Us Laws And Non-Citizens: Who's Affected And How?

The United States Constitution applies to non-citizens in the US, although there are some rights that are reserved for citizens, such as the right to vote, run for office, and serve on a jury. Non-citizens have many of the same rights as citizens, including freedom of speech, freedom of religion, the right to due process, and the right to privacy. They are also entitled to equal protection under the law, which means they cannot be discriminated against based on race or national origin. However, non-citizens do not have the right to work unless it is conceded by the government.

Non-citizens' right to due process

The U.S. Constitution and its Bill of Rights guarantee certain protections to all "persons" within the United States, including non-citizens. 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." This right to due process is a fundamental protection that applies to both citizens and non-citizens alike.

Legal Basis for Non-Citizens' Right to Due Process

The Supreme Court has interpreted the Due Process Clause of the Fifth Amendment to apply to all individuals within the United States, regardless of their citizenship status. In the case of Reno v. Flores, the Supreme Court affirmed that the Fifth Amendment entitles aliens to due process in deportation proceedings. Additionally, the Fourteenth Amendment's Due Process Clause, which applies to state governments, also guarantees the right to due process for non-citizens.

Procedural Due Process for Non-Citizens

Procedural due process requires government officials to follow fair procedures before depriving an individual of life, liberty, or property. In the context of immigration, this means that non-citizens facing deportation are entitled to:

• A hearing before an immigration judge and review by a federal court;
• Representation by a lawyer (but not at government expense);
• Reasonable notice of charges and the hearing's time and place;
• Access to evidence and the ability to present their own evidence;
• Competent interpretation for non-English speakers;
• A neutral and unbiased tribunal.

Substantive Due Process for Non-Citizens

Substantive due process refers to the protection of certain fundamental rights, such as freedom of speech and religion, which apply to both citizens and non-citizens. The Supreme Court has interpreted the term "liberty" in the Due Process Clauses broadly, encompassing the full range of conduct that individuals are free to pursue.

Limitations and Criticisms

While non-citizens are entitled to due process, there are some limitations and criticisms regarding their rights. The U.S. Supreme Court has recognized that non-citizens can be stopped, detained, and denied entry by immigration officials at points of entry without the full protection of the Due Process Clause. Additionally, the right to legal counsel during deportation proceedings is limited, as most of these proceedings are civil rather than criminal cases.

In conclusion, while non-citizens may not have the same rights as citizens in all respects, they are guaranteed the right to due process under the U.S. Constitution. This includes both procedural due process, ensuring fair legal proceedings, and substantive due process, protecting fundamental rights such as freedom of speech and religion. However, there are still complexities and limitations to how these rights are applied in practice, particularly in the context of immigration and deportation.

Right to legal counsel

The right to legal counsel is a complex issue for non-citizens in the US. While the Sixth Amendment protects the right to legal counsel in criminal proceedings, most deportation proceedings are civil cases, meaning the right often doesn't apply.

The Supreme Court does not consider deportation charges a criminal offense, so undocumented immigrants are not afforded the rights that would come with a criminal proceeding, such as the right to an attorney. However, if a non-citizen is detained on criminal charges and will be interrogated, they have the right to be read their Miranda rights, which include the right to an attorney.

In addition, while the government is only required to provide counsel if the person is accused of a felony, anyone facing a criminal charge has the right to an attorney. This includes non-citizens.

In recent years, there have been efforts to improve access to legal counsel for non-citizens. For example, Illinois passed a law in 2024 allowing the Cook County Public Defender to represent immigrants in Chicago immigration court.

Right to a safe work environment

The US Constitution does extend to non-citizens once they are inside the country. While it does not give them the right to enter the US, it does protect them from discrimination based on race and national origin, and from arbitrary treatment by the government.

In the US, federal law entitles everyone to a safe workplace. The Occupational Health and Safety Act of 1970 requires employers to provide a healthy and safe workplace for their employees. The Act is enforced by the Occupational Safety and Health Administration (OSHA), which takes employee complaints about hazardous workplaces and conducts on-site inspections. The Act also gives employees the right to notify their employers or OSHA about an unsafe workplace and to request an on-site inspection.

The Act imposes certain requirements on employers, including industry-specific standards. It also contains a catch-all provision called the "General Duty Clause", which is violated if a workplace condition presents a hazard that is recognised by the employer or its industry, the hazard is likely to cause death or serious injury, and the employer could have feasibly eliminated or significantly minimised the hazard. For example, an employer in the tree felling industry who fails to protect their employees from falling trees violates the Act, as the hazard is recognised, and the risk could have been minimised by requiring employees to stay away from the fall zone.

The Act also imposes specific standards for different industries: general industry, construction, agriculture, and maritime. For example, the general industry provisions set forth guidelines on how explosives should be stored, when eye and face protection is required, and the use and location of portable fire extinguishers, among others. The construction provisions require employers to instruct employees in recognising and avoiding unsafe conditions in the workplace.

In addition to federal law, there are also state laws that protect employees from dangerous workplace conditions and ensure them a healthy and safe work environment. For example, in Texas, the Texas Occupational Safety Act and the Hazard Communication Act impose obligations on employers to protect their employees from workplace hazards. The Texas Occupational Safety Act requires employers to provide and maintain a reasonably safe work environment, including implementing reasonable safeguards to protect the lives, health, and safety of employees. The Hazard Communication Act requires employers to create workplace chemical lists and material safety data sheets for each hazardous chemical purchased, and to ensure that each is correctly labelled.

Right to consular assistance

In the United States, foreign governments have embassies (a foreign government's headquarters) in Washington, DC, and consulates (branch offices) in other cities. Both embassies and consulates provide assistance to their citizens in the United States. This assistance is known as consular assistance.

When foreign nationals are arrested or detained in the US, they must be informed of their right to have their closest consulate or embassy notified. For 58 countries, the nearest consulate or embassy must be notified, regardless of the wishes of the foreign national. This is called consular notification.

Foreign government officials are entitled to communicate with their citizens in US jails and prisons to ensure their welfare and provide consular assistance. They are allowed to contact the family of the detained foreign national, ensure legal representation and medical care, or provide reading materials. This is known as consular access.

Consular notification and access are based on mutual obligations established by treaties between the US government and foreign governments. By providing consular notification and access to foreign governments, the US sets a precedent for how US citizens should be treated if arrested or detained abroad.

The steps to follow for consular notification and access when a foreign national is arrested or detained in the US are as follows:

• Determine the foreign national's country of nationality. If there is no information available, assume this is the country on whose passport or other travel document the foreign national is travelling.
• If the foreign national's country is not on the list of mandatory notification countries and jurisdictions, use Statement 1 on the Consular Notification Statements to inform them, in the relevant language, that they may have their consular officers notified and may communicate with them. If the foreign national requests that their consular officers be notified, inform the nearest embassy or consulate of the foreign national's country without delay.
• If the foreign national's country is on the list of mandatory notification countries and jurisdictions, notify the country's nearest embassy or consulate without delay. Use Statement 2 on the Consular Notification Statements to inform the foreign national, in the relevant language, that you are making this notification and that they may communicate with the consulate.
• Keep a written record of the information provided to the foreign national, their requests, whether consular officers were notified, and any other relevant actions taken.

These steps should be followed for all foreign nationals, regardless of their immigration status. Consular notification and access are important rights that help ensure foreign nationals receive assistance and protection while in a foreign country.

While the US Constitution does not give foreigners the right to enter the US, it does protect them from discrimination based on race and national origin and arbitrary treatment by the government once they are in the country. Immigrants, whether legal or undocumented, have the right to freedom of speech and religion, the right to be treated fairly, the right to privacy, and other fundamental rights that US citizens enjoy.

Right to a public education

The US Constitution does not explicitly grant a right to education. However, in the case of Plyler v. Doe (1982), the Supreme Court ruled that if citizen children have access to a free public education, so should undocumented immigrant children. This is because the 14th Amendment states that the government cannot "deny to any person within its jurisdiction the equal protection of the laws".

In Plyler v. Doe, the Supreme Court ruled that Texas legislation, which denied enrollment in public schools to children who were not "legally admitted" to the country, was unconstitutional. The Court explained that "education has a fundamental role in maintaining the fabric of our society" and "provides the basic tools by which individuals might lead economically productive lives to the benefit of us all".

The Court further stated that denying children a basic education denies them "the ability to live within the structure of our civic institutions" and "forecloses any realistic possibility that they will contribute in even the smallest way to the progress of our Nation".

The Plyler v. Doe ruling has ensured equal access to education for children regardless of their immigration status for over thirty years. However, anti-immigrant sentiment continues to threaten this right. For example, in 2011, Alabama enacted a law requiring school administrators to determine the immigration status of newly enrolling students, resulting in higher rates of absenteeism among Latino schoolchildren and causing fear and confusion in schools.

Despite these challenges, the Plyler v. Doe decision remains a crucial precedent, affirming the right to a public education for all children in the United States, regardless of their immigration status.

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