What are your rights as an undocumented student?
As an undocumented student, you have the right to attend public school, you have the right to apply for admission to colleges and universities in most states, and you have the right to the protections afforded to U.S. citizens under the United States Constitution, especially as they pertain to privacy and the right to due process.
Unfortunately, a combination of shifting legal standards and increasingly hardline enforcement tactics is blurring the line between your rights and the security interests of the United States. This is especially true for so many undocumented students who have enjoyed protections under the Deferred Action for Childhood Arrivals (DACA). While DACA currently remains in effect for roughly 800,000 recipients, the Trump Administration has already taken steps to dismantle the program, including restricting application renewals and new applications.
Enforcement agencies have also undertaken initiatives and actions that aren’t always consistent with your rights. Knowing your rights is an important part of defending yourself against such actions.
It’s especially important for DACA recipients and undocumented students tot pay close attention to changes in our laws and how they can impact your rights. For a look at the most important legislative and judicial immigration standards relating to students and education, check out Undocumented Students, DACA, and the Law: Key Legislation.
Read on for a look at your rights as an undocumented student and how you can protect these rights.
Know the Enforcement Groups
Be aware of the various enforcement prongs of the United States government as they pertain to immigration. These agencies have engaged in increasingly aggressive tactics and higher levels of engagement with individuals presumed to be undocumented. As federal policy orientation pushes the U.S. toward lower immigration tolerance, these agencies have been given wider latitude in engaging individuals, even without probable cause for suspicion.
It’s important that you can recognize these agencies and that you have a sense of how they work. This is a key step in understanding your rights and how you can preserve them in the face of discrimination.
At present, the immigration arm of the Department of Homeland Security (DHS) is divided into three prongs:
- The Bureau of Citizenship and Immigration Services (BCIS) The primary agency for processing applications for green cards, visas, citizenship, renewals and other immigration status documentation.
- The Bureau of Customs and Border Control The agency responsible for screening the arrival of international travelers, legal immigrants, undocumented immigrants, and asylum-seekers.
- The Bureau of Immigration and Customs Enforcement (ICE) The agency responsible for detention, deportation, raids and other activities aimed against individuals suspected of being in the United States unlawfully.
As an undocumented student, you may be required to interact with any of these agencies when applying for certain status documentation (BCIS), when traveling (Border Control), and — especially in times of increased enforcement action — when you are questioned about your status or citizenship (ICE).
In addition to ICE, law enforcement at the federal, state and local levels may choose to cooperate with enforcement initiatives or priorities (though this cooperation is elective, and law enforcement in some states or municipalities do decline to cooperate). Law enforcement measures against undocumented individuals can include actions by the Federal Bureau of Investigation and by police officers at the state and municipal level.
As an undocumented student, be aware of these agencies, their policies, and the tactics they employ in carrying out current immigration and enforcement policies.
Also be aware that your enrollment in a college or university can afford you certain protections. The Intercultural Development Research Association notes that “School personnel — especially principals and those involved with student registration and enrollment — should be aware that they have no legal obligation to enforce U.S. immigration laws.”
This freedom from obligation includes the right to refuse cooperation with enforcement agencies seeking access to your private information and citizenship status. Schools that identify as participants in the Student and Exchange Visitor Program (SEVP) will sometimes be required to meet certain cooperative terms with ICE in order to maintain SEVP eligibility. However, this information-sharing generally applies to students in the U.S. on student visas, as opposed to undocumented students.
Therefore, you should look to your school personnel for support and protection if you ever feel that your rights are at risk, especially as it pertains to federal, state, or local enforcement actions.
Know Your Constitutional Rights
As an undocumented student in the United States, you are protected by the terms of the United States Constitution. This gives you certain rights, which may not be violated by the federal government, immigration enforcement agencies, or school personnel. Yale Law School professor Cristina Rodriguez notes that immigrants — legal or undocumented — have unequivocal access to the same Constitutional rights as all Americans. She explains that “Most of the provisions of the Constitution apply on the basis of personhood and jurisdiction in the United States.”
There are certain provisions of the Constitution that apply directly to you as an undocumented student. It is important to note, however, that various immigration enforcement policies and exceptions can place limitations on these rights as they apply to undocumented individuals.
Be aware of these limitations and exceptions, but also remember that you have the Constitutional entitlement to be free from violation of certain rights. Among them:
- The Fourth Amendment protects your right against unreasonable search seizures,” which means that law enforcement or immigration officials may not stop you, search you, or violate your privacy and property rights without probable cause. There is a “border search exception,” which denotes that searches at or within 100 miles of U.S. borders are considered lawful.
- The Fifth Amendment guarantees the right of Due Process, including the right to fair and speedy navigation of the judicial process in all proceedings, including those relating to deportation and family separation. That said, immigration courts are notoriously less restrained by Constitutional protections than traditional domestic courts. Courts have fewer burdens in the admission of evidence and in some cases, “due process” is carried out through administrative channels without an actual hearing. Though the Fifth Amendment guarantees due process, the threshold for conducting due process tends to be far lower in immigration cases.
- The Sixth Amendment provides the right to legal counsel in criminal cases, including the right to a publicly-assigned defender if you are not able to afford representation. Again, however, there are peculiarities as they apply to immigration cases. First, many immigration cases are tried as civil, rather than criminal cases, which means an attorney is neither required nor assigned. And for those that are tried as criminal cases — a growing number under Donald Trump’s authority — most are considered misdemeanor, rather than felony cases. Once again, this bypasses the requirement for representation to be provided. That said, in felony criminal matters, you have the right to an attorney, or to have one assigned to you if you can’t afford one.
- The Fourteenth Amendment includes the equal protection clause, which prohibits discrimination through unequal application of the laws. Ruling on Plyler v. Doe in 1982, the U.S. Supreme Court found that a child cannot be denied equal access to public education due to citizenship status. This decision dictated that undocumented and immigrant children must be allowed to attend public schools — grades K-12 — without limitation or discrimination. This is a critical precedent for undocumented families seeking an education in the United States.
Check out Undocumented Students, DACA, and the Law: Key Legislation (USGC) to learn more about Plyler v. Doe and related legal standards.
Know Your Student Rights
As noted above, the landmark Supreme Court Decision on Plyler v. Doe would guarantee the right of undocumented immigrants to a public education. It would also help to lay the groundwork for a broader and clearer set of rights applying directly to undocumented students, including:
- The right to be free from discrimination from any recipient of federal funding Under Title VI of the Civil Rights Act of 1964, no institution receiving federal financial assistance may discriminate on the basis of race, color, or national origin. This extends to public schools, colleges and universities which, as recipients of federal funding, may not restrict your access based on race, color or national origin.
The right to privacy as it pertains to information shared between you and your school
Under The Family Educational Rights and Privacy Act (FERPA) of 1974, parents and families have the right to privacy regarding certain personal details, particularly as concerns the sharing of this information with entities outside of a school or district. Among these personal details, the Office of Civil Rights (OCR) — which is part of the Department of Education — notes that a public school or district should not ask about, nor is a student under any obligation to disclose information on, immigration status. The status of a student’s citizenship and documentation are not considered relevant to establishing district residency, nor is it Constitutional to use this information in determining access.
Take a look at Undocumented Students, DACA, and the Law: Key Legislation for a closer look at some of the limitations or exceptions to FERPA and how they might impact your privacy as an undocumented student.
- The right to attend public school regardless of your residency status As noted above, the 1982 decision of Plyler v. Doe gives you the right to attend public school — grades K-12 — without being asked to present proof of citizenship or other documentation indicating immigration status. These factors are not considered relevant to establishing district residency nor is it lawful to use these factors to limit or prevent access to education.
- The right to an education for students experiencing homelessness The McKenney-Vento Act of 1987 assured education rights to students who are experiencing homelessness, regardless of immigration status. This includes unaccompanied youth and creates certain exceptions that can improve access for students in this situation, including the right to enroll immediately without documentation, to attend a school even if temporary living is in another district, the right to transportation, and the right to attend school without documentation or evidence of legal guardianship.
The right of legal residency
In 2012, the implementation of the Deferred Action for Childhood Arrivals (DACA) policy created a new set of protections applying to younger undocumented immigrants meeting certain eligibility standards. Critical among those rights is a legal status of residency, which nearly 800,000 undocumented individuals have received since its inception. Among DACA’s benefits, undocumented students could now safely complete a Free Application for Federal Student Aid (FAFSA) and consequently receive a Student Aid Report (SAR). While you would not be eligible for federal financial aid, the FAFSA can prepare you to seek out state financial aid and scholarship assistants. DACA-recipients may also be eligible for certain institution-specific Dreamer scholarship programs. DACA can also qualify you for a work visa, and the right to earn a living and finance your education.
Unfortunately, DACA is currently the target of rollback efforts and its future is uncertain, as are the future rights of its recipients and prospective applications. At the time of writing, the federal government is accepting no renewals or new applications, though these rollbacks are being debated in the court system.
Check out Undocumented Students, DACA, and the Law: Key Legislation for a closer look at DACA and the ongoing changes surrounding it.
- The right not to be apprehended in a “sensitive location” Operating under the Department of Homeland Security (DHS), Immigration and Customs Enforcement does maintain a “sensitive locations policy,” which denotes that enforcement actions at sensitive locations “should generally be avoided.” Schools are considered sensitive locations, and under current ICE policy, any enforcement actions taken in such a place “require either prior approval from an appropriate supervisory official or exigent circumstances necessitating immediate action.”
The above policy, while not strictly binding, does underscore the value of affiliating with a college or university. Spending your time on, or retaining residence in, a college campus can provide you with an extra layer of protection against undue enforcement confrontations.
Know the Limitations on Your Rights
As noted in the section above on your rights as a student, your status as an undocumented resident may make you vulnerable to certain limitations. In addition to the general limitations outlined above — which may impede both your Constitutional rights and your rights as a student — there are other explicit limitations of which you must be aware.
In particular, undocumented students face a wide set of restrictions and barriers to access. Many of these barriers extend from The Illegal Immigration Reform and Immigrant Responsibility [PDF] (IIRIRA) Act, which was passed in 1996.
In addition to creating new obstacles to obtaining legal status, imposing harsher penalties on those who are charged with being in the U.S. illegally, and appropriating new funding for border security measures, the IIRIRA Act created explicit limitations on the rights of undocumented students. Among them, undocumented students:
- Are not technically eligible for in-state tuition rates at public colleges or universities,(though some states have found ways to skirt this limitation and offer in-state rates to undocumented students. See the section below for more).
- Are not eligible for federal financial aid, which includes both federal student loans and federal financial assistance.
- May not technically seek employment or receive work-related benefits without a work visa. Though some campuses may have state-funded work-study programs, you will face limitations on your ability to work in order to finance your education.
For more on navigating the IIRIRA and how it impacts your higher education opportunities, visit The American Immigration Council (AIC).
Know Your Rights in Each State
Some states have taken steps to counteract the barriers and limitations on your rights, including the passage of legislation helping undocumented students access public universities, receive in-state tuition rates, and qualify for state or institutional financial aid.
By contrast, some states have laws restricting educational opportunities, including denial of access to public universities and ineligibility for in-state tuition rates or financial aid.
According to the National Conference of State Legislatures, as of 2015, 16 U.S. states have created legislation allowing for undocumented students to pay in-state tuition rates:
- New Jersey
- New Mexico
- New York
In addition, decisions initiated through state Boards of Regents have created access to local tuition rates for undocumented students attending state university systems in:
The state of Virginia provides in-state tuition eligibility only to those undocumented students with Dreamer status under DACA.
Among those listed above, there are six states that currently provide both in-state tuition rates and access to state financial aid:
The following states have passed laws that explicitly prohibit undocumented students from receiving financial aid:
The following states have laws that prohibit undocumented students from attending public college or universities altogether:
DACA recipients have the right to attend any public colleges or universities in any state. However, statewide policy orientation toward undocumented students can be a strong indicator of the general attitude and legal treatment of immigrant populations in a given state. Use this indicator to make decisions about where you’ll pursue your education.
Know How to Protect Yourself
Know Your Rights
Knowing your rights is the first step when it comes to protecting yourself against discrimination and undue enforcement actions. In addition to the rights and limitations outlined here above, the American Civil Liberties Union offers some specific advice on asserting and assuring your rights during encounters with local law enforcement or immigration authorities.
Always carry the proper supporting documentation
If you are here as a legal immigrant with citizenship status, it is advisable that you carry supporting documents at all times, such as a passport or state-issued identification. If you are a legal resident without citizenship — either through your DACA-status, a student-visa, or another form of temporary visa — be sure to carry all affiliated documents on you at all times, especially when off campus. Also be sure to keep copies of these documents safely stored in your place of residence.
Have an emergency contact
Designate a friend or relative as your emergency contact if you ever find yourself faced with a challenge to your freedom, residency, citizenship, or status as a student. Make it a trusted person with full and legal citizenship so that you have an advocate with access to your supporting documentation, funds, and contact list in the event that you are ever detained.
Avoid Border Travel
Avoid traveling within 100 miles of the U.S. border, where the authority of Customs and Border Protection allows it to supersede certain Constitutional protections in its engagement of those suspected of illegal immigration.
Cooperate Within Your Rights
You have the right to assert yourself regarding protection against illegal interrogation, searches, seizures and other violations of your Constitutional rights. However, it is never advisable to resist enforcement actions, threaten officers with complaints, or become aggressive with immigration agents. When enforcement actions violate your rights, take mental note of every action and prepare to file your complaint in the aftermath of a confrontation. Do not attempt to challenge police officers or immigration agents in a field setting. This could worsen your potential outcomes and even endanger your life.
Know Who To Call
While you should never challenge a law officer or immigration official in the midst of a confrontation, there are agencies and advocacy groups that can provide support, guidance, and financial assistance in the aftermath of discrimination or a violation of your rights. If you have been subjected to discrimination, your Constitutional rights have been violated by enforcement personnel, or you or a loved one are facing detention, deportation or other legal actions related to your immigration status, consult the support outlets below. Each of these could be a critical resource as you work to protect, preserve and even expand upon your rights as an immigrant or undocumented student.
Government Agencies and Offices
- The Office of Civil Rights (OCR) is the division of the Department of Education responsible for providing support, guidance, and advocacy to students seeking protection from exclusion or raising charges of discrimination against an educational institution.
- The Family Policy Compliance Office navigates issues and complaints related to the The Family Educational Rights and Privacy Act (FERPA), which concerns privacy and information sharing.
- The Student and Exchange Visitor Program (SEVP), part of the National Security Investigations Division, oversees the various standards and regulations surrounding the arrival of non-immigrant students in the U.S. and largely applies to individuals seeking or holding a student visa.
- Immigration and Customs Enforcement (ICE) has a multilingual hotline (8–888-351–4024) that you can call if you or somebody you know has been wrongfully detained. Use this for information regarding the whereabouts of individuals who have been detained, separated from family, or deported but be wary of both the bureaucratic challenges of navigating ICE and of its agency-wide prioritization of enforcement over support.
- The Refugee and Immigrant Center for Education and Legal Services (RAICES) raises money for the legal defense of undocumented and immigrant families, and has taken a particularly important role in confronting the family separation and related civil rights violations occurring at the U.S.-Mexico border.
- The American Immigration Council (AIC) promotes education, advocates for judicial protections, and advances cultural exchange around immigration issues and needs.
- The DREAM Education Justice Program, sponsored by United We Dream, provides education-specific support for Dreamers.
- The American Civil Liberties Union (ACLU) remains one of the leading resources for information, support and guidance in matters concerning Constitutional violations, institutional discrimination, and other practices or policies resulting in unequal treatment.
Return to the Undocumented Students Guide to Online College for more tips, resources, insights as you navigate the dual challenges of America’s shifting immigration policies and your own educational ambitions.
And if you’re truly interested in better understanding and helping to improve America’s immigration laws, check out the following degree options and build a career in support, advocacy, or policy reform: