Constitutional Rights of Noncitizens: Alienage and Equal Protection in US Law

Certain constitutional rights belong to everyone in the United States, including American citizens, visitors, and immigrants, whether documented or not. The fundamental rights guaranteed by the Due Process and Equal Protection Clauses of the U.S. Constitution, as well as the Bill of Rights, apply to every person, regardless of immigration status.

Knowing your rights under the law is critical. It’s the first line of defense to ensure your rights remain protected. To learn more about the constitutional rights of a noncitizen or to get immediate legal assistance if your rights have been violated, contact an experienced immigration lawyer in your area.

Who Is a Noncitizen?

A noncitizen is a person who lives in the United States but who is not a U.S. citizen. Common categories include:

• Lawful permanent residents (green card holders)
• Visa holders
• Refugees and people granted asylum
• Undocumented immigrants

The rights of each group vary. However, certain constitutional guarantees and baseline protections apply to noncitizens, regardless of their particular immigration status.

What Does “Alienage” Mean in Immigration Law?

Alienage refers to a person’s status as a noncitizen of the country where they live. The term “alien” appears in court rulings and statutes in the United States Code (U.S.C.).

Alienage classifications occur when laws treat citizens and noncitizens differently. In practical terms, this would mean that classifications would deny noncitizens a benefit or opportunity generally available to citizens.

Courts treat laws that discriminate on the basis of alienage classifications differently from other laws. Alienage is the classification, and equal protection is one of the legal shields against unfair treatment.

The Constitutional Framework: Amendments, Clauses, and Federal Power

Several provisions of the U.S. Constitution and its amendments determine which constitutional rights extend to noncitizens.

• Fourteenth Amendment. Contains the Equal Protection Clause and applies to state governments.
• Fifth Amendment. This constitutional amendment applies to the federal government and has been interpreted to include a similar equal protection component. The Fifth Amendment provides that no person shall be deprived of life, liberty, or property without due process of law.
• Privileges and immunities clause. This clause is found in Article IV of the U.S. Constitution, which protects certain rights of citizens across state lines. While it applies to citizens, courts have used related reasoning to analyze whether states are improperly targeting noncitizens.
• Article I of the Constitution. Grants that Congress holds significant authority over immigration and naturalization. This means that the federal government has wide discretion to set national immigration policy. Courts usually give Congress and federal agencies more room to act in this area than they give to states.

U.S. constitutional law can provide protections to citizens in ways that do not apply to noncitizens. The privileges and immunities clause or the right to vote under the Fifteenth and Nineteenth Amendments, for example, are rights reserved for citizens. However, the Equal Protection Clause (as well as the Due Process Clause) makes no distinction between protections for citizens and noncitizens.

How the Equal Protection Clause Applies To Noncitizens

The Equal Protection Clause of the Fourteenth Amendment provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” It says “person,” not “citizen.” The U.S. Supreme Court has consistently ruled that the Due Process Clause applies to all people in the United States.

Regardless of immigration status, everyone in the United States has certain rights that include:

• The right to due process
• The right to a fair day in court to provide a defense or make the other party prove their case
• The right against unreasonable search and seizure
• The right to legal representation, including an appointed attorney if you cannot afford one, if you are convicted and sentenced to jail, or if you receive a suspended sentence
• The right not to be arrested or detained without a valid reason
• The right to record interactions with law enforcement officers

Sometimes, the law distinguishes between citizens and noncitizens, raising the question of what level of judicial scrutiny to apply to such classifications. The Supreme Court has changed its position over the years.

Levels of Court Review in Constitutional Cases

When someone challenges the constitutionality of a law, both state and federal courts commonly apply one of three levels of judicial scrutiny:

1. Rational basis. This is the lowest level of scrutiny. Courts are highly deferential to the government under this standard. Rational basis is often applied to laws or regulations that are challenged as arbitrary or irrational. This level of scrutiny can also apply to discrimination based on age, disability, wealth, or felony status.
2. Intermediate scrutiny. The next level of judicial deference is less demanding than strict scrutiny. In order for a law to pass under this standard, it must serve an important government objective and be substantially related to that objective. This level of review is most commonly applied in cases involving sex discrimination.
3. Strict scrutiny. This is the highest standard of review that a court can provide to a case, and it provides the strongest protection. When a state law discriminates against legal noncitizens, courts often apply a difficult-to-meet standard. To prevail, the state must prove that the rule serves a “compelling” interest and is narrowly written to achieve it. The state must justify the unequal treatment with a strong reason. There are very few rules that can meet the requirements of this test.

With judicial deference, the court steps back and allows another branch of government to make the call. Federal laws on immigration usually receive lighter treatment. Congress has broad power over immigration, so courts often give deference to federal rules.

Early Precedents in Alienage Law

In Yick Wo v. Hopkins (1886), the U.S. Supreme Court made it clear that the principle of equal protection applies to all persons within U.S. territory, regardless of nationality. This case involved Chinese laundry owners who were subjected to unfair treatment. This principle has shaped how courts have handled alienage cases ever since, setting a precedent for a long line of civil rights decisions affecting noncitizens.

Later, in Takahashi v. Fish and Game Commission (1948), the Supreme Court struck down a California law that denied commercial fishing licenses to noncitizens ineligible for citizenship. The Court ruled that this was an improper attempt by a state to control immigration, a power reserved for the federal government.

In Graham v. Richardson (1971) and Application of Griffiths (1973), the Court subjected state laws that disadvantaged aliens to strict scrutiny.

In Graham, the Court struck down a law that conditioned eligibility for state welfare benefits on citizenship. The Court found that preserving state resources for citizens was not a compelling interest.

In Application of Griffiths, the Court considered a state law that limited bar licenses to citizens. It applied strict scrutiny and struck down the law because it found that citizenship was not closely related to a person’s ability to practice law.

The Political Function Exception

There is a key exception to strict scrutiny at the state level: The political function doctrine. Under the political function doctrine, states can sometimes restrict certain jobs or roles that go to the heart of self-governance.

The Court heard a series of cases and held that the rational basis test should apply to alienage classifications tied to the state’s operation as a governmental entity. The Court applied the rational basis test to these cases and upheld state laws that excluded aliens from the police force and from work as probation officers.

In Ambach v. Norwick (1979), the Court upheld a law requiring public school teachers to be citizens or to have applied for citizenship. The Court reasoned that in their role as part of a governmental function and of instilling American values, they should be citizens.

In Cabell v. Chavez-Salido (1982), the Court upheld a state law imposing a citizenship requirement on all positions designated as peace officer positions. It reasoned that the officers sufficiently partake in the sovereign’s power to exercise coercive force over individuals that the positions may be limited to citizens.

However, this “political function” is not without limits. In Bernal v. Fainter (1984), the Court struck down a state law that prohibited aliens from becoming notary publics.

In Sugarman v. Dougall (1973), the Court struck down a law that imposed a total ban on aliens from a state’s competitive civil service. The Court found that such state restrictions are not totally immune from scrutiny under the Equal Protection Clause.

Alienage Classifications by the Federal Government

The question of which standard of review applies to alienage classifications made by the federal government was addressed in Matthews v. Diaz (1976). In this case, the Court applied a standard that is something less than strict scrutiny.

In Matthews, the Court upheld a federal law that required aliens, but not citizens, to be in the United States for five continuous years to become eligible for medical insurance. The Court hinted that Congress should be given considerable deference to draw lines in these types of cases.

The Importance of Equal Protection Rights

Equal protection helps prevent governments from treating noncitizens unfairly. That can mean the difference between getting a job, attending school, or keeping a place to live.

Below are some of the most common areas in which alienage and equal protection cases arise.

Education

Public education is a common concern regarding alienage and equal protection under U.S. law. In Plyler v. Doe (1982), the U.S. Supreme Court struck down a Texas law denying public education to children of undocumented immigrants.

The Court ruled that states cannot deny free public K-12 education based on their immigration status. This protection covers all children, including those who were undocumented.

The Court reasoned that punishing children for their status served no fair purpose and that it would not be in the public interest to create an underclass of uneducated minors. Such an action would be costly and lack a rational basis.

Alienage and education become more complicated when college and financial issues are involved. Rules around in-state tuition, certain scholarships, and admission to public universities may vary from state to state. These questions are often debated.

In Nyquist v. Mauclet (1977), the U.S. Supreme Court held that a state statute denying resident aliens equal access to funds for higher education will be subject to strict scrutiny even though the statute neither creates a classification nor causes a denial of benefits sufficient for economic survival.

Employment

Federal law sets rules about who can legally work in the United States. Employers are required to verify eligibility for work authorization, and that requirement applies broadly. Yet workplace protections against discrimination and unfair treatment can still apply to noncitizen workers.

Public Benefits

Access to public benefits can depend on immigration status. That means that certain healthcare programs or food assistance can be tied to a person’s immigration status. Some benefits are limited to U.S. citizens or specific categories of lawful residents, while emergency care is treated differently.

Housing

Fair housing laws protect against discrimination based on national origin. While these protections are not identical to alienage protections, they often overlap.

For example, the Fair Housing Act does not list immigration status as a protected category, but it does prohibit discrimination based on protected traits, such as national origin, race, religion, sex, familial status, and disability.

On the other hand, some government-funded housing programs may have lawful immigration-status requirements.

Licensing

Some states enact laws that affect noncitizens, such as rules governing professional and driver’s licenses. Because laws targeting lawful noncitizens are subject to strict scrutiny, many of them are challenged in court. The outcome usually turns on whether the state can show a strong, legitimate reason for the rule.

Policing and Local Enforcement

The U.S. Constitution’s protections, including the equal protection and due process clauses, apply to interactions with the police. There have been recent controversies regarding the role of local police in enforcing immigration rules.

Contact a Constitutional Lawyer

Noncitizens, including undocumented immigrants, have constitutional rights. While the rights of noncitizens are more limited in some areas, the U.S. Constitution protects undocumented people in important ways, including due process of law and equal protection rights.

Each case must be evaluated on its own set of facts, and courts can rule differently in similar-looking situations. That’s why it’s important to get legal assistance if you suspect constitutional violations.

If you need legal help, an immigration law attorney can provide essential guidance.