Simone Lawson
The U.S. Constitution affords its citizens many protections, but the word citizen should not always be taken literally. While there is no federal law guaranteeing the right to education, in the case of Plyler v. Doe, the Supreme Court held that if children who are citizens or legal residents have the right to attend public schools, then undocumented children also have this right. The 14th Amendment ensures that 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. The First Amendment also protects the rights of marginalized people to have a voice and does not allow the government to prefer some speakers over others based on their identity. The Constitution protects all people living in the United States, regardless of immigration status, and most constitutional provisions apply based on personhood, not citizenship.
| Characteristics | Values |
|---|---|
| Right to due process | Extended to non-citizens |
| Right to be with family | Extended to non-citizens |
| Right against unreasonable searches and seizures | Extended to non-citizens |
| Right to education | Extended to non-citizens |
| Right to free speech, religion, assembly | Extended to non-citizens |
| Right to a speedy and public trial by jury | Extended to non-citizens |
| Right to equal protection under the law | Extended to non-citizens |
| Right to vote | Not extended to non-citizens |
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What You'll Learn
Non-citizens' right to due process
The U.S. Constitution guarantees due process rights to all individuals, including non-citizens, regardless of their immigration status. Due process is a fundamental right that ensures fair and just treatment for everyone, especially when their life, freedom, or property is at risk. It also allows individuals to defend their rights in court and protects them against arbitrary government decisions.
Undocumented immigrants charged with a criminal offense have the same due process protections as everyone else. This includes the right to a speedy and public trial by jury, protection from unlawful searches and seizures, and the right to remain silent. Non-citizens facing deportation also have a right to due process, which usually includes a hearing before a judge. However, current policies that expedite deportations and limit access to legal representation have made it more challenging for non-citizens to obtain a fair hearing.
The amount of due process owed depends on the situation. For example, immigrants ordered to leave the country can challenge deportation through civil proceedings involving immigration courts and judges. They must secure legal representation to guide them through the process and have the opportunity to appeal unfavorable decisions. On the other hand, undocumented migrants found within a hundred miles of the border and within two weeks of entering the U.S. may be subject to expedited removal without a hearing, lawyer, or right of appeal. However, if they seek asylum, their case will receive fuller consideration.
While the Constitution guarantees due process to all, the specific rights afforded to non-citizens during legal proceedings can vary based on their legal status. The Supreme Court has not ruled definitively on whether the First Amendment applies to non-citizens, particularly those without legal status. In the case of Reno v. American Arab Anti-Discrimination Committee, the government argued that non-citizens do not have a constitutional right to assert selective enforcement as a defense against deportation. However, legal scholars and federal judges disagree, citing the Citizens United ruling, which opposed restrictions on political donations based on identity.
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Non-citizens' right to free speech
The question of whether non-citizens have the right to free speech under the First Amendment is complex and has not been definitively resolved by the Supreme Court. While the First Amendment itself does not specify whether it applies only to citizens, the Court has not always treated citizens and non-citizens equally when it comes to free speech rights.
The First Amendment guarantees the freedoms of religion, speech, press, assembly, and petition, but it is unclear whether “the people” who are afforded these rights include non-citizens. Some argue that the First Amendment applies only to citizens, while others contend that it protects everyone in the United States, regardless of citizenship status.
Legal scholars and judges are divided on the issue. Some argue that the First Amendment only protects immigrants who have entered the country legally and have a "sufficient connection" to the US. In support of this position, the Department of Justice (DOJ) cited the case United States v. Verdugo-Urquidez (1990), which suggested that "the people" in the First Amendment may not include non-citizens. Additionally, in the case of Mandel, the Supreme Court held that denying his visa did not violate his freedom of speech, indicating that noncitizens may not have the same First Amendment protections as citizens.
On the other hand, some legal scholars argue that the First Amendment protects the rights of marginalized people to have a voice and that the government cannot prefer some speakers over others based on their identity. In Citizens United v. FEC, the Supreme Court opposed restrictions on political donations based on identity rather than content. Additionally, in Plyler v. Doe, the Supreme Court ruled that undocumented immigrant children have the right to a free, public education under the Equal Protection Clause of the Fourteenth Amendment, suggesting that non-citizen children are considered "people" with certain constitutional rights.
The legal status of the non-citizen also appears to be a factor in determining their free speech rights. For example, a musician from India touring the US or a student journalist from Kenya at Indiana University likely has the right to free speech without fear of punishment. Similarly, an individual with legal status under the Deferred Action for Childhood Arrivals program may participate in public protests advocating for immigration reform. However, those facing deportation may find that their political speech or association is not protected, as seen in the case of Robert Galvan, who was deported for being a member of the Communist Party. Additionally, individuals on temporary work permits or applying for green cards or citizenship may self-censor or refrain from protesting out of fear of negatively affecting their immigration status.
In conclusion, while the First Amendment does not explicitly deny non-citizens the right to free speech, the Supreme Court has not provided a clear answer. The application of free speech rights to non-citizens depends on various factors, including their legal status, the nature of their speech, and the specific circumstances of their case.
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Non-citizens' right to protest
The right to protest is a complex issue for non-citizens, and their legal status in the country is a critical factor. The U.S. Constitution, specifically the First Amendment, does not explicitly restrict protest rights to citizens, as it refers to "the people". However, the Supreme Court has not provided a definitive ruling on whether the First Amendment applies to non-citizens.
Legal non-citizens do have the right to free speech and assembly, and this includes the right to protest. However, their immigration status may place them at a disadvantage if law enforcement intervenes and makes arrests. Non-citizens must be aware of the risks and understand their rights when participating in protests. They have the right to remain silent and refuse to disclose their immigration status to authorities. Additionally, they can carry a "red card" listing their rights under the Fourth and Fifth Amendments.
The legal status of non-citizens can vary, including those with temporary work permits, student visas, or permanent residency. Their right to protest may be influenced by their specific circumstances. For example, those on student visas should avoid actions that could lead to suspension or arrest, as these could impact their visa status. Similarly, those with temporary work permits may self-censor their participation in protests out of fear of negatively affecting their path to full citizenship.
In the context of deportation proceedings, non-citizens are entitled to certain rights, such as a hearing before an immigration judge, legal representation, and interpretation services. The 14th Amendment ensures due process and equal protection under the law for "any person within its jurisdiction". This has been interpreted to include non-citizen children's right to education and familial association.
While the Constitution extends First Amendment protections to non-citizens, there are limitations. The Immigration and Nationality Act of 1952 authorizes the denial of entry or deportation of non-citizens who support terrorist activities. Additionally, the Department of Justice has argued that unauthorized immigrants do not have First Amendment protections, and their speech or associations may be scrutinized during the legal entry evaluation process.
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Non-citizens' right to education
The US Constitution does not explicitly guarantee a right to education for citizens or non-citizens. However, the Supreme Court has ruled that if citizen children have access to free public education, so should undocumented immigrant children. This is based on the interpretation of the 14th Amendment, which states that the government cannot "deny to any person within its jurisdiction the equal protection of the laws". This means that undocumented children cannot be prohibited from enrolling in a public school.
In the case of Plyler v. Doe, the Supreme Court ruled in favour of undocumented immigrant children's right to a K-12 education. The Court held that these children are "'people' as stated in the 14th Amendment, and that their immigration status is not a sufficient basis for denying them the benefits afforded to other residents. This ruling was made in the context of a Texas law that excluded the children of undocumented immigrants from being eligible for K-12 education.
While the Constitution does not explicitly mention education, it is left to state and local governments to provide and regulate schooling. Every state in the US requires school attendance for minors, recognising the importance of education in promoting a child's developmental, social, and economic success. However, there is no federal right to education, and the means, mode, and regulation of education vary depending on where a child lives.
The question of whether non-citizens have constitutional rights is complex. While the Constitution primarily affords rights to citizens, it also uses the terms "resident" or "person", which extend protections to non-citizens. The 14th Amendment, for example, ensures that no particular group is discriminated against unlawfully. Additionally, the First Amendment's protections of free speech and assembly have been interpreted to apply to some non-citizens, depending on their legal status.
In conclusion, while there is no explicit federal right to education in the US Constitution, the Supreme Court has interpreted the 14th Amendment to include undocumented immigrant children's right to a free public education. This ensures that these children are not discriminated against based on their immigration status and are afforded the same benefits as other residents. The question of non-citizens' constitutional rights remains complex and context-dependent, with legal scholars and judges offering differing interpretations.
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Non-citizens' right to be with family
The US Constitution does afford certain rights to non-citizens, including the right to "familial association". The 14th Amendment ensures that "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".
The International Covenant on Civil and Political Rights Article 2.1 also recognises certain civil and political rights in "all individuals within its territory and subject to its jurisdiction", including illegal aliens. It further states that everyone can exercise all human rights "without distinction of any kind, such as race, colour, birth or other status". The Declaration on the Human Rights of Individuals Who are not Nationals of the Country in which They Live sets out the rights of non-citizens, stating that aliens must receive the same treatment as nationals of the country in which they live with regard to the right to life and security of the person, including freedom from arbitrary arrest or detention, and protection against arbitrary or unlawful interference with privacy, family, home or correspondence.
In terms of family rights, the Supreme Court case of Plyler v. Doe ruled that if children who are citizens have access to a free, public education, so should undocumented immigrant children. This is because the 14th Amendment states that the government cannot "deny to any person within its jurisdiction the equal protection of the laws". This means that undocumented children cannot be prohibited from enrolling in a public school.
In addition, the 1993 Supreme Court case of Reno v. Flores returned to the spotlight following a surge in family separations. The case led to an agreement requiring the government to release children to their parents, a relative or a licensed program within 20 days. In the ruling, Justice Antonin Scalia wrote, "it is well established that the Fifth Amendment entitles aliens to due process of law in deportation proceedings".
The Department of Homeland Security (DHS) has also implemented a process called Keeping Families Together, which allows certain alien spouses and alien stepchildren of US citizens to request parole on a temporary, case-by-case basis for urgent humanitarian reasons or significant public benefit. To be eligible, alien spouses must be present in the US without admission or parole, have been continuously physically present in the US since at least June 17, 2014, have a legally valid marriage to a US citizen, and have no disqualifying criminal history. Alien stepchildren must be under the age of 21 and unmarried, and also be present in the US without admission or parole and have been continuously physically present in the US since at least June 17, 2024.
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Frequently asked questions
The US Constitution applies to everyone in the US, regardless of citizenship status. The 14th Amendment ensures that "no state shall [...] deny to any person within its jurisdiction the equal protection of the laws". However, non-citizens do not share all the rights of citizens under the US Constitution.
Non-citizens have the right to due process, the right to be with family, the right against unreasonable searches and seizures, and the right to education. They are also afforded interpretation services if they do not speak English.
The First Amendment does not specify whether it applies only to citizens. While the Supreme Court has not ruled definitively on the question, legal scholars and federal judges disagree on whether non-citizens are protected by the First Amendment.
The right to vote is afforded only to citizens. However, non-citizens in some cities and states have been allowed to vote in local elections.
