The Status and Rights of Undocumented Aliens in the United States

Published date01 June 1987
AuthorP. H. Schuck
Date01 June 1987
The Status and Rights
Undocumented Aliens in the United States
This paper describes the status and legal rights of undocumented aliens under domestic
American law
they have arrived and established themselves
the United States.
At the outset
even before sketching the outline of this paper
it is necessary to
emphasize that these two limitations
the U.S.) are extremely important in
American law. The reason is that American law has for almost a century maintained a
sharp distinction between two types of aliens, depending wholly upon whether the alien is
‘in’ the United States (in which case he is deemed a ‘deportable’ alien)
is outside the
United States (in which case he is deemed a ‘excludable’ alien).
This distinction is not simply a semantic exercise; the nature and extent of an alien’s
constitutional and statutory rights turn upon whether he is treated as one
the other. Ifhe
is ‘excludable,’ for example, he possesses no procedural rights under the U.S. Constitution,
but may claim only those procedures that Congress
the INS have chosen to provide to
excludable aliens’. The excludable alien’s substantive rights are also quite limited; for
example, he is not eligible for most types of discretionary relief from deportation that are
available to ‘deportable’ aliens2, nor is he entitled to exercise any choice concerning the
particular country to which he will be deported (as ‘deportable’ aliens do)3.
This distinction is particularly relevant to the subject of my paper because of a legal
fiction concerning when an alien is deemed to be ‘in’ the United States. According to this
fiction, an alien who manages to enter the country illegally and surreptitiously
hundreds of thousands of aliens (mostly Mexicans) do each year
is ‘in’ the country and is
therefore in ‘deportable’ status, even if he has been on American soil for only one daf. On
the other hand, an alien who has been ‘paroled‘ into the United States (that is, admitted
under restrictions pending determination of his status) by the immigration authorities is
treated by the law as ‘e~cludable’~. He is treated, that is, as if he stood at the border seeking
entry even if he has in fact been in the interior for years either working
languishing in an
INS detention facility. (In addition, the courts have ruled that even one who is ‘in’ the
country is deemed to be excludable even if he
long as he did
to evade INS inspection. If he did intend to evade the INS, he is treated as ‘in’
and is therefore deportable6). If all of this strikes you as madness
after all, it encourages
aliens to enter clandestinely rather than to present themselves at the border for inspection
then you obviously are not a lawyer.
This paper, then, concerns the rights of undocumented ‘deportable’ aliens
those who
are deemed to have entered the United States and are therefore entitled to claim the

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