1. Introduction
The inclusion of an individual in the constitutional definition of the "people" is a political choice, frequently legitimized on the basis of national ties and citizenship status. Because access to rights is mediated by a person's relationship with the demos, within the nation issues of discrimination are inextricably linked to issues of citizenship.
Control of the demos—the people of a nation—is a central mechanism for articulating the national interest. However, the multiple tangible and intangible violences of exclusion—ranging from the inability to vote, to receive a fair trial, and to freely express one's ideas—raise the following question: is national interest a legitimate justification for regulating access to rights, including the denial of fundamental rights to non-citizens?
In light of Hannah Arendt's arguments on Human Rights (external link), this article will explore US jurisprudence regarding the understanding of who holds legitimate access to the rights guaranteed in its Constitution, in order to analyze the Trump administration's aggressive immigration policy and the growing threat to the fundamental rights of non-citizens. Access to fundamental rights, which is being fiercely debated in court following executive orders with drastic implications, demonstrates the vast discretionary power of the nation to regulate immigration processes and non-citizens' access to rights within its borders.
The aim of the present study is to understand how constitutional jurisprudence in a democracy exerts a major impact on the fundamental rights that migrants are able to access. Proceeding from the current anti-immigration agenda in the United States, this article seeks to explore the dangers of an ultranationalist constitutional reading that denies non-citizens fundamentally human rights, such as the right to freedom of speech and due process of law, discriminating against them by virtue of their legal status and violating fundamental tenets of its own humanist constitutions.
2. Humanist constitutions: the relationship between human rights and citizenship
From a national perspective, citizenship is one of the highest expressions of human recognition. The justification of which individuals are inextricably entitled to prosperity and fulfillment is necessarily linked to the recognition of their humanity. One can attest to this fact by reading the opening lines of many constitutions around the world. To a certain extent, they echo the notion of human rights that originated with the Declaration of the Rights of Man and of the Citizen (1789), an outcome of the French Revolution.
In addition to influencing the constitutional provisions of more recent countries such as Zimbabwe, India, and Brazil, nations such as Portugal, Romania, and Spain require their courts to interpret domestic laws in light of the Universal Declaration of Human Rights (Hannum, 1998), which states in its iconic opening line: “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood” (ORGANIZAÇÃO DAS NAÇÕES UNIDAS, 1948).
By aligning the moral force of the Declaration with the state power conferred by the Constitution, the modern conception of citizenship was able to recognize and confer human rights upon its members, being framed as a highly optimistic egalitarian mechanism. Citizenship, however, had a limitation: its protection extended these rights only to those who were legally recognized as members. These members had to be able to exercise their political duties, claiming a stake in national sovereignty through voting and receiving its benefits through the rights and protections conferred.
With citizenship being a central feature of social life on the national landscape, Bloemraad (2004, p. 390) highlights how “[t]he desire for full citizenship has animated the struggles of the working class, women, and ethnoracial minorities who seek the same rights and legal standing as their fellow countrymen.” In this system, an individual's human qualities and capacities are recognized to the extent that these human rights are conferred by the state.
The Fourteenth Amendment to the United States Constitution expresses similar egalitarian principles:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. [...] nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws (Legal Information Institute, n.d.).
Similarly, France recognizes the equality of all citizens: “France [...] shall ensure the equality of all citizens before the law, without distinction of origin, race or religion” (FRANÇA, 1958). Both constitutions recognize the principle that all human beings are equal in dignity and rights and must be treated as such by the state. These nation-states believe in and uphold principles that are universal and intrinsic to the human being (and therefore apply them indiscriminately to all their citizens), but these principles do not apply equally or obligatorily to foreigners, to all immigrants, and at times even to refugees, even though they are also human beings. Thus, there is a fundamental conceptual contradiction in granting citizenship and equal rights to “all” (nationals) on the grounds of the undeniable and indisputable legitimacy of universal and intrinsic human rights, while not granting them to all individuals (also human beings) by reason of their nationality or legal status.
In establishing the foundations of international human rights law, this morally and diplomatically reinforced document became the first cornerstone for universal human rights to be recognized and applied by nation-states in their domestic and international stances (Aleinikoff; Klusmeyer, 2001). According to this body of treaties, all human beings—all citizens, regardless of country of origin—are equal and hold the same stipulated rights. This is not what we observe in reality.
Although we are all members of the “human” community, under the conceptual, perhaps moral, jurisdiction of human rights, there is no global supreme political actor capable of arbitrating on behalf of its human members, as in a membership acquired by birth from another human being. This “human” jurisdiction lies far more within the realm of the “ought to be” than within the realm of the “is” of the legal order: the logic of the nation-state, alongside the category of citizenship, governs the legal domain and cannot afford to overturn the pact of sovereign exclusivity—what makes nation-states nation-states, according to Schmitt (2006)—in the name of a humanist utopia.
Hannah Arendt (1958) vehemently criticized the paradoxical discourse of human rights, which was believed to be an inherent right of every individual within a conceptual utopia, but which, in reality, remained rooted in and dependent on the nation-state for its realization. “Human” rights, such as the right to life, freedom from torture, freedom of expression, health, and quality of life, are intrinsically bound to the nation-state system.
Access to these rights can only be granted through citizenship, since the sovereign nation governs the norms mediating access to these rights through it. Therefore, as citizenship mediates an individual's relationship with rights such as freedom and mobility, one can conclude that individuals possess no de facto rights outside the context of their citizenship and its specific contingencies. The individual only has access to rights, and only to those conferred by the membership acquired by birth, blood, or naturalization.
3. Human rights or national rights? Hannah Arendt in The Origins of Totalitarianism
Arendt (1958) argues that the modern nation-state consisted of the merger of two previously distinct elements: nationality, a modern construct; and statehood, which is rooted in the ancient traditions of the monarchical regime. This merger, however, compromised the role of the state as an instrument of law, converting it instead into an instrument of the nation:
The tragedy of the nation-state was that the people's rising national consciousness interfered with these functions. In the name of the will of the people, the state was forced to recognize only "nationals" as citizens, to grant full civil and political rights only to those who belonged to the national community by right of origin and fact of birth. This meant that the state was partly transformed from an instrument of the law into an instrument of the nation. The conquest of the state by the nation was greatly facilitated by the downfall of absolute monarchy and the subsequent development of new classes (Arendt, 1958, p. 230).
Without the king, sovereign over all inhabitants regardless of their culture and language, the modern nation-state relied on the common origin of the people as a sufficiently strong bond among the citizens of a common political entity. The state needed to be strengthened by nationalism so that other internal struggles, such as class conflict, would not override its self-proclaimed sovereignty. Therefore, Arendt vehemently criticizes the nation-state's model of citizenship as a perversion of the state to serve the interests of this fabricated “nation.”
Furthermore, Arendt identifies a fundamental contradiction at the core of the modern nation-state: the French Revolution's simultaneous proclamation of universal human rights and national sovereignty. In her words, “the same nation was at once declared to be subject to laws, which supposedly would flow from the Rights of Man, and sovereign, that is, bound by no universal law and acknowledging nothing superior to itself” (Arendt, 1958, p. 230).
Therefore, the nation-state was morally grounded in the universal principles of human rights: its raison d’être lies in the commitment to protect these natural rights of man. The systemic logic of the nation-state, however, could not afford to fulfill this paradoxical promise, no matter how morally binding the argument in defense of the Rights of Man might be. Although it had legitimized its existing system through the protection of these rights, its sovereignty is based on exclusion and the distinction between citizen and non-citizen (Schmitt, 2006).
In practice, Arendt criticizes how human rights are applicable only to the extent that they are national rights. The sovereignty of the nation-state, the “national soul,” is, by definition, beyond and above the law. She called this political organization a state of legalized and lawless arbitrariness. Nationalism represented the perversion of the state into an instrument of the nation, responsible for artificially equating citizenship with national belonging in order to serve the purposes of an equally artificial nation.
Arendt cites the case of native citizens and their sense of superiority compared to naturalized citizens. For her, the means of granting citizenship, whether by birth (of the nation) or by law (of the state), carry different socio-political weight and demonstrate the prevalence of sovereignty and common origin over the law itself.
4. The migration issue and the animalization of the Other
According to Rodriguez-García (2010), while classical immigration countries, such as the United States, Canada, and Australia, have a self-image of continuous evolution and nation-building, European nations often imagine themselves with predetermined ethnic borders and a fixed sociocultural core to which newcomers must adapt in order to belong.
This is why nations such as Italy, Germany, Poland, Sweden, and Japan have a strong principle of jus sanguinis, privileging lineage and blood ties. However, even when mobility is welcomed, it comes at the price of assimilation and the preservation of the host countries' “civilizational” character.
In present times, however, the fear of the foreigner has grown to such an extent that assimilation is no longer enough, given that it is impossible to receive the millions of migrants the country needs without the nation itself being organically altered by their presence, identities, and interests. Even “classical immigration countries” are adopting stricter and more violent immigration policies.
In Australia, Operation Sovereign Borders was launched in 2013 to deter asylum seekers arriving by boat, under a zero-tolerance policy toward illegal maritime arrivals (AUSTRÁLIA, 2025). In 2025, the Canadian government announced investments of 1.3 billion dollars to strengthen border security, deploy drones, install surveillance towers, and accelerate deportations. In the United States, another country of immigration, Trump's selection of desirable immigrants clearly exemplifies how extreme migration policies are justified by the fear of the other.
As Isin and Rygiel (2007) observe, detention centers and camps are spaces aimed at suspending host countries' national obligations regarding human rights and international treaties, creating legal limbos that deprive individuals of their inherent rights and, ultimately, of their humanity. In addition to the dehumanization promoted in these spaces of violence, the “animalization” of the migrant also prevails in political discourse. It complements the physical violence of detention spaces with a conceptual theorization of the non-citizen that justifies and legitimates the violence used against them.
There is an imaginary that associates illegal immigration—and, in more extreme political scenarios, any type of immigration—with potential criminality. In Trump's words, “we have people coming into the country, or trying to come in, we're stopping a lot of them [...]. You wouldn’t believe how bad these people are. These aren’t people. These are animals” (Korte; Gomez, 2018).
In this rhetoric, other communities outsource their “bad” people and send potential criminals to the host country. According to this logic, precisely because they “break” the law by immigrating illegally, these populations display a potential inclination toward criminality, which, in extremist and populist discourses, is quickly generalized. By adhering to this criminalizing discourse, it is possible to align the national interest with the general population's interest in safeguarding their lives, liberties, and property from these potential “threats.”
The logic of the nation-state draws a rigid line between insiders and outsiders, even though many political communities arose from random aggregations of diverse ethnic groups from different places. When this line is imposed, a legal and political division is created: the individual who migrates has their rights diminished solely on the basis of blood ties and/or birthplace. For example, the Cruel and Unusual Punishments Clause of the Eighth Amendment to the United States Constitution applies to foreigners after they are convicted of a crime in the country.
However, it does not apply to the detention or deportation process of immigrants, as these are not considered punishments and also because immigrant detention operates under civil, rather than criminal, law. Among the circumstances that would be illegal in the case of citizens are: “immigrants can be detained indefinitely; there is no federal right to legal representation for detainees; and most immigrants do not have the right to government-appointed counsel” (Saadi et al., 2020). The power of the legal understanding of what the migratory process is can easily grant as well as remove fundamental protections provided for in the Constitution.
The animalization of the foreigner further distances them from the empathy of citizens and helps morally justify why they do not have the same access to rights. However, as Arendt (1958) points out, such dehumanizing policies against non-citizens foreshadow dangerous futures for everyone. She highlights how totalitarian regimes usually prey upon the most vulnerable populations, such as ethnic and religious minorities, and rapidly erode the rule of law for large segments of society. There are many overlapping identities that unite foreigners, undocumented immigrants, and “legitimate” Americans, most of them linked to cultural ancestry, language, and race.
As soon as one of these categories is targeted, this can quickly escalate into a restriction of the rights of American citizens who speak another language, who have facial features indicating ancestry associated with migrants, or who participate in cultures and communities that are not strictly tied to the classic American identity in the United States. There are signs that this escalation is already underway in Trump's United States.
5. United States migration policy: rights for whom?
According to the Deportation Data Project, as of May 2025, more than 40% of individuals arrested by Immigration and Customs Enforcement (ICE) had no criminal record (Romero; Garcia; Esposito, 2025). Initially, Trump’s rhetoric was similar to Barack Obama’s: going after the worst of the worst (Rampell, 2026). In this sense, it was rhetorically more effective and morally less questionable to wage a war against illegal immigrants who had been convicted of serious crimes or had been involved in criminal activities.
Among Trump’s primary deportation priorities, we find "anyone who has committed an act for which they could be charged, even if they haven't been charged yet" (NPR, 2017). The entire state apparatus designed to hunt down criminals who are foreignersquickly turned into a hunt for foreigners who have the potential to become criminals.The issue then becomes one of framing criminality, as in the case of increased deportations for speeding violations.This reasoning, therefore, creates a gray zone that allows the state’s police power to become even more discretionary in its processes.
By trading justice and due process for deportation efficiency, the government not only compromises the rights of "foreigners" within its territory, but also demonstrates how quickly the rights of other groups can be sacrificed for the sake of the efficiency of its police power. In this regard, one can cite the recent Supreme Court decision that overturned an injunction preventing federal agents from detaining individuals solely on the basis of their race, language, profession, or location, effectively legalizing the practice of racial profiling (Rahman, 2025).
Noem v. Vasquez Perdomo(2025) granted even greater discretionary power to ICE agents, who can now stop and investigate individuals based on the language they speak or the phenotypic traits they exhibit. This justification prioritizes the national security agenda and has enabled active discrimination grounded in predominantly racial and xenophobic premises. What does a legitimate American look and sound like?
At least in theory, citizenship in the United States is not contingent upon bloodline, race, or color, given that it is a multicultural and multiethnic nation. The ruling in Noem v. Vasquez Perdomo not only sets dangerous precedents for racial profiling, but also allows for the erosion of American citizenship by conflating it with "Americanness," which cannot be fully fixed in time or space and is relative among the many communities that constitute the country.
According to the International Rescue Committee (2025), in U.S. jurisprudence, "it is currently unclear what due process rights noncitizens with final deportation orders have before being removed to third countries." Deportations to third countries, also practiced in Australia under the name of offshore deportation, enable significant human rights violations, including the denial of due process and the violation of the principle of non-refoulement (ORGANIZAÇÃO DAS NAÇÕES UNIDAS, 2018) for refugees and asylum seekers.
Such practices expose migrants to torture and enforced disappearance—all without the possibility of challenging arbitrary and unlawful detention. Therefore, legal immigration exceptionalism in the United States, driven by the strong appeal to sovereignty in the new ultranationalist agenda, constitutes a mechanism through which national authority supersedes the collective understanding of constitutional (human) rights. Loopholes in the law, when stretched, allow such excesses to become possible.
However, as foreseen by Arendt, an increasing number of American citizens are affected by this heavy-handed immigration agenda: three American citizen children were deported to Honduras alongside their undocumented mothers, Latino individuals were stopped and arrested despite possessing proof of citizenship, and a Puerto Rican military veteran was detained after presenting valid identification (Paúl, 2025). According to ProPublica, more than 170 incidents involving the unlawful detention of citizens occurred during the first nine months of Trump’s second term (Foy; Maney, 2025).
The government’s response—denial—is consistent with the lack of data on how many citizens are wrongfully detained each year. In the words of the Department of Homeland Security, "we don't have data to provide on the deportation of U.S. citizens because we do not deport U.S. citizens" (Paúl, 2025). Who can oversee the unbridled power of the government when the category of citizenship is being shaped and instrumentalized to pursue dangerous interests? Is this not precisely what sovereignty, at times discretionary in its immigration powers, allows? Having due process (and, by logical extension, fundamental human rights) restricted to a specific group should also alarm other segments of the population, as it reveals the ease with which fundamental protections can be selectively stripped away, as well as the fragility of the boundaries of formal inclusion in the nation’s demos.
6. Constitutional Jurisprudence, Definition of the Demos, and the Rights of Non-Citizens
The scope of the provisions referring to the "people" in the First, Second, Fourth, Sixth, and Fourteenth Amendments is contentious ground when defining whether the U.S. government must (or willingly does) grant certain protections to non-citizens (Hayward; Vile, 2023). For this discussion, it is worth examining AAUP v. Rubio.The 2025 case raises the question of who the "people" protected by the First Amendment are. The lawsuit alleged that non-citizen students and faculty at American universities were being targeted for arrest, detention, visa revocation, and deportation solely on account of their political expression or association, particularly when expressing pro-Palestinian or anti-Israel views.
The government invoked the power conferred by the Immigration and Nationality Act (1952) to initiate deportation proceedings against any non-citizen who might compromise a significant foreign policy interest. In a victory for lawful non-citizens, the ruling determined that those legally present in the U.S. are entitled to the same free speech protections as citizens, since "no law abridging freedom of speech" means "no law." The decision, however, left millions of undocumented Americans beyond the reach of this fundamental protection of democratic participation and individual freedom.
While the government’s discretion in immigration matters was restricted regarding the group of legal residents, the selection of who can become one has come to depend more heavily on ideological views. Now, under the justification of preventing the entry of those "who pose a threat to U.S. national security," applicants for F, M, or J nonimmigrant visas are required to make their social media accounts public (ESTADOS UNIDOS, 2025).
As seen in AAUP v. Rubio, the claim of national security as a blanket justification for the detention and removal of unwanted migrants, especially in the context of ideological opposition to the administration’s agenda, is also being deployed as a form of preemptive screening of unwanted migrants. When the reading of the First Amendment is limited to citizens, such formal exclusion from the demos effectively attempts to annihilate the migrant as a legitimate actor in the public sphere and as an equal in rights based on fundamental principles tied to their inherent humanity.
In this regard, the emblematic case of Mahmoud Khalil raises questions not only about the right to free speech for foreign nationals, but also about their right to due process. The Columbia University graduate student and lawful permanent resident, married to a U.S. citizen, was arrested by ICE (U.S. Immigration and Customs Enforcement) on the grounds of posing an ideological danger due to his pro-Palestinian activism. His arrest, which took place while he was in a university residence hall, was carried out without explicit criminal charges—which, under the invoked Immigration Act, is not required to validate arrest or deportation.
The wave of terror that followed the "kidnapping" was not restricted to Khalil, but also involved other pro-Palestine students and legal residents, such as Rumeysa Öztürk. This policy impacted both illegal and legal foreign nationals, who feared being abducted by ICE agents with covered faces and facing opaque arrest and deportation proceedings. The lack of due process for individuals, whether legal or illegal, is essentially violent, revoking legal visas and arresting documented individuals without any charges beyond ideological motivations. This impedes access to a fair and transparent trial and spreads terror throughout entire communities targeted for their ideologies, migratory status, and country of origin.
Although due process has been recognized in many cases as extending to non-citizens (see Reno v. Flores,1993), practice within the American immigration system has denied deportees rights such as the right to free legal assistance, guaranteed by the Sixth Amendment. Is legal representation not an essential part of an effective right to due process? (Bryant, 2025). This escalation in the deportation agenda has brought to light systemic contradictions regarding migration and plenary power, demonstrating that the legal mechanisms behind the wave of terror disseminated by ICE, visa revocations, and sudden deportations without the right to a hearing are symptomatic of a comprehensive system that discriminates on the basis of citizenship.
In an interview, Khalil recounted how he was abducted by “plainclothes agents in unmarked cars, who did not identify themselves, claiming to have an arrest warrant they did not present,” was held in indefinite detention alongside other deportees in cells under “terrible conditions,” and missed the birth and the first month of his child's life while detained (Fadel, 2025).
In short, “this is a human rights crisis,” as stated by the mayor of Chicago, who appealed to the United Nations Human Rights Council in light of “families separated by immigration raids” (Chicago, 2025). Cases such as Khalil’s demonstrate the harmful potential of such policies, rooted in an arbitrary interpretation at the service of nationalist interests that fails to consider the humanist principles that underpin and legitimize the entire system of U.S. governance—the ‘self-evident’ fundamental rights (National Archives, n.d.).
Here, the role of the Judiciary and the courts in exercising their power of judicial review (judicial review) is of great value in defining the lens through which such foundational amendments must be interpreted, possessing the potential, as in the cases of Reno v. Flores(1993) and AAUP v. Rubio (2025),to expand and rationalize the understanding of non-citizens' rights to such inalienable freedoms, which are so fundamental to the nation-building of the United States.
Final Considerations
Taken together, these points of analysis demonstrate an alarming pattern of human rights erosion when citizenship-based discrimination is permitted in a legal and virtually unrestricted manner. Much of the danger to which non-citizens are exposed stems from an interpretation—not only constitutional, but political—of who should be considered a rights-bearing subject entitled to state protections. The contradiction, however, lies in the fact that the very constitutional democracies that legitimize themselves through their humanist foundations are the same ones that instrumentalize the law to create zones of non-law, as in the case of migrants and non-citizens subjected to the discretionary power of national interest.
The denial of due process and the practice of arbitrary detentions for ideological reasons, exemplified by the case of Mahmoud Khalil, demonstrate that national security and sovereignty are frequently used as justifications to suspend fundamental guarantees. However, this erosion of rights is not limited to foreign nationals, as the selectivity of state protections ultimately weakens the rule of law and eventually impacts citizens themselves, as Hannah Arendt foresaw.
After all, the non-recognition of these fundamental rights by virtue of citizenship implies a non-recognition of equal status among individuals by virtue of their humanity, relegating migrants to a sort of “second-class humanity” lacking access to the full spectrum of fundamental rights. Dehumanization through legal means, such as in Trump's reinterpretations of fundamental amendments, shows how easily political narratives of the nation can create “others” and dehumanize them through an arbitrary exclusion from the demos and, consequently, from the scope of its “humanist” Constitution.
In sum, the immigration crisis in the United States highlights the paradox that so-called human rights hold real validity only insofar as they are conferred by citizenship, revealing the precarity of a system that still conditions human dignity on national belonging. Furthermore, as seen in the cases of Reno v. Flores(1993) and AAUP v. Rubio (2025), the present analysis underscored the crucial role of the courts in properly checking such discriminatory practices that are fundamentally contradictory to the principles of liberal democracy and to the Constitution that legitimizes it as a basic norm (Grundnorm).