Understanding the Legal Rights of Undocumented Residents

Imagine that feeling you get in your gut sitting in your car on the side of the road after you get pulled over by the police. Why did the officer pull you over? Are all your documents up to date? Will he or she give you a ticket or let you off with a warning? You can’t help but feel anxious, even though in most cases the worst that will happen is you’ll get a fine and maybe a few points on your license.

But imagine if that traffic stop meant you had to leave the country; possibly without getting a chance to say goodbye to your family.

That’s a fear immigrants living in the U.S. illegally carry around with them all the time. Any interaction with authorities has the potential to destroy your life.

That’s why it’s important to be informed. Contrary to what you might think, it’s unlikely you’ll be forced to leave the country without having a chance to speak to your family and defend your case.

You often read about situations in which authorities deny people those rights. Unless you understand these rights, or are represented by an experienced attorney who understands them, there’s no guarantee you’ll be treated fairly.

The rights of immigrants living illegally in the U.S.

Too many people assume that if immigrants are here illegally, they have no rights. The truth is more complicated. Undocumented Immigrants in the U.S. are guaranteed some rights. Here are some of the important ones:

  • Protection under the Fifth and Fourteenth Amendment. Due process extends to immigrants in the U.S. illegally. If you are arrested, you have that right.
  • Protection under the Fourth Amendment. Undocumented immigrants are also protected against unreasonable search and seizure.
  • Protection as a worker. The burden to identify illegal immigration status falls on employers. If an immigrant here illegally is hired, he or she is granted certain rights as an employee, including collecting workers’ compensation after an injury and joining a union.
  • Protection against discrimination. Immigrants here illegally are allowed to sue for discrimination in federal court, as well as some states.
Legal rights of undocumented immigrants

Image: 123rf

Immigration regulations on the state and local levels vary depending on location. Your best bet: Contact a knowledgeable immigration attorney in your area for more on the specific regulations in your state.

What happens if you’re arrested?

The fear most undocumented immigrants have is that any contact with authorities will lead to being detained by the Immigration and Customs Enforcement (ICE). But it’s important to note that undocumented immigrants have certain rights when dealing with ICE as well.

Some of the ways undocumented immigrants are most commonly arrested:

  • Workplace raid. These arrests are usually carried out by immigration officials.
  • Traffic stop/checkpoint. At many DUI checkpoints, authorities will also ask for your driver license and registration, which can spell trouble for immigrants without the proper documentation.
  • In your home. Remember: Law enforcement officials still need a warrant to enter your home, even if you’re in the United States illegally.

In a majority of cases, ICE will find out about suspected undocumented immigrants once the person is arrested and entered into a database shared with ICE. In those cases, immigration officials will usually file a “detainer,” which gives authorities the right to keep a person in custody until ICE officials can interview him or her and decide how to proceed.

An important note: ICE can also ask that you be held for 48 hours. After that period, you must be released.

Pleading your case

Even if you are in the United States illegally, you will not be deported immediately after being arrested. Sometimes you may even be granted a bond and released to your U.S. home during removal proceedings. Removal proceedings can take a long time, and you have the right to contest the charges before an immigration judge.

Undocumented immigrants should be careful of plea bargains. Often these deals reduce charges or sentences, but seriously compromise the individual’s immigration status.

It’s true that undocumented immigrants have a much harder time fighting deportation cases, but there are specific defenses. These defenses are difficult to prove, and hiring an expert immigration attorney is your best route to finding a positive outcome. If all else fails, undocumented immigrants can sometimes opt for voluntary departure of the U.S. They are forced to leave the country, but it does not jeopardize their immigration status for future attempts to move to the United States. Be sure to talk through all of these options with an immigration attorney.


About the Author: Darwin Overson is a Utah DUI attorney who has represented  clients in criminal litigation matters for over 14 years.


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