Do Illegal Immigrants Have Constitutional Rights

Do Illegal Immigrants Have Constitutional Rights

I made a comment taking exception to another author's claim that illegal immigrants have no rights. I suggested that it is important to distinguish between constitutional rights and privileges reserved to citizens. The responses to my comment indicate that a great many people do not know what their constitutionally protected rights are.

The following comes from http://www.slate.com/id/1008367/

"……..the Bill of Rights applies to everyone, even illegal immigrants. So an immigrant, legal or illegal, prosecuted under the criminal code has the right to due process, a speedy and public trial, and other rights protected by the Fifth and Sixth Amendments. This fact sheet from the National Lawyers Guild outlines a host of rights afforded to immigrants and citizens alike.

(There are a few rights reserved for citizens. Among them are the right to vote, the right to hold most federal jobs, and the right to run for political office.)"

The following is taken from National Lawyers Guild website:

http://www.nlg.org/resources/kyr/kyr_english.htm

I. What rights do I have?

Whether or not you're a citizen, you have these constitutional rights:

The Right to Remain Silent. The Fifth Amendment to the U.S. Constitution gives every person the right not to answer questions asked by a police officer or government agent.

The Right to be Free from "Unreasonable Searches and Seizures". The Fourth Amendment is supposed to protect your privacy. Without a warrant, police or government agents may not search your home or office without your consent, and you have the right to refuse to let them in. They can enter and search without a warrant in an emergency. New laws have expanded the government's authority to conduct surveillance. It is possible that your e-mail, cell and other telephone calls, and conversations in your home, office, car or meeting place are being monitored without your knowledge.

The Right to Advocate for Change. The First Amendment to the U.S. Constitution protects the rights of groups and individuals who advocate changes in laws, government practices, and even the form of government. However, the INS can target non-citizens for deportation because of their First Amendment activities, as long as it could deport them for other reasons.

Note the italics of the last statement. We are all aware that INS is not actively pursuing every illegal immigrant in this country but clearly they can single out individuals who are engaged in exercising their rights.

The legal protections afforded by the constitution do not apply to simple deportation proceedings.

Once again from http://www.slate.com/id/1008367/

But immigration proceedings are matters of administrative law, not criminal law. (As a result, the consequence of violating your immigration status is not jail but deportation.) And Congress has nearly full authority to regulate immigration without interference from the courts. Because immigration is considered a matter of national security and foreign policy, the Supreme Court has long held that immigration law is largely immune from judicial review. Congress can make rules for immigrants that would be unacceptable if applied to citizens.

In conclusion, while in this country, illegal immigrants are covered by all the rights guaranteed by the Bill of Rights. Exercising those rights may subject them to deportation because of their alien status. Additional laws apply if the illegal immigrant is suspected of being a terrorist but that is not the subject I am attempting to address.

When illegal entry is treated as  a matter of criminal law, instead of being expelled through an administrative proceeding, those accused  have the right to a jury trial and all the rules of evidence  apply. The government is burdened with "proof beyond a reasonable doubt." Imagine the cost and the caseload.

(This article was revised on December 6, 2007, to reflect the information provided by Mr. Hardin in a comment below.)

 In pursuing Mr. Hardin's comment further I came across another interesting point.  While illegal entry is subject to criminal prosecution under the statute cited, illegal presence  is not a crime under the statute cited.  Someone picked up for over staying a visa would be subject to deportation proceedings under administrative law but would not be subject to criminal prosecution simply for being here.