The Constitution's Promise: Equality For Immigrants

The U.S. Constitution protects persons regardless of their immigration status. 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 guarantees due process and equal protection under the law. This means that immigrants, even those who are undocumented, cannot be denied their legal rights without proper application of the law. The U.S. Supreme Court has upheld that certain constitutional rights extend to everyone living within the U.S., not just citizens.

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The Constitution applies to undocumented immigrants

The rights of undocumented immigrants in the United States are a complex issue, shaped by constitutional protections, federal laws, and court rulings. While undocumented immigrants do not enjoy the same comprehensive liberties as citizens, they are entitled to certain fundamental protections under the law.

The US Constitution applies to undocumented immigrants in that it guarantees them certain basic rights. Cristina Rodriguez, a professor at Yale Law School, affirms that "most of the provisions of the Constitution apply on the basis of personhood and jurisdiction in the United States." The Constitution often uses the terms "people" or "person" rather than "citizen," indicating that these rights apply to everyone physically on US soil, regardless of citizenship. These rights include freedom of religion and speech, the right to due process, and equal protection under the law. The Fifth Amendment, for instance, 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 Sixth Amendment guarantees the right to counsel in criminal prosecutions, which also applies to immigration proceedings. In United States v. Flores (1975), the Supreme Court ruled that the government cannot indefinitely detain undocumented children without providing basic necessities and educational opportunities. This ruling has been crucial in safeguarding the welfare of undocumented immigrant minors. Additionally, the Fourteenth Amendment ensures that if citizen children have access to free public education, so should undocumented immigrant children, as the government cannot "deny to any person within its jurisdiction the equal protection of the laws."

Undocumented immigrants also have the right to remain silent upon arrest, regardless of their immigration status. They are entitled to legal representation, either by retaining an attorney or through court-appointed counsel if they cannot afford one. The right to "familial association" is another protection, as the government cannot separate families without a legal process, although it may do so in extraordinary circumstances.

While the Constitution extends these rights to undocumented immigrants, their enforcement and access can be challenging due to negative perceptions of immigrants, influenced by political discourse and media portrayal. This environment can lead to stricter immigration laws and policies, making it harder for immigrants to assert their legal rights and receive fair treatment in judicial proceedings.

Immigrants' rights in criminal cases

The US Constitution guarantees certain rights to immigrants, regardless of their legal status. This is because the Constitution uses the terms "people" or "person" rather than "citizen" in many parts, and these rights apply to everyone physically on US soil. These rights include freedom of religion and speech, the right to due process, and equal protection under the law.

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 guarantees due process rights to all people, including immigrants. The Sixth Amendment further states that "in all criminal prosecutions, the accused shall [...] have the assistance of counsel for his defence". The Supreme Court ruled in the 1963 case Gideon v Wainwright that the government must provide an attorney for defendants who cannot afford one.

In practice, however, immigration courts have been criticised for their lack of rights for immigrants. John Gihon, an immigration attorney, notes that the bar for evidence is low in immigration court, with unauthenticated documents and hearsay counted as admissible evidence. This often leads to guaranteed convictions, as defendants may confess to crossing the border illegally.

In recent years, the federal government has increasingly used criminal courts to punish people for immigration violations. The Trump administration, in particular, implemented a zero-tolerance policy, criminally charging immigrants and separating families. While critics have pointed to the legal right to "family integrity", established through early 20th-century court rulings, the government has overwhelmed the courts with mass trials that last only minutes per defendant.

Furthermore, immigrants may face pressure to waive certain rights, including the right to challenge a conviction, in exchange for reduced sentences. This is especially prevalent in "flip-flop" plea deals, where a more serious charge, such as "illegal re-entry", is paired with a lesser charge, like "illegal entry", to encourage guilty pleas. Despite claims that individuals can pursue protection-based claims while serving sentences, reports suggest that DHS officials deny migrants their right to seek asylum or relief.

In summary, while the US Constitution guarantees certain rights to immigrants in criminal cases, the reality is that their rights are often limited, and they may face pressures to waive those rights in the complex legal system.

Immigrants' rights to family integrity

The right to family integrity, also referred to as the right to "familial association", is a constitutionally protected right in the United States. This right is not explicitly stated in the Constitution but has been established through court rulings in the early 20th century. The right to family integrity is recognised as a basic principle, guaranteeing people the right to be with and commune with their family.

The right to family integrity is particularly relevant in the context of immigration law and policy. While the US Constitution supports this right, the specific application to immigration cases has been inconsistent. For example, the Eastern District of New York has held that the right to remain united with one's family does not apply when families are separated due to immigration enforcement. This understanding was also articulated in the case of Ms. L v. ICE, where migrant parents brought a class action against the federal government's separation of parents from their children while in immigration detention.

However, critics of family separation, particularly during the Trump administration, have emphasised the legal right to family integrity. While the government can separate families in extraordinary circumstances, such as child abuse, it must follow a legal process. Furthermore, the jurisprudence around family rights in immigration law has been criticised for failing to adequately protect children from the deportation of their parents.

To address family separation in immigration cases, legislative and executive intervention has been suggested. Additionally, courts have been urged to adopt recommendations that would more fully recognise the right to family unity, signalling to the legislative and executive branches the constitutional implications of their inaction.

In terms of specific policies, the Department of Homeland Security (DHS) implemented the "Keeping Families Together" programme in 2024. This process allows certain alien spouses and stepchildren of US citizens to request parole and remain in the United States on a temporary basis for urgent humanitarian reasons or significant public benefit. This programme aims to keep families united and prevent separation due to immigration status.

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Immigrants' rights to education

The US Constitution applies to undocumented immigrants, as confirmed by Cristina Rodriguez, a professor at Yale Law School. The Constitution uses the terms "people" or "person" rather than "citizen", meaning that basic rights such as freedom of religion and speech, the right to due process, and equal protection under the law apply to citizens and noncitizens alike.

The Supreme Court has long guaranteed that all children have a right to a free public education, regardless of their immigration status. This was established in the 1982 case of Plyler v. Doe, where the Court based its decision on the equal protection clause of the Constitution. The Court noted that the undocumented status of children does not "provide a rational basis for depriving them of an education". By denying these children an education, the Court argued that we deny them "the ability to live within the structure of our civic institutions, and foreclose any realistic possibility that they will contribute in even the smallest way to the progress of our Nation".

Despite this landmark decision, one million undocumented immigrant children in the US face serious challenges in accessing their right to education. These challenges include the ever-present risk of deportation, as well as laws aimed at curtailing the education rights of immigrant children, and local administrators seeking to bar immigrant children from receiving an education.

In addition, once in the US, immigrant students, especially teenagers, are often pushed towards "separate but unequal alternative programs". These programs often only teach English, providing no additional education or support in the student's native language. While these programs can result in a GED, many do not ensure the child graduates with a certificate.

To support immigrant students and their families, the California Department of Education (CDE) is sharing resources to preserve access to education for students from immigrant families during times of increased fear of immigration enforcement. The CDE offers mental health and case management services, counseling services, family case management, emotional support, free immigration legal representation, deportation defense, community workshops, and more.

Immigrants' rights to fair labour standards

The US Constitution does apply to undocumented immigrants, as confirmed by Cristina Rodriguez, a professor at Yale Law School. The Constitution uses the terms "people" or "person" rather than "citizen", meaning that basic rights such as freedom of religion and speech, the right to due process, and equal protection under the law apply to citizens and noncitizens alike.

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 guarantees due process, stating that "nor shall any State deprive any person of life, liberty, or property, without due process of law". The Sixth Amendment further ensures that "in all criminal prosecutions, the accused shall [...] have the assistance of counsel for his defence".

In addition, the Immigration and Nationality Act's (INA) anti-discrimination provision expressly prohibits discrimination based on citizenship status. This is enforced by the Immigrant and Employee Rights Section (IER) in the Department of Justice's Civil Rights Division. The IER operates hotlines for both employers and employees, where calls can be made anonymously and in any language.

The Equal Employment Opportunity Commission (EEOC) is a federal agency responsible for enforcing laws prohibiting employment discrimination and harassment based on race, colour, sex, religion, national origin, age (40 and over), and physical or mental disability. The EEOC provides a fact sheet that explains how EEO laws protect immigrants and answers common questions from workers who believe they have been discriminated against.

In New York City, the Department of Consumer and Worker Protection (DCWP) protects and promotes labour standards and policies that create fair workplaces to ensure all workers can realise their rights, regardless of immigration status. The DCWP website provides information on workplace rights, and New Yorkers can call 311 and say "HUMAN RIGHTS" to report any discrimination based on national origin, religious beliefs, attire, accent, or immigration status to the NYC Commission on Human Rights.

Furthermore, according to the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, migrant workers and their families have the right to:

• Be protected by law, specifically in regard to the right to life
• Not be subjected to torture or cruel, inhuman, or degrading treatment or punishment
• Not be held in slavery or servitude
• Not be required to perform forced or compulsory labour
• Not be arbitrarily deprived of property, and to receive fair and adequate compensation in the case of expropriation
• Liberty and security of person
• Effective protection by the State against violence, physical injury, threats, and intimidation, from both public officials and private individuals, groups, or institutions
• Verification of identity by law enforcement officials in accordance with established legal procedures

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