The Rights of Noncitizens

Many posts have discussed immigration.

María Luisa Paúl at WP:

Legal scholars broadly agree that the U.S. Constitution protects all people within the country’s borders, not just citizens. That includes rights to free speech, freedom of religion and peaceful assembly under the First Amendment, as well as the right to due process.

In a 1953 decision, the Supreme Court maintained that “once an alien lawfully enters and resides in this country he becomes invested with the rights guaranteed by the Constitution to all people within our borders.” Over the following decades, the court extended those constitutional protections to any noncitizen within the country — including those who entered illegally.

But while noncitizens are generally protected from criminal or civil penalties for expressing political views, those same protections don’t always apply in the immigration context, where the government has broad discretion to detain or deport. The Supreme Court has sent mixed messages in its decisions.

“To be frank, it’s really a murky area,” said Tyler Coward, lead counsel for government affairs at the Foundation for Individual Rights and Expression (FIRE). “The Supreme Court has upheld, back during the Red Scare era, deportations of noncitizens for their involvement with Communist Party politics. But there are other Supreme Court cases where they do uphold noncitizens’ free speech rights.”
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Noncitizens do not have the same legal protections in immigration court as citizens do in criminal court, Asad L. Asad, a sociology professor at Stanford University, wrote in 2019. For instance, they can be detained without a warrant and have no guaranteed right to a government-appointed attorney. The immigration judges overseeing their cases, Asad added, are “administrative judges under the executive — not judicial — branch of government and subject to replacement should they make decisions unaligned with the goals of the U.S. Attorney General.”

Still, noncitizens have the right to contact a lawyer, to remain silent, to refuse to consent to a search, to request bond and to appeal deportation orders, according to Espíritu. Just like American citizens, they also have a right to due process. Legal defense organizations are mobilizing to assist students and residents caught in the current sweep.