Undocumented Immigrants

Sean Jarvis

Justice101 Intern

Hello Street Law Advocates, 

In the recent news, the Trump administration has begun widespread arrests and deportations of undocumented Immigrants. To address this issue, it is important to fully understand what, if any constitutional rights apply to undocumented immigrants.

At the onset, when it comes to police interactions undocumented immigrants generally have the same rights as citizens. Undocumented immigrants have the right to remain silent, the right to an attorney, and have the same right against warrantless searched and seizures like everyone else.[1] The issue arises when considering immigration papers. These documents are specific to the individual, and can include a visa, passport, green card, or employment authorization card. When prompted, immigrants must show their immigration papers.[2]If you do not have these documents, you will likely be detained and should ask for an attorney as well as assert your Fifth Amendment rights. [3]

Additionally, immigrants have the same right to due process that U.S. citizens have.[4]  These rights stem from the Fifth Amendment, and states that no person can be deprived of life, liberty, or property without due process of law. [5]Specifically, the Supreme Court of the United States in Reno v. Flores dictated that it is well established law that immigrants are entitled to due process in deportation proceedings.[6] This holding, however, is not as protective as one would imagine, and really only pertains to the right to a public hearing and to an attorney.[7] Further, the normal rules of evidence that govern other court proceedings do not apply. Documents do not have to be properly authenticated, and hearsay, or typically inadmissible out of court statements, are admissible.[8] The right to an attorney is also severely limited. Deportation proceedings can be accomplished through a civil proceeding, which indicates that the right to counsel do not apply.  Even when they are criminal, the government only has to provide an attorney for felony charges.[9] It is worthy to note that the Trump administration has implemented a policy to bring criminal charges against undocumented immigrants, which has caused a decrease in civil deportation proceedings. [10]
​
It is important to conclude that even with the knowledge of your rights, it is important to know what legal resources are available to you, as they can assist with obtaining a low cost and effective legal representation. This will depend on location, but a quick google research should point you in the right direction by providing local immigration law offices and applicable social services.


[1] Know Your Rights | Immigrants' Rights,  ACLU, https://www.aclu.org/know-your-rights/immigrants-rights (last visited Mar. 22, 2025).
[2] Id.
[3] Id.
[4] Gretchen Frazee, What constitutional rights do undocumented immigrants have?, PBS https://www.pbs.org/newshour/politics/what-constitutional-rights-do-undocumented-immigrants-have (last visited Mar. 22, 2025).
[5] U.S. Const. amend. V. 
[6] “It is well established that the Fifth Amendment entitles aliens to due process of law in deportation proceedings”. Reno v. Flores, 507 U.S. 292, 306 (1993) (citing The Japanese Immigrant Case, 189 U.S. 86, 100–101 (1903)).
[7] Frazee, supra note 4. 
[8] Id.
[9] Id.
[10] Frazee, supra note 4.