Gorman Law Firm, PLLC

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We the [Illegal Immigrants] of the United States: Constitutional Rights Extended to Illegal Immigrants

Under the United States Constitution, “We the People of the United States” have been conferred fundamental, unalienable rights. Some people believe that “we the people” only refers to legal citizens of the United States; however, the Supreme Court has consistently disagreed. Although the term “illegal immigrant” does not appear in the Constitution, some of its rights and freedoms apply to illegal immigrants even though they are strictly prohibited from voting and possessing a firearm. The Supreme Court has rejected the argument that the Equal Protection Clause of the Fourteenth Amendment is limited to U.S. citizens. The Court concluded that “an alien, who has entered the country, and has become subject in all respects to its jurisdiction, and a part of its population, although alleged to be illegally here” is entitled to equal protection of the laws. Yick Wo. V. Hopkins, 118 U.S. 356 (1886). Thus, regardless of the citizenship status of an immigrant and whether or not they are lawfully present in the United States, they are entitled to equal protection under the laws of the United States.

Moreover, the Court has settled that the Fifth and Sixth Amendments apply to all people, including illegal immigrants. The Court stated, “ . . . it must be concluded that all persons within the territory of the United States are entitled to the protection guaranteed by those amendments, and that even aliens shall not be held to answer for a capital or other infamous crime, unless on a presentment or indictment of a grand jury, nor be deprived of life, liberty, or property without due process of law.” Wong Wing v. United States, 163 U.S. 228 (1896). Therefore, regardless of an individual’s immigration status, every person is entitled to due process under the law. Generally, due process means: (1) notice to the person to fully inform the individual of the decision or activity that will have an effect on their rights, and (2) the right to be heard (a trial or hearing). Further, equal protection extends First Amendment protection to everyone covered by the Fifth and Fourteenth Amendments. Under the First Amendment, “Congress shall make no law [establishing religion] or prohibiting the free exercise [of religion]; or abridging the freedom of speech.”

Equal protection of the laws was further noted and recognized in terms of public education. Plyler v. Doe, 457 U.S. 202 (2005) (the Court struck down a Texas law prohibiting enrollment of illegal aliens in public school). The Supreme Court determined that denial of a public education to illegal immigrants frustrated the purpose and goals of the equal protection clause of the Constitution. The Court stated:

The illegal aliens who are plaintiffs in these cases challenging the statute may claim the benefit of the Equal Protection Clause, which provides that no State shall ‘deny to any person within its jurisdiction the equal protection of the law.’ Whatever his status under the immigration laws, an alien is a ‘person’ in any ordinary sense of that term . . . The undocumented status of [the] children [or documented status of the children] does not establish a sufficient rational basis for denying them benefits that the State affords other residents.

The Court concluded that the only way a state may deny illegal immigrants, like the undocumented school-aged children, the free public education it offers to other children residing within the state, is if denial is justified by showing that it furthers some substantial state interest.

Gorman Law Firm, PLLC
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