Undocumented immigrants, also known as illegal aliens, are foreign-born individuals who do not possess valid visas or other immigration documents. They may have entered a country without inspection, overstayed their temporary visas, or violated the terms of their admission. In the US, undocumented immigrants lack legal immigration status, work authorization, and pathways to citizenship. They are subject to interrogation, search, arrest, and detention by immigration officers. While they have certain rights, such as the right to remain silent and refuse searches without probable cause, they face the constant risk of removal or deportation. Various paths to legal status exist, including claiming asylum, temporary protected status, or specific visa programs. However, the process can be complex and challenging, often requiring legal assistance.
Characteristics | Values |
---|---|
Definition | Individuals who have either illegally entered a country without inspection or legally entered with valid non-immigrant visas that have expired. |
Legal Status | Do not have legal immigration status. |
Work Authorisation | Are not provided with work authorisations. |
Pathways to Citizenship | There are no pathways to gain citizenship. |
Interrogation, Search, Arrest and Detention | Law enforcement officers have the power to interrogate, search, arrest and detain undocumented immigrants. |
Removal from Country | If arrested and detained, undocumented immigrants may be released on bonds of over $1,500 or parole, pending a decision on their removal from the country. |
Inadmissibility or Deportability | If deemed inadmissible or deportable without exceptions, the court will order their removal. |
Time to Leave Country | Once the court has ordered their removal, they are required to leave the country within 90 days. |
Number in the US | There are more than 11 million undocumented immigrants in the US. |
Number Removed Annually | Since 2010, usually about 300,000-400,000 (less than 4%) of the undocumented population are removed per year. |
Change to Legal Status | May change to legal status by claiming asylum or temporary protected status. |
What You'll Learn
What rights do undocumented immigrants have?
The rights of undocumented immigrants in the US is a complex and highly contested issue. While some assert that the term "illegal immigrant" is more precise and concise, others argue that it is legally and morally problematic. Those who oppose the term "illegal immigrant" prefer descriptors such as "undocumented," "unauthorized," or "non-citizens," as they believe the former dehumanizes individuals and creates an environment of hate.
Despite the differing views on terminology, it is important to understand what rights undocumented immigrants do have. Firstly, the US Constitution applies to undocumented immigrants, as most of its provisions are based on personhood and jurisdiction rather than citizenship. This means that basic rights, such as freedom of religion and speech, the right to due process, and equal protection under the law, extend to both citizens and noncitizens.
Undocumented immigrants have the right to due process, which includes the right to a fair hearing in removal proceedings (deportation) under the Fifth Amendment. They also have the right to legal counsel in criminal proceedings under the Sixth Amendment, although this does not always apply in deportation cases, which are often considered civil matters.
Another important right is the right to be free from unreasonable search and seizure under the Fourth Amendment. While there is an exception for searches and seizures at the border, this only applies to the immediate border or ports of entry and does not extend far beyond that.
Undocumented immigrants also have the right to a jury trial in criminal cases, regardless of their immigration status, and the right to Miranda warnings if they are detained and interrogated. They have the right to defend themselves against deportation and other charges, and the right to protection against self-incrimination.
Additionally, they have the right to file civil lawsuits to seek remedies for violations of their rights, and in some states and cities, they have the right to vote in local elections. Undocumented immigrant children have the right to a public education, and all undocumented immigrants have the right to payment for work performed and the right to a safe work environment.
While undocumented immigrants do have legal rights, they also face many barriers in accessing those rights, including anti-immigrant sentiment, workforce competition, and the perception of strain on social services.
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What are the consequences of being caught?
Being caught as an undocumented immigrant can lead to various consequences, including arrest, detention, and potential deportation. Here are some key points to understand about the process and your rights:
- Arrest by Immigration and Customs Enforcement (ICE): ICE officers may show up at an individual's home or workplace to make an arrest. It is important to know that you do not have to let them in without a warrant, and they rarely bring warrants signed by a judge. However, if you voluntarily leave your home or invite them in, they can arrest you. ICE often uses unmarked vehicles and deceptive tactics to monitor individuals, but they are not allowed to enter your home without consent or a specific type of warrant.
- Arrest by other Law Enforcement Agencies (LEAs): State or local police, or Customs and Border Protection officers within 100 miles of the border, may also arrest undocumented immigrants, typically following a criminal arrest or a minor violation. These agencies can then contact ICE, who will file a "detainer" to hold the individual for further interview and potential deportation proceedings.
- Rights during Arrest: Regardless of your immigration status, you have guaranteed rights under the Constitution. You have the right to remain silent and do not have to discuss your immigration status. If you are over 18, carry your immigration documents with you, and show them to an immigration agent if requested. You do not have to consent to a search of yourself or your belongings without your consent or probable cause.
- Detention and Removal Proceedings: After being arrested, ICE will determine whether to initiate removal proceedings, typically based on unlawful entry, overstaying a visa, or criminal grounds. You will be served with a Notice to Appear (NTA) and have the right to see an immigration judge from the U.S. Department of Justice. Removal proceedings can be lengthy and may take years to complete.
- Release on Immigration Bond: While in detention, a deportation officer will determine whether to allow you to pay a bond to be released and return to your home while removal proceedings are ongoing. The eligibility and amount of the bond depend on the risk of missing immigration hearings and the danger to the community. Certain convictions or categories of immigrants may make you ineligible for a bond.
- ICE Transfer and Holding Facility: If you are taken into custody by ICE, you will be placed in a holding facility, which may be directly operated by ICE or subcontracted to local prisons. You have the right to make one free local phone call, request an interpreter, and contact your home country's consulate. ICE is not required to detain you locally, so you could be transferred to a different state.
Remember, the consequences of being caught as an undocumented immigrant can be complex and vary depending on individual circumstances. Understanding your rights and seeking legal assistance is crucial to protecting yourself and ensuring due process.
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What are the pathways to legal status?
Pathways to Legal Status
There are several pathways to legal status for undocumented immigrants in the United States, each with its own set of requirements and complexities. Here are some of the most common pathways:
- Marriage to a U.S. Citizen or Lawful Permanent Resident (LPR): One of the most common pathways to legal status is through marriage to a U.S. citizen or LPR. The foreign spouse of a U.S. citizen is considered an immediate relative and may have a straightforward process to obtain a green card. However, certain conditions must be met, such as a lawful entry into the U.S.
- DACA (Deferred Action for Childhood Arrivals) and DREAMers: The DACA program protects childhood arrivals and provides a temporary solution, but it is not a lawful immigration status. DREAMers, or undocumented immigrants who came to the U.S. as children, may have a path to legal status through the DREAM Act or similar legislation.
- Employment-Based Immigration: Undocumented immigrants with specific job skills or a job offer from a U.S. employer may be eligible for an employment-based visa. This pathway often requires sponsorship from an employer and is subject to numerical limitations and eligibility requirements.
- Family-Based Immigration: U.S. citizens and LPRs can petition for their immediate relatives, such as spouses, parents, and unmarried children, to obtain legal status. This pathway is numerically restricted and subject to income requirements.
- Humanitarian Protection: Individuals who have suffered persecution or have a well-founded fear of persecution in their home country may be eligible for asylum or refugee status. This pathway requires meeting specific criteria and demonstrating a connection between the persecution and one of the protected grounds, such as race, religion, or political opinion.
- U Visa for Victims of Crime: The U Visa provides legal status and a path to permanent residence for non-citizens who have been victims of certain crimes and have aided law enforcement. This pathway requires meeting eligibility criteria and cooperating with law enforcement.
- Registry: A provision in U.S. immigration law allows long-term undocumented residents who entered the country before a specified date ("registry date") and meet character and residency requirements to apply for lawful permanent residence. However, the registry date has only been advanced a few times, and currently, only those who entered before January 1, 1972, are eligible.
- Non-LPR Cancellation of Removal: Undocumented individuals facing removal proceedings who have lived in the U.S. for a long time may be able to obtain legal status through cancellation of removal. This pathway has strict requirements, including continuous physical presence in the U.S. for at least 10 years and demonstrating "exceptional and extremely unusual hardship" to a U.S. citizen or LPR spouse, child, or parent.
While these pathways offer potential routes to legal status, it is important to note that not everyone will qualify, and the process can be complex. Seeking the guidance of an experienced immigration attorney is often recommended to navigate the specific requirements and challenges of each pathway.
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What is the process for gaining citizenship?
The process of gaining citizenship in the US is known as naturalization. It is a voluntary process through which an immigrant to the US can become a citizen. There are 10 steps to naturalization:
- Determine if you are already a US citizen. If you are not a citizen by birth or did not derive citizenship from your parents, you can move to the next step.
- Determine if you are eligible to become a citizen. Review the naturalization eligibility worksheet to help you decide.
- Prepare your Form N-400, Application for Naturalization. This form is available to file online. Collect the necessary documents to demonstrate your eligibility for naturalization. If you reside outside the US, get two passport-style photos taken.
- Submit your Form N-400 and pay the associated fees. Once you submit the form, you will receive a receipt notice.
- Go to your biometrics appointment, if applicable. If you need to take biometrics, you will receive an appointment notice that includes the date, time, and location.
- Complete the interview. Once all the preliminary processes are complete, an interview will be scheduled to complete the naturalization process.
- Receive a decision. If your application is approved, you may be able to participate in a naturalization ceremony on the same day as your interview.
- Receive a notice to take the Oath of Allegiance. If a same-day ceremony is unavailable, you will receive a notification with the date, time, and location of the scheduled ceremony.
- Take the Oath of Allegiance to the United States. You are not a citizen until you take the Oath of Allegiance at a naturalization ceremony.
- Understand US citizenship. Citizenship connects all Americans and comes with certain rights and responsibilities.
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What powers do immigration officers have?
Immigration officers are law enforcement officials who ensure that immigration legislation is enforced. They are present in the Border Force and Immigration Enforcement, which are law enforcement commands of the Home Office, and the National Crime Agency.
Immigration officers are authorised to exercise the following powers and duties:
Power and Authority to Interrogate and Administer Oaths
Immigration officers can interrogate, without a warrant, any person believed to be an alien regarding their right to be or remain in the United States. They can also administer oaths and gather evidence concerning a person's privilege to enter, re-enter, pass through, or reside in the country.
Power and Authority to Patrol the Border
Immigration officers, after completing basic immigration law enforcement training, are authorised to patrol the border. This includes Border Patrol Agents, Air and Marine Agents, Supervisory and Managerial personnel, and other designated officers.
Power and Authority to Arrest
Immigration officers with the necessary training can arrest aliens for immigration violations and persons for felonies related to the admission or removal of aliens. They can also arrest individuals for any offence against the United States and certain specific felonies without a warrant if certain conditions are met.
Power and Authority to Conduct Searches
Immigration officers with proper training can conduct searches. This typically includes Border Patrol Agents, Air and Marine Agents, Deportation Officers, Immigration Enforcement Agents, and Supervisory personnel.
Power and Authority to Execute Warrants
Immigration officers can execute search warrants and arrest warrants for immigration and non-immigration violations.
Power and Authority to Carry Firearms
Immigration officers may carry firearms if they are qualified by training and experience to handle and operate them safely, maintain proficiency, and adhere to the use-of-force standards.
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Frequently asked questions
Yes. Undocumented immigrants are foreign-born individuals who have either entered a country illegally or overstayed their temporary visa.
If an undocumented immigrant is caught, they will likely be deported and barred from re-entering the country for a certain period of time. In the US, this period ranges from three to ten years.
Regardless of immigration status, individuals have guaranteed rights under the Constitution. Undocumented immigrants have the right to remain silent and do not have to answer questions about their immigration status. They do not have to consent to searches of themselves or their belongings. They also have the right to consult a lawyer.