Aliens, Rights of

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ALIENS, RIGHTS OF. For more than a century, the Supreme Court has distinguished between the rights of aliens to enter the United States and the rights that arise after entry or admission. The so-called plenary power doctrine of the Chinese Exclusion Case (1889) held that aliens seeking to enter the United States could claim no constitutional rights. Although more recent cases, such as Landon v. Plasencia (1982), have recognized a limited right to procedural due process for certain returning permanent-resident aliens, the basic principle is that aliens have no procedural or substantive constitutional right to enter the United States. The Court has also held that aliens may not challenge immigration categories on equal protection grounds—Fiallo v. Bell (1977)—or on First Amendment grounds—Kleindienst v. Mandel (1972). Yet recent challenges to citizenship laws, such as in Miller v. Albright (1998), have garnered closer scrutiny by the Court.

The legal aspects of deportation (now known formally as "removal") are considerably more complex. Once an alien enters the territory of the United States, even illegally, he or she accrues an array of constitutional protections. The Supreme Court has, for constitutional purposes, distinguished deportation from criminal prosecution or punishment. Thus, for example, specific rights under the ex post facto clause—the Fifth Amendment right to silence, the Sixth Amendment right to counsel, the Seventh Amendment right to jury trial, and the Eighth Amendment prohibition of cruel and unusual punishment—do not apply (Fong Yue Ting v. United States, 1893). Due process protections have applied in this context, however, since Yamataya v. Fisher (1903). Over the years, statutory, regulatory, and case law have conferred various procedural protections, such as a right to counsel (at no expense to the government), certain limited Fourth Amendment protections, and others. Two of the most contentious practices have been the mandatory detention of certain aliens pending removal proceedings and the potentially unlimited detention of persons whom no other country is willing to accept after they have been ordered removed from the United States. For the latter case, the Supreme Court upheld, in Zadvydas v. Davis et al. (2001), a habeas corpus challenge and imposed a constitutionally mandated limit to such detention.

Outside of the immigration law context, aliens have extensive rights in the United States. The text of the Constitution limits very few rights—such as the federal right to vote and to hold certain national elective offices—to "citizens." In Yick Wo v. Hopkins (1886), a seminal case that involved a constitutional challenge to the discriminatory enforcement of a San Francisco ordinance regulating laundries, the Supreme Court held that "the rights of the petitioners … are not less, because they are aliens. … The Fourteenth Amendment to the Constitution is not confined to the protection of citizens." In matters outside of the immigration context, therefore, aliens and citizens receive analogous, but not identical, constitutional protection. Thus, in the United States, an alien generally has the right to speak freely, to travel within the country, to earn a living, to own property, to receive government benefits, and to bring suit against another, although there are limitations restricting these rights. Similarly, after Wong Wing v. United States (1896), an alien subject to criminal proceedings is entitled to the same constitutional protections available to citizens.

The extent of First Amendment protection granted to aliens is more complex. The First Amendment generally protects aliens, but some court decisions have held that aliens may be deported for conduct that, if under-taken by citizens, would be protected. In Harisiades v. Shaughnessy (1952), for example, the Supreme Court upheld the deportation of several permanent resident aliens because of their former membership in the Communist Party. More recently, in Reno v. American-Arab Anti-Discrimination Committee (1999), the Court held that deportable aliens generally cannot raise a defense of selective prosecution.

Aliens, both immigrants and nonimmigrants, may be granted authorization to work in the United States pursuant to federal immigration laws. Once an alien has the right to work, various federal and state antidiscrimination and fair employment laws generally prohibit discrimination by private employers on the basis of race, gender, or alienage. Indeed, some antidiscrimination laws may also apply to undocumented aliens in certain circumstances. Discrimination on the basis of alienage by government employers, on the other hand, may be permissible. Despite the broad language of Yick Wo in support of aliens' constitutional rights, U.S. courts have upheld various state laws that discriminated against aliens on the grounds that a "special public interest" was being protected. In Heim v. McCall (1915), for example, the Court upheld the exclusion of aliens from certain types of public employment by the State of New York.

But this body of law has been complex and unstable. Indeed in Truax v. Raich (1915) the same Court that decided Heim invalidated an Arizona law that required private employers of more than five people to make certain that at least 80 percent of their employees were "qualified electors or native born citizens." In Takahashi v. Fish and Game Commission (1948), the Court overturned a California law that forbade the granting of fishing licenses to Japanese residents (all of whom were "ineligible to citizenship" simply because of their nationality). The decision held that state power to discriminate against aliens is "confined within narrow limits."

The constitutional protection of aliens against state laws was further developed in Graham v. Richardson (1971), which challenged discriminatory state welfare laws. The Court determined that such classifications based on alienage are "inherently suspect" and subject to "close judicial scrutiny." Thus, state statutes that denied welfare benefits to all resident aliens or to those who have not resided in the United States for a specified number of years were held to violate the equal protection clause. Part of the Court's reasoning in Graham, however, was that such state schemes interfere with the general federal control of aliens in the United States. Thus, in Mathews v. Diaz (1976) the Court upheld as constitutional Congress's decision to condition an alien's eligibility for participation in a federal medical insurance program on continuous residence in the United States for five years and admission for permanent residence.

In public employment cases the Court has ruled that it is constitutional for states to require citizenship as a qualification for certain positions if the classification is properly tailored and applies to "persons holding state elective or important nonelective executive, legislative or judicial positions" who "participate directly in the formulation, execution or review of broad public policy" and therefore "perform functions that go to the heart of representative government" (Sugarman v. Dougall, 1973). In Sugarman, the Court struck down a New York statute that limited state competitive civil service positions to U.S. citizens. Pursuant to this approach, the Court has also subsequently overturned state laws that bar aliens from being licensed to practice law, from obtaining engineering licenses, and from state financial educational assistance. It has, however, upheld state restrictions for state trooper employment (Foley v. Connelie, 1978), for permanent certification as public school teachers (Ambach v. Norwick, 1979), and for probation officer positions (Cabell v. Chavez-Salido, 1982). In the federal employment context, as with public benefits, the Court has tended to be more deferential to the government, as for example in Hampton v. Mow Sun Wong (1976), in which the Supreme Court overturned a U.S. Civil Service Commission regulation that excluded noncitizens from federal civil service employment, but did so in a way that allowed the federal government much more leeway than was granted to the states.

Although some specific restrictions exist in some states, aliens generally have the right to purchase and inherit real and personal property. The United States has treaties with many countries that grant their citizens the right to purchase and inherit property in the United States. There are some federal statutory restrictions on alien ownership of agricultural, grazing, mineral, or timber land, in addition to certain restrictions placed on alien enemies during times of war or national emergency.

Under the immigration laws, aliens generally must apply for specific nonimmigrant visa status to study in the United States. Undocumented alien children do, however, have the right under the Fourteenth Amendment to state-provided public education (Plyler v. Doe, 1982).


Aleinikoff, Thomas Alexander, David A. Martin, and Hiroshi Motomura. Immigration and Citizenship: Process and Policy. 4th ed. St. Paul, Minn.: West, 1998.

Bosniak, Linda, "Membership, Equality, and the Difference that Alienage Makes." New York University Law Review 69 (1994): 1047.

Gordon, Charles, Stanley Mailman, and Stephen Yale-Loehr. Immigration Law and Procedure. New York: Matthew Bender, 2001.

Legomsky, Stephen H. Immigration and Refugee Law and Policy. Westbury, N.Y.: Foundation Press, 1997.

Tribe, Laurence. American Constitutional Law. Mineola, N.Y.: Foundation Press, 1978.


See alsoAlien Landholding ; Citizenship ; Due Process of Law ; Equal Protection of the Law ; Immigration .