The rights held by people who are not citizens of the United States and the process by which people who are not citizens become citizens.
The U.S. Constitution touches on the definition of citizenship only indirectly and makes no provisions for how aliens, or noncitizens, may become citizens. Moreover, although the amendments to the Constitution enumerate rights, it is not clear to what extent these rights apply to people who live in the United States but are not U.S. citizens. Because the Supreme Court is entrusted with interpreting the Constitution and establishing whether laws are consistent with this document, it has played a critical role in determining the rights of aliens.
Congress has the constitutional power to decide which noncitizens may enter the United States and who may be excluded. During the first century of the nation’s existence, Congress made little use of its power to restrict immigration. One of the earliest pieces of immigration legislation was the Chinese Exclusion Act of 1882
In theory, Congress could exclude all aliens from entering the United States because there is no constitutional right to immigration. Prior to entry, aliens have no constitutional rights. In Chew v. Colding
Congress has consistently excluded individuals on political grounds, such as association with a government opposed to the United States or membership in a political organization thought to be opposed to U.S. interests. Writers, artists, and intellectuals have often been among those excluded on these grounds. In 1969 the Justice Department refused to grant a visa to the Belgian journalist Ernest Mandel, who had been invited to speak at universities in the United States. Citing the Chinese Exclusion Act, the Court upheld the right of Congress to determine on political grounds who can be admitted to the country.
In deportation, a noncitizen who has already entered the United States, either legally or illegally, is denied the right to remain and sent back to the country of origin. The Court officially recognized the right of Congress to enact deportation laws in the 1892 case Nishimura Ekiu v. United States
Being an undocumented alien is in itself a reason for deportation. However, resident aliens are also subject to deportation. In Marcello v. Bonds
A number of Court rulings have affirmed the right of aliens residing legally in the United States to employment without discrimination by state or federal regulation. The Fourteenth Amendment
The Court has permitted both state and federal governments to refuse employment to noncitizens in some circumstances. The job of police officer, for example, may be restricted to citizens only. In Foley v. Connelie
In general, the Court has ruled against barring noncitizens from civil service jobs, but it has left state and federal governments the right to exclude foreigners from civil service positions when there are compelling political reasons to do so. In Sugarman v. Dowell
The Court has distinguished between employment discrimination on the basis of ethnic or racial background and discrimination in employment on the basis of citizenship by private employers. Although discrimination against noncitizens by state or federal government is usually prohibited by the Fourteenth Amendment guarantee of equal protection, the employment policies of private employers are not laws and therefore are not covered by this guarantee. In private employment, employers are prohibited from discriminating on the basis of race, color, sex, religion, or national origin by Title VII of the Civil Rights Act of 1964. None of these prohibitions, however, keeps private employers from discriminating on the basis of citizenship. In Espinoza v. Farah Manufacturing Co.
By definition, noncitizens who are in the United States illegally do not have the right to employment. However, the Court has issued rulings that have recognized the rights of both resident aliens and undocumented aliens to some of the other advantages of American society. One of the advantages of residence in the United States is access to the U.S. system of free public education. By the early twentieth century, free and compulsory public schools had been established in all areas of the United States. The right of children of noncitizen immigrants to attend these schools was widely accepted. Indeed, the “Americanization” of children from various ethnic backgrounds was seen by Americans in many areas with large immigrant populations as an important function of public education.
The right of children of illegal immigrants to education at the public expense was a much more controversial issue, particularly as popular concern over illegal immigration increased from the late 1960’s onward. This issue came before the Court in the controversial case of Plyler v. Doe
Those who opposed the Texas statute maintained that employers in the state deliberately attracted illegal immigrant labor and that keeping undocumented aliens out of the school system would help to maintain a permanently disadvantaged and undereducated class of workers. Those who supported it pointed out that undocumented aliens could not expect to enjoy the benefits of a society when they were in that society illegally. They also claimed that if the Court upheld the statute, states would be obligated to extend every public benefit to all illegal immigrants who managed to escape capture. In its 1982 decision, the Court for the first time explicitly stated that undocumented aliens did enjoy the equal protection of the law guaranteed by the Fourteenth Amendment and that the Texas statute was therefore unconstitutional. However, Justice William J. Brennan, Jr., who delivered the decision, also stated that some public benefits can be denied to adult illegal immigrants because adult aliens in the United States without proper documents are intentionally breaking the law.
Although the right of resident aliens to public education has been widely accepted, their right to public assistance has been controversial. The case Graham v. Richardson
The Immigration and Naturalization Service (INS) is charged by Congress with regulating the movement of aliens into the United States. This means that INS officers have the power to detain, interrogate, and arrest those suspected of having entered the United States illegally. However, the Fourth Amendment guarantees to all those on U.S. soil citizens or noncitizens freedom from unreasonable searches and seizures. Because many Americans living near the Mexican border are of Mexican or Hispanic ancestry, moreover, the duty of the INS to find suspected illegal aliens raises the continual danger that Mexican or Hispanic Americans will be placed under suspicion without justification. In making rulings on issues in this area, the Court had to balance the duties of immigration officers with the Fourth Amendment rights of suspected illegal aliens.
One of the chief limitations on the detention of suspected illegal aliens resulted from the case of Almeida-Sanchez v. United States
The practice of detaining suspected illegal aliens because of appearance or language is a difficult matter because it can easily be seen as discrimination against members of minority groups in the United States. The District of Columbia circuit court, in Cheung Wong v. Immigration and Naturalization Service
Resident aliens who are not U.S. citizens may become citizens through naturalization. The conditions under which an alien may become a citizen are determined by Congress, and the power of Congress to set these conditions has been continually affirmed by the Supreme Court. The first Naturalization Act, passed in 1790, restricted citizenship through naturalization to “free white persons” of good character. Before the Civil War (1861-1865), nonwhites born on U.S. soil were considered ineligible for citizenship. With the passage of the Fourteenth Amendment, nonwhites born in the United States were granted U.S. citizenship, but people who were not of European ancestry continued to be ineligible for naturalization. The Court upheld this racial restriction on naturalization in the case of Ozawa v. United States
Naturalization laws continue to require that new citizens support the basic form of government found in the United States. Those who, during a ten-year period before application for naturalization, were members of anarchist, Communist
Just as Congress determines the conditions under which individuals may be naturalized, it also historically determined the conditions under which they may be denaturalized, or stripped of their naturalized citizenship. Before the late 1950’s, the Court usually did not question the right of Congress to take citizenship from the foreign born. However, in Trop v. Dulles
One of the most informative works on the rights of aliens is Without Justice for All: The Constitutional Rights of Aliens (Westport, Conn.: Greenwood Press, 1985) by Elizabeth Hull. The Rights of Aliens and Refugees: The Basic ACLU Guide to Alien and Refugee Rights (Carbondale: Southern Illinois University Press, 1990) by David Carliner, Lucas Guttentag, Arthur C. Helton, and Wade Henderson is a practical handbook on the rights of noncitizens put together by the American Civil Liberties Union. Gerald L. Neuman’s Strangers to the Constitution: Immigrants, Borders, and Fundamental Law (Princeton, N.J.: Princeton University Press, 1996) is an academic consideration of problems in applying U.S. constitutional law to noncitizens and discusses case law interpretations of immigrant rights. In Rights Across Borders: Immigration and the Decline of Citizenship (Baltimore, Md.: Johns Hopkins University Press, 1998), sociologist David Jacobson argues that the growth of immigrant populations in the United States and other countries has led to the granting of rights formerly reserved to citizens. He maintains that this has weakened the status of citizenship. U.S. Immigration Law (Dallas: Pearson Publications, 1998) by Jeffrey A. Helewitz is a thorough introduction to the immigration law of the United States that includes historical background and cases.
Alien land laws
Chinese Exclusion Cases
Japanese American relocation
Plyler v. Doe
Trop v. Dulles
Yick Wo v. Hopkins