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