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What Constitutional Rights Do Undocumented Immigrants Have?

Many of the basic rights, such as the freedom of religion and speech, the right to due process and equal protection under the law apply to citizens and noncitizens. How those rights play out in practice is more complex.

FILE PHOTO: Light from the setting sun shines on the Supreme Court in Washington, DC, U.S., January 20, 2018.
REUTERS/Joshua Roberts/File Photo/Via PBS NewsHour
FILE PHOTO: Light from the setting sun shines on the Supreme Court in Washington, DC, U.S., January 20, 2018.

On Sunday, President Donald Trump tweeted that undocumented immigrants should be immediately returned "from where they came" with "no Judges or Court Cases."

This, along with the administration's "zero-tolerance" immigration policy and the recent surge in family separations at the border — a practice President Donald Trump ended through executive order — has called attention to the legal rights of immigrants under U.S. law.

What rights do undocumented immigrants have to a court hearing, to an attorney or to free speech? What rights do their children have to education?

To answer those questions, we must start with a more basic question–does the U.S. Constitution apply to undocumented immigrants?

"Yes, without question," said Cristina Rodriguez, a professor at Yale Law School. "Most of the provisions of the Constitution apply 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." Rodriguez said those laws apply to everyone physically on U.S. soil, whether or not they are a citizen.

As a result, many of the basic rights, such as the freedom of religion and speech, the right to due process and equal protection under the law apply to citizens and noncitizens. How those rights play out in practice is more complex.

Right to due process

What the law says: 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 issue of due process is at the heart of many immigration cases, including Reno v. Flores, the 1993 Supreme Court case that has returned to the spotlight with the surgee 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."

How it works in practice: Immigrants have the right to due process. But in reality, says, Andrew Arthur, a resident fellow in law and policy at the conservative Center for Immigration Studies, "courts of law run the gamut."

In some cases, immigrants are not granted a hearing at all. When asked about the president's tweet, White House Press Secretary Sarah Sanders pointed to the process of "expedited removal," which was created by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.

"Just because you don't see a judge doesn't mean you aren't receiving due process," Sanders said.

Under the expedited removal process, immigrants who have been in the country illegally for less than two years and are apprehended within 100 miles of the border can be deported almost immediately without going through a court hearing.

The exception is asylum seekers, who must be granted a hearing.

Those who are not processed through expedited removal have the right to due process in an immigration court, where the main goal is to decide whether a person has a legal claim to remain in the U.S.

"In immigration court, you have very few rights," said John Gihon, an immigration attorney who spent six years as a prosecutor for U.S. Immigration and Customs Enforcement before moving into private practice.

Gihon says the bar for what constitutes evidence is lax in immigration court. Documents do not have to be authenticated, and hearsay, a statement made by someone outside of the court, as opposed to on the witness stand, counts as admissible evidence. Hearsay is not allowed in most U.S. courts.

"In the majority of cases, it's a lock solid 100 percent guaranteed conviction because there is little defense, and most would confess they crossed the border illegally," Gihon said.

The right to legal counsel

What the law says: The Sixth Amendment states that "In all criminal prosecutions, the accused shall...have the assistance of counsel for his defense."

The Supreme Court ruled in the 1963 case Gideon v Wainwright that if a person is too poor to hire an attorney, the government must appoint one.

How it works in practice: Because most deportation proceedings are civil rather than criminal cases, the right to legal counsel often doesn't apply.

The Trump administration's zero-tolerance policy now requires most illegal border crossings to be tried as criminal cases, the exception being parents who cross the border illegally with children. After public outcry about separating families, the head of Customs and Border Protection said Monday the agency has stopped referring parents for prosecution. Other immigrants will still be charged with a crime.

Under the law, anyone facing a criminal charge has the right to counsel. However, the government is only required to provide counsel if the person is accused of a felony. Crossing the border illegally is a misdemeanor.

In recent weeks, people have donated millions of dollars to nonprofit groups to pay for immigrants' legal fees.

The Trump administration's decision to criminally charge immigrants has overwhelmed the courts, as demonstrated last month by a leaked photo of a trial in Pecos, Texas.

The image shows dozens of men in orange jumpsuits being tried en masse. In such proceedings, reports the Intercept, which originally published the photo, trials can last only minutes per defendant.

The right to be with your family

What the law says: Critics of family separation have pointed to the legal right to "family integrity." This right is not spelled out in the Constitution but was established through court rulings in the early 20th century, Rodriguez said.

"People have a right to be with and commune with their family. It's a very basic principle," she said.

The government can split up families in extraordinary circumstances, such as in the case of child abuse, but it cannot do so without going through a legal process.

How it works in practice: Before Trump signed the executive order Wednesday, the administration had divided families as a matter of course, without considering the individual cases. The ACLU sued, arguing the policy was unconstitutional.

The court has not issued a final ruling, and the president's executive order could change the case. But a judge did rule earlier this month that the case could proceed, saying immigrants have a right to "familial association" under the Constitution.

Right to vote or hold office

What the law says: The Constitution does not prohibit anyone from voting. Instead, it spells out who cannot be denied the right to vote. The 14th Amendment says men who are U.S. citizens and over the age of 21 must be allowed to vote, unless they have committed a crime. The 15th Amendment prohibits anyone from denying the right to vote based on skin color and the 19th Amendment prohibits denying the right to vote based on sex (aka being a woman).

It wasn't until 1926 that all states passed laws barring noncitizens from voting. Congress passed a law 70 years later prohibiting 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."

How it works in practice: If you are not a U.S. citizen, voting in a federal election could land you in prison for up to three years or lead to deportation. States can impose their own, sometimes harsher, penalties for breaking the law.

However, because elections are largely a local affair, some states allow local governments to decide whether noncitizens can vote in local elections.

In fact, noncitizens in Chicago have been allowed to vote for school board since 1989. New Yorkers who were not citizens were given the same right from 1969 until 2003, when local school boards were abolished there. Now San Francisco and Maryland are also giving noncitizens the right to vote in some local elections.

The right to education

What the law says: There is no "right to education" in the Constitution but two other sections do come into play when considering whether undocumented migrant children should have access to education.

First, in the case Plyler v. Doe, the Supreme Court ruled that if children who are citizens have access to a free, public education, so should undocumented immigrant children. That is because the 14th Amendment says the government cannot "deny to any person within its jurisdiction the equal protection of the laws."

What it means in practice: The court case means undocumented children cannot be prohibited from enrolling in a public school.

But what if a child is being detained and, therefore, does not have access to a public school. That is where, once again, the Flores settlement comes into play.

The settlement requires that facilities where children are kept must meet minimum requirements for providing health care, education, recreation and other child care services.

Right against unreasonable search and seizure

What the law says: The Fourth Amendment establishes the right "against unreasonable searches and seizures."

What it means in practice: While this law would generally apply to both citizens and noncitizens, there is a key caveat known as the "border search exception."

This exception dates back to the very first Congress, which passed a law allowing searchers at the border as a means to collecting duties.

As a result, courts have long upheld that searches at the border are not considered "unreasonable" for the very fact that they occur at the border.

The question courts have grappled with since is what constitutes the border. Searches at airports and other ports of entry for example are often considered legal. The Justice Department has also established a 100-mile wide "extended border" where Border Patrol agents can conduct searches if they meet certain criteria.