Legal Rights of Illegal Immigrants

By Claire Urban

Recently there has been a lot of news coverage of the federal lawsuits challenging the constitutionality of new immigration enforcement policies at the federal, state and local levels.

The most prominent example in the past few weeks is on the federal level, where on October 10, a judge for the Northern District of California ordered the indefinite delay of a new Department of Homeland Security rule. The new rule would have taken the Social Security Administration’s existing practice of sending a letter to employers indicating when an employee’s Social Security number did not match the agency’s files (so-called “no match? letters, intended to be used solely for managing employees’ social security withholdings) and used it to require employers to fire any employee who received such a letter, within 90 days of receipt. The judge in the case stopped the rule from going into effect because Homeland Security did not take the required step of analyzing the consequences of the new rule for small businesses. The judge indicated the effect on small businesses could potentially be quite large, and could also cause irreparable harm to thousands of employees who were legally authorized to work, and received no-match letters due to clerical errors or other administrative problems.

In many ways, this was a simple case for the court. There was a clear cut procedure to follow when implementing a new rule, the Department of Homeland Security failed to follow it, and the Social Security Administration could show that thousands of legally authorized workers would be adversely affected if the new rule went into effect. Most issues surrounding the recent zealous attempts at enforcing immigration law are much murkier. At the heart of this murkiness is the question of to what extent do immigrants, particularly undocumented immigrants, have the same legal protections as citizens?

When Immigration and Customs Enforcement (ICE) agents conduct immigration raids, they not need warrants to detain or to enter the home of individuals suspected by the agency of being in this country illegally. They do not need to read these individuals their rights when detaining them. However, as raids by ICE get more aggressive, and more and more state and local law enforcement agencies are teaming up with ICE to enforce federal immigration standards, or passing legislation creating their own immigration enforcement standards, the constitutionality of a separate standard for immigrants is being questioned. Federal lawsuits have been filed against county law enforcement agencies in, among other states, Connecticut, New Mexico, Tennessee, and Virginia, and against the state of Oklahoma. Two separate lawsuits have been filed against ICE, in New York and Texas; the latter by individuals who say ICE violated their rights during the raids at a Swift meatpacking plant.

While most of these suits have just recently been filed, in July of this year the first case of this type was decided by a federal district court. The district court in Pennsylvania struck down the town of Hazleton’s local immigration ordinance as unenforceable under federal law, and in the process noted that the court’s analysis “applies to illegal aliens as well as to legal residents and citizens. The United States Constitution provides due process protections to all persons.?

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Claire Urban is a Law Student at the Boston College Law School

About this Entry

This page contains a single entry by Dan Ott published on October 22, 2007 3:26 PM.

Putting the "Cost" of Illegal Immigration in Perspective was the previous entry in this blog.

Victims of Globalization? is the next entry in this blog.

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