Immigrants v. Citizens and the rights of Kilmar Abrego Garcia
Pope Francis - Crystal Bowersox - Bill Maher meets Trump
Happy Easter Monday!
This morning’s news that Pope Francis passed away brought this image to mind given all the noise in the world these days:
Pope Francis embraced a man, Vinicio Riva, disfigured with neurobfibromatosis.
Riva recalled the hug reported in Catholic News Agency.
Later he recalled the emotional hug with the pope: “He didn’t think about whether to hug me or not. I’m not contagious but he didn’t know it. He did it and that’s it: He caressed all my face and while he did it I only felt love.”
Below is Crystal Bowersox’s powerful version of People Get Ready.
Not a bad Easter Monday kickoff as we continue on this Pale Blue Dot.
The preamble to the U.S. Constitution famously states:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
(that’s good stuff, right there…)
Note that the third word is People, not Citizens.
Last week’s order on the due process rights of Kilmar Abrego Garcia by well respected conservative appellate Judge J. Harvie Wilkinson of the 4th U.S. Circuit Court based in Richmond is linked here and well worth the read.
Wilkinson begins in part:
The government asserts that Abrego Garcia is a terrorist and a member of MS-13. Perhaps, but perhaps not. Regardless, he is still entitled to due process. If the government is confident of its position, it should be assured that position will prevail in proceedings to terminate the withholding of removal order. See 8 C.F.R. § 208.24(f) (requiring that the government prove “by a preponderance of evidence” that the alien is no longer entitled toa withholding of removal). Moreover, the government has conceded that Abrego Garciawas wrongly or “mistakenly” deported. Why then should it not make what was wrong, right?
Wilkinson concludes:
It is, as we have noted, all too possible to see in this case an incipient crisis, but it may present an opportunity as well. We yet cling to the hope that it is not naïve to believe our good brethren in the Executive Branch perceive the rule of law as vital to the American ethos. This case presents their unique chance to vindicate that value and to summon the best that is within us while there is still time.
That value is the rule of law.
Which begs the question - just what IS the law with respect to Garcia?
Why does Garcia have rights in the States United given that he is, in fact, not here legally. How can someone illegally present have legal rights?
That very questions was posed to me just moments after I entered, legally mind you, my dad’s house in Staunton over the Easter Weekend.
It’s a great question worthy of discussion and debate.
Having punted Google for GROK, I offer this edited explanation for the SOLE purpose of giving a more clear understanding of what is being considered:
Undocumented or illegal immigrants in the United States possess certain constitutional and statutory rights, though theseare more limited than those of U.S. citizens or legal residents.
These rights stem from the U.S. Constitution, federal laws, and key Supreme Court rulings that interpret the Constitution’s protections as applying to "persons" within U.S. jurisdiction, not just citizens.
Full Text of the U.S. Constitution here
Example:
1st Amendment
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Below is a summary of their rights and how they came about, followed by recent changes:
Key Rights of Undocumented Immigrants
Due Process (Fifth and Fourteenth Amendments)
Right: Undocumented immigrants are entitled to due process in legal proceedings, including deportation hearings, meaning they cannot be deprived of life, liberty, or property without fair procedures. This includes the right to a hearing before an immigration judge (except in cases like expedited removal) and protection against arbitrary detention.
How It Happened: The Fifth Amendment (applicable to federal actions) and Fourteenth Amendment (applicable to state actions) use the term "person" rather than "citizen," ensuring protections for all individuals in the U.S. Landmark Supreme Court cases like Yamataya v. Fisher (1903) established that aliens, even those unlawfully present, have due process rights in deportation proceedings. Plyler v. Doe (1982) further reinforced that undocumented immigrants are "persons" under the Fourteenth Amendment, entitled to equal protection.
Equal Protection (Fourteenth Amendment)
Right: Undocumented immigrants are protected against discriminatory state actions based on race, national origin, or other protected characteristics. For example, states cannot deny undocumented children access to public K-12 education.
How It Happened: In Plyler v. Doe (1982), the Supreme Court ruled that denying undocumented children public education violated the Equal Protection Clause, as it discriminated without a compelling state interest. The Court emphasized that the Fourteenth Amendment’s protections extend to all persons within U.S. jurisdiction.
First Amendment Protections
Right: Undocumented immigrants have rights to freedom of speech, religion, assembly, and petition, though these may be limited in practice (e.g., during detention).
How It Happened: The First Amendment applies to "people" within the U.S., and Supreme Court interpretations, such as in Bridges v. Wixon (1945), have affirmed that aliens enjoy these protections. Recent discussions, including comments by legal scholars, confirm these rights apply regardless of status.
Fourth Amendment Protections
Right: Undocumented immigrants are protected against unreasonable searches and seizures. Immigration officers need a judicial warrant or probable cause to enter private homes or conduct arrests, and individuals can refuse consent to searches without a warrant.
How It Happened: The Fourth Amendment’s protections extend to all "people" in the U.S. Cases like Almeida-Sanchez v. United States (1973) clarified that undocumented immigrants have rights against unwarranted searches, though border areas have looser standards.
Right to Counsel in Criminal Proceedings (Sixth Amendment)
Right: Undocumented immigrants have the right to an attorney in criminal prosecutions, including court-appointed counsel if they cannot afford one. However, in immigration proceedings (which are civil), there is no right to free counsel, though they can hire an attorney.
How It Happened: The Sixth Amendment guarantees counsel in criminal cases for all defendants, as affirmed in Gideon v. Wainwright (1963). However, because deportation proceedings are civil, the government is not obligated to provide counsel, though some jurisdictions offer public defenders for immigration cases.
Access to Emergency Healthcare
Right: Undocumented immigrants can access emergency medical care, including emergency room treatment and labor/delivery services, under federal law.
How It Happened: The Emergency Medical Treatment and Active Labor Act (EMTALA) of 1986 mandates that hospitals provide emergency care regardless of immigration status or ability to pay. This ensures life-saving treatment but does not extend to routine care.
Labor and Anti-Discrimination Protections
Right: Undocumented immigrants are entitled to minimum wage, overtime pay, safe working conditions, and protection from workplace discrimination under federal and state laws. They can also engage in union organizing.
How It Happened: The Fair Labor Standards Act (FLSA) and Title VII of the Civil Rights Act of 1964 apply to all workers, regardless of status. The Supreme Court’s Sure-Tan, Inc. v. NLRB (1984) affirmed that undocumented workers are protected under labor laws. Federal laws also prohibit employers from discriminating based on national origin or citizenship status.
Education for Children
Right: Undocumented children have the right to free public K-12 education.
How It Happened: The Plyler v. Doe (1982) decision struck down a Texas law denying education to undocumented children, citing the Fourteenth Amendment’s Equal Protection Clause. This ruling ensures access but does not extend to higher education or federal financial aid.
Right to Remain Silent
Right: Undocumented immigrants can remain silent when questioned by immigration officers and are not required to disclose their immigration status. They can request an attorney before answering questions.
How It Happened: The Fifth Amendment’s protection against self-incrimination applies to all persons. Organizations like the ACLU emphasize this right, advising immigrants to stay silent and seek legal counsel during encounters with ICE or CBP.
Limitations on Rights
While undocumented immigrants have these protections, they face significant limitations:
No Voting Rights: Only U.S. citizens can vote in federal and state elections.
Limited Public Benefits: Undocumented immigrants are generally ineligible for federal benefits like Medicaid, food stamps, or Social Security, though some states offer limited assistance.
Deportation Risk: Undocumented immigrants can be detained and deported, often with limited recourse, especially under expedited removal processes.
No Right to Free Counsel in Immigration Court: Unlike criminal cases, immigration proceedings do not guarantee free legal representation, making it harder to navigate complex laws.
Vulnerability to Exploitation: Fear of deportation can deter undocumented immigrants from reporting workplace abuses or crimes, increasing vulnerability.
Historical Development
The rights of undocumented immigrants evolved through:
Constitutional Interpretation: The use of "person" in the Constitution (e.g., Fifth, Fourteenth Amendments) led courts to extend protections to all individuals in the U.S., as seen in Yick Wo v. Hopkins (1886) and Wong Wing v. United States (1896).
Supreme Court Rulings: Cases like Plyler v. Doe (1982) and Zadvydas v. Davis (2001) clarified that undocumented immigrants have due process and equal protection rights, especially for those with established ties to the U.S.
Federal Laws: Statutes like EMTALA (1986) and labor laws extended specific protections, while the Immigration and Nationality Act (INA) governs immigration enforcement but includes due process provisions.
Advocacy and Litigation: Organizations like the ACLU and National Immigration Law Center have used litigation and advocacy to challenge discriminatory laws and expand protections, such as overturning parts of Arizona’s SB 1070 in 2016.
Recent Changes (2024–2025)
Recent developments, particularly under the Trump administration starting January 2025, have introduced policies affecting undocumented immigrants’ rights and enforcement:
Alien Registration Requirement: On January 20, 2025, Executive Order 14159 directed the Department of Homeland Security (DHS) to enforce INA section 262, requiring undocumented immigrants to register with the government. A new form, G-325R, was created for unregistered aliens to comply, effective April 11, 2025. Failure to register is a misdemeanor, punishable by fines or imprisonment, and registration may lead to detention or deportation, as DHS aims to use the data to identify and remove undocumented immigrants. This policy increases risks for those who register, potentially undermining their right to remain silent by compelling self-disclosure.
Enhanced Enforcement: The administration has prioritized deportations, rescinding prior policies that allowed some undocumented immigrants to remain. This includes increased ICE arrests (e.g., 133 in New York, 370 in Massachusetts in March 2025) and plans to hire more border agents. These actions may pressure undocumented immigrants to self-deport or face expedited removal, limiting access to due process hearings.
Visa and Green Card Revocations: The administration has revoked visas and green cards for non-citizens involved in pro-Palestinian protests, citing “adverse foreign policy consequences.” This policy, authorized under an obscure law, affects even legal residents and tests the boundaries of due process by allowing removals without extensive hearings.
Denial of Public Benefits: Executive Order 14159 mandates stopping public benefits to undocumented immigrants not authorized to receive them, reinforcing existing restrictions but potentially affecting state-level programs.
Sanctuary Policies Under Threat: States like Texas have expanded cooperation with ICE, while the administration targets sanctuary cities, potentially increasing local law enforcement’s role in immigration arrests. This could reduce safe spaces for undocumented immigrants to exercise rights without fear of detention.
Critical Analysis
While constitutional protections remain, recent policies emphasize enforcement over rights, creating tension. The registration requirement, for example, may conflict with Fifth Amendment protections against self-incrimination, as registering could lead to deportation.
Critics argue these policies exploit legal loopholes to circumvent due process, while supporters claim they enforce existing laws. The ACLU and others warn that increased enforcement risks racial profiling and erodes community trust, potentially deterring undocumented immigrants from reporting crimes or seeking emergency care.
Conclusion
Undocumented immigrants have constitutional rights to due process, equal protection, free speech, and protections against unreasonable searches, alongside statutory rights to emergency healthcare, labor protections, and education for children.
These rights arose from constitutional language, Supreme Court rulings, and federal laws over decades. However, recent 2025 policies under the Trump administration, including mandatory registration and intensified deportations, increase risks and may limit practical access to these rights, particularly by pressuring self-disclosure or expediting removals.
1 Like