Voices That Must Be Heard: Undocumented, But Still Have Rights
Gloria L. Ramirez
/ New York Community Media Alliance
According to Colombian-born immigration lawyer Mercedes S. Cano, a member of the American Immigration Lawyers Association (AILA), "The United States Constitution does not discriminate between those who have no papers and those who do. The Constitution says: 'We the people'; it does not say: 'We the documented people' or 'We the people born in the United States'. Based on this, every person living in this country has the right to the protection of the law, to urgent medical attention, to freedom from discrimination, to representation in a court of law, and to be addressed [by the authorities] in two languages (English and his or her native language, which is a federal law), among other rights."
An example of how workers in New York have rights and are protected even when they are undocumented is the case of the Dominican couple, Ramón Núñez, 83, and his 73-year-old wife Tomasina, who worked as grocery packers for approximately six and two years, respectively, at the Associated supermarket at 229 Knickerbocker Avenue, in Brooklyn, working nearly 12 hours a day and living off of nothing but the tips they got from the store's clients. The pair succeeded in winning a suit, along with their fellow workers and others from the "Pioneer" supermarket on Pennsylvania Avenue at New Lots, also in Brooklyn, for unpaid and unjust wages.
The suit, which was resolved to the benefit of 50 workers (many of them undocumented like the Núñez couple) and took four years (2005-2009), succeeded due to pressure from immigrants' rights groups like Make the Road New York, community organizations, and the residents of those neighborhoods. The total award to the plaintiffs was approximately $1,125,000, and according to the Núñez', their combined share came to $109,000.
"It's worth it to make the effort," says Ramón. "I brought the suit because it was my right. It is an obligation to demand one's rights, because every worker is worth his pay," he comments, to which his wife adds, "I recommend that every person who is working without being paid, the way we were, go to the Attorney General's office or to Make the Road New York because, other than God, those were the people who helped us."
Ramón and Tomasina are now U.S. citizens and are enjoying their retirement.
In New York, after 40 hours of work a week, the worker has the right to be paid the equivalent of the regular wage plus one-half of that hourly wage for work done beyond the 40 hours – and this applies whether or not the worker is documented. Undocumented workers, however, have no right to paid vacations, holidays or lunch hours (the employer gives them time for lunch, but does not have to pay for that time.)
Knowledge of these rights is essential to avoid abuses. According to Deborah Axt, an immigration lawyer and assistant director at Make the Road New York, "Many times, workers think they have no right to overtime pay because they are working by the piece (in the needle trades, for example), because they are working for a weekly wage or because they get tips at their jobs; low-income workers are almost always eligible for overtime pay whether they have papers or not."
In New York, all people, regardless of their immigration status, have the right to receive medical treatment in the city's public hospitals through the HHC Options program of the Health and Hospitals Corporation. This is a low-cost health care insurance program for people with low income. There is also an Emergency Medicaid program (which is temporary), to which the undocumented have access in case of a serious health emergency.
For children up to the age of 19 there is the free insurance program called Child Health Plus, which they can get if they live in the city, whether or not they were born in New York and whether or not they are documented. Pregnant undocumented women, adult or adolescent, can also access temporary medical insurance throughout their pregnancy and for a few months after they give birth.
Any person documented or not, has the right to get a receipt for rent paid from the place where he or she resides, and the right to a lease, heat, hot water, etc.
"Immigrants need to know that they have rights, that when they move into an apartment or a room and they pay for it, that place is their home. All tenants (documented or not) have the same rights as any citizen, and they do not necessarily have to have a signed lease; they only have to have proof that they live in that place," Cano points out.
The two lawyers agree that being well informed and organized is crucial in order to protect oneself as an undocumented immigrant, and to avoid abuses. "There are many rights that people don't know about. There are many protection recourses, and we have to use them, reinforce them and continue fighting collectively to improve them. The most important thing is to get organized and to remain united in order to have greater power and more influence," Axt emphasizes.
"Today, with 12,600 dues-paying members, MRNY is a unique amalgam of worker center, legal clinic, citizenship school, mutual aid society, policy shop, protest factory and church. Its four offices in Brooklyn, Queens, Staten Island and Long Island are an egalitarian oasis for members, who gather there for conversation and classes..."