The US Constitution does not include a right to freedom of movement, there is therefore no written definition of this right. Migrants are entitled to the fundamental protection of the US Constitution. The rights of migrants have been subject to interpretation by the US Courts who have defined the parameters of those rights. For example, in the case of Reno v Flores, in 1993, a class action challenge to the immigration detention of children, the Supreme Court emphasised the importance of the right to liberty of children.

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The US Constitution does not include a right to freedom of movement, there is therefore no written definition of this right. Migrants are entitled to the fundamental protection of the US Constitution. The rights of migrants have been subject to interpretation by the US Courts who have defined the parameters of those rights. For example, in the case of Reno v Flores, in 1993, a class action challenge to the immigration detention of children, the Supreme Court emphasised the importance of the right to liberty of children. They also scrutinised the detention of children by the Immigration and Nationality Services (now known as the Bureau for Citizenship and Immigration Services), and subsequently the US Government drafted the Flores Agreement, which sets out safeguards to be applied when immigrant children are detained (see 8.7- Children and Migration).

In the case of Zadvydas v Davis, in 2000, the Supreme Court of the US found that immigrants subject to removal proceedings could not be detained indefinitely under the US Constitution if there was no prospect of removing them from the country. They found that habeas applications could still be filed to challenge detention. They determined that by law at that time immigrants could only be detained for as long as reasonably necessary to effect their removal therefore if there was no prospect of removal continued indefinite detention was not authorised. They stated that indefinite detention would raise serious constitutional issues.

In the case of Calcano-Martinez v INS in 2000, the Supreme Court ruled on the exclusion of direct review of administrative removal decisions under the Illegal Immigration Reform and Immigration Responsibility Act of 1996 for persons who have committed “aggravated felonies”. They found that leaving immigrants without a forum to adjudicate their claims in such situation raised important constitutional questions and therefore interpreted the provision as not precluding habeas applications in the District Court as a forum of review.

In the 2002 case of Hoffman Plastic Compounds v National Labour Relations Board relating to an irregular migrant worker, the Supreme Court found that the National Labour Relations Board (NLRJ) was not entitled to award back-pay to an irregular migrant dismissed from his position due to taking part in a union organised campaign. They stated that to allow the NLRJ to award back pay to the applicant who entered the country irregularly would be to “unduly trench upon specific statutory prohibitions critical to federal immigration policy”. They also stated that to do so would encourage the evasion of immigration authorities, condone violations of immigration law and encourage future violations.

Analysis provided by: Anisa Niaz LLM (Public Law), United Kingdom.

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