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The Rights Undocumented Individuals Have Under the United States Constitution


The United States has been the gold standard for numerous immigrants. However, it can seem near impossible for some of them to reach therefore some individuals may cross the border without the proper paperwork making them undocumented immigrants. In today’s day and age, the media makes it sound as the undocumented individuals have no rights when it comes to being in the United States. This is not true the constitution does give undocumented individuals rights depending on the situation that they may be in.

Right to Due Process

As per the Fifth Amendment to the Constitution, undocumented immigrants have the right to due process. Due process is defined as an individual cannot be deprived on legal rights without a proper application of the law. This means that undocumented immigrants will have the proper application of the law the same as natural born citizen before the court. Overall, every individual that is living within the United States have the right to legal procedures in civil, criminal, agency, and administrative matters. This is also applicable to immigrants’ facing deportation and have to be before the immigration court will benefit from rights to due process because the individual has the right for their case to be heard before an immigration judge. The rules for detention are different for undocumented individuals that may be facing serious criminal charges or undocumented immigrants that have very recently crossed with border without the proper paperwork.

Right to Legal Counsel

This allows individuals facing criminal charges the right to an attorney. This can be obtained either through a private attorney and if the individual can’t afford the private attorney, they will appoint an attorney to represent them in their case. These attorneys are known as public defenders. These attorneys will come free of charge and individuals have to keep in mind that the quality of an attorney that is a public defender versus a private attorney. Another option is the individual can represent themselves. However, the right to legal counsel is only limited to criminal cases.

An undocumented individual facing deportation before an immigration court is not granted the right to legal counsel. Due to deportation proceedings not being a criminal proceeding. If individuals, are facing deportation it is highly recommended to hire an immigration attorney to help them navigate the immigration court.

Right to Education

Under the Fourteenth Amendment of the Constitution allows a right to education to undocumented children. It is more beneficial to allow undocumented children access to free education in the public school system then to deny them. This right to education only applies to kindergarten through 12th grade. It has also been deemed unconstitutional to deny access to education to undocumented children.

Right Against Unreasonable Search and Seizure

Undocumented individuals have the right to be secure in their persons, houses, papers, and effects from any unreasonable searches and seizures. These occur when a law enforcement officer searches and individual or their property without their permission. However, do keep in mind that permission does not necessarily mean your consent. Rather it means that the officer failed to use the proper mechanisms allowed under the law to justify their action. One of the mechanisms that is allowed is reasonable suspicion. This means that the officer has/had a reason to believe that individual was committing a crime or had committed a crime therefore allowing the office to question the individual. A common example of this is being pulled over.

The second mechanism a police officer can use is probably cause. Probable cause is applicable when it becomes more obvious that a crime has most likely been committed. Therefore, the officer has the grounds to question you and your behavior.

The third mechanism is known as a warrant. This a legal document that is usually signed by a judging allowing law enforcement officers to arrest and individual or to search their property such as a car or home via a search warrant.

In Summary

Undocumented individuals do have rights within the United States because when the constitution was originally written the word ‘citizen’ includes residents as in anyone that resides within the United States, including undocumented individuals. Please do not allow other individuals’ opinions about the interpretation shape your life in the long run.

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If you are looking for a legal representative The Law Office of Travis Helm can help! To make an appointment with Attorney Travis himself, just give us a call today at 307-460-2032 and let us know how we can help you!

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