Contrary to some popular misconceptions, undocumented immigrants are entitled to many constitutional protections. It is imperative that undocumented immigrants and their families fully understand these legal protections. While this has always been important, it has become especially so in this fraught political atmosphere in which many immigrant groups have been demonized by major political leaders. Here, our Los Angeles immigration attorneys discuss the legal rights of undocumented immigrants.
Protection Against Indefinite Detainment
The United States government cannot indefinitely detain any undocumented immigrant. The Supreme Court made this clear in the 2001 case of Zadvydas v. Davis. Sadly, all too often, the federal government is too slow in handling immigration cases. Detainment of an undocumented immigrant should not occur without good cause.
Access to Basic Services
Children who are undocumented immigrants have a legal right to access public education. In the early 1980s the Supreme Court struck down a Texas law that tried to ban undocumented children from attending public schools. The court ruled that this was a violation of the equal protection clause contained within the fourteenth amendment. Additionally, undocumented immigrants have a right to obtain emergency medical treatment. The Emergency Medical Treatment Active Labor Act (EMTALA), signed by President Ronald Reagan in 1986, prohibits all public and private hospital from denying any person access to emergency medical treatment for any reason.
The Right to Remain Silent and Refuse a Search
If you are an undocumented immigrant, and you have been detained or ‘rounded up’, you have the legal right to remain silent. You also have the right to refuse a search. Both of these rights should be exercised. You are not required to answer any questions regarding your background or immigration status. Indeed, it is not in your best interests to do so. If you have been detained, you should avoid answering questions or signing any documents until you have access to an attorney.
The Right to an Attorney
Under the Fifth Amendment of the U.S. Constitution, no person can be denied life, liberty or property without due process. In the most simple terms, due process is fair treatment within the judicial system. One aspect of due process is the right to an attorney. This right applies to both U.S. citizens as well as non-citizens. However, the right applies differently to different situations:
- Criminal proceedings: If you are charged with a criminal offense, you have the right to an attorney, and you if cannot afford to hire one, the state will provide one for you. This right applies to undocumented immigrants and citizens.
- Immigration proceedings: Under American law, immigration violations are not criminal offenses. Instead, immigration violations are ‘administrative’ or ‘civil’ offenses. Nonetheless, undocumented immigrants still can, and should, hire an attorney to represent them during this proceedings. However, unlike in criminal trials, the Supreme Court has determined that the state has no obligation to provide undocumented immigrants with an attorney for free for the purposes of an immigration proceeding.
We Support Immigrants in L.A.
If you or your loved one is an undocumented immigrant in need of legal help, please contact our team today at (213) 514-8870. At the Law Office of Joshua L. Goldstein, PC, we serve communities throughout the Los Angeles region, including Inglewood, Santa Monica, Torrance and Monterey Park.