Immigration

Legal Rights of Undocumented Immigrants

By Ilona Bray, J.D., University of Washington Law School
Are undocumented immigrants treated the same as others who live in the U.S.?

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Undocumented (sometimes called "illegal") immigrants living and perhaps working in the United States have some rights under the U.S. Constitution, despite their unlawful immigration status. Aspects of the Constitution that address certain basic human rights apply to everyone, even people without proper documentation. Some states grant illegal immigrants various rights, as well.

If you're an undocumented immigrant in the U.S., keep reading to learn more about your rights.

Constitutional Rights

Even if you're in the United States without permission or proper immigration documents, various sections of the U.S. Constitution apply to you. There is a particularly important provision of the Fourteenth Amendment stating that, "No state shall . . . deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

An undocumented immigrant is definitely a "person." In brief, this means that you are owed such procedural rights as a jury trial and the right to defend yourself against the charges if arrested; and if someone sues you over a civil matter, that you have the right to receive notice and to defend yourself in court.

Various criminal charge-related amendments to the Constitution (including the First, Fourth, Fifth, Sixth and 14th) also apply. These protect undocumented immigrants against unlawful search and seizure by law enforcement authorities (without probable cause and a warrant for such an action) and against self-incrimination.

Undocumented immigrants have the right to file lawsuits, such as discrimination suits, in federal court. State laws vary, but some jurisdictions give an undocumented immigrant the right to sue in state court, as well.

Defense Against Removal

You have the right to defend yourself against deportation or removal from the United States. If immigration officials discover that you're living in the country illegally, you have the right to a hearing before an immigration judge in the Executive Office for Immigration Review or EOIR (unless you've returned to the U.S. after a previous order of deportation). The U.S. government can't, in most cases, simply send you home without a hearing.

You also have the right to representation in immigration court by an attorney, but the U.S. government doesn't have to pay for one on your behalf. You may be able to find low-cost legal help from a charitable organization serving immigrants.

Drivers' Licenses Available in Some U.S. States

A handful of U.S. states also offer drivers licenses to undocumented immigrants who live there. Note that this does not confer any form of legal status; it merely says you are allowed to drive a car in that state. The states whose laws allowed this, as of 2016, included California, Colorado, Connecticut, the District of Columbia, Delaware, Hawaii, Illinois, Maryland, New Mexico, Nevada, Utah, Vermont and Washington.

See the National Immigration Law Center Access to Driver's Licenses page for the latest.

No Right to Work in the United States

It is against federal law for an employer to hire an undocumented immigrant. If you accept a job, then on your first day of work or soon after, the employer will (if obeying the law) check to make sure you a green card, visa with work privileges, work permit (also called an employment authorization document or EAD), or naturalization document. Employers are responsible for taking these and other measures to make sure they don't hire undocumented workers. However, they sometimes hire them unknowingly or without a careful check.

Use of fraudulent documents to obtain a job is a violation of immigration law, and can harm your future chances of obtaining lawful immigration status.

Once you are hired, however, you have certain rights with regard to your relationship to your employer.

Rights If You Are Working in the United States

Like any employee, you have the right to be paid for the work you do, at minimum wage, at least, plus overtime pay when legally required. Like other workers, you also have the right to healthy and safe conditions on the job, free from abuse, exploitation, or sexual harassment.

These rights are all too often violated, however, because employers know the workers don't want to reveal their undocumented status.

If you're hurt on the job, you have the right to collect workers' compensation benefits in some states. You may even have the right to collect disability insurance if you paid into it from your paychecks. You have the right to organize or join a union to force better working conditions.

Undocumented immigrants are blocked from collecting unemployment insurance in most states, because a condition of unemployment insurance is usually that the employee must be willing and able to work. Undocumented workers are not technically able to work, so they don't qualify.

Protections Against Discrimination

Undocumented immigrants are legally protected against discrimination on the basis of race or nationality, by employers or anyone else. Employers must ask you for your legal authorization to be in the United States before they can hire you, but they can't single you out and ask only you, or only individuals of your nationality. Asking for documentation must be company policy, covering all workers.

An Immigration Lawyer Can Help

The law surrounding the legal rights of undocumented immigrants is complicated. Plus, the facts of each case are unique. This article provides a brief, general introduction to the topic. For more detailed, specific information, please contact an immigration lawyer or an organization serving immigrants, such as the American Civil Liberties Union (ACLU).

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