Noncitizens and Civil Liberties

The extent to which noncitizens enjoy civil liberties in the United States is a complex and unsettled question whose answer may depend on the context in which civil liberties are asserted, the noncitizen’s status, and whether it is the federal or state government regulating the noncitizen. Civil liberties include free expression and association rights, equal protection rights, and procedural and substantive due process rights. Our concept of civil liberties has evolved through time, the modern period reflecting, perhaps, the most expansive view of civil liberties. Similarly, the extent to which noncitizens have enjoyed civil liberties in the United States has changed through time. Different periods of time have generated different levels of protection for the civil liberties of both citizens and noncitizens at the legislative and judicial level. For example, early in the nation’s history, the Alien and Sedition Acts targeted both aliens and seditious speech. The Alien Act granted the president broad authority to deport any alien he judged a danger to the United States. The Sedition Act prohibited any person to utter, print, write, or publish any disloyal, profane, scurrilous, or abusive language intended to cause contempt or scorn for the United States, the Constitution, or the flag. At the time, the constitutionality of both acts was vigorously debated with James Madison and Thomas Jefferson taking the view that both were unconstitutional and that aliens or noncitizens enjoyed the full protection of the constitution. Others, notably Federalist party leaders, expressed the view that aliens or noncitizens were not parties to the Constitution and, thus, were not protected by it. This debate continues today. Notwithstanding the debate between those who contend that noncitizens are entitled to enjoy the same civil liberties as citizens and those who contend that the Constitution does not protect noncitizens, neither act would likely survive constitutional scrutiny today; seditious libel is protected speech under the First Amendment and most resident aliens or noncitizens are entitled to some degree of due process prior to being deported.

One’s civil liberties may be protected by both legislation and judicial review. Noncitizens, however, may be dependent on Congress for the exercise of civil liberties in a way that citizens are not. Generally, citizens are entitled to enforcement of their civil liberties by the federal courts. Federal courts protect civil liberties by enforcing the various constitutional norms that guarantee them, enshrined particularly in the Bill of Rights, and the Thirteenth, Fourteenth, Fifteenth, and Nineteenth Amendments. Noncitizens, however, are not always entitled to strong judicial enforcement of their civil liberties. In fact, in some contexts, noncitizens may enjoy no or few civil liberties other than those granted to them by Congress.

The Supreme Court has held that aliens or noncitizens in the United States are entitled to constitutional protection under the Fifth and Fourteenth Amendments to the Constitution. This view is consistent with the plain language of the amendments that extend protection in the relevant clauses to ‘‘persons,’’ not ‘‘citizens.’’ Even noncitizens who are undocumented are guaranteed protection by these amendments under the Constitution. However, the extent of protection provided will be affected by the context in which civil liberties are affected. In a series of cases heard by the Court in the late nineteenth century, the Court interpreted the Constitution to give Congress plenary power to provide for the admission and exclusion of aliens to and from the United States. In early expressions of the plenary power doctrine, the Court concluded that in the context of immigrationrelated decisions, such as decisions involving admission to the United States, exclusion from the United States, and deportation from the United States, noncitizens enjoyed little or no constitutional protection, other than what Congress chose to grant them. Modern federal court treatment of federal regulation of noncitizens in immigration-related matters applies minimal due process protections to noncitizens, but continues to recognize that Congress has great discretion in determining the conditions upon which a noncitizen may remain in the United States and in determining what conduct will result in a noncitizen’s deportation. Thus, the critical difference between a citizen and a noncitizen is that the noncitizen always remains subject to deportation or removal from the United States. The Court has yet to rule that the substantive reasons for deportation or removal are subject to constitutional constraints.

Other civil liberties, such as First Amendment rights, Fourth Amendment rights, or substantive due process rights, when raised in the context of immigration decisions, similarly receive a much lesser level of protection than when raised in nonimmigration contexts. For example, the Court has held that detention of noncitizens, when tied to their deportation or removal from the United States, is not held to the same constitutional standard that would be applied to detention of citizens. Thus, noncitizens may be detained in prisons for long periods of time, without the possibility of Bail, while the government determines whether or not they are entitled to reside in the United States. Detention of noncitizens in other, nonimmigration contexts, such as involuntary commitment due to mental illness or in the Criminal Law context, when arrested for commission of a criminal offense, would be subject to the same extent of constitutional protections accorded to citizens.

The extent to which noncitizens enjoy civil liberties may depend as well on the status of the noncitizen. Noncitizens include persons who have been granted the right to reside permanently in the United States and to become citizens after five years of permanent residence. Noncitizens also include persons who have been granted the right to reside temporarily in the United States whether to engage in tourism, business, employment, or education. Some of these temporary entrants stay in the United States after their visas have expired and become unauthorized aliens. Noncitizens also include persons who have entered the United States without authorization or without documents but who have established de facto residence in the United States. The extent of protection the noncitizen receives may depend, in part, on whether she is a permanent resident alien, a temporary visitor, or an undocumented or unauthorized alien. For example, the Court has reasoned that illegal or undocumented immigrants as a class for equal protection purposes are generally entitled only to rational basis review; thus, laws that target undocumented noncitizens are presumed to be constitutional and require no more than that the government in enacting the legislation have a legitimate interest that is rationally related to the legislative measure. Permanent residents generally enjoy the same civil liberties that U.S. citizens enjoy, including privacy, intimacy, expression, association, equal protection, and due process rights.

Since the federal power over immigration is viewed as plenary with Congress, the Court has distinguished between state regulation of noncitizens and federal regulation of noncitizens. Thus, generally, the Court rigorously scrutinizes state regulations that discriminate against noncitizens who are permanent residents of the United States.

M. ISABEL MEDINA

References and Further Reading

• Alien Act, Chapter 58, 1 Statute 570 (1798).
• Henkin, Louis H., The Constitution and United States Sovereignty: A Century of Chinese Exclusion and Its Progeny, Columbia Law Review 84 (1984): 1.
• Johnson, Kevin R., Los Olvidados: Images of the Immigrant, Political Power of Noncitizens and Immigration Law and Enforcement, Brigham Young University Law Review 1993 (1993): 1139.
• Neuman, Gerald, L. Strangers to the Constitution: Immigrants, Borders and Fundamental Law. Princeton, NJ: Princeton University Press, 1996.
• Romero, Victor C. Alienated—Immigrant Rights, the Constitution, and Equality in America. New York: New York University Press, 2005.
• The Sedition Act, Chapter 74, 1 Statute 596 (1798).

Cases and Statutes Cited

• Fong Yue Ting v. United States, 149 U.S. 698 (1893).
• Wong Wing v. United States, 163 U.S. 228 (1896).
• Yick Wo v. Hopkins, 118 U.S. 356 (1886).