There is a common misconception that if someone is in the United States without proper documentation, they have no rights whatsoever in a court of law or in any area of public life. However, this is simply not the case. Undocumented immigrants have certain rights, which are enshrined in our jurisprudence, including the right to bring suit and the right to be protected from discrimination.
Rights Given by Case Law
As far back as 1886, the Supreme Court was clarifying the law with regard to undocumented immigrants. The case of Yick Wo v. Hopkins, 118 U.S. 356 (1886), dealt with a law requiring laundries to be operated in buildings that were not made of wood. On its face, this law was racially neutral; however, in practice, almost two-thirds of the city’s laundries were operated in wooden buildings, and of those, most were owned by Chinese immigrants. After a period of discrimination against the Chinese owners, culminating in a lawsuit, the Supreme Court declared that the Fourteenth Amendment’s equal protection rules did apply to the undocumented.
Fifth and Sixth Amendment rights were also held to apply to the undocumented in a similar fashion; Wong Wing v. U.S., 163 U.S. 228 (1896) dealt with a young Chinese immigrant imprisoned under the Chinese Exclusion Act (an attempt at establishing a quota for how many Chinese immigrants could enter the country). He was arrested and held without trial, then sentenced to hard labor. He appealed to the Supreme Court, which found that while Congress may deport someone without a trial, being put to hard labor and/or imprisoned without trial was a violation of human rights.
Plyler v. Doe, 457 U.S. 202 (1982), granted undocumented children the right to a free public education. It stated simply that the undocumented are still people “in any ordinary sense of the term,” and as such, the Fourteenth Amendment applied to them.
Rights Given by Statute
The Immigration & Nationality Act grants immigrants, documented or undocumented, the right to defend themselves against removal if they have been picked up while living in the United States. If you are apprehended at the border, this is not the case; Customs & Border Protection may use a process known as expedited removal to simply put you back over the border.
Also, while undocumented immigrants do not have the right to work in the U.S., many do find jobs, and often at low wages. They are often exploited in these positions, but they do have rights. In some states, the undocumented are entitled to workers’ compensation if they are hurt on the job, and if they have paid into it with their paycheck. The Immigrant Reform and Control Act of 1983 also prohibits discrimination in hiring, firing, or on-the-job treatment on basis of status. Employees may be asked their status, but they may not be singled out because of their status or nationality.
An Immigration Attorney Can Help You
If you are encountering resistance or threats from an employer or another agency, it is important to know your rights. The experienced Chicago immigration attorneys at Ana M. Mencini & Associates, P.C. are well versed in immigrant issues and can help you get what you are owed. Contact us at our Itasca offices today to discuss your options.