It is estimated that there were around 11 million undocumented immigrants in the United States as of 2022. An undocumented immigrant is a foreign-born individual who does not have a legal right to be or remain in the United States. Some people use the term "illegal alien" to refer to an undocumented immigrant. However, due to its insulting connotations, the term "alien" is not in the United States laws.
An Undocumented Immigrant Explained
Undocumented immigrants are widely defined to include all immigrants living in the United States without legal status. This includes people who:
Entered Without Undergoing Inspection
These people entered the United States without undergoing inspection at an official checkpoint to secure consent to enter the country. For example, crossing the border without being inspected.
Are Currently In The Legalizing Process
People working on legalization, like an asylum petition, a U.S. citizen spouse petition, or a U-visa, are pending but currently have no legal status.
Previously Had or Have Deferred Action For Childhood Arrivals (DACA)
People who have been granted short-term relief from deportation through the federal government’s Deferred Action for Childhood Arrivals (DACA) program. Additionally, people who had DACA in the previous period, or who will qualify to request DACA later if the program is fully reinstated.
Vulnerable Immigrants
People whose immigration status puts them at risk of being targeted by immigration police. This often happens because of many factors, like:
- Politics where the TPS program is at risk because of policy shifts, and
- U-visa recipients who cannot adjust their status because of personal circumstances, like missing a deadline or a lack of funds.
Entered With Legal Status But Overstayed
People who entered the United States with a legal status, like a student visa, but remained in the country after the expiry of their status.
Rights Of Undocumented Immigrants
Most undocumented immigrants experience mistreatment and discrimination because the U.S. government does not legally recognize them. This often makes their living more difficult. However, undocumented immigrants have rights. The United States Constitution protects all immigrants, regardless of immigration status. Most provisions in the Constitution apply based on personhood, not citizenship. If you are physically present in the U.S, you have a right to the protections granted by the Constitution. This constitutes entitlement to due process and equal protection according to the law.
According to the Fifth Amendment, you have a right to life, liberty, or property, without due process of law. The Fourteenth Amendment uses the Due Process provision, which describes the legal obligation of all state authorities. State governments must offer all people equal protection under the law, regardless of their immigration status. Undocumented immigrants are not mentioned in the Constitution, but still, they are protected by its principles.
Being an undocumented immigrant in California does not mean you have no rights. The California government has a duty to protect the human rights of every person within its borders, including undocumented immigrants. The following are the crucial rights that undocumented immigrants have in California:
The Right To Education
No federal statute guarantees the right to education, but two provisions of the Constitution come into play. The Supreme Court ruled that if children who are legal residents or citizens are entitled to attend public schools, undocumented children equally have this right. This is based on the Equal Protection provision of the Fourteenth Amendment that prohibits discrimination by the authorities based on nationality, ethnicity, and race.
Sometimes, undocumented children can be detained and have no access to a public school. According to Flores' settlement, the detention facility must comply with the minimum requirements for providing education, recreation, healthcare, and other services. This will constitute the following:
- Ensuring that a child has access to the right education programs
- Providing adequate classroom materials and space
- Hiring qualified teachers
The Right Against Unreasonable Searches And Seizures
The U.S. Fourth Amendment guarantees the right of all people against unreasonable searches and seizures by the government. The police cannot enter an individual's residence or search their belongings without a warrant or probable cause.
The Supreme Court extended this entitlement to undocumented immigrants, stating that they have similar Fourth Amendment protections as legal residents and U.S. citizens. However, a “border search exception” exists. This exception permits law enforcement to conduct warrantless searches within a 100-mile radius of any California border, including airports. Undocumented immigrants in this location can be subjected to warrantless searches of their persons, belongings, and residences.
The Right To Be With Family
The right to stay with your family is acknowledged as a fundamental human right by several international declarations and treaties, including:
- The International Covenant on Civil and Political Rights, and
- The Universal Declaration of Human Rights
The U.S. Constitution does not openly guarantee this right. Still, the Supreme Court acknowledges that it is a crucial right protected by the Due Process provision of the Fifth and Fourteenth Amendments. The authorities in California cannot remove this right without going through a legal process and giving a convincing justification.
The courts have relied on the right to be with one’s family to remove several immigration laws and policies, including the Trump administration’s family separation policy. The government has a duty to prevent family separations because the family unity of undocumented immigrants is often affected by deportation.
The Right To Hire An Attorney
You are entitled to legal counsel in all criminal proceedings under the Sixth Amendment of the U.S Constitution. According to this amendment, you must have the help of a criminal attorney for your defense in all criminal allegations.
If you face deportation, you are entitled to legal representation. The government must secure you an attorney if you cannot afford one. The right to a criminal defense attorney is not often guaranteed because most deportation hearings are civil rather than criminal.
However, all undocumented immigrants found crossing the border unlawfully are charged under the Zero-Tolerance Policy signed by President Trump in 2018. Fortunately, they have a right to legal representation.
The Right To Due Process
The “due process” issue is often central to most immigration law discussions. This is a legal principle that guarantees every undocumented immigrant a fair and impartial hearing before the government takes away their property, liberty, or life.
The Fifth and Fourteenth Amendments of the Constitution guarantee the right to due process. You have a right to be notified of the charges you are facing, the right to legal counsel, and the right to provide evidence in your defense.
You will be subject to an expedited removal hearing if you have stayed in California for less than two years and are apprehended within 100 miles of the U.S. border. The removal hearing will take place before an immigration judge. However, if you are an asylum seeker, you must be allowed to table your case before an immigration judge.
Undocumented Immigrants And Public Benefits
Undocumented immigrants do not qualify for public support and social insurance programs because of their immigration status. They are excluded from programs like:
- Temporary Assistance for Needy Families (TANF)
- Supplemental Security Income (SSI)
- The Supplemental Nutrition Assistance Program (SNAP)
- Non-emergency Medicaid, and
- Most housing assistance programs
Undocumented immigrants also do not qualify for subsidies under the Affordable Care Act (ACA) and cannot buy insurance through the ACA Marketplace.
According to current federal law, even green card holders in California must wait five years before accessing most public benefits. However, a few exceptions exist to this law that permit immigrants to qualify for certain benefits regardless of their immigration status. Some of the benefits that they can access include:
- School breakfast and lunch programs
- Emergency Medicaid that offers immunizations and treatment of communicable disease symptoms
All children have a right to public education at the elementary and secondary level under federal law, regardless of their immigration status or that of their parents.
Additionally, undocumented immigrants do not qualify for government benefits, loans, grants, licenses, or contracts at the local and state levels. However, exceptions similar to the federal ones apply for immunization and treatment of communicable diseases. Undocumented immigrants who meet other eligibility requirements can also access health care benefits.
The Fiscal Impact Of Undocumented Immigrants At The State And Federal Level
Most economists claim that immigration reduces overall budget deficits. According to the 2017 U.S. National Academies of Sciences report, the net impact is positive on immigrants, their children, and grandchildren.
The long-term fiscal effect of immigration at the federal level is positive. However, this can cause adverse impacts at the local and state levels without proper support, especially in the short term. The adverse local and state effects are felt mainly in the localities and states that receive many undocumented immigrants, but the federal impact is distributed evenly across the U.S.
A small policy change that removes the fiscal expenses and benefits at all levels of government can lead to win-win results. For example, federal grants for local and state budget stress associated with immigration flows, such as K-12 education, can be increased. The federal government allocates $1 trillion each year to local and state governments through various programs. It will be a trivial issue in economic terms if some of these allocations are increased to share the federal fiscal benefits of immigration. Fortunately, it will significantly impact the localities and the state.
The net fiscal effect of undocumented immigrants is also positive, despite lacking work authorization. Lacking work authorization means being trapped in low-paying jobs and being unable to assert one’s labor and job rights. The net contribution is positive because most undocumented immigrants pay income taxes, and their social security taxes are withheld. This happens even if they do not qualify for government benefits and services.
However, immigration reforms are underway to grant work authorization, allowing undocumented immigrants to rise to higher-paid jobs and increase tax revenues and eligibility for benefits.
There are, however, exceptions, like when an undocumented immigrant child receives public K-12 education. Undocumented immigrants are also allowed to attend California colleges at in-state tuition rates. Unfortunately, spending on education delivers high social rates of return. The net cost of offering public education to all children will be smaller or negative if the education benefits of undocumented immigrant children are included. However, some forms of public spending on education have net positive fiscal benefits in the long term.
Undocumented immigrants still pay taxes in California despite being ineligible for most government benefits and services. Economists claim that undocumented immigrants paid less than $100 billion in federal, state, and local taxes. Less than $60 billion went to the federal government. They pay sales and property taxes directly for those who own homes or are wrapped up in rent for those who live in rental houses.
Additionally, most undocumented immigrant employees pay payroll and income taxes. The Social Security Administration reveals that 75% of undocumented immigrants are on the formal payroll. They use social security numbers, which were not issued to them. Others are misclassified as independent contractors, paying their taxes directly.
Undocumented immigrants also pay into Medicare, unemployment insurance, and Social Security through automatic payroll deductions. Unfortunately, most of them will not be able to pursue these benefits. In 2005, undocumented immigrants paid $7 billion per year in social security taxes, which will not be reclaimed.
Policy Options For Current Undocumented Immigrants
The Congress in the United States has enacted laws that regularize the status of undocumented immigrants by permitting them to adjust to legal permanent resident status. This provides the undocumented immigrants with a way to citizenship. Only Congress is mandated to offer a permanent immigration status to a person or group. The executive branch cannot do this alone.
However, the executive has many ways of protecting undocumented immigrants from deportation. They can do this through various forms of administrative relief because the Department of Homeland Security (DHS) lacks resources to detain and remove undocumented immigrants. DHS can decide that a particular person is not a priority for an enforcement action. The government can extend temporary relief for undocumented immigrants with low priorities. This gives a measure of safety to immigrants who:
- Have no criminal records and have stayed in the United States for a long time
- Their presence is beneficial to the United States
- Have stayed in the U.S. and have strong family ties
The forms of temporary protection include job authorization, which can be crucial to minimizing workplace exploitation. This is beneficial to most undocumented immigrants who work in industries. The DHS only uses a few enforcement resources on individuals who pose significant threats to the security of the United States.
Deferred action is also another form of temporary immigration relief. It is a discretionary determination to extend the deportation decision of an immigrant who would otherwise be subject to removal. The United States Citizenship and Immigration Services (USCIS) has the power to offer deferred action as an act of prosecutorial discretion. This is based on the executive’s discretion to enforce the law. Undocumented immigrants with deferred action are considered legally present in the U.S. at the time of deferred action. However, it does not confer on you any legal immigration status. Undocumented immigrants with deferred action qualify for an Employment Authorization Document (EAD)
The Secretary of DHS also has discretionary powers under the parole provision in the Immigration and Nationality Act. He/she permits undocumented immigrants who lack a valid immigration status to enter or live in the U.S. temporarily for humanitarian reasons. The secretary can also allow it if the immigrant’s entry is for a significant public benefit. The following DHS agencies have parole powers:
- The U.S. Customs and Border Protection
- The U.S. Immigration and Customs Enforcement, and
- USCIS
Parole gives an undocumented immigrant permission to stay in or enter the U.S. This is also called “parole-in-place” for undocumented immigrants already in the U.S. Unfortunately, it is not a formal admission to the United States. Parolees, like undocumented immigrants with deferred action, qualify for an EAD.
Temporary Protection Status (TPS) is another crucial form of immigration relief determined by the executive but authorized by the law. The Secretary of State consults with the Secretary of Homeland Security to determine if a particular nation warrants a TPS designation. This often happens in frequent armed conflict or environmental disaster cases, as stipulated by law. Undocumented immigrants from some designated nations who arrived before the designation can qualify for TPS for 18 months. This gives them protection against deportation and job authorization eligibility. It permits them to work, provided the TPS designation is in place.
Deferred Enforced Departure (DED) is also a blanket form of administrative immigration relief offered for humanitarian purposes. This relief is similar to TPS, but the DED designation derives from the president’s foreign policy authority, not the law. There is also no standard criterion for deciding. However, DED has been used in natural disasters, civil unrest, and war in foreign countries. Undocumented immigrants who qualify under a DED designation can apply for an Employment Authorization Document permitting them to work.
Find An Immigration Attorney Near Me
If you or your loved one is an undocumented immigrant and wonders about their rights or the process of pursuing legal immigration status, an attorney can help. After analyzing your situation, an attorney can recommend potential immigration remedies. At the California Immigration Attorney, we have caring and committed attorneys who can represent you and protect your rights as an undocumented immigrant. Call us today at 424-789-8809 to speak to one of our attorneys.