a general consensus amongst the persons I spoke with as to whether or not undocumented immigrants had rights within the country. The general response to the question of whether undocumented immigrants had “basic fundamental human rights” in the United States was yes. And the response to if undocumented immigrants have constitutional rights was in the negative.

This response, although popular, is a wrong assumption. Undocumented immigrants are not just entitled to the basic fundamental human rights, but are also covered by the Constitution of the United States. Yes, without question, the Constitution applies to undocumented immigrants on the basis of personhood and jurisdiction in the United States.  Many parts of the Constitution use the term “people” or “person” rather than “citizen.” We can reasonably conclude therefore, that rights to own property, engage in lawful employment, rights under the Due Process Clause and Equal Protection Clause apply to citizens and noncitizens. A conclusion that has been supported by the Supreme Court of the United States in a variety of cases.

This is not intended to relay that undocumented immigrants enjoy the same rights and privileges as citizens or legal residents of the United States. That would be false because the enjoyment of certain rights, such as the rights to vote, run for office, and hold certain federal jobs, are reserved exclusively for United States citizens. These also happen to be the only rights exclusively enjoyed by U.S. citizens. However, the rights of aliens and undocumented immigrants are not restricted to “basic human rights,” but also extend to rights protected by the U.S. Constitution by virtue of being physically present in the country. For instance, here is a non-exhaustive list of some rights undocumented immigrants may enjoy stemming from the United States Constitution:

  1. Right to jury trial;
  2. Right to Miranda warning;
  3. Right to defend against charges and deportation;
  4. Right to counsel in criminal proceedings;
  5. Right to protection from unlawful search and seizure;
  6. Right to protection against self-incrimination;
  7. Right to file civil lawsuits;
  8. Right to payment for work performed;
  9. Right to a healthy and safe work environment; and
  10. Right to k-12  education.

Upon reflection, public awareness of the constitutional rights of undocumented immigrants does not appear to be widespread knowledge. This leads me to a further reflection as to the possible ignorance of undocumented immigrants of the rights they possess fundamentally and constitutionally. If this is the case, the rights of this group of people may not be appropriately protected, as ignorance of a right is only the first step to violation of that right.

Posted in: Legal Comentary

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