Simone Lawson
The term illegal alien is not explicitly mentioned in the US Constitution. However, the Constitution does outline certain rights and protections for aliens or non-citizens within the United States, regardless of their legal status. These rights include due process rights, such as the right to a fair hearing, protection against unreasonable searches and seizures, and the right to legal counsel in criminal proceedings. The Supreme Court has also extended constitutional protections to aliens, including those who entered the country unlawfully, affirming that even those who are in the country illegally are entitled to due process before expulsion. Additionally, while the right to live with one's family is not expressly guaranteed in the Constitution, the Supreme Court has recognized it as a fundamental right protected by the Due Process Clause.
| Characteristics | Values |
|---|---|
| Is the term "illegal alien" in the US Constitution? | No, the term "illegal alien" is not in the US Constitution. However, the term "alien" is used in reference to non-citizens. |
| Constitutional rights of undocumented immigrants | The right to due process, as guaranteed by the Fifth and Fourteenth Amendments. The right to family integrity. The right to legal counsel if accused of a felony. |
| Constitutional rights in deportation proceedings | The right against self-incrimination, protection against unreasonable searches and seizures, guarantees against ex post facto laws, bills of attainder, and cruel and unusual punishment, the right to bail, procedural due process, the right to notice of charges and hearing, and the right to cross-examine. |
| Use of the term "illegal alien" | The term "illegal alien" is not defined in federal law and is not used in the Texas state constitution. It is considered pejorative by some and news organizations such as the Associated Press discourage its use. |
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What You'll Learn
Due process rights for undocumented immigrants
The term "illegal alien" is not mentioned in the US Constitution. However, the Constitution does refer to "aliens" and the rights afforded to them. Due process rights for undocumented immigrants in the US are derived from interpretations of the Fifth and Fourteenth Amendments, which guarantee due process to all "persons" within US jurisdiction.
The Fifth Amendment states that "no person ... shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law." The Fourteenth Amendment also includes a Due Process Clause, which mandates that state governments provide equal protection of the laws to all persons, regardless of immigration status.
The Supreme Court has ruled that these protections extend to all aliens within the US, including those who entered unlawfully. This means that undocumented immigrants have the right to due process in deportation proceedings. They have the right to be informed of the charges against them, the right to an attorney, and the right to present evidence in their defence.
However, the reality is that undocumented immigrants often do not receive a fair hearing. They may be subject to expedited removal, which allows for deportation without a court hearing for those who have been in the country illegally for less than two years and are apprehended within 100 miles of the border. In such cases, immigrants may not be granted a hearing, legal representation, or the right to appeal.
Additionally, immigration courts have a lower standard for evidence than other US courts, and hearsay is admissible, making convictions almost guaranteed. While the Sixth Amendment guarantees the right to legal counsel in all criminal proceedings, most deportation proceedings are civil cases, so this right often does not apply. The government is only required to provide counsel if the person is accused of a felony, and crossing the border illegally is considered a misdemeanour.
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Deportation proceedings and constitutional rights
The term "illegal alien" is not mentioned in the US Constitution. However, the Constitution does refer to aliens and outlines the rights and protections afforded to them, including those who are in the country unlawfully.
Aliens who have entered the United States, even unlawfully, cannot be expelled without proceedings that conform to traditional standards of fairness encompassed in due process of law. This is based on several court rulings, including Shaughnessy v. United States ex rel. Mezei (1953), Mathews v. Diaz (1976), and Plyler v. Doe (1982).
The Fifth Amendment and the Fourteenth Amendment protect aliens from deprivation of life, liberty, or property without due process of law. This right to due process in deportation proceedings has been affirmed in rulings such as United States v. Verdugo-Urquidez (1990) and Dep't of Homeland Sec. v. Thuraissigiam (2020).
In addition to due process rights, aliens in deportation proceedings have several other constitutional protections. These include:
- The right against self-incrimination
- Protection against unreasonable searches and seizures
- Guarantees against ex post facto laws, bills of attainder, and cruel and unusual punishment
- The right to bail
- The right to counsel
- The right to notice of charges and hearing
- The right to cross-examine
However, it is important to note that the Supreme Court has upheld certain statutory deportation measures as not unconstitutional. Additionally, the right to legal counsel in deportation proceedings is limited, as most are considered civil rather than criminal cases. The government is only required to provide counsel if the person is accused of a felony, while crossing the border illegally is typically classified as a misdemeanor.
The extent of due process protection may also vary depending on the alien's status and circumstances. The Supreme Court has suggested that constitutional protections may be influenced by whether the alien has been admitted to the United States and has developed substantial connections or ties to the country.
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State laws and their impact on aliens
The term "illegal alien" is not mentioned in the US Constitution. However, the Constitution does grant certain rights and protections to aliens, including those who are in the country unlawfully. For example, the Fifth Amendment and the Fourteenth Amendment protect aliens from deprivation of life, liberty, or property without due process of law. The Sixth Amendment also grants aliens the right to counsel in criminal cases.
While the Constitution establishes certain protections for aliens, it also grants Congress significant power over immigration and the ability to exclude aliens from the United States and prescribe the terms and conditions on which they come in. Congress has used this power to pass laws such as the Alien Registration Act of 1940, which requires aliens over the age of 14 to register and be fingerprinted, and the Internal Security Act of 1950, which authorises the Attorney General to detain aliens who are members of the Communist Party.
State laws that impose discriminatory burdens on the entrance or residence of aliens are generally invalid, as they conflict with the federal government's power to regulate immigration. However, states do have some power to pass laws pertaining to aliens within their jurisdictions. For example, states can confer additional rights on aliens and control the right of aliens to hold real property within their borders.
In terms of the impact of state laws on aliens, there have been several notable examples. In Hines v. Davidowitz, the Supreme Court voided a Pennsylvania law that required the annual registration and fingerprinting of aliens, as it went beyond federal law. Additionally, in Landon v. Plasencia, the Court recognised that once an alien gains admission to the country and develops ties, their constitutional status changes, and they become entitled to certain protections. This case pertained to an alien who had resided in the state for several years and developed ties, and as such, the state laws and their impact on aliens played a crucial role in the outcome.
Furthermore, state laws can impact the rights of aliens to access certain benefits. For example, in a unanimous decision, the Supreme Court voided a Pennsylvania law limiting welfare assistance to citizens and an Arizona law requiring a 15-year residency period for aliens to be eligible for welfare assistance. This decision affirmed that lawfully admitted resident aliens are entitled to the full and equal benefit of laws, and states cannot deny them these benefits.
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Voting rights for noncitizens and illegal immigrants
The term "illegal alien" is not mentioned in the US Constitution. However, the Constitution does refer to aliens and the rights afforded to them. The Supreme Court has extended constitutional protections to all aliens within the United States, including those who entered unlawfully. The Fifth and Fourteenth Amendments guarantee due process rights to aliens, ensuring they can only be expelled after fair proceedings.
Regarding voting rights, the Constitution does not explicitly prohibit anyone from voting but rather outlines who cannot be denied the right. The 14th Amendment grants voting rights to male US citizens over 21, unless they have committed a crime. The 15th and 19th Amendments prohibit denying voting rights based on race and sex, respectively.
While the Constitution does not explicitly address voting rights for noncitizens and illegal immigrants, states have the power to regulate their conduct and participation in elections. By 1924, all states had banned noncitizens from voting in federal elections, and in 1996, Congress added criminal penalties. Noncitizens are prohibited from voting in federal and state elections, and voter fraud by noncitizens is considered extremely rare.
However, some local jurisdictions, such as San Francisco and certain Maryland towns, have granted noncitizens the right to vote in specific local elections, such as for school boards or city councils. These decisions are often made to include all parents in decisions regarding their children's education and to attract workers and families to less populated areas.
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Terminology: 'illegal alien' in federal law
The term "illegal alien" is not a legal term in federal law, although it does appear in federal law. Steve McCraw, the director of the Texas Department of Public Safety, claimed during a Texas House committee hearing in 2018 that the term is a legal term and is used in statute. However, a search of federal law revealed that the term appears sparingly and is not defined as referring to all individuals living in the US without legal authorization. Where the term does appear, it is often undefined or limited to specific contexts, such as individuals convicted of felonies.
The use of the term "illegal alien" is considered pejorative by many, and news organizations have largely avoided using it. The Associated Press, for example, dropped "illegal immigrant" from its stylebook in 2013, advising journalists against using the term except in direct quotations.
While the term "illegal alien" is not prevalent in federal law, the legal rights of undocumented immigrants are addressed in various constitutional amendments and court rulings. The Fifth Amendment guarantees due process of law in deportation proceedings, and the Supreme Court has extended these protections to all aliens within the United States, regardless of their legal status. The Sixth Amendment guarantees the right to counsel in criminal prosecutions, but this right does not always apply in deportation proceedings, which are often civil cases. The Fourteenth Amendment prohibits the deprivation of life, liberty, or property without due process of law, and the Plyler v. Doe ruling held that unlawfully present aliens were entitled to both due process and equal protection under this amendment.
In summary, while the term "illegal alien" is not a prevalent legal term in federal law, the rights of undocumented immigrants are protected by various constitutional amendments and court rulings. These protections include due process rights, the right to counsel in certain cases, and equal protection under the law.
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Frequently asked questions
The term "illegal alien" is not in the US Constitution. However, the term "alien" is used in the Constitution to refer to individuals who are not US citizens. The Constitution does not prohibit anyone from voting but spells out who cannot be denied the right to vote.
Undocumented immigrants have the right to due process, as per the Fifth and Fourteenth Amendments. They also have the right to procedural due process, the right to notice of charges and hearing, and the right to cross-examine. In deportation proceedings, they have the right against self-incrimination, protection against unreasonable searches and seizures, guarantees against ex post facto laws, bills of attainder, and cruel and unusual punishment, the right to bail, and the right to counsel.
The Alien Registration Act of 1940 required all aliens in the US aged 14 and over to register and be fingerprinted. Willful failure to comply was considered a criminal offense.
