From a purely legal perspective, the term “immigrant” means one who intends to reside permanently in the United States. Thus, if one is in the United States on a student, work or tourist visa, he is not an immigrant. In common language, however, we generally refer to any person living in the United States who is not a citizen as an immigrant. Thus, the term immigrant as used here refers to a) legal permanent residents, a/k/a “green card holders” or documented immigrants, b) undocumented immigrants, and c) visa holders, that is, persons who do not intend to reside permanently in the United States. This article sets forth some of the rights that “immigrants” have because they live in the United States.
Below are six things you should know about the rights of immigrants:
- Constitutional Protections
Every person living in the United States, regardless of whether the person is a citizen, is entitled to the rights guaranteed by the United States Constitution. The First Amendment to the Constitution guarantees the rights of freedom of speech, religion and assembly. The Fourteenth Amendment to the Constitution provides that the Government shall not “deprive any person of life, liberty or property without due process of law; nor deny any person within its jurisdiction the equal protection of the laws.” These rights require that the Government treat all persons with fundamental fairness and not unfairly discriminate against any person. Immigrants, therefore, are entitled to due process and equal protection and have freedom of speech and religion and the right to assemble.
- Unlawful Search and Arrest
Immigrants are protected against unlawful searches and arrest. Law enforcement authorities are not permitted to search or arrest an immigrant unless there is probable cause. If a law enforcement official arrives at the front door, the immigrant does not have to let the official in unless he has a search warrant and does not have to speak to the official.
- Right to Remain Silent
When questioned by law enforcement officials, an immigrant may remain silent after disclosing his identity. The immigrant is not required to disclose any other information to law enforcement officials including where he was born or his legal status or be compelled to sign anything or produce any documents. The immigrant may say without repercussion: “I don’t want to talk until I speak with a lawyer.”
- Rights at Deportation Hearing
Immigrants are entitled to a hearing before an immigration judge before they can be deported. The Government cannot seize an immigrant and send him to another country unless an immigration judge so decides. Immigrants are entitled to hire a lawyer for representation at a deportation hearing, to examine the evidence against him and to have an interpreter during the hearing. The immigrant cannot be held for more than 48 hours without a charge being filed.
- Medical Treatment for Illness
Immigrants are entitled to emergency medical care regardless of their ability to pay. Any hospital that accepts Medicare must provide medical treatment to immigrants in emergency situations. Medicaid pays the hospital for the emergency care. Treatment must be rendered until the person is able to breathe, eat, walk, dress, maintain personal hygiene, urinate and defecate, take medication and be able to understand their condition. Hospitals have no duty to report undocumented immigrants to the authorities.
- No Right to Certain Benefits or Right to Work
Undocumented immigrants are not eligible for welfare, food stamps, Medicaid and most other public benefits. Undocumented immigrants may not be hired to work. On the first day of work, the employer is required to make certain that the immigrant has a “green card”, a work visa, a work permit or a naturalization document. Use of fraudulent documents to obtain a job violates federal law and may harm an immigrant’s future chance of obtaining lawful immigration status.
In recognition of the fundamental precept of the Declaration of Independence
that all men “are endowed by their Creator with certain unalienable Rights,” the United States grants persons – immigrants and citizens alike – certain fundamental rights. To better understand these rights or if you have a question about immigration, please contact Bathgate, Wegner & Wolf at 732-363-0666