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Undocumented Immigrants’ Rights Under the United States Constitution

Andres E. Martinez Millan Attorney, The Law Office of Yolanda Castro-Dominguez




The topic of immigration has been in the forefront of the political platform in the last few years. Misconceptions about immigrants’ rights in the United States are widespread. This article serves as a guide to help you understand what rights are afforded under the United States Constitution to undocumented immigrants in this country.

The Constitution is the name of the document that contains the fundamental laws governing the United States of America.¹ This document has been considered “the supreme law of the land” since 1789, and it extends basic human rights to its citizens. But this is where we encounter a couple of issues. Who is considered a citizen? Does this include only natural born citizens? How about naturalized immigrants? Does the Constitution exclude undocumented individuals? The framers of the Constitution did not have the “legal status” of those living in the United States in mind; in fact, the document was ratified to protect the people that lived within the borders of this country. For hundreds of years, the U.S. Supreme Court has upheld that certain constitutional rights extend to everyone living within the U.S., not just natural born citizens or legalized immigrants. As unpleasant as this might sound to some, undocumented immigrants are afforded many rights under the Constitution. Over the years, more than two-dozen amendments have been added to the Constitution. Below is a summary of what some of these rights are and how they protect undocumented individuals in the U.S.

Right to Due Process

The Fifth Amendment to the Constitution 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.”²

In the simplest terms, due process means that a person cannot be deprived of their legal rights without proper application of the law. That is, a person cannot have their property taken away from them, or be placed in jail without first going through the legal system to determine if they are guilty of the crime they are accused of, and determining the applicable punishment. In other words, proper application of the law means treating an undocumented immigrant just the same as a natural born citizen before the court.

Many people believe that undocumented immigrants do not have a right to their day in court, either as a victim or as the accused. However, that is incorrect. Every individual residing within the boundaries of the U.S. has a right to legal procedures in civil, criminal, agency and administrative matters. For example, an undocumented man in the state of Texas has access to his local district court to file suit for custody of his children. Or an undocumented woman arrested and charged with a crime has a right to defend herself in criminal court. A person’s lack of legal status does not preclude them from filing suit or defending themselves and their property without due process of the law.

Similarly, immigrants facing deportation before the immigration court benefit from the protections of due process. More specifically, a respondent (the designation given to a defendant in immigration court) has a right to have his or her defense heard before the immigration judge. If the immigrant lives in the U.S., and is not facing deportation due to a criminal conviction, he or she may be eligible for an immigration bond, therefore enjoying freedom from custody while waiting for their hearing. The rules regarding detention are different for undocumented immigrants facing serious criminal charges or undocumented immigrants who have very recently crossed the border without proper documentation.

Your next question may be, “well, what about a right to an attorney?” This right is discussed in the next section.

Right to Legal Counsel

The Sixth Amendment to the Constitution provides that “in all criminal prosecutions, the accused shall . . . have the assistance of counsel for his defense.”³ This constitutional right allows for individuals facing criminal charges the right to an attorney. Under this protection, an accused can obtain representation from a private attorney, if they can afford it, or from a court-appointed attorney to represent them in their defense.

Even an undocumented immigrant facing a criminal charge can receive representation from an attorney, by his or her own means, or through an attorney appointed by the judge. Unless the defendant chooses to represent him or herself, it is unconstitutional to prosecute a defendant, regardless of legal status, without being offered the right to an attorney.⁴

When arrested, any individual has the right to remain silent, regardless of their immigration status. Like the movies say, “anything you say can and will be used against you in a court of law.” Police officers and District Attorneys can threaten harsher punishments because of a person’s undocumented status in the U.S., but this is just a pressure tactic used to force an individual’s cooperation. Simply do not give in, and request to have an attorney present.

A court-appointed attorney will come free of charge. However, the quality of representation from a court-appointed attorney is something to consider as well. As the saying goes, you get what you pay for. If arrested, just remember that it may be worthwhile to have your family seek out private counsel for your defense.

The right to legal counsel, however, is limited to criminal cases. An undocumented immigrant facing deportation before the immigration court is not granted the right to legal counsel. This is because deportation proceedings are not a criminal proceeding. Even in the unfortunate instance that an undocumented individual landed in removal proceedings because of a criminal matter, the criminal case will be handled in criminal court, whereas the immigration case will be handled in immigration court.

It is important to understand in which type of court your specific case is under. Knowing the difference can expedite the time it takes for your loved ones to find the proper type of representation be it in a criminal or immigration matter.

Right to Education

There is no expressed “right to education” within the U.S. Constitution. There is, however, a landmark case that allows a right to education to undocumented children under the Fourteenth Amendment of the Constitution.

In the case Plyler v. Doe,⁵ the U.S. Supreme Court held that states cannot deny students free public education based on their immigration status. The court found that any resources which may be saved from excluding undocumented children from public schools were far outweighed by the harms imposed on society from denying them an education. Simply put, it is more beneficial to allow undocumented children access to a free education in public schools than to deny them said education.

The basis for the Court’s finding lies within the Fourteenth Amendment, which reads that, “No State shall . . . deny to any person within its jurisdiction the equal protections of the law.” In their reasoning, the Court held that if states provide free public education to U.S. citizens and lawfully present foreign-born children, the states cannot deny such an education to undocumented children without showing that it furthers some substantial state interest. Without a showing of a rational basis to deny undocumented children an education, the denial of access to education is simply unconstitutional.⁶

Right Against Unreasonable Search and Seizure

The Fourth Amendment of the constitution states that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”⁷ An unreasonable search or seizure occurs when a law enforcement officer searches your person, or your property without permission to do so. Permission does not necessarily mean your consent, but rather a failure to use proper mechanisms allowed under the law to justify the officer’s actions. One of these mechanisms is reasonable suspicion, which means that an officer has reason to believe that you are committing a crime or have committed the crime therefore allowing them to question you. The most common example is being pulled over while driving under the influence of alcohol or drugs, or because you disobeyed a traffic law: speeding, rolling a stop, running a red, etc. In these instances, the police officer can pull you over because they saw you committing an infraction or because they have reason to believe you are under the influence. Your actions during the encounter may provide the officer more reasons to believe something else may be afoot. For example, a nervous or fidgety driver may give the impression of suspicion and the officer can go into more questioning about the contents of your vehicle and may ask you to step out of your car.

A second mechanism is probable cause. Reasonable suspicion is more of an appearance that a crime has been committed and is a step before probable cause. A situation escalates to probable cause when it becomes more obvious that a crime has most likely been committed. Both are grounds to question you and your behavior.

A third mechanism is known as a warrant. A warrant is a legal document, usually signed by a judge or magistrate, allowing law enforcement officers to arrest you, via an arrest warrant, or to search your property, such as your car and home, via a search warrant.

Note that these three mechanisms allow for law enforcement officers to question you and hold you briefly, and do not necessarily require your express permission to do so. Both citizens and non-citizens (including undocumented individuals) are protected under the Constitution against unreasonable searches and seizures. If you don’t want to be pulled over and questioned, simply do not give the impression that you are breaking a law.

In Summary

The U.S. Constitution affords its citizens many protections; in reading this, bear in mind that the word ‘citizen’ should not be taken literally. When drafted, immigration status was not a point of contention, as it is now. The word ‘citizens’ is meant to include residents, as in, those residing inside the U.S. This includes natural born citizens, naturalized individuals, lawful permanent residents, as well as undocumented immigrants. Do not allow peoples’ opinions about this interpretation shape your life. If you have any questions, you can consult with a civil rights attorney, criminal defense attorney, or immigration attorney to clarify your doubts.


Sources ¹ Constitution, Black’s Law Dictionary (2nd ed. 1910). ² Bill of Rights Institute, The Bill of Rights, (last visited March 1, 2021). ³ Id. Plyler v. Doe, 457 U.S. 202 (1982). Id. ⁷ Bill of Rights Institute, The Bill of Rights, (last visited March 1, 2021).



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