Do Undocumented Immigrants Have Constitutional Rights?

Courts Have Ruled They Do

Man holding a study guide to the US Constitution
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The fact that the term "illegal immigrants" does not appear in the document doesn't mean that the U.S. Constitution's rights and freedoms do not apply to them.

Often described as a "living document," the Constitution has repeatedly been interpreted by the U.S. Supreme Court, federal appeals courts, and Congress in order to address the ever-changing needs and demands of the people. While many argue that "We the People of the United States," refers only to legal citizens, the Supreme Court has consistently disagreed.

Yick Wo v. Hopkins (1886)

In Yick Wo v. Hopkins, a case involving the rights of Chinese immigrants, the Court ruled that the 14th Amendment's statement, "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," applied to all persons "without regard to any differences of race, of color, or of nationality," and to "an alien, who has entered the country, and has become subject in all respects to its jurisdiction, and a part of its population, although alleged to be illegally here." [Kaoru Yamataya v. Fisher, 189 U.S. 86 (1903)]

Wong Wing v. United States (1896)

Citing Yick Wo v. Hopkins, the Court, in the case of Wong Wing v. United States, further applied the citizenship-blind nature of the Constitution to the 5th and 6th amendments, stating ". . . it must be concluded that all persons within the territory of the United States are entitled to the protection guaranteed by those amendments, and that even aliens shall not be held to answer for a capital or other infamous crime, unless on a presentment or indictment of a grand jury, nor be deprived of life, liberty, or property without due process of law."

Plyler v. Doe (1982)

In Plyler v. Doe, the Supreme Court struck down a Texas law prohibiting enrollment of illegal aliens in public school. In its decision, the Court held, "The illegal aliens who are plaintiffs in these cases challenging the statute may claim the benefit of the Equal Protection Clause, which provides that no State shall 'deny to any person within its jurisdiction the equal protection of the laws.' Whatever his status under the immigration laws, an alien is a 'person' in any ordinary sense of that term… . The undocumented status of these children vel non does not establish a sufficient rational basis for denying them benefits that the State affords other residents."

It's All About Equal Protection

When the Supreme Court decides cases dealing with First Amendment rights, it typically draws guidance from the 14th Amendment's principle of "equal protection under the law." In essence, the "equal protection" clause extends First Amendment protection to anyone and everyone covered by the 5th and 14th Amendments. Through the court's consistent rulings that the 5th and 14th Amendments apply equally to illegal aliens, such people also enjoy First Amendment rights.
In rejecting the argument that the "equal" protections of the 14th Amendment are limited to U.S. citizens, the Supreme Court has referred to the language used by the Congressional Committee that drafted the amendment.

"The last two clauses of the first section of the amendment disable a State from depriving not merely a citizen of the United States, but any person, whoever he may be, of life, liberty, or property without due process of law, or from denying to him the equal protection of the laws of the State. This abolishes all class legislation in the States and does away with the injustice of subjecting one caste of persons to a code not applicable to another... . It [the 14th Amendment] will, if adopted by the States, forever disable every one of them from passing laws trenching upon those fundamental rights and privileges which pertain to citizens of the United States, and to all persons who may happen to be within their jurisdiction."

While undocumented workers do not enjoy all of the rights granted to citizens by the Constitution, specifically the rights to vote or possess firearms, these rights can also be denied to U.S. citizens convicted of felonies. In final analysis, the courts have ruled that, while they are within the borders of the United States, undocumented workers are granted the same fundamental, undeniable constitutional rights granted to all Americans.

Right to a Lawyer in Deportation Hearings?

On June 25, 2018, President Donald Trump tweeted that undocumented immigrants should be immediately returned to“from where they came” with “no Judges or Court Cases.” This came weeks after the Trump administration had issued its “zero-tolerance” immigration policy, which led to a spike in separations of undocumented immigrant families detained at the border. Though President Trump had already ended the family separations through an executive order issued on June 1, the affair brought heightened attention to the question of whether undocumented immigrants have the right to a court hearing or legal representation—a lawyer.

In this case, the Sixth Amendment states that “In all criminal prosecutions, the accused shall…have the assistance of counsel for his defense.” In addition, the U.S. Supreme Court ruled in the 1963 case of Gideon v Wainwright that if a criminal defendant or suspect lacks enough money to hire an attorney, the government must appoint one to them.

The Trump administration’s zero-tolerance policy requires that most illegal border crossings, except those involving parents who cross the border illegally with children, be treated as criminal acts. According to the Constitution and current law, anyone facing a criminal charge has the right to a lawyer. However, the government is only required to provide an attorney if the defendant is accused of a felony, and the act of crossing the border illegally is only a misdemeanor

Case in Point

An excellent illustration of the extent to which undocumented immigrants in the U.S. are afforded constitutional rights can be seen in the tragic shooting death of Kate Steinle.

On July 1, 2015, Ms. Steinle was killed while visiting a seaside pier in San Francisco by a single bullet fired from a pistol admittedly held by Jose Ines Garcia Zarate, an undocumented immigrant.

A citizen of Mexico, Garcia Zarate had been deported several times and had previous convictions for illegally re-entering the U.S. after being deported. Just before the shooting, he had been released from a San Francisco jail after a minor drug charge against him was dismissed. While U.S. Immigration and Customs Enforcement issued a detention order for Garcia Zarate, police released him under San Francisco’s controversial sanctuary city law.

Garcia Zarate was arrested and charged with first-degree murder, second-degree murder, manslaughter, and variety of firearm possession violations.

In his trial, Garcia Zarate claimed that he had found the gun used in the shooting wrapped in a T-shirt under a bench, that it went off accidentally as he unwrapped it, and that he had not intended to shoot anyone. Prosecutors, however, claimed Garcia Zarate had been seen carelessly pointing the gun at people before the shooting.

On December 1, 2017, after a lengthy deliberation, the jury acquitted Garcia Zarate on all charges except that of being a felon in possession of a firearm.

Under the constitutional guarantee of “due process of law,” the jury found reasonable doubt in Garcia Zarate’s claim that the shooting had been an accident. In addition, Garcia Zarate’s criminal record, details of his prior convictions, or immigration status were not allowed to be presented as evidence against him.

In this, as in all cases, Jose Ines Garcia Zarate, despite being a previously convicted undocumented alien, was afforded the same constitutional rights as those guaranteed to full citizens and lawful immigrant residents of the United States within the criminal justice system.​