Undocumented Immigrants: Understanding Their Legal Status

Undocumented immigrants are foreign nationals who enter a country without authorisation or overstay their visas. In the US, this is considered a violation of immigration laws. The exact laws that undocumented immigrants break are outlined in Title 8, Section 1325 of the US Code, or Section 275 of the Immigration and Nationality Act. These laws state that it is a crime for an individual to enter the US at any time or place other than one designated by immigration officers, evade examination or inspection by immigration officers, or provide false information to obtain entry. Criminal penalties for improper entry include fines, imprisonment of up to six months, or both for the first offence, with increased penalties for subsequent offences. Additionally, US employers who hire undocumented immigrants may face criminal and civil penalties, including fines and imprisonment.

Undocumented immigrants are protected by the US Constitution

The US Constitution does protect undocumented immigrants, as it applies to all people in the US, regardless of their immigration status. The Constitution uses the terms "people" and "person" rather than "citizen" in many parts, and according to Cristina Rodriguez, a professor at Yale Law School, these laws apply to everyone physically in the US.

The Fifth Amendment, for example, states that "No person shall be deprived of life, liberty, or property, without due process of law." This right to due process is at the heart of many immigration cases, and it means that immigrants cannot be deprived of their liberty without a fair and impartial hearing.

The Fourteenth Amendment also has a Due Process Clause, which describes the legal obligation of state governments to provide equal protection under the law to all persons, regardless of immigration status.

The Sixth Amendment guarantees the right to legal counsel in all criminal proceedings, and the Supreme Court has ruled that the government must provide an attorney if the accused cannot afford one.

The Fourth Amendment guarantees the right against unreasonable searches and seizures, protecting everyone in the US from warrantless searches.

The Constitution also does not prohibit anyone from voting based on their citizenship status. While non-citizens are barred from voting in federal elections, some states have allowed noncitizens to vote in local elections.

While the Constitution does not explicitly mention a right to education, the Supreme Court has ruled that if citizen children have access to a free public education, so should undocumented immigrant children, per the Fourteenth Amendment's equal protection clause.

Therefore, while undocumented immigrants are not specifically mentioned in the Constitution, they are still protected by its principles and entitled to the rights and protections it grants.

They have the right to due process

The right to due process is a basic human right that is extended to everyone living within US borders, including undocumented immigrants. The US Constitution protects all people living in the United States, regardless of their immigration status. Most of the provisions of the Constitution are based on personhood, not citizenship.

The Fifth Amendment states that "no person shall be deprived of life, liberty, or property, without due process of law." This means that a person cannot be deprived of their legal rights without the proper application of the law. Due process ensures that everyone is given a fair and impartial hearing before the government takes away their life, liberty, or property.

Undocumented immigrants have the right to be informed of the charges against them, the right to an attorney, and the right to present evidence in their defence. However, in reality, the courts of law vary in their treatment of undocumented immigrants. In some cases, immigrants are not granted a hearing at all and are deported almost immediately.

The issue of due process is at the heart of many immigration cases, including Reno v. Flores, a 1993 Supreme Court case that gained prominence due to the recent surge in family separations. The case ruled that the government must 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." This means that undocumented immigrants have the right to due process in immigration court, where it is decided whether a person has a legal claim to remain in the US.

They have the right to legal counsel

Undocumented immigrants in the US have the right to legal counsel, but in practice, this is not always the case. The Sixth Amendment states that "in all criminal prosecutions, the accused shall... have the assistance of counsel for his defence". However, most deportation proceedings are civil cases, so the right to legal counsel does not always apply.

The Supreme Court ruled in the 1963 case Gideon v Wainwright that if a person is too poor to hire an attorney, the government must appoint one. However, this does not extend to civil cases, and immigrants facing deportation are not provided with court-appointed counsel if they are unable to afford a lawyer. According to a 2016 study by the American Immigration Council, only 37% of all immigrants and 14% of detained immigrants have legal representation in court.

The right to legal counsel is especially critical for children and vulnerable populations. A Syracuse University analysis of immigration court data shows that 73% of unaccompanied children with legal representation are allowed to remain in the US, compared to only 15% of those without representation.

The lack of access to legal counsel has contributed to a backlog of immigration removal cases, with more than 526,000 cases pending as of November 2016, resulting in delays of up to five years for asylum seekers and other immigrants to have their first hearings.

Nonprofit organisations and pro bono lawyers play an important role in providing legal counsel to undocumented immigrants, but their services are often overwhelmed by the demand.

Undocumented immigrants are foreign nationals who enter or remain in the US in violation of US immigration laws. This can include entering the country unlawfully or overstaying their visas. Section 1325 in Title 8 of the United States Code, "Improper entry of alien", provides for fines, imprisonment, or both for any non-citizen who:

• Enters or attempts to enter the US at any time or place other than designated by immigration agents.
• Eludes examination or inspection by immigration agents.
• Attempts to enter or obtains entry to the US by a willfully false or misleading representation or the willful concealment of a material fact.

They have the right to be with their family

The right to live 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 going through a legal process and providing a compelling justification.

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.

The right to family integrity is not spelled out in the Constitution but was established through court rulings in the early 20th century. People have a right to be with and commune with their family. The government can split up families in extraordinary circumstances, such as in the case of child abuse, but it cannot do so without going through a legal process.

They have the right to education

Undocumented immigrants in the US have the right to education. In 1982, the Supreme Court ruled in Plyler vs. Doe that because undocumented children are in the US illegally through no fault of their own, they are entitled to the same K–12 educational opportunities that states provide to children who are citizens or legal residents. This means that undocumented children cannot be prohibited from enrolling in a public school.

The Plyler vs. Doe ruling is based on the 14th Amendment, which states that the government cannot "deny to any person within its jurisdiction the equal protection of the laws". This means that if citizen children have access to a free, public education, so should undocumented immigrant children.

The Plyler vs. Doe ruling also means that undocumented students cannot be denied access to public schools on the basis of their or their family's immigration status. In fact, federal law does not require school districts or their employees to report undocumented students to immigration authorities. Doing so would violate the Family Educational Rights and Privacy Act.

In addition, undocumented students are eligible for free and reduced-price meals, special education services, and school-sponsored events and activities.

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