Immigration is a hot-button issue, regardless of the political aisle one favor. It’s made more complicated by competing priorities as one presidential administration passes to the next.
With new leadership in the White House, the U.S. Immigration and Customs Enforcement Agency (often referred to as ICE) has seen a shift in immigration policies. This can lead to mixed messaging between the governmental agencies charged with immigration responsibilities.
Changes to Immigration
The Biden administration has directed ICE to curb these practices.
Instead, ICE has been directed to prioritize its focus on undocumented immigrants who have crossed the border illegally recently, who have a sentence or have a history of aggravated felonies, or who are considered threats to national security.
ICE agents have been instructed not seek out those who commit crimes such as driving under the influence, fraud, simple assault, or money laundering.
As the agency reorients itself, mistakes have been common.
For example, ICE was prepared to release men who have been convicted of sex crimes against children. This action was halted as a misapplication of the new directives.
Although these offenders weren’t freed, the decision raised alarms that ICE was not detaining individuals under immigration law.
What Are the Rights of Undocumented Immigrants in the United States?
A question now percolating in the immigration mix is exactly what rights do immigrants have in the United States now?
Americans tend to be quite resolute in the protection of their freedoms granted by the U.S. Constitution, but some do not know or choose to ignore is that legal rights under our constitutional governor apply to anyone in this country – legally or illegally.
Some of the rights that undocumented immigrants have include:
The Right to Due Process
Due process states that no person should be compelled to testify against themselves in a criminal case or be deprived of life, property, or liberty without fair legal proceedings. These constitutional principles are enshrined in the Fifth Amendment. The Supreme Court has clearly delineated that undocumented immigrants are entitled to due process in their deportation proceedings.
In practice, due process works for immigrants by allowing hearings for those in custody. An exception this constitutional rule of law applies to anyone arrested within 100 miles of the border and have been in the country for less than two years. In that case, they can automatically be deported without a court hearing.
The Right to Legal Counsel
Under the Sixth Amendment of the Constitution, every person in the U.S. has the right to assistance from counsel in order to mount a criminal defense. That includes undocumented immigrants.
In practice, deportation hearings are more akin to civil proceedings than criminal. But in criminal cases, undocumented immigrants can and are entitled to legal representation, even if they can’t afford one. In felony cases, a lawyer must be appointed by the court. For misdemeanor cases, no such provision exists, so a lawyer is not provided.
Staying with Your Family
How about an issue that has been front and center over the last several years?
The issue of keeping families of undocumented immigrants together. There is a precedent for the legal right of family integrity, which is basically the right to be with your family. It may not be enshrined in the Constitution, but it’s been well established through court precedents for decades.
In extraordinary circumstances, such as child abuse, the court may choose to split up families. But they must go through a legal process to do so.
Right Against Unreasonable Search and Seizure
The Fourth Amendment calls the shots here, stating that you cannot be searched or seized without probable cause.
Note that there is a border search exception when it comes to undocumented immigrants. That exception has been upheld in the courts, so any searches done at the border are not seen as unreasonable and aren’t subject to Fourth Amendment protection.