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Currently, there are over 11 million men, women, and children in the US who do not have the proper documentation to live and work here. Sometimes called “undocumented” or “illegal” immigrants, these 11 million residents of our country do indeed have rights under state and federal, contrary to the claims of some anti-immigrant commentators. With the controversy surrounding undocumented immigrants reaching a fever pitch with the election of President-elect Trump who campaigned on a hard line approach to immigration, it is important to clear up misconceptions regarding the rights of undocumented immigrants in the US.
To be sure, if you are an undocumented immigrant in the US, you can be deported to your home country, and 2.5 million people have been deported throughout President Obama’s two terms. That said, undocumented immigrants enjoy numerous constitutional rights under the US constitution, including the right to due process. What this means is that you cannot be deported without being given due process, which essentially means you should be given a fair hearing before government authorities with the opportunity to present evidence on your own behalf.
In addition, undocumented immigrants have constitutional rights related to our criminal defense system, including a Fourth Amendment right protection against unreasonable searches and seizures by law enforcement. For example, law enforcement cannot enter your home without a warrant in most cases, and must have constitutional grounds to search your body or property or place you under arrest.
The Supreme Court has held that states may not discriminate against undocumented immigrants unless there is a rational basis for doing so. In the influential 1982 case of Plyler v. Doe, the Supreme Court held that a state could not constitutionally exclude children of undocumented immigrants from attending school.
Although undocumented immigrants do not have the right to work in the US, once they are employed by an employer, that employer must follow all applicable laws in how they treat immigrants. For example, your employer must follow all health and safety laws as well as wage and hour laws. In addition, while an employer can refuse to hire you on the basis of your immigration status, they cannot discriminate against you based on race or national origin, and they cannot falsely use your immigration status to justify discrimination or harassment. Furthermore, undocumented immigrants have the right to collect California state disability payments if injured on the job.
If you have been unfairly treated by an employer in violation of the law, you do have the right to pursue legal remedies against that employer. You will want to consult with an experienced attorney before doing so, however, as bringing suit may call attention to your undocumented status in ways that could be damaging to you and your family. An experienced attorney will walk you through your options in obtaining justice while minimizing negative consequences.
The above discussion is just a small sample of the issues surrounding the rights of undocumented immigrants in the US and California, specifically. It is important for undocumented immigrants to work with a trusted representative who can provide confidential advice on the situations they are facing. At the Law Offices of Scott Warmuth, we represent individuals and families in a variety of actions across Southern California, including personal injury matters, immigration issues, work injuries and disability claims, and criminal defense. Our diverse legal team is multilingual and we have offices across the region. Contact us today for a confidential consultation regarding your legal questions.