Boom! Lawyered: Immigrants’ Constitutional Rights Edition

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Boom! Lawyered: Immigrants’ Constitutional Rights Edition

Imani Gandy

The due process and equal protection clauses in the Fifth and 14th Amendments apply to "persons." Not "citizens." Not "Americans." Not "people we like."

Hello, fellow law nerds!

It’s been a while since we’ve had a written Boom! Lawyered explainer. But given the ongoing panic in the age of Trump, we thought it might be a good idea to talk about immigrants’ constitutional rights.

Last week, the Florida Immigrant Coalition, an immigrant advocacy group, posted a video of border patrol officers detaining a woman on a Greyhound bus after asking everyone onboard for their identification. As the video went viral and more were published in its wake, the same questions kept popping up: Do the passengers have to show their ID? Are such bus sweeps even constitutional?

Part of the reason these questions are arising is that a lot of conservatives will tell you that undocumented people don’t have any constitutional rights. That’s not true.

Undocumented people do not have the full panoply of constitutional rights—they cannot vote, for example. But undocumented people do have the right to equal protection under the law and due process of law before they can be deprived of life, liberty, or property. And that’s because the due process and equal protection clauses in the Fifth and 14th Amendments apply to “persons.”

Not “citizens.” Not “Americans.” Not “people we like.”


The due process clause of the Fifth Amendment reads: “No person shall … be deprived of life, liberty, or property, without due process of law.”

The 14th Amendment has three main clauses: the privileges and immunities clause, the due process clause, and the equal protection clause. And it makes clear that the privileges and immunities clause applies to “citizens of the United States,” while the due process and equal protection clauses apply to “persons.” It reads: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State 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.

In addition, undocumented people also have the right to be free from unreasonable search and seizure, since the Fourth Amendment relates to “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures”—although immigration law limits that right somewhat, as explained below.

The Constitution’s authors were clear: They knew the difference between “citizens of the United States” and “persons.” If they had meant to exclude anyone who was not a U.S. citizen from the protection of the due process and equal protection clauses, they could have made those clauses applicable to “citizens of the United States.”

The U.S. Supreme Court has agreed, in cases stretching back over more than 100 years. In Yick Wo v. Hopkins in 1886, the Court said:

The Fourteenth Amendment to the Constitution is not confined to the protection of citizens. It says: “Nor shall any State 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 law.” These provisions are universal in their application to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or nationality; and the equal protection of the laws is a pledge of the protection of equal laws. [emphasis added.]

And in Wong Wing v. United States in 1896, the Court applied the reasoning in Yick Wo and said that “all persons within the territory of the United States” are entitled to Fifth and Sixth Amendment rights—to due process, against self-incrimination, and to a speedy trial by a jury of one’s peers.

In 1982, almost 100 years later, the Court in Plyler v. Doe ruled that undocumented people were entitled to protection under the Equal Protection clause and that Texas could not prevent undocumented children from attending school.

There are limits to the constitutional rights that undocumented immigrants enjoy, however. When it comes to deportation proceedings, for example, undocumented immigrants get almost no due process. That’s because, under something called “the plenary power doctrine,” the legislative and executive branches have full power when it comes to regulating immigration, subject to judicial oversight. And the judicial branch is uniquely deferential to the legislative and executive branches when it comes to regulating immigration. In other words, undocumented immigrants are subject to immigration law, and the executive branch has almost irreproachable authority to decide which undocumented immigrants can stay and which must go.

Undocumented persons can be arrested and detained, and unlike in criminal cases, the government is not required to provide them with a lawyer. If the detained person wants a lawyer, they need to pay for it themselves. This is, in part, because violating immigration law is technically a civil issue, not a criminal one.

Also, in most jurisdictions, the government is not required to give detained immigrants a bond hearing—at least not yet. A case called Jennings v. Rodriguez is pending before the Supreme Court right now and it will decide whether or not undocumented immigrants are constitutionally entitled to bond hearings. As I wrote here, the denial of these bond hearings leads to extended periods of detention, sometimes lasting years. (New York has a time limit on how long immigrants can be held without bond—as does California, due to the underlying Ninth Circuit ruling in the Rodriguez case—but no other jurisdiction does.)

In addition, the law grants Customs and Border Patrol agents wide authority when it comes to immigration proceedings—what the American Civil Liberties Union (ACLU) has referred to as “extra-constitutional rights.”

For example, the Supreme Court ruled in United States v. Martinez-Fuerte that immigration checkpoints may be set up on highways near international borders, even though there’s no reason to believe that any particular car contains people who are undocumented or otherwise in violation of immigration law. (The dissenting justices in Martinez-Fuerte called the ruling the “evisceration of Fourth Amendment protections against unreasonable searches and seizures.”)

The Court has ruled that detentions at immigration checkpoints must be brief, however. In United States v. Brignoni-Ponce, the Court said “all that is required of the vehicle’s occupants is a response to a brief question or two and possibly the production of a document evidencing a right to be in the United States.” (Of course, in reality, the length of the detention often doesn’t matter. If the person is detained improperly and is undocumented, they may still be deported.)

Border patrol agents also have the authority—granted to them by the Immigration and Nationality Act of 1952—to board and search for undocumented people on any vessels within U.S. territorial waters, as well as trains, aircraft, or other vehicles “within a reasonable distance from any external boundary of the United States.” Normally, law enforcement can’t stop and search you without a warrant.

Under existing regulations, 100 miles is a “reasonable distance” from any external boundary of the United States, including coastal boundaries. This has come to be known colloquially as the 100-mile zone, and searches in the zone are called border searches. Notably, border searches are not restricted to actual borders. Airports and other points of entry are considered borders.

Often, when we think of the border, we think of Texas or other states in the southwestern region. But, as the ACLU notes, two-thirds of the U.S. population lives in the 100-mile zone. Nine of the ten largest cities in the country are in the 100-mile zone: New York City, Los Angeles, Chicago, Houston, Philadelphia, Phoenix, San Antonio, San Diego, and San Jose.

And Connecticut, Delaware, Florida, Hawaii, Maine, Massachusetts, New Hampshire, New Jersey, New York, Rhode Island, and Vermont are located entirely (or almost entirely) in the 100-mile zone.

Within the 100-mile zone, border patrol agents are granted yet another extra-constitutional right: They have the authority to set up “roving patrols.” These roving patrols are on the lookout for people committing crimes or immigration violations. They are essentially immigration checkpoints on wheels.

There are some limitations to the authority of roving patrols: They can’t pull over people based on their religion, race, national origin, gender, ethnicity, or political beliefs. The Court in Brignoni-Ponce ruled that agents also cannot pull people over without reasonable suspicion that the person they’re pulling over has violated immigration laws. And they can’t search cars—in other words, they can’t go beyond questions about citizenship status and asking for ID—without a warrant, probable cause, or consent. (I wrote about the reasonable suspicion and probable cause requirements in the stop-and-frisk context here.)

However, what the law says and what actually happens don’t often align. There are relevant factors that can give rise to reasonable suspicion—for example, if a car is riding particularly low, suggesting that there are people in the trunk. The ACLU of Arizona notes that “the further you are from the border, the less likely it is that agents will have ‘reasonable suspicion’ of an immigration violation to justify a stop.”

In reality, though, reasonable suspicion is often based on racial profiling.

And when it comes to immigration sweeps on buses—like the one in Florida—most undocumented immigrants are out of luck. Although they have a Fourth Amendment right to be free from unreasonable search and seizure, the 100-mile zone rule permits border agents to board buses (and other vehicles, including planes) without a warrant to search for undocumented people.

So what should undocumented people do if they are confronted by immigration agents? The ACLU has suggestions.

If immigration agents show up at your doorstep, don’t open the door. Talk to them through the door. They must have a judicial warrant if they want to enter; and an administrative warrant for removal from the authorities isn’t enough. Immigration advocates suggest asking the police to slide the warrant under the door. They also caution against signing anything: Agents are permitted to use tactics to confuse or intimidate you. If you’re given papers to sign, don’t sign them and call an attorney.

If you are stopped by immigration authorities, you do not have to answer questions about your citizenship. You have the right to remain silent, even at an immigration checkpoint, although a refusal to cooperate often leads to prolonged detention. As discussed above, different rules apply at ports of entry. The ACLU notes that different rules also apply to people on certain types of non-immigration visas, like people traveling for business and tourists. The ACLU also has advice about what to do if you are a noncitizen who has immigration papers and authorities ask to see them (show them) or a noncitizen who doesn’t have immigration papers (don’t lie about your citizenship status and request to remain silent).

And if you are a citizen who wants to stand up to immigration authorities or slow them down as they carry out these sweeps, asking them about their authority to ask for your documentation is an option. If you see them asking only people of color for their documentation, and you’re not a person of color, you could inquire why they are not asking white people for their status. And at checkpoints, you can decline to answer questions about your citizenship, as these drivers do in this compilation of border stops.

The bottom line is this: Undocumented people have constitutional rights and anyone who says differently is wrong. The problem is that the law gives immigration agents a lot of extra-constitutional authority when it comes to the 100-mile zone. As we all know, in practice, the law is often applied differently to different groups of people. And in this administration, undocumented people are among the most vulnerable.

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