Do illegal immigrants have constitutional rights? Does the Constitution apply to illegal immigrants? Do illegal immigrants have rights? What rights do illegal immigrants have?
While we object to calling undocumented individuals “illegal immigrants,” we understand that many people wonder, What rights do immigrants have in the United States?
Do illegal immigrants have constitutional rights?
Yes, immigrants are protected by the U.S. Constitution. Key provisions, such as due process and equal protection under the law, apply to all persons, including both documented and undocumented immigrants. These constitutional rights extend beyond U.S. citizens.
While undocumented individuals do not have the same rights as U.S. citizens in certain areas, they are still entitled to basic legal protections.
At EMP Law, we are dedicated to advocating for immigrant rights, including those of undocumented immigrants. Our experienced immigration lawyers understand the challenges immigrants face and are committed to providing strong legal representation. If you or a loved one is facing an immigration issue, reach out today.
What Rights Do Undocumented Immigrants Have?
Despite their lack of legal immigration status, the US Constitution protects undocumented immigrants. These protections require that the government not mistreat the undocumented individual and allow them access to a fair legal process.
Due Process and Equal Protection Rights
Undocumented immigrants have protection under the Fifth and Fourteenth Amendments, which guarantee due process and equal protection under the law. As a result, undocumented immigrants cannot be deprived of life, liberty, or property without fair legal proceedings.
That means immigrants cannot be deported without having an opportunity to explain to a judge why they should be allowed to remain in the US. Those arguments may include requesting relief such as asylum, withholding of removal, or cancellation of removal.
Protection Against Unlawful Searches and Seizures
The Fourth Amendment provides protection from unlawful searches and seizures. An unlawful search or seizure is one not justified by the facts the government knows. In other words, the government must suspect you have violated the law, and it must have specific reasons for that belief to be able to search your items or seize you by taking you into custody. This means:
- Immigration authorities and law enforcement must generally obtain a warrant or have probable cause before conducting searches or making arrests,
- Employers and landlords cannot allow law enforcement to search private areas without consent or a warrant, and
- Individuals have the right to refuse consent to searches without a valid warrant.
These protections help safeguard undocumented immigrants from violations of their privacy.
Right to Legal Representation
While the government is not required to provide free legal counsel in immigration proceedings, undocumented individuals have the right to hire an attorney. An Immigration attorney is essential to protect immigrants’ rights and guide them and their loved ones through their options.
Access to Education and Healthcare
All children in the US can attend public elementary and secondary schools, regardless of immigration status. Schools cannot ask about immigration status or deny enrollment because a child is undocumented. Undocumented individuals may struggle to access higher education, but different schools have different policies with respect to immigration status.
Federal law also guarantees the right to receive emergency medical care regardless of status. Community health centers also provide low-cost or sliding-scale services. Yet, undocumented individuals typically cannot receive government benefits like Medicaid.
Rights to Apply for Immigration Benefits
Undocumented immigrants have limited options for obtaining legal status in the US, and most undocumented individuals do not qualify for legal permanent residency (a green card). If they do not fit into a category offered by US law, they cannot get benefits. Even applying from their home countries does not guarantee approval, especially if they have been to the US without papers.
If you have specific qualifications, available immigration benefits include:
- Those who can prove a well-founded fear of persecution in their home country may qualify for asylum;
- Individuals from designated countries facing extreme conditions may qualify for Temporary Protected Status (TPS); and
- Victims of crimes or domestic violence may be eligible for visas.
Consulting with an immigration attorney can help you understand your options and decide the best course of action.
Limitations on Applying for Immigration Benefits
While some undocumented immigrants can apply for legal status, most face significant legal barriers. There is no line people can get into.
An undocumented person seeking status must qualify for a visa or another form of status and not have a history that would prevent them from receiving good status. Specific circumstances can further limit the rights undocumented individuals have.
Entry Without Inspection (EWI)
Many undocumented immigrants entered the US without being inspected by a border officer, meaning they crossed the border without going through a checkpoint. Undocumented individuals who committed “entry without inspection” or EWI are not eligible to adjust to lawful permanent resident status from inside the country. In other words, even if they marry a US citizen or have US citizen children, they typically cannot apply for a green card without first leaving the US to process their application abroad.
Unlawful Presence
When someone lives in the US without permission, they accrue unlawful presence. Once someone accrues 180 days or more of unlawful presence, US immigration law bans them from returning for three years. If someone stays unlawfully in the US for a year or longer, the law forbids them from returning for 10 years.
Prior Immigration Violations or Removal Orders
Individuals who have been deported in the past or who left the US under a voluntary departure order to avoid deportation may face additional obstacles. Reentering the US after the government removes you can result in the government permanently banning you from returning to the US for any reason.
Criminal History
Even minor criminal convictions or guilty pleas can block eligibility for immigration benefits. Immigration law treats some offenses more harshly than the criminal courts do. Crimes involving moral turpitude, drug offenses (even simple possession), and domestic violence can make an individual ineligible to apply for good status, even if they qualify.
Variations Based on Where You Live
Where an undocumented immigrant lives within the U.S. can impact their rights and their risks of encountering immigration enforcement. Those in border zones face more frequent immigration checks, while individuals in interior regions may have greater protections against enforcement actions.
Immigration Enforcement Authorities
To confuse matters, Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) share authority over enforcing US immigration laws. CBP has extended authority within 100 miles of U.S. borders, including airports and coastal regions. CBP officers may operate checkpoints within this zone and question individuals about their immigration status. ICE has some overlapping authority but only operates within US borders.
In short, CBP works mainly at and near borders, ports, and airports. CBP agents can stop and question people at checkpoints or within 100 miles of a border with Canada, Mexico, or an ocean. ICE operates nationwide and focuses on tracking individuals with deportation orders, investigating immigration fraud, and arresting people accused of violating immigration laws.
ICE can enter public spaces such as streets or courthouses, but generally needs a warrant signed by a judge to enter a private home. State and local governments may choose to cooperate with ICE or may not, so local law enforcement agencies can vary significantly in how much they communicate with ICE.
Sanctuary Cities
Sanctuary cities and states limit cooperation between local law enforcement and federal immigration authorities. These protections vary by jurisdiction but may include prohibitions on local police:
- Inquiring about immigration status,
- Honoring ICE detainers without a warrant, or
- Helping with federal immigration enforcement efforts.
While sanctuary policies do not prevent federal agencies from enforcing immigration laws, they create a safer environment for undocumented individuals by reducing the likelihood of local law enforcement initiating immigration-related detentions.
North Carolina does not have sanctuary cities. North Carolina law prohibits local governments from adopting sanctuary policies. City and county officials cannot restrict police from cooperating with ICE. However, some local governments have taken steps to prioritize community trust and limit communication with ICE, even if they cannot formally declare sanctuary status.
Contact EMP Law for Legal Assistance
Navigating immigration law can be overwhelming, but you do not have to face it alone. At EMP Law, we are here to answer questions like, “Do illegal immigrants have constitutional rights?” When we answer, we will explain why we prefer the term undocumented and provide our experienced guidance in an uncertain immigration landscape.
Our legal team has extensive experience handling complex immigration cases, from deportation defense to applications for legal status. If you or a loved one needs legal assistance, contact EMP Law today for a consultation. Let us guide you and help you fight for your rights.
Frequently Asked Questions
Do Illegal Immigrants Get Due Process?
The Constitution guarantees due process rights to all persons, so non-citizens and undocumented immigrants receive fair treatment and can defend themselves in court.
What Is “Entry Without Inspection” (EWI)?
EWI means someone entered the US without going through an official border inspection. Committing EWI can limit eligibility for green cards and many other immigration benefits, except for certain humanitarian programs.
Can Undocumented Immigrants Apply for Legal Status?
Undocumented immigrants can apply for legal status only in limited circumstances. Those who qualify for asylum, TPS, or certain victim-based visas (such as the U visa or VAWA) may apply for protection or lawful status. Those who did not commit EWI may also be able to apply for a green card.
Where Can ICE Enforce Immigration Laws?
ICE can make arrests in public areas, such as workplaces, streets, or courthouses. Officers need a judicial warrant to enter a private home. You have the right to ask to see the warrant before opening the door.
Are There Sanctuary Cities in North Carolina?
North Carolina law bans sanctuary policies, although some cities and counties limit communication with ICE to the extent allowed by the law.
Do Undocumented Immigrants Have the Right to an Attorney?
Yes, but you have to find the attorney yourself and generally pay them for their services.
Helen believes in providing caring, thoughtful and thorough representation for each and every person.
In particular, Helen focuses on helping individuals navigate the maze of rules, procedures and processes created by the United States Citizenship and Immigration Services and those facing criminal charges or deportation.
She represents clients facing criminal charges in both state and federal court. She is a member of the Criminal Justice Act panel of attorneys in the Middle District of North Carolina, and is admitted to practice before the Eastern, Middle and Western District Federal Courts as well as the Fourth and Eleventh Circuit Courts of Appeal.
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