Do Non-Citizens Have Constitutional Rights?

Contrary to popular beliefs, non-citizens do have constitutional rights too. Albeit with certain exceptions.

 

In the US Constitution, some provisions refer to “citizens” while most mention “persons”.  When the former is used, those rights are (obviously) exclusive to American citizens.

 

The latter, however, is a blanket term for everyone within US jurisdiction. It means that everyone standing on US soil have equal rights under the law. This includes tourists, permanent residents and even illegal immigrants.

 

A room of legal immigrants hold up American flags.

 

What Rights Do They Have?

 

The Constitution provides for a variety of rights a person is entitled to. Here are some of the rights that also encompass non-citizens.

 

Bill of Rights

 

The Bill of Rights refer to the ten amendments made to the original text of the US constitution. It enumerates natural rights inherent to all human beings. These are inalienable and with no prejudice to any race, color or gender. All ten amendments use either “people” or “person” and nowhere can you find the word “citizen”.

Among the rights enumerated therein are:

 

  • religion
  • speech
  • peaceful assembly
  • bear arms
  • petition the government for a redress of grievances
  • protection against unreasonable searches and seizures
  • due process of law
  • trial by jury
  • legal counsel

 

Equal Protection

 

The 14th Amendment also provides for the right to equal protection of the law. This provision forces the states to govern partially without discrimination to anyone within its territory. It’s one of the most important clause in protecting the people’s civil rights.

 

Jurisprudence

 

Some rights are not expressed by law but rather established through court rulings.

 

An example of this is the right to family integrity. 20th century court rulings provide that people have a right to be with their family. That’s why the government can’t separate families without a legal process.

 

Another is the right to education. The constitution does not expressly provide for such. Yet a supreme court ruling states that if citizens have access to free education, so should immigrants.

 

Exceptions

 

Though rights of non-citizens are ensured by the constitution, some rights are still reserved to citizens only.

 

Voting

 

Voting in federal elections can definitely land a non-citizen in jail. In 1926, most states passed laws prohibiting non-citizens from voting. Illegal immigrants are also banned from voting  for the office of President, Vice President, Presidential elector, Member of the Senate, Member of the House of Representatives, Delegate from the District of Columbia, or Resident Commissioner.

Some states allow non-citizens to vote in the local elections though. San Francisco and Maryland are among them.

 

Run for Office

 

If you’re not a citizen, your dreams of becoming a US President might never come true. That’s because the right to run for a public office is for citizens only. This makes a lot of sense though. Imagine having an American president who is not actually American.

 

Immigration

 

The constitution protects the rights of non-citizens within the US territory. You are technically outside US territory  when you are still at the border or the airport. Thus, these constitutional rights don’t apply.

 

As a consequence, the government has full rights to deny entry. But the parameters for denying entry into the country should not contravene our constitution.

 

Unreasonable Searches

 

Non-citizens are protected from unreasonable searches when they are inside the US. This means that searches and confiscations at the border are legal. Border patrols may also conduct searches within 100 miles from the border if the situation warrants so.

 

Due Process

 

Although this is a guaranteed under the Bill of Rights, it may not always be the case for illegal immigrants.

The Illegal Immigration Reform and Responsibility Act of 1996 creates the “expedited removal” process. Under this, immigrants illegally staying in the country for less than two years and apprehended within 100 miles from the border can be deported immediately without a proper hearing.

 

Victor Malca Law

Our law offices serve many areas around South Florida. If you need legal representation in a workers compensation or social security disability case then contact our legal team. Learn more about workers comp and social security disability law here.

 

Comments (2)

wow that’s a pretty biased opinion!

Not really. The law is clear and the law, by definition, must follow the Constitution. You can’t say rights specifically reserved for native born citizens, such as the right to serve as President and Vice President, are valid without accepting that the Constitution, by specifically reserving certain rights for the native born citizen but not specifically denying them to non citizens or the non native born, is clearly granting certain rights, in particular, the bill of rights, to all persons present in the jurisdiction of the United States of America. The Constitution, even before the 13th, 14th and 15th Amendments, made it clear that such basic governmental functions, such as representation in Congress, was based on “persons” resident, as apposed to “citizens” in each state. Otherwise, even natural born citizens, say those males once under 21 and now under 18 were not citizens, and, of course, unless they were Black, they were citizens, and even if they were black, and still slaves, were under the jurisdiction of our Constitution. There are some fine points over where exactly Constitutional rights kick in, be it at the moment a non-citizen one crosses the border, or if they cross the border if they are within 100 miles of the border, but there is nothing, unless you are a radical lawyer or judge who feels you can make the black and white letters of the actual text of our Constitution mean something that they don’t say, that justifies any argument that the Constitution, and all its rights to due process, don’t apply to all persons, citizens or not, in the U.S. nor that you could ever justify under law removing an illegal immigrant — if they are inside the country or legally or illegally inside the 100 mile envelope before being caught, without admitting that that immigrant, if subject to the law that you believe should remove them, is not under the jurisdiction of the United States. And even if they are not technically within the U.S., our laws must still apply to the way we treat them, even if they are legally subject to removal. You can’t just deny them due process, or torture them, or subject them and their famililes to treatment that does not comply with U.S. law, including legally (Senate approved) binding international obligations without defying the Constitution. To suggest otherwise is to reject the law and is the truly biased opinion. If you don’t like our immigration laws, or want to change birth-right citizenship, there are legal and Constitutional avenues. Up to a point, Congress can change the law or Congress and State Legislatures in concert can change the Constitution. But to suggest anything else, is unconstitutional. Read the law, read the constitution. You may not like it, and I don’t like it much of the time, but to suggest this legal opinion is somehow biased, however legitimate your opinion, is not based on any fact.

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