What Constitutional Rights Do Undocumented Immigrants Have?

What Constitutional Rights Do Undocumented Immigrants Have?

What Constitutional Rights Do Undocumented Immigrants Have?


The current “zero-tolerance” policy toward violation of immigration policy by the Trump administration has led to a call for action to protect the legal rights of immigrants. A clear understanding of how the United States Constitution applies to undocumented immigrants will determine what rights they have when it comes to legal representation, access to the justice system, and educational rights.

The Fundamental Rights for Undocumented Immigrants Under the Constitution

The Constitution has provisions based on the concept of personhood and the sovereignty of the United States based upon its people. This means anyone within the jurisdiction of the United States should have some constitutional protections, regardless of their immigration status. This specification makes it clear that even undocumented immigrants have many of the basic rights that legal citizens do. Ensuring that individuals who are not lawful residents can enjoy these protections is an ongoing challenge.

In this article, we will review some of the many rights afforded to undocumented immigrants under the United States Constitution.

Legal Counsel

In 1963, the Supreme Court of the United States ruled in Gideon v. Wainwright that persons too impoverished to afford an attorney must have one appointed by the government. This decision ensured that everyone has equal access to legal representation if facing criminal charges in the U.S. There is a specific caveat to this law that federal immigration agencies rely on to deny an undocumented person’s right to counsel. The law only demands the assigning of representation in felony cases. Since most deportation and illegal crossing cases are misdemeanors, this right may go ignored.

The implications of this loophole have received national attention after the Trump administration took a zero-tolerance stance regarding illegal immigration crimes. While most of these cases get treated as criminal cases, situations involving the parents and their children committing illegal crossings have not. This inconsistent application of immigration policy has led to thousands of children being taken from their parents without any access to attorneys. Further, over 500 of these children are now lost in the American foster system, and the current administration has not been able to locate their parents. Assigning attorneys to civil proceedings involving undocumented families may have avoided this tragic result.

Due Process

At the center of many deportation cases is the right of due process and ensuring undocumented immigrants receive it. Though the Fifth Amendment establishes this right, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 created an expedited process that allows government agencies to circumvent it and deport an individual almost immediately.

To expedite a removal, it must happen outside of the immigration court system. Two primary conditions allow the removal of undocumented immigrants without a court hearing:

  • The individual has been in the United States illegally for less than two years, and
  • Authorities caught the individual within 100 miles of the border.

These stipulations do not apply in cases involving asylum seekers who must receive a hearing.

Protection Against Unreasonable Search and Seizure

Under the Fourth Amendment of the Constitution, individuals have certain protections against governmental search and seizures that are unreasonable. This is not a guarantee that such action is illegal, as this law recognizes that there are times when search and seizure is necessary.

Usually, this right extends to both citizens and noncitizens. But the Supreme Court 2014 case United States v. Martinez-Fuerte justified the use of a “border exception” to stop and question vehicle passengers about their citizenship status within 100 miles of a U.S. border. However, it is unconstitutional for government agencies like Immigration and Customs Enforcement (ICE) to roam around the country, stopping vehicles without a warrant.

Another question that courts often face in undocumented immigrant cases is what constitutes a border. Currently, searches conducted at ports of entry and airports are also legal the majority of the time.

Trust Experienced Orlando Immigration Law Attorneys

Deportation is one of the top fears that undocumented immigrants face while living in the United States. Depending on how government agencies like ICE decide to handle your case, as an undocumented noncitizen, you are at a heavy disadvantage without an attorney present to represent you and protect your rights under the Constitution.

For noncitizens in Central Florida, you must hire an Orlando criminal defense team that is familiar with criminal immigration charges. At The Umansky Law Firm, our attorneys believe that everyone deserves a second chance, whether you are a citizen or not. With over 100 years of combined criminal law experience, our defense lawyers are board-certified and have extensive practice in fighting federal immigration charges throughout Orlando. Call our office today to schedule a free consultation or contact us online to learn more.

What Constitutional Rights Do Undocumented Immigrants Have?