Cecily Zamora
The legal rights of undocumented immigrants in the US have been brought to the fore in recent years by the Trump administration's zero-tolerance immigration policy and the surge in family separations at the border. While the US Constitution applies to undocumented immigrants, there are still laws that undocumented people are breaking, such as voting in a federal election, which could lead to prison or deportation.
| Characteristics | Values |
|---|---|
| Voting in federal elections | Illegal |
| Voting in local elections | Legal in some states |
| Right to education | Not in the Constitution, but undocumented children cannot be prohibited from enrolling in public school |
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What You'll Learn
Voting in federal elections
While the US Constitution applies to undocumented immigrants, as it uses the term "people" or "person" rather than "citizen", voting in federal elections is not a right that is extended to non-citizens.
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The right to due process and equal protection under the law
However, the reality is more complex. The US administration’s “zero-tolerance” immigration policy and the recent surge in family separations at the border has called attention to the legal rights of immigrants under US law.
In practice, if you are not a US citizen, voting in a federal election could land you in prison for up to three years or lead to deportation. States can impose their own, sometimes harsher, penalties for breaking the law. However, because elections are largely a local affair, some states allow local governments to decide whether noncitizens can vote in local elections. For example, noncitizens in Chicago have been allowed to vote for the school board since 1989. New Yorkers who were not citizens were given the same right from 1969 until 2003, when local school boards were abolished there.
In the case Plyler v. Doe, the Supreme Court ruled that if children who are citizens have access to a free, public education, so should undocumented immigrant children. That is because the 14th Amendment says the government cannot “deny to any person within its jurisdiction the equal protection of the laws”.
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The right to free speech and freedom of religion
The US Constitution applies to undocumented immigrants, according to Cristina Rodriguez, a professor at Yale Law School. Rodriguez states that many of the basic rights, such as the freedom of religion and speech, the right to due process and equal protection under the law, apply to citizens and noncitizens.
However, the practical application of these rights is more complex. For example, the Fifth Amendment states that no person shall be compelled in any criminal case to be a witness against themselves, nor be deprived of life, liberty, or property, without due process of law. This right to due process is often not extended to undocumented immigrants, as seen in the Trump administration's "zero-tolerance" immigration policy and the surge in family separations at the border.
In terms of freedom of speech, voting in a federal election as a non-citizen could result in prison time or deportation, although some states allow noncitizens to vote in local elections. For example, noncitizens in Chicago have been allowed to vote for the school board since 1989, and New Yorkers who were not citizens had the same right from 1969 until 2003.
Undocumented immigrants also have the right to freedom of religion, as the First Amendment prohibits the government from making any law respecting an establishment of religion or prohibiting the free exercise thereof. This means that undocumented immigrants cannot be denied the right to practice their religion or discriminated against because of their religious beliefs.
Additionally, the Supreme Court has ruled that undocumented immigrant children have the right to a free, public education, as the 14th Amendment states that the government cannot "deny to any person within its jurisdiction the equal protection of the laws." This means that undocumented children cannot be prohibited from enrolling in a public school, although there may be challenges in accessing education if a child is detained.
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The right to a public education
The US Constitution applies to undocumented immigrants, as many of its provisions are based on 'personhood' and jurisdiction in the US, rather than citizenship. This means that undocumented people are entitled to basic rights such as freedom of religion and speech, the right to due process and equal protection under the law.
However, voting in a federal election as a non-citizen is illegal and could result in prison time or deportation. States can impose their own penalties for breaking the law, and some are harsher than others. Nevertheless, because elections are largely a local affair, some states allow local governments to decide whether noncitizens can vote in local elections. For example, noncitizens in Chicago have been allowed to vote for the school board since 1989, and New Yorkers who were not citizens had the same right from 1969 until 2003, when local school boards were abolished.
The Trump administration's 'zero-tolerance' immigration policy and the surge in family separations at the border have brought attention to the legal rights of immigrants under US law. It remains to be seen how these policies will affect the right to a public education for undocumented children.
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The right to not be separated from your family
In the United States, the Trump administration's "zero-tolerance" immigration policy led to a surge in family separations at the border. This practice was ended through an executive order, but it highlighted the vulnerability of immigrant families under US law. While the US Constitution guarantees certain rights to all "persons" on US soil, regardless of citizenship, the reality is that undocumented people often face significant barriers in accessing these rights.
One of the key rights that undocumented people have is the right to due process under the Fifth Amendment. This means that they cannot be deprived of their liberty without a fair legal process. However, in practice, undocumented people may face challenges in accessing legal representation and understanding their rights, which can lead to unfair detentions and separations from their families.
Undocumented children also have the right to a free, public education under the 14th Amendment, as ruled by the Supreme Court in Plyler v. Doe. This means that undocumented children cannot be prohibited from enrolling in a public school. However, if a child is detained or separated from their family, they may not have access to a public school, which can impact their right to education and family unity.
Overall, while undocumented people have certain legal rights that should protect them from family separation, in practice, they often face significant challenges and barriers in accessing and exercising these rights. It is important for countries to uphold the right to family unity for all people, regardless of their immigration status, and to ensure that any separations are only carried out in exceptional circumstances and with due process.
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Frequently asked questions
Yes, the US Constitution applies to undocumented immigrants, and many of the basic rights, such as freedom of religion and speech, the right to due process and equal protection under the law, apply to citizens and noncitizens.
If an undocumented person votes in a federal election, they could be imprisoned for up to three years or deported.
Yes, the Supreme Court ruled that if citizen children have access to a free, public education, so should undocumented immigrant children.
Yes, the Fifth Amendment states that “no person … shall be compelled in any criminal case to be a witness against himself”.
