Undocumented Immigrants: Are They Covered By Nondiscrimination Laws?

Undocumented immigrants are a highly vulnerable group, facing a unique set of challenges and risks. They are foreign-born individuals who have entered a country illegally or overstayed their visa, and consequently, do not have permission to work. Despite their uncertain status, they are protected by non-discrimination laws and are entitled to certain rights.

In the United States, federal anti-discrimination laws protect all employees, regardless of their citizenship or work eligibility. The Immigration and Nationality Act (INA) specifically prohibits discrimination based on citizenship status in hiring, firing, recruitment, or referral. Additionally, it outlaws unfair document practices during employment eligibility verification and retaliation or intimidation.

Undocumented workers also have rights against discrimination by their employers, union representation, and access to worker's compensation benefits. They are entitled to the same labor rights as documented workers, including the right to engage in union organizing and collective bargaining.

Furthermore, undocumented immigrants have constitutional rights and statutory protections in areas such as civil rights, hate crimes, fair labor standards, and consumer protection. They cannot be denied public education or certain types of housing due to their undocumented status.

However, it is important to note that the availability of specific remedies and the type of relief available to undocumented immigrants may vary depending on their situation.

Right to due process of law

The right to due process of law is a legal principle that ensures that everyone is given a fair and impartial hearing before the government takes away their life, liberty, or property. This right is guaranteed by the Fifth and Fourteenth Amendments of the US Constitution. 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".

Undocumented immigrants in the US have the right to due process, which means they must be informed of the charges against them, have the right to an attorney, and the right to present evidence in their defence. This is true even if they have been in the country for less than two years and were apprehended within 100 miles of the border. However, in some cases, immigrants are not granted a hearing at all and can be deported almost immediately.

The right to due process for immigrants was at the heart of the 1993 Supreme Court case Reno v. Flores, which required the government to release children to their parents, a relative, or a licensed program within 20 days. In the ruling, Justice Antonin Scalia wrote, "it is well established that the Fifth Amendment entitles aliens to due process of law in deportation proceedings".

In practice, the right to due process for immigrants can vary depending on the court and the circumstances of the case. Immigration courts, for example, have very low bars for what constitutes evidence, and documents do not need to be authenticated. This means that, in the majority of cases, convictions are almost guaranteed.

Despite these challenges, undocumented immigrants in the US do have the right to due process under the Fifth and Fourteenth Amendments, and this right has been upheld by Supreme Court rulings.

Right to legal counsel

The right to legal counsel is a complex issue for undocumented immigrants in the US. While they do have the right to counsel in criminal prosecutions, as guaranteed by the Sixth Amendment, this right does not always apply in deportation proceedings, which are often civil cases.

In criminal cases, the Supreme Court ruled in Gideon v Wainwright (1963) that the government must appoint legal counsel to defendants who are too poor to hire an attorney. However, in civil cases, the government is only required to provide counsel if the person is accused of a felony. As crossing the border illegally is a misdemeanour, this means that undocumented immigrants facing deportation are not guaranteed legal representation.

This lack of guaranteed legal representation can be a significant barrier for undocumented immigrants, especially those unfamiliar with the legal system or without the financial means to hire an attorney. This makes it more difficult for them to navigate the already complex immigration procedures and protect their rights.

According to a 2016 study by the American Immigration Council (AIC), only 37% of all immigrants and 14% of detained immigrants had legal representation in court. The same study found that immigrants with attorneys were five times more likely to pursue relief from deportation and nearly five times more likely to win their cases. For children and vulnerable populations, having legal representation is even more critical. A Syracuse University analysis showed that 73% of unaccompanied children with legal representation were allowed to remain in the US, compared to only 15% of those without representation.

While the number of immigrants represented by counsel has increased in recent years, it has not kept pace with the rapidly growing number of people put into the deportation pipeline. This has led to a decrease in the rate of representation and contributed to a backlog of immigration court cases, with an average waiting time of 678 days as of November 2016.

To address these issues, organisations like the National Immigrant Justice Center (NIJC) and the American Immigration Council (AIC) advocate for improved access to legal counsel and legal information for immigrants. The Legal Orientation Program (LOP) and Immigration Court Helpdesks are examples of initiatives that provide legal education and referrals for free or low-cost legal counsel to noncitizens in immigration detention.

Right to be paid fairly

The Fair Labor Standards Act (FLSA) prohibits employers from discriminating against workers based on their immigration status. This means that undocumented immigrants have the right to be paid the same wages for the same work as US citizens and legal residents. This includes the right to minimum wage, overtime pay, and other wage protections.

For example, in Texas, undocumented workers are protected by the Texas Payday Law, which requires employers to pay their employees according to the standards set by the Texas Labor Code. This includes the right to set paydays, notice of paydays, timely payment of bonuses and commissions, and payment in US currency.

Undocumented workers in California generally have the same wage and hour rights as other workers. They are entitled to minimum wage, overtime pay, breaks, tips, and other forms of wages.

At the federal level, undocumented workers are protected by the Equal Employment Opportunity Commission (EEOC), which enforces laws prohibiting employment discrimination and harassment based on race, color, sex, religion, national origin, age, and disability.

While undocumented immigrants have the right to be paid fairly, they may face challenges in exercising this right due to their immigration status. For example, they may be reluctant to file a complaint against an employer out of fear of retaliation or deportation. It is important for undocumented workers to seek legal advice and understand their rights and options for recourse if they are not being paid fairly.

Right to a safe work environment

All workers, including undocumented workers, have the right to a safe work environment. Federal and state laws prevent workplace discrimination and offer remedies for employer violations. The National Labor Relations Board (NLRB), the Department of Labor (DOL), the Equal Employment Opportunity Commission (EEOC), and the Occupational Safety and Health Administration (OSHA) enforce workplace protections regardless of immigration status.

Undocumented workers are entitled to minimum wage, overtime pay, breaks, and tips, and are protected under health, safety, and anti-discrimination laws. However, they often face unsafe working conditions and are reluctant to report abusive employer practices due to the threat of immigration enforcement. Research shows that immigrant workers experience 300 more workplace fatalities and 61,000 more workplace injuries annually than native-born workers, and undocumented immigrants are more likely to experience dangerous working conditions than legal immigrants.

To address this issue, the Biden administration has implemented measures to protect undocumented workers during labor investigations. Through an interagency partnership with the U.S. Department of Homeland Security, undocumented workers involved in state labor investigations can gain temporary protection from prosecution and potential removal, as well as the ability to work legally in the U.S. This process helps alleviate the reluctance of undocumented workers to report unscrupulous employers out of fear of retaliation or removal.

Additionally, the NLRB has established procedures to address immigration status issues that arise during its proceedings. If necessary for the protection of workers, the NLRB may issue a Statement of Interest, which employees can use to request deferred action from the Department of Homeland Security. The NLRB will also consider completing U visa and T visa certifications in appropriate cases.

It is important to note that undocumented workers cannot receive certain remedies for workplace discrimination or harassment, such as back pay, front pay, and reinstatement, as they are unavailable for work due to their immigration status. However, civil remedies under the FLSA and Title VII are available to undocumented workers, including damages under the anti-retaliation provisions.

In summary, undocumented workers have the right to a safe work environment, and there are legal protections and resources available to them. However, the fear of retaliation and immigration enforcement creates a challenging situation for undocumented workers, and they often face unsafe working conditions as a result.

Right to be with family

The right to be with one's family is recognised as a fundamental human right by multiple international treaties and declarations, including the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. While the US Constitution does not expressly guarantee this right, the Supreme Court has recognised it as a fundamental right protected by the Due Process Clause of the Fifth and Fourteenth Amendments. This means that the government cannot take away this right without due process and a compelling justification.

The right to family unity is particularly relevant in cases where the deportation of one parent would result in the separation of their children. However, this right is not absolute and is often weighed against the government's interest in enforcing immigration laws. The trade-off between family rights and immigration control can be complex and challenging, potentially leading to family separations and emotional hardship for undocumented immigrants and their loved ones.

The courts have used the right to be with one's family to strike down various immigration laws and policies, including the Trump administration's family separation policy. Since the family unity of undocumented immigrants is often disrupted by deportation, the US government must prevent such separations whenever possible and provide reunification services when they do occur.

In practice, before Trump signed an executive order, the administration had divided families as a matter of course, without considering individual cases. The ACLU sued, arguing that the policy was unconstitutional. While the court has not issued a final ruling, a judge did rule that the case could proceed, stating that immigrants have a right to "familial association" under the Constitution.

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