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Do Undocumented Immigrants Have Legal Rights?

Immigration document, USCIS document

How the 14th Amendment Affects Undocumented Immigrants

A common misconception is that undocumented immigrants in the United States DO NOT have rights, but that is wrong. To understand why, read below:

“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; 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.”

This clause is contained in the 14th Amendment, which grants every person in the US certain legal rights, whether or not they are lawful permanent residents. It grants citizenship to all persons born or naturalized in the US and guarantees equal protection of the laws to all. As such, “equal protection for all” means equal protection for both documented and undocumented immigrants in the United States.

Immigrant Rights At-a-Glance

The Constitution applies to undocumented immigrants, although, the extent to which each Amendment applies is not absolute and varies on a case-by-case basis. As a result, some undocumented immigrants may get rights and other legal protections that are not afforded to other undocumented immigrants.

With this in mind, what are the rights of illegal immigrants?

Undocumented immigrants have the right to freedom of speech and religion, the right to be treated fairly, the right to privacy, and the other fundamental rights such as:

  • The right to due process
  • The right to legal counsel
  • The right to familial association
  • The right to education
  • The right against unreasonable search and seizure (except for border searches)
  • The right to minimum wage and overtime pay
  • The right to own property and get mortgages
  • The right to get child custody orders in court
  • The right to pay or receive child support

On top of these rights, undocumented immigrants facing deportation have several rights in court. According to the ACLU, illegal immigrants who are undergoing removal proceedings are entitled to:

  • A hearing before an immigration judge and review, in most cases, by a federal court;
  • Representation by a lawyer (but not at government expense)
  • Reasonable notice of charges, and of a hearing's time and place
  • A reasonable opportunity to examine the evidence and the government's witnesses
  • Competent interpretation for non-English speaking immigrants
  • Clear and convincing proof that the government's grounds for deportation are valid

If you are facing deportation, know your rights. The immigration and customs system can be ruthless and unfair, which is why you must come prepared by knowing your rights and, importantly, hiring a lawyer.

Need a thorough refresher of your legal rights as an immigrant? Regardless of your citizenship status, our Santa Barbara immigration attorneys would be happy to answer any questions or concerns you may have regarding your immigration case or citizenship status altogether. Call us at (805) 467-6060!