Almost a year ago President Donald Trump tweeted the view that undocumented immigrants should be immediately returned “from where they came” – no judges, no court cases.
That narrow view parallels his executive ordered zero-tolerance policy on immigration which ultimately resulted in the family separation disaster that has yet to be resolved and whose tragic consequences continue to emerge.
Contrary to the President’s misconceptions, the underlying issue is that the U.S. Constitution does in fact apply to all immigrants – documented and otherwise.
According to Yale Law Professor Cristina Rodriguez, “Most of the provisions of the Constitution apply on the basis of personhood and jurisdiction in the United States.”
In this post, we outline only three of the many civil rights which are afforded to undocumented immigrants in this country—rights that are being regularly violated by the Trump administration every day as more and more people are being charged with immigration crimes.
Fourth Amendment Right against Unreasonable Search and Seizure
The Fourth Amendment establishes a right “of the people to be secure in their persons,” their homes, their papers, and other personal effects. In other words, all people have a right to expect privacy and protection against warrantless searches.
There are two exceptions to this Fourth Amendment guarantee which have directly contributed to the uptick in otherwise “unreasonable” searches among undocumented immigrants:
Border Search Exception
Although there is varying opinion on what constitutes the U.S. border, searches at the border are considered reasonable. There is now an “extended border” 100 miles wide in which government agents may conduct warrantless searches as long as they meet certain criteria.
Consent to Search
Often, language and cultural barriers prevent immigrants from understanding their rights in this country. So, when an officer asks to conduct a search, many undocumented immigrants may want to appear cooperative or feel they have nothing to hide, leading them to consent to a search when they shouldn’t.
Fifth Amendment Right to Due Process
The Fifth Amendment explicitly states that “no person” is to be compelled to implicate him or herself, or be deprived of life and liberty “without due process of law.” The current expedited removal process in which any person in this country illegally can be apprehended within 100 miles of the border is in direct contradiction to the right to due process.
Undocumented immigrants are entitled to hearings determining whether they have a legal claim to remain here. However, unless they are seeking asylum, the majority are never granted this right.
Those who often openly confess their illegal status, which virtually guarantees conviction and deportation, are unknowingly creating a situation in which it is nearly impossible for them to ever gain legal entry into the U.S.
Sixth Amendment Right to Legal Counsel
Every person accused of a crime is afforded their Sixth Amendment right to counsel – including those who have entered the country illegally. However, a number of issues surrounding the majority of current deportation proceedings create loopholes in this constitutional guarantee.
Civil Cases
A vast number of deportation proceedings are handled through the civil court system rather than the adversarial criminal court system where the right to legal counsel doesn’t apply in the civil system.
Misdemeanor Offenses
The government is required to provide counsel only when the accused is facing felony charges. Illegal border crossing is a misdemeanor offense for which the right to counsel does not apply.
Trials En Masse
The Trump administration’s crackdown on illegal immigration has overwhelmed local courts, often leading them to trying dozens of criminally charged immigrants at the same time in trials that last no more than a few minutes per person.
That’s just the beginning. We haven’t even begun to touch on how undocumented immigrants’ rights to education, family integrity, and their local government voting rights work according to current law.
We are not suggesting that illegal immigration and the laws governing it do not create complex social and legal issue that beg reform but the wholesale violation of civil rights and the constitutional guarantees enjoyed by immigrants is not the solution to this crisis.
If you or someone you know is entangled in the federal crackdown on immigration and their rights seem to have been violated, it is imperative for them to seek a knowledgeable Houston attorney with experience defending people from immigration crime charges.