Unpacking Government: What Rights Do Noncitizens Have?

Feb 13, 2017

President Donald Trump’s promised crackdown on illegal immigration has ignited debate about civil rights, and who the government can and should deport.

But the rights of noncitizens were a messy realm of American law long before Trump's presidency.

Won Kidane, a law professor at Seattle University, said decades of court cases on this topic have resulted in clashing interpretations of the Constitution: Does it apply only to citizens, or to everyone? 

What has emerged, he said, is a spectrum — "an ascending scale of rights" — for noncitizens. 

"The more contacts that you have with the United States, the more rights that you have," he said. "It’s like you earn it.”

At the top of this scale are green card holders, also called lawful permanent residents, who are just one degree away from citizenship. At the bottom are foreigners who have never set foot in the United States. Visa holders are in the middle. 

And undocumented people? Well, it depends.

Like A Criminal Proceeding, But Not

If immigration officers catch an undocumented person within a hundred miles of the border, and he or she arrived in the country less than two weeks ago, the federal government can often send them back immediately in a process called expedited removal

If an undocumented person has been in the country longer, they often get a hearing before a judge. It's called a 240 hearing.

The rights of immigrants in these hearings differ from those of a criminal defendants in important ways, Kidane said.

That's because being undocumented isn't a crime. It's a civil violation. 

Because deportation hearings are civil, not criminal, the defendant isn't guaranteed a lawyer if he or she can't afford one.

And the Fourth Amendment doesn't apply. Unlike in a criminal trial, the government can use evidence from an illegal search in a deportation case.

Despite the civil classification, Kidane said, deportation hearings look a lot like a criminal proceedings. There's a judge. And there's a prosecutor from the federal government arguing why the defendant should be deported.

What's different, he said, is that the defendant is often alone on his or her side of the room. 

“It’s an adversarial proceeding," Kidane said. "If you don’t have an attorney, it can be a very difficult process.”

What Could Halt A Deportation? 

What arguments can someone facing deportation make to stay in the country? 

For one, a defendant could prove the government made a mistake, and he or she actually has some legal status.

"You’d be surprised," Kidane said. "In some cases, persons who are charged as noncitizens could be found to be citizens.”

But if you're undocumented, you still have avenues to fight deportation. The law says some people get to stay, even if they arrived here illegally. Immigrants who can demonstrate they face persecution in their native country can apply for asylum, also known as refugee status. 

Others can prove that their deportation would cause someone else to suffer greatly, Kidane said. That could apply to a parent caring for a disabled child who is a United States citizen. Kidane said that's a high legal bar to meet, but it could spur judge to put someone on the path to lawful permanent residency.

Facing A Complex System, Alone

Kidane all these rules come from more than a century of case law and congressional actions. It’s a messy part of the law that court cases are shaping even today.

"After teaching this course for 10 years, I still find things I haven't seen before," he said.

Barbara Ruiz-Velasco is trying to navigate this realm on her own. 

She's a detainee at the federal government's Northwest Detention Center in Tacoma, where about 1,500 immigrants at a time await either deportation or release.

Like many others at the center, she first went through the criminal justice system. She's been convicted of illegal gun possession and selling marijuana, and served a little over a year in an Oregon prison.

Ruiz-Velasco, who is appealing a deportation order, has been detained 28 months. She said it's been 10 months since she saw a judge. There are just four who hear all the center's cases. 

Speaking in Spanish at the detention center, she said one of the lowest points of her time there was facing that judge alone. She felt like she didn't get a chance to speak.

Ruiz-Velasco, who is undocumented, said she's also struggled with the length of her detention and the uncertainty of when it will end. 

"I feel lost," she said. 

What Ruiz-Velasco wants now is to be released on bond, though she's considered a flight risk and has been denied twice. Still, she hopes that, if she's to be deported, she first gets to spend some time with her four children and perhaps plan a life back in Mexico.

Asked whether she would bring her children to Mexico or allow them to stay in the United States, she pauses, then collects herself.

"That is a very difficult question," she said.

This story is part of our series, "Unpacking Government."