Free case evaluation 24/7

(866) 393-4334

Call Now

The Legal Rights Of Undocumented Immigrants Guide

Legally reviewed by: Miriam Domer October 26, 2022

Though some may mistakenly believe otherwise, non-citizens (also called undocumented immigrants) have a number of legal rights in the United States. These may include the right to due process and a jury trial in certain court proceedings, the right to payment for their work, the right to defend against deportation, and many more.

People who are facing deportation or who have had their Constitutional rights violated may have legal recourse through a number of immigrant-focused resources.

A lawyer reading a legal book about the legal rights of undocumented immigrants in the U.S.

Understanding the Constitution is no easy feat, which is perhaps one reason why many people believe that non-citizens in the U.S. do not have access to legal rights.

However, this is a common misunderstanding which needs to be debunked.

Non-citizens (also known as non-status immigrants or undocumented immigrants) can access a number of legal rights, and when these rights are violated or overlooked, they may have options for fighting back.

According to the American Immigration Council, there were 10.3 million undocumented immigrants in the U.S. in 2019, which accounted for 23% of all U.S. immigrants and 3% of the U.S. population.

With so many non-citizens on American soil, it’s important that they — and their allies — understand their rights and how to exercise them.

Here you’ll find a complete guide to the legal rights of non-citizens in the U.S., as well as a list of rights non-citizens can’t access, and a number of legal resources for non-citizens.

Do Undocumented Immigrants Have Legal Rights?

A complex issue among some anti-immigrant or immigrant restrictionist groups, non-citizens in the U.S. do have legal rights. In fact, they may enjoy many of the same rights as U.S. citizens.

These rights apply while they are within the borders and jurisdiction of the United States. This can cause some ambiguity over where these rights apply.

In any case, non-citizens have many protected rights within the United States, and the Supreme Court has held that states may not institute laws concerning certain fundamental rights that discriminate on the basis of citizenship.

That being said, some Constitutional rights apply solely to U.S. citizens.

Does The U.S. Constitution Apply To Undocumented Immigrants?

To understand why the Constitution applies to non-citizens, it helps to understand a bit more about the legal document that’s been law of the land since 1789.

First, the biggest controversy over whether rights outlined in the Constitution apply to non-citizens comes from language within the document, which states that rights apply to ‘citizens.’

The problem therein is that, when the document was written, there was no set definition for ‘citizens.’ The Constitution was not written with the idea of safeguarding against people who live in the United States, but with the idea of protecting the rights of those within it.

To that end, the U.S. Supreme Court has interpreted Constitutional rights as applying to all people residing in the U.S., regardless of immigration status — including natural born citizens, legal immigrants, and non-citizens.

What Rights Do Undocumented Immigrants Have Under The Constitution?

Find a detailed list below of all the rights that offer equal protection of the laws to non-citizens under The Constitution.

The Right To Due Process

First and foremost, non-documented immigrants have the right to procedural due process, or a fair hearing in the case of removal proceedings (deportation), under the Fifth Amendment.

A violation of due process of law can lead to legal consequences, including but not limited to terminating the proceedings, reopening the proceedings, or throwing out the Notice to Appear.

Violations of non-citizens’ right to due process can and do occur. While not an exhaustive list, some examples of due process violations include:

  • Immigration judge failing to remain impartial
  • Immigration judge making a predetermined decision about the immigrant’s claim
  • Not allowing a proper investigation for the immigrant’s claim
  • Denying the right to appear before a judge and the opportunity to be heard
  • Failure to provide adequate notice of the proceedings against an individual and notice of any court appearances
  • Denying the right to appeal based on lack of proper administration records
  • Denying Motions to Continue without cause

There is one major exception to the right to due process.

That is, immigrants who have illegally been in the country less than two years and are detained less than 100 miles from the border may be denied a hearing and immediately deported, a process known as expedited removal.

The Right To Legal Counsel

The Sixth Amendment protects non-citizens’ right to legal counsel in criminal proceedings in the same way it protects this right for U.S. citizens. Here’s where this right gets tricky.

Most charges against undocumented immigrants are those pertaining to removal, which are non-criminal charges. For non-criminal charges in the United States, the right to legal counsel doesn’t apply.

Because the Supreme Court does not consider deportation charges a criminal offense, this means undocumented immigrants many not have the rights that would come with a criminal proceeding, such as the right to having Miranda rights read to them prior to being charged, the right to an attorney, and the right to a jury trial.

The American Immigration Council asserts that most non-citizens are refused the right to an attorney for the simple fact that deportation charges are not considered criminal charges.

In April 2018, the zero-tolerance policy was instituted under the Trump Administration, which held that all migrants who entered the nation anywhere but at an official port of entry must be criminally prosecuted and detained. This includes asylum seekers.

While this may sound like it would afford non-citizens the right to legal counsel denied them on civil charges, this has not been the case, according to Refugees International.

The Right Against Unreasonable Search And Seizure

Citizens and non-citizens alike have the right to be free from unreasonable search and seizure under the Fourth Amendment.

The one exception to this right is searches and seizures which occur at the border. While this may seem as though it is directed only at non-citizens, it’s in place due to a practice that began with the first Congress, according to PBS.

That is, during that time period, a law was put in place which allowed border searchers to search people in order to collect duties. The Supreme Court has upheld this law and proclaims that it is not unreasonable to search and seize from people at the borders.

Because of this, an ongoing controversy also exists regarding what is considered the border. Some may consider this definition to pertain only to ports of entry, but searches may be considered legal up to 100 miles of the port of entry in some cases.

The Right To Jury Trial

Under the Sixth Amendment, all people charged with criminal offenses have the right to an impartial trial by jury in the state and district in which they allegedly committed the crime.

This right occurs regardless of immigration status. Note that it does not apply to minors (juveniles).

However, the law precludes application of this right for petty offenses. Many criminal offenses for non-citizens (outside of deportation charges) are petty offenses. As a result, the right to trial by jury is often waived.

In 2018, some states, including New York, made an exception to this law, holding that non-citizens who are charged with deportable offenses will have the right to trial by jury.

The Right To Miranda Warnings

Anyone who is detained and is going to be criminally interrogated has the right to be read a Miranda warning, or legal warnings that inform the accused of the right to remain silent, the fact that anything you say can and will be used against you in a court of law, and the right to an attorney.

However, most court cases for non-citizens, including many immigration cases, are considered non-criminal. This means that many undocumented immigrants do not have the right to the Miranda warning.

The only cases where this applies is if the non-citizen is being detained on criminal charges where they will be interrogated. In this case, they have the right to be Mirandaized.

The Right To Defend Against Deportation And Other Charges

Non-citizens who are in immigration court proceedings for removal do have the right to defend against deportation. While it is unlikely that removal will not apply if they are not documented, (meaning they have legal status to be present in the United States, such as holding a visa or Green Card), there are some defenses which may apply.

If you have no legal status in the U.S. and are being charged with removal, an attorney may be able to help if the following apply:

  • The Department of Homeland Security charged you with removal for the wrong reasons: In this case, your attorney could have your removal charges challenged.
  • You request to apply for relief from removal: You may be able to apply if you are seeking asylum, have fear of persecution on returning to your country of origin, can seek citizenship through a family member, or you elect a voluntary departure without record, among others.

The Right To Protection Against Self-Incrimination

The Fifth Amendment protects non-citizens’ and citizens’ right to protect against self-incrimination in criminal proceedings.

In practice, this means they do not have to answer questions which might incriminate them or testify in trials which might incriminate them.

In fact, this is one form of defense for people who are seeking to defend against deportation. By refusing to admit to non-legal status, it forces the DHS to prove that you are removable by presenting the proper evidence.

It’s important to understand that refusing to answer questions or admit to allegations is not the same as lying, and lying about removal status can hurt immigrants’ cases during deportation proceedings.

The Right To File Civil Lawsuits

Under federal law, non-citizens retain the right to file civil lawsuits to seek a remedy for their rights under the Fourteenth Amendment, which holds that the government cannot take away someone’s life, liberty, or property without due process.

This law applies to everyone, regardless of immigration status. And undocumented immigrants have filed and won personal injury lawsuits.

There are a number of state and national resources for non-citizens seeking legal counsel.

The Right To Vote

According to federal law, non-citizens are not permitted to vote in any federal elections. Yet this law does not apply by and large to local elections.

In fact, the Pew Research Center explains that San Francisco, California, nine cities in Maryland, and two cities in Vermont now allow all adult residents to vote, regardless of immigration status.

Lawmakers in other cities are considering legislation that would change the right to vote to include all adult residents, including New York City, Washington, D.C., and some cities in Massachusetts.

However, at the state level, many lawmakers are trying to amend state constitutions to ensure this does not happen. Contrary to popular belief, allowing non-citizens to vote in local elections has existed for many years.

They could not only vote, but hold office, in up to 40 states until 1926, according to the Pew Research Center. Most recently, this is because states like California automatically register people to vote when they visit the Department of Motor Vehicles, such as for their driver’s license.

In general, non-citizens will have to check with their local district to see if they are eligible to vote in local elections.

The Right To Education

In Plyler v. Doe in 1982, the Supreme Court ruled that all children and young adults would have the right to a public education, regardless of immigration status.

To that end, non-citizen children are required to attend school until they reach the required age. According to the federal government, public schools cannot:

  • Deny admission due to lack of documentation at any time
  • Treat students or their parents differently in order to determine legal status
  • Do anything that indirectly or outright denies children the right to attend school
  • Require children or their parents to show proof of their legal status
  • Require social security numbers of students, including documented U.S. citizens — this in turn could expose non-documented citizens

The Right To Payment For Work Performed

As with any worker who performs work for an employer in the U.S., non-citizens have the right to collect payment for work performed.

Different laws may apply according to the state the person is in, the type of job they have (hourly or salary, wage-earning or tipped), and other considerations, such as overtime.

In general, non-citizens must be paid for the work they completed and have the right to pursue legal action if they are not paid.

The Right To A Safe Work Environment

Everyone in the U.S. — permanent residents, undocumented workers, and those involved in the naturalization process — enjoys the protected right to a safe work environment.

This right was established with the 1970 Occupational Safety and Health Act, which safeguards peoples’ right to a work environment that protects them from being killed or harmed.

Beyond that, the working environment must also be safe and free of known dangers. This extends to air quality, environmental hazards, and much more.

Barriers Immigrants Face In Accessing Legal Rights

Though legal immigrants and non-citizens enjoy many of the same rights as citizens who have national origin here in the U.S., non-citizens and immigrants tend to face many barriers in accessing those rights.

Anti-Immigrant Groups

Anti-immigrant groups at the local level and political parties which do not support the rights of undocumented immigrants can pose a threat to the rights of immigrants and illegal immigrants.

Many federal policies that are considered extremist and apply to non-citizens have traditionally been challenged by immigrant allies. However, of late (and most recently under the Trump Administration), these policies have become the norm.

In particular, the zero-tolerance policy for those who cross the border — including asylum seekers — is a vast barrier to immigrants who come to the U.S. in fear of persecution or other imminent danger.

Perception Of Workforce Competition

The idea that undocumented workers take jobs away from American citizens often creates a stigma which in turn becomes a barrier to immigrants’ rights.

This could look like discrimination against undocumented workers by denying them work, withholding their earned pay, denying them safe working conditions, and more.

Perception Of Social Services Strain

The idea that non-citizens take jobs from citizens stems from the myth that non-citizens not only take natural-born citizens’ jobs, but also don’t pay their share of state and federal taxes and are a drain on the economy by receiving federal benefits.

However, research demonstrates this isn’t true. The American Civil Liberties Union reports that immigrants pay $90 billion in taxes every year, but only receive $5 billion in public benefits.

Note that undocumented immigrants cannot apply for most social services benefits.

English Only Laws

Federal laws may be set up in a way that make it difficult for undocumented immigrants to access their rights. In addition, everyday laws in the workplace can make it difficult for non-citizens to thrive and seek livelihood, such as English-only laws.

According to the Legal Information Institute, an English-only rule is one that requires that English be the only language spoken in the workplace or (for some) at specific times.

What Rights Do Undocumented Immigrants Not Have In The U.S.?

Though non-citizens have many rights in the U.S., there are some they cannot access while they remain non-citizens.

Right To Access Supplemental Nutrition Assistance Program (SNAP)

In general, non-citizens are not eligible for Supplemental Nutrition Assistance Program (SNAP) benefits, formerly known as Food Stamps, for a period of five years from their date of entry into the U.S.

However, many important exceptions to this law apply. Non-citizens may be able to apply for SNAP if they are:

  • Children under the age of 18
  • Non-citizens who are lawfully residing in the U.S. and age 65 on or after August 22, 1996
  • Non-citizens receiving public benefits for disabilities or blindness
  • Certain people who are Indian, Hmong, or Highland Laotian, Amerasian, Cuban/Haitian
  • Trafficking victims
  • Asylees/refugees
  • Veterans and their spouses or unmarried dependents dependents
  • Active duty military members and their spouses or unmarried dependents dependents
  • Some legal permanent residents

Right To Medicaid And TANF

All states have the right to decide who will be eligible for their Medicaid programs and their Temporary Assistance for Needy Families (TANF) programs for those who arrived prior to August 22, 1996.

This means some states may allow non-citizens to apply, while other states do not. Note that most aliens (non-citizens of any kind) are not able to receive Medicaid or TANF benefits for five years after their date of entry.

The exceptions to this law are for some permanent residents, asylees and refugees, those non-citizens who are receiving SSI benefits, certain Indians, and veterans, military members, and their spouses or dependents.

Right To Apply For Social Security Income (SSI)

Most non-citizens cannot apply for social security income (SSI) benefits until they have been in the U.S. for a period of five years and acquired legal citizenship status.

The same exceptions apply as for Medicaid and TANF, as well as for those who were receiving SSI prior to August 22, 1996.

Right To Federal Public Benefits

Non-immigrants, or those who are here on work visas or for travel, and undocumented immigrants are not eligible to receive federal public benefits.

There are a great many federal public benefits, but some of these include:

  • Federal grants
  • Federal loans
  • Commercial licenses
  • Federal retirement benefits
  • Welfare funds
  • Public or assisted housing
  • Postsecondary education benefits (financial aid)
  • Unemployment benefits
  • Adoption assistance
  • Foster care benefits
  • Low-Income Home Energy Assistance Program

Legal Resources For Undocumented Immigrants

If you are a non-citizen or an ally, there are a number of resources you can look to for assistance with legal counsel, fighting deportation charges, and accessing education.

Legal Counsel Help

Non-citizens in need of a lawyer or legal assistance may be able to seek help through the following resources.

U.S. Department of Homeland Security — File a Civil Rights Complaint

Undocumented immigrants who need to file a civil rights complaint can download the form on this webpage, which also includes information related to what to include on your complaint and how to send it in.

Civil rights complaints include those related to immigrant detention and enforcement, discrimination, unfair searching or questioning upon entry into the U.S., and many others.

The United States Department of Justice — List Of Pro Bono Legal Service Providers

This complete list of pro bono legal service providers allows you to find legal help in your home state. Simply click on your state on the U.S. map to be taken to a page with a list of pro bono legal providers in your state, complete with contact information and more.

Immigration Advocates Network — National Immigration Legal Services Directory

Facilitated by an immigrant advocacy organization, the National Immigration Legal Services Directory only lists non-profit organizations that offer free or low-cost legal services in your state.

Legal Aid Justice Center — Immigrant Advocacy Legal Assistance

This advocacy program provides free legal assistance to immigrants with low incomes in Virginia and offers bilingual services. They cover housing, consumer, and employment law.

Deportation Assistance

Deportation is one of the most harrowing threats faced by non-citizens. Find deportation resources below.

U.S. Citizenship and Immigration Services — USCIS Online Tools and Live Assistance

Non-citizens with active deportation cases and their allies can access details related to their case via the USCIS page.

The online tools allow people to track their case status, view processing times, request appointment changes, change addresses, and submit forms.

The live assistance feature allows non-citizens to connect to someone online to receive answers to their questions. Those questions which can’t be answered will be referred to an Immigration Services Officer.

Families for Freedom — A.R.M. Case Campaign & Organizing Manual

A.R.M. is an initiative founded by Families for Freedom not only for immigrants and non-citizens but for their allies.

This initiative recognizes the limited options non-citizens face and pushes for support from lawmakers, foreign consulates, the media, and current citizens to help fight for policy change and for assistance in individual deportation cases.

Immigrant Defense Project — Pardon: The Immigrant Clemency Project

Under current law, immigrants (including those with greencards) can be convicted and/or deported based on past convictions, even if they are decades old.

This initiative aims to change this and fight for clemency. Governors have the power to pardon past offenses and avoid extreme punishments for them, including deportation.

Allies can come together to ask state governors to consider the pardoning route.

Immigrant Legal Resource Center — Post-Conviction Relief

The Immigrant Legal Resource Center offers assistance with post-conviction relief, including case-specific assistance and pro-bono post-conviction legal aid.

In so doing, they aim to advocate for those whose convictions close the door to any sort of immigrant relief, in particular for those whose past convictions are shown to be unlawful.

National Immigrant Justice Center — How to Help

For immigrant allies who are looking to become more involved in helping undocumented immigrants exercise and protect their rights, the National Immigrant Justice Center provides a number of ways to do so.

For example, attorneys can join the team who provides pro bono services to immigrant families and asylum seekers.

Community organizations can hold educational sessions to teach immigrants and their allies about immigrant rights. Companies can offer donations and sponsorships to provide direct support.

Official Guide to Government Information and Services — Deportation

This page provided by USA.gov offers a complete guide to the deportation process.

Here you’ll find information on what to expect during the deportation process, how to get a green card and become a legal resident, how to seek asylum if you can, and a direct link to legal service providers.

In addition, you can find direct links to the forms needed to appeal a deportation order, information on where to locate someone who has been deported, and information for applying to the DACA program.

United We Dream — DACA Resources and Guides

United We Dream aims to offer the most current information for the Deferred Action for Childhood Arrivals (DACA) program.

Eligible immigrant youth may be protected by DACA, and you can find out how to apply for the program on this site, as well as access a wealth of resources.

These may include health and wellness resources, important things to know, top policies that affect DACA, and more.

Educational Access Resources

Non-citizens who need help accessing educational rights or funding can look to the following resources.

Immigrant Legal Resource Center — Higher Education Technical Assistance Project

Non-citizen California residents seeking legal aid for education may be able to access legal support through this project, made possible by the California Department of Social Services.

Immigrants Rising — Resources

Immigrants Rising provides a guide of information for educational resources for immigrants, including non-citizens, from legal definitions to policies and how they affect you.

They also provide information on and links to apply for scholarships and fellowships which do not require proof of citizenship or status as a permanent resident.

The Dream.US — Education Resources

Here they provide information to educational institutions on why they should open applications to those in the DACA program, as well as educational resources for those who are not permanent residents.

This includes a vast list of scholarships for undocumented students seeking postsecondary education assistance.

Article Sources

American Bar Association — Rights of Immigrants Questions and Answers

American Civil Liberties Union — The Rights Of Immigrants – ACLU Position Paper

American Immigration Council — Immigrants in The United States

The Arkansas Journal of Social Change and Public Service — Undocumented Immigrants Have Constitutional Rights, Too

U.S. Department of Labor — Pay for Hours Worked

Legal Information Institute — English-only rule

Library of Congress — Constitution of the United States: Fourth Amendment; Constitution of the United States: Fifth Amendment; Constitution of the United States: Sixth Amendment; Constitution of the United States: Fourteenth Amendment  Citizenship, Equal Protection, and Other Rights of Citizens 

Miranda Warning — What Are Your Miranda Rights?

National Immigration Law Center — Know Your Rights

The New York Times — Immigrants Are Entitled to Jury Trial for Deportable Offenses, New York Court Rules

Office of the Assistant Secretary for Planning and Evaluations — Summary of Immigrant Eligibility Restrictions Under Current Law

OSHA — Workers’ Rights

PBS — What constitutional rights do undocumented immigrants have?

The PEW Charitable Trusts — Noncitizens Are Slowly Gaining Voting Rights | The Pew Charitable Trusts

State of Connecticut — 5 Myths About Undocumented Immigrants

University of North Texas at Dallas — Undocumented Immigrants’ Rights Under the United States Constitution

Washington Office of Superintendent of Public Instruction — Immigrant Students’ Rights to Attend Public Schools

ON THIS PAGE