As the Florida Legislature considers legislation to increase penalties for undocumented immigrants who have committed certain crimes, legislators and activists have pondered this question: What are the constitutional rights of these immigrants?
HB 83 would increase penalties for certain violent offenses -- including sexual battery, aggravated assault with a deadly weapon, murder, and the use of a destructive device such as a bomb -- if the defendant was in the country illegally. The bill still has several hurdles before it reaches Gov. Rick Scott’s desk.
The bill’s sponsor, Rep. Dane Eagle, R-Cape Coral, argued at a March 27 House subcommittee hearing that the courts will ultimately have to rule on whether the legislation is constitutional.
Based on some court decisions, Eagle said it is "unclear if non-citizens can enjoy the same constitutional rights as citizens" although he said that everyone is entitled to constitutional protections for due process.
Francesca Menes, director of policy and advocacy for the Florida Immigrant Coalition, disagreed with Eagle.
"As an undocumented immigrant, you do have constitutional rights here in the United States," she said, "and that has been said over and over in the courts, that they do have constitutional rights."
We found that undocumented immigrants do have constitutional rights -- but not all of the rights of citizens. (We have previously fact-checked a claim about whether unlawful presence in the United States is not a crime, a claim we ruled Mostly True.)
Some rights, but not all
A spokeswoman for the Florida Immigrant Coalition pointed to an article by an author of immigration books about constitutional protections for undocumented immigrants.
We interviewed several legal scholars who agreed that undocumented immigrants have many constitutional rights, such as freedom of speech and religion, and if arrested, a right to a Miranda warning.
"There is no question that all persons in the United States including unauthorized migrants enjoy the protections of the Constitution," said Gabriel (Jack) Chin, law professor at University of California-Davis. "There is no debate about that among legal scholars."
The Fifth Amendment, as well as the Fourteenth Amendment protects everyone from deprivation of life, liberty or property without due process of law, Chin said.
There have been several court decisions dating back more than a century that outline the rights of undocumented immigrants.
The U.S. Supreme Court ruled in Zadvydas vs. Davis (2001) that "once an alien enters the country, the legal circumstance changes, for the due process clause applies to all persons within the United States."