Should undocumented migrants be allowed to sue government entities?

Immigration Impact

Fact Box

  • In the fall of 2021, President Biden said the administration was considering $450,000 payouts to migrants who sued in 2018 for being separated from their families at the southern border after attempting to cross into the country unlawfully.
  • The US Constitution gives undocumented immigrants a few “basic rights, such as the freedom of religion and speech, the right to due process and equal protection under the law” but they can depend on various court laws as well. 
  • There have been disputes between Democrats and Republicans about the terms used to refer to migrants who enter America illegally. Once commonly referred to as “illegal immigrant” or “alien,” the Biden administration ordered US immigration authorities in 2021 to replace those terms with “undocumented noncitizen.” 
  • US Customs and Border Protection reported the number of migrant apprehensions at 154,998 in February 2023. The rate of migrants has decreased 1.1% since January’s 156,770 encounters. 
  • A February 2023 Gallup poll found that 63% of respondents were dissatisfied with US immigration overall, with a large majority of that group wanting decreased levels of immigration.

Andrew (Yes)

Documentation status is not a barrier to an individual taking legal recourse for a wrong done to them, even by a government. If the state damages an individual, whether through policy or otherwise, they must be able to seek recourse through the normal legal channels. While this will likely prove tricky for those without visas, denying justice based on immigration status is fundamentally inhumane. Further, it is possible for foreign citizens to sue foreign governments, so immigration status is essentially irrelevant. This is especially important in an era when the United States government has repeatedly treated migrants as less than human. One's rights and essential humanity do not change based on whether or not they have a visa.

Many cases that may be brought by undocumented people against the United States government will highlight glaring and profoundly inhumane problems with our immigration system. Many of these problems may not make it into the public eye if these cases are not tried and discussed publicly. Allowing undocumented immigrants to sue the government is no guarantee that they would win; an impartial court would weigh issues of constitutionality and issue fair judgments.

Finally, we must address the reality that undocumented people will always live among us in the United States. Any system that separates people into classes and allocates rights accordingly is not only unjust, but unstable. And our nation is worse off without a robust and fully functioning immigration system that treats everyone equally under the law. We must work to bring undocumented individuals out of the shadows and incorporate them into society fully, which means allowing access to our justice system. 

Luke (No)

The United States is a sovereign country and therefore does not submit itself to any person, institution, or foreign power. As such, the US has the right to deport any person that has entered the country illegally, even if that person is attempting to take up a lawsuit against the US government. In effect, this ability of the government to deport illegal aliens and being unobligated to submit to any other legal system effectively nullifies the ability of these illegal immigrants to sue the government. 

Due to a relic from English Common Law, phrased in Latin as 'rex non potest peccare' ('the king can do no wrong'), the US government may only hear the cases it subjects itself to. When it comes to illegal immigrants, no law nor official policy exists that places the US government in a position to be sued by illegal aliens. Allowing illegal immigrants to sue the government ties up the legal system and associated resources. Allowing such activity also encourages more illegal migration, potentially increasing the desire to commit fraud in an attempt to sue and win in court against the US government.

Finally, there is a maddening level of hypocrisy for a non-citizen to enter a country illegally and then expect to use that very system of law they have utterly ignored until that point to demand payment from the government. In a fair society, that would be seen for what it is—unjust—and would instantly discredit such suits and appeals. As the US government is not legally required to hear cases from illegal immigrants who have broken our laws and because such action would drain American legal resources while also encouraging unlawful border crossings, illegal immigrants should not be allowed to sue government entities.

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