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I'm somewhat confused by the different types of non-Citzens living in the United States and what rights are or are not afforded to them.

My limited understanding is that there are the following broad types of non-Citizens living in the U.S. (please suggest an edit if the below is incomplete or wrong):

  • Green card holders: People that applied to move to the US and are allowed to stay here until (1) their green card expires or (2) they become a U.S. Citizen
  • Visa holders: They were sponsored by an employer or institution to go to the U.S. temporarily, with the expectation that they will leave when the visa expires
  • Refugees: People fleeing conflicts or disasters that are permitted into the U.S. (indefinitely?) for humanitarian reason.
  • Illegal (or undocumented) immigrant: Someone who entered the U.S. through non-official means
  • Foreign delegates: Leaders at the U.N. and diplomats in the United States for international relations

Do constitutional protections apply to the groups mentioned above? For example, do green card holders have rights to free speech, protection from unwarranted search and seizure, and other rights afforded by the Constitution? Are illegal immigrants protected from cruel and unusual punishment?

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    Some corrections, too extensive for an edit: 1 Green card holders don't have to leave when their cards expire: they're permanent residents. 2 Visa holders include workers, tourists, diplomats, and most everyone else. 3 Refugees are a subset of green card holders. 4 Illegal immigrants are generally taken to include those who entered legally but overstayed. 5 see #2. A more useful distinction might be immigrant aliens vs nonimmigrant aliens but as far as rights go there's not much difference.
    – phoog
    Feb 14, 2017 at 7:36

5 Answers 5

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Technically yes.

Section 1 of the Fourteenth Amendment to the United States Constitution states:

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

(emphasis mine)

An article by The Hill lists examples of court rulings on this issue with the conclusion:

In summary, the entire case of illegal aliens being covered by and protected by the Constitution has been settled law for 129 years and rests on one word: "person." It is the word "person" that connects the dots of "due process" and "equal protection" in the 14th Amendment to the U.S Constitution and it is those five words that make the Constitution of the United States and its 14th amendment the most important political document since the Magna Carta in all world history.

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    I don't see anything "technical" about it. It's settled law that that the constitution applies to anyone in the country.
    – Jim B
    Jan 30, 2017 at 17:08
  • @JimB I meant that on paper it's 'yes', but there are other factors such as laws that may differ the treatment of non-citizens
    – Panda
    Jan 30, 2017 at 17:13
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    There are of course certain rights, privileges, and duties that apply only to citizens. Examples include voting, holding elective office, and service on juries.
    – phoog
    Jan 30, 2017 at 23:04
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    Technically no. Each right has to be analyzed separately. There is not one comprehensive answer. Some rights are afford to "persons" while others are not.
    – ohwilleke ♦
    Jan 31, 2017 at 1:30
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    Note that "person" was often Constitution-ese for "even black people". For instance, Article 1, Section 2, Paragraph 3 used the phrases "free persons" and "other persons" to differentiate slaves from everyone else. So the 14th was likely phrased this way to make it impossible to weasel out of wrt black people. Still, where there's a will, there's a way.
    – T.E.D.
    May 9, 2017 at 19:38
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Many rights are afforded to all "persons" equally, but not all rights are in that category.

Political Rights

  • Non-citizens cannot hold federal elected office and can be refused the right to hold state and local office if state and local law so provides.

  • Voting may be limited to citizens although the constitution does not require that it be limited to citizens.

Travel Rights

  • Citizens have an absolute right not to be deported and to enter the country that non-citizens do not have. Citizenship cannot be revoked absent very extraordinary circumstances (primarily consent to revocation of citizenship or a discovery of gross fraud in a naturalization application).

  • A non-citizen's immigration status can be revoked and a non-citizen can be deported if this status is revoked or expires or was never present in the first place.

Rights Related To Diplomats

  • Citizens, but not non-citizens, have a statutory right to assistance from a U.S. embassy when abroad.

  • There are about five different classes of rights of ambassadors, counsels and their employees that are beyond the scope of this post to explain. Among the most notable - their children are not U.S. citizens even if born in the United States, and they have broad immunity from criminal and civil liability although that varies depending upon someone's exact diplomatic status. They can be ordered to leave at any time by the host nation.

Economic Rights

  • Citizens and permanent residents and non-citizens other than permanent residents, each have different tax treatment for certain purposes.

  • Federal immigration law is permitted to and often does limit the kind of gainful employment a non-citizen can engage in. There are many categories of permitted activity depending upon a person's particular visa type. This issue is quite complex.

  • Non-citizens are generally not entitled to welfare benefits governed by federal law. Exceptions apply for pregnant women seeking pregnancy related health care, and children seeking to attend public schools.

  • Non-citizens who do not have green cards must generally pay out of state tuition at colleges and universities, although some states allow undocumented immigrants who are domiciled in their state to pay in state tuition.

  • The handful of relatively obscure rights under the privileges and immunities clause of the constitution are afforded only to citizens.

Criminal Law

  • Non-citizens are generally entitled to diplomatic assistance from their home country's diplomats if they are arrested (although this right is often ignored by local police and the courts), in addition to a lawyer.

  • Non-citizens are deportable if convicted of a serious crime.

  • Non-citizens can't be compelled to, or allowed to, serve on juries.

National Security

  • A non-citizen does not have the same right to be free of monitoring for national security purposes of a citizen.

  • Citizens detained as enemy combatants arguably have different rights than non-citizens detained in that manner.

  • A non-citizen cannot be guilty of treason against the United States.

  • A non-citizen can be detained without individualized cause if the United States is at war with a country in which the non-citizen is a national.

There is no comprehensive list of the rights of citizens and non-citizens, and this list is not comprehensive.

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  • > "Citizens have an absolute right not to be deported and to enter the country that non-citizens do not have. This cannot be revoked absent very extraordinary circumstances." That statement is internally inconsistent. The 2nd half suggests that under "very extraordinary circumstances", a citizens right not to be deported can be revoked. That means the right not too be deported is not absolute, contradicting the first sentence.
    – dannyf
    Jan 30, 2017 at 23:01
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    @dannyf While you are a citizen you can't be deported. It is very hard to become a non-citizen once you are a citizen. The circumstances that can cause loss of citizenship are basically (1) the consent of the person whose citizenship if revoked, and (2) gross fraud in a naturalization application within a statute of limitations. You could arguably add the discovery that a birth certificate is forged and that you were never a citizen in the first place.
    – ohwilleke ♦
    Jan 31, 2017 at 1:21
  • I still don't understand your position on this. As a citizen, can you or cannot you be deported? if there are conditions under which you can be deported, regardless of how rare they are, is your right not to be deported still absolute?
    – dannyf
    Jan 31, 2017 at 1:53
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    It is an absolute right while you are a citizen, in the same way that the absolute immunity of a prosecutor applies while you are a prosecutor. You can lose the thing that entitled you to the absolute right, but while you have that thing, you have the absolute right. Not such a hard concept.
    – ohwilleke ♦
    Jan 31, 2017 at 2:58
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    Only a very small proportion of "ambassadors, consuls and their employees" actually have the degree of diplomatic immunity that results in their children not becoming US citizens if born in the US.
    – phoog
    May 26, 2017 at 5:28
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Note that America's Federal Constitution doesn't afford anyone any rights—it merely serves to protect the rights we already have (assuming government properly obeys the limitations placed upon it).

This is a very important distinction, one that has become nearly lost in recent generations due to the ongoing problem of free public education (the tenth plank of the Communist Manifesto).

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    Well, plus 1 for first paragraph and then -1 for second.
    – bishop
    Jan 31, 2017 at 1:27
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    The political theory of "natural rights" was widely held by the Founders, but was not meaningfully incorporated into the U.S. Constitution and is not the practical reality in the law. You can't walk into court arguing a natural right and win.
    – ohwilleke ♦
    Jan 31, 2017 at 1:34
  • @ohwilleke — In other words, it was the intent of the Founders. Our nation was birthed with this bedrock principle enshrined in its national charter. That our courts have drifted from it and have instead descended into a tyranny is sad.
    – InteXX
    Jan 31, 2017 at 22:00
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    I agree the Constitution protects inherent natural rights (thus, +1 for your first paragraph), but I dispute the assertion that public education is to blame for the lack of general appreciation of this distinction (thus -1). I prefer, instead, to hold individuals responsible for their own ignorance.
    – bishop
    Jan 31, 2017 at 22:06
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    @bishop — Ah, good. Now I understand what you're getting at. We agree entirely. +2 for your dispute.
    – InteXX
    Feb 2, 2017 at 2:58
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The answer varies. Any one on us soil enjoys the rights under the Constitution the same way.

However, the laws and regulations carved out specific areas where certain classes of people may not have, like some aliens cannot work legally, or some people's cannot vote, ....

So we enjoy the same rights under the Constitution differently.

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    We enjoy different rights under the same constitution. No everyone on U.S. soil has equal rights under the constitution. If they did, all laws and regulations discriminating based upon citizenship would be unconstitutional.
    – ohwilleke ♦
    Jan 31, 2017 at 1:35
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    How are they the same 'rights' if they are different? You need to look up the definitions of 'different' and 'same'.
    – tj1000
    Nov 4, 2018 at 15:25
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People in this country illegally are invaders to our country and therefore do not come under the Constitution, if our Government allows them to come under the Constitution (which they are doing) then we no longer have a United States of America. The Constitution was written to protect its citizens and those who are permitted in to the country legally.

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  • You do realise many came from Europe and became Americans without consulting the indigenous population?
    – JJJ ♦
    Nov 4, 2018 at 13:58
  • I had temporary non-immigrant status for about 5 years before I became a Legal Permanent Resident (& eventually a citizen). In order to renew my particular status, I would exit and reenter the country. At one point, I had a planned business trip delayed meaning I would be out of status (aka illegal) for three days. I spent a day in the local (then) INS office, getting a stamp in my passport. The agent said "this doesn't change your status but it should keep you from getting arrested or denied entry". Was I an Invader? Should I have been arrested and deported immediately for staying over?
    – Flydog57
    Nov 4, 2018 at 22:38
  • @Flydog57 Even those who are in the country in violation of immigration law (which, by the way, real invading soldiers would certainly never be prosecuted for), have due process rights, because the judiciary is supposed to protect the people against the capricious actions of a tyrannical executive. Moose, if illegal aliens could be expelled without a court hearing, what would protect you from being branded an illegal alien by your local ICE office, or perhaps a neighbor who didn't like you? Next thing you know, you're fending for yourself in Tijuana.
    – phoog
    Nov 5, 2018 at 4:06

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