What are the legal rights of undocumented persons in the United States

According to the American Immigration Council, “24 percent of all farmers, fishers, and foresters in Oklahoma are immigrants, as are 16 percent of the state’s construction industry employees.” Immigrants play a vital role in the economy of Oklahoma. They provide labor, pay state and local taxes, and support our communities. But as undocumented immigrants, do they have any rights?

The 14th Amendment to the United States Constitution grants every person in the US certain rights, regardless of their visa or citizenship status. The amendment reads,

“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

What makes this law applicable to undocumented immigrants is the usage of the word “person.” The constitutional framers who wrote the amendment were specific in using “person” as opposed to “citizen”—which means that this section of the amendment covers everyone in the US, including undocumented immigrants.

Furthermore, the US Supreme Court ruled in the case Zadvydas v. Davis (2001) that the phrase “due process” in the 14th Amendment applies to all persons in the United States whose presence may be or is “unlawful, involuntary or transitory.” This means that this section of the 14th Amendment also applies to undocumented immigrants. The only rights exclusive to citizens are voting, running for office, and holding most federal jobs.

While the following list is not exhaustive, here are fourteen rights you have regardless of your status as an American citizen.

1. The right to a trial by jury

The 6th Amendment states that “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.” This provides any persons in the United States the right to a trial by jury in a criminal case.

2. The right to a Miranda warning

A Miranda warning is a statement given to criminal suspects in the custody of police in the United States. Though the order of the words and some of the wording can vary state by state, a typical warning is as follows:

“You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to have an attorney. If you cannot afford one, one will be appointed to you by the court. With these rights in mind, are you still willing to talk to me about the charges against you?”

This provides the person in custody the right to not respond to police interrogation and the right to have an attorney present during questioning.

3. The right to defend yourself against charges and deportation

An undocumented person has the right to hire an attorney and appear in front of a judge to defend themselves against deportation. The government, however, is not required to provide free legal representation in immigration proceedings.

4. The right to representation in criminal court

A person has the right to a state-funded public defender in a criminal court case. However, this right does not apply to immigration court because it’s considered a civil matter, not criminal.

5. The right to protection against unlawful search and seizure

As stated in the 4th Amendment, persons in the United States have the right to live freely, without the threat of unreasonable search and seizures. This law protects anyone in the United States from being searched or having property seized without a warrant or “probable cause.”

This gets a little tricky because of the “100-mile border zone” and the US Customs and Border Protection. Within this zone, Border Patrol agents are given certain additional authorities, such as operating immigration checkpoints. The purpose of these checkpoints is to spot people committing crimes or immigration violations.

6. The right to protection against self-incrimination

The 5th Amendment protects anyone in the US from being a witness against themselves or being deprived of life, liberty, or property without due process.

7. The right to file civil lawsuits

Undocumented immigrants in the US have the right to file lawsuits in the federal court, such as discrimination cases. In some states, undocumented people may also have to right to sue in state court.

Beyond the scope of lawsuits, an undocumented person may also file a civil rights complaint against the US Department of Homeland Security for violations including:

  • discrimination based on religion, race, disability, or gender
  • violation of rights while detained
  • violation of due process rights including access to a lawyer

8. The right to be paid for work performed

Under U.S. immigration laws, an employer cannot knowingly hire an undocumented worker. However, if the undocumented person is employed, regardless of their legal status, they are protected under the Fair Labor Standards Act to receive pay for the work they have performed.

9. The right to a healthy and safe work environment

Workers have the right to an environment that is safe, and free of harassment and discrimination. Undocumented workers have the right to file complaints with the appropriate authorities without retaliation for being undocumented. However, it is in the undocumented employee’s best interests to contact an immigration attorney first. Many undocumented workers do not report workplace abuse for fear of revealing their undocumented status.

10. The right to organize or form a union

The Fair Labor Standards Act and the National Labor Relations Act, in most cases, cover undocumented immigrants. Under these acts, an employee has the right to organize and form unions for better working conditions and better pay.

11. The right to a free K-12 education

States cannot deny a free K-12 public education to students based on their undocumented status.

Additional rights and benefits

Additional rights may vary from state to state. For example, some states allow undocumented immigrants the right to a driver’s license or workers compensation. Unfortunately, Oklahoma is not one of these states.

Undocumented immigrants are also allowed access to some public assistance benefits, like emergency services, health care, and other programs that are considered necessary to protect life and well-being.

Most Supreme Court precedents ban states from making laws that discriminate against undocumented people. However, please keep in mind that the list of rights above provides a general overview, and states’ definitions of these rights may vary, and every situation is different. If you feel your rights have been violated, contact us, as state definition and situation may vary.

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