The key elements of a successful immigration policy

The United States Congress – both the Senate and the House – has had regular hearings on immigration matters during the month of March. The Democrats and Republicans finally seem as if they may be able to reach an accord on immigration policy – after nearly a decade of impasse.

When it is time to sit down and write immigration policy in the United States, legislators would do well to pay attention to international human rights standards. After all, a central goal of US foreign policy is to promote human rights around the world. The United States can turn that moral compass inward and look to international standards when it reforms immigration policy.

Four human rights violations in US immigration policy

There are four key human rights violations embodied in US immigration policy and practice: 1) The right to form a family; 2) the right to due process; 3) the right to freedom from arbitrary detention; and 4) the right to not experience cruel or unusual punishment. These rights are enshrined both in human rights treaties that the United States has signed and ratified, as well as those to which the United States is not party.

The US government has ratified the International Covenant on Civil and Political Rights (ICCPR), the Convention on the Elimination of All Forms of Racial Discrimination (CERD), and the Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment (CAT). It has signed, but not ratified, the American Convention on Human Rights (ACHR). Finally, as a member of the Organization of American States (OAS), the United States is party to the American Declaration on the Rights and Duties of Man (The American Declaration). All of these documents contain provisions applicable to the treatment of immigrants.

The United States is well-known for its refusal to sign human rights treaties. Even when it does sign and ratify them, it does with a provision that they are not self-executing – meaning that they are not enforceable within the United States. Nevertheless, when the United States signs a treat, this implies a commitment to the treaty’s principles. We can thus use international human rights standards to evaluate US immigration policies.

The Right to Form a Family

The right to form a family is a fundamental aspect of human rights doctrine. The ICCPR states in Article 17 that no one shall be “subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence,” and in Article 23 that “the family is the natural and fundamental group unit of society and is entitled to protection by society and the state” and that all men and women have the right “to marry and to found a family.” The right to found a family includes the right “to live together.” Article 6 of the American Declaration states:  “Every person has the right to establish a family, the basic element of society, and to receive protection therefrom.” The forced separation of US citizens from their families through deportations is an example of how the right to form a family is violated. Deported parents often leave children behind. Spouses face the choice of giving up their homeland or losing their marriage. Deportation forces US citizens to choose between their right to family unity and their right to remain in this country.

Any state has the right to deny entry for reasons of national security, yet many people have been denied entry to or removed from the United States on the basis of fairly minor infractions.

US laws even permit the deportation of citizens of countries to which they have no family ties. Colourlines reported on the case of Natalia, who is a citizen of Haiti because her mother is Haitian. Natalia has never stepped foot in Haiti. She was born in the Bahamas and moved to the United States when she was two days old. The United States became her adopted home. Yet, as a Haitian citizen, she faced deportation to Haiti after violating the terms of her visa in the United States.  When Natalia was twenty years old, she was caught shoplifting. Her attorney advised her to plead guilty to get a lesser sentence, and she did. However, her conviction rendered her deportable, to Haiti, even though the United States is the only country Natalia has ever known; her mother, child, and siblings live in the United States; she has no relatives in Haiti; and she does not speak Haitian Creole. Natalia’s deportation to Haiti is one of many examples of the egregious human rights violations created by US deportation policies. The implications of these human rights violations become more serious when we also take into consideration the long and ongoing history of US military and economic incursions into Haiti.

The Right to Due Process

Immigration courts in the United States do not ensure the same due process protections as you find in criminal courts. People facing deportation often do not have any opportunity to present equities in their favor. When a non-citizen is convicted of an aggravated felony, he or she faces mandatory deportation. The lack of procedural protections in immigration cases conflict with human rights doctrines which state that states should provide such protections to non-citizen residents.

Article 13 of the ICCPR states that:

An alien lawfully in the territory of a State party to the present covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except when compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority. 

In addition, the American Convention on Human Rights states that:

Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent and impartial tribunal, previously established by law.

The absence of judicial review in deportation hearings of legal permanent residents accused of aggravated felonies violates these treaties, both of which have been signed by the U.S. government.

In a groundbreaking case, the Inter-American Commission on Human Rights (IACHR) concluded in July 2010 that the United States stands in violation of Articles V, VI, VII, XVIII, and XXVI of the American Declaration. The decision specified that:

It is well-recognized under international law that a Member State must provide non-citizen residents an opportunity to present a defense against deportation based on humanitarian and other considerations … Each Member State’s administrative or judicial bodies, charged with reviewing deportation orders, must be permitted to give meaningful consideration to a non-citizen resident’s defense, balance it against the State’s sovereign right to enforce reasonable, objective immigration policy, and provide effective relief from deportation if merited. The United States did not follow these international norms in the present case.

The IACHR found that the United States’ decision to deport Hugo Armendariz and Wayne Smith, both long-term legal permanent residents, of the United States was in violation of international standards insofar as Armendariz and Smith did not have the opportunity to present evidence of their rehabilitation, their family ties, or other equities in their favor. As legal permanent residents convicted of aggravated felonies, Armendariz and Smith were not granted judicial review of their deportation orders. In addition to violating their right to establish a family, their deportation violated the rights of their children to special protections. The best interests of their citizen children were not taken into account. The IACHR recommended that the United States “implement laws to ensure that non-citizen residents’ right to family life, as protected under Articles V, VI, and VII of the American Declaration, are duly protected and given due process on a case-by-case basis in US immigration removal proceedings.” The United States asserted its right to sovereignty and has not resolved to change immigration laws on the basis of this decision.

The Right to Seek Asylum

By granting asylum to non-citizens with a well-founded fear of persecution, the United States is in line with international human rights doctrine. However, the United States stands in violation of human rights doctrine with its policy of mandatory detention of asylum seekers.

When asylum seekers arrive into the United States, their detention is mandatory under provisions of the 1996 laws. An asylum seeker can subsequently be released on parole. However, this decision is not made by an independent judge, but by local ICE officials. The decision as to whether or not an asylum seeker will be granted parole is made by the same body that detains them. ICE plays the role of both judge and jailer. In 2007, only 4.5 percent of parole requests were granted.

Article 9 of the ICCPR states: “Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.” It further states: “Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.” The mandatory detention of asylum seekers and the lack of an independent parole review are in violation of these statutes.

The Right to Not Experience Cruel or Unusual Punishment

The US Constitution as well as several international treaties provide that no one shall be subjected to torture or cruel or unusual punishment. These treaties include Article 7 of the International Covenant on Civil and Political Rights (ICCPR), and the Convention Against Torture and Other Cruel or Inhuman or Degrading Treatment or Punishment (CAT). Article 7 of the ICCPR states: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”

Francisco Castañeda was 35 years old when he entered ICE custody in March 2006, after spending four months in prison on a drug charge. He had come to the United States from El Salvador when he was ten years old. At the time of his detention, he had a 14-year old US citizen daughter. While he was detained, Castañeda complained to ICE officials of painful lesions on his penis. He was sent to specialists, each of whom determined that he needed a biopsy to tell whether he had penile cancer. The US Public Health Service and the Division of Immigration Health Services, however, denied him the biopsy, on the grounds that it was an elective procedure. Despite excessive bleeding, he was given only ibuprofen for pain. After suffering in custody for eleven months, he was released and went to the hospital. In February 2007, he was diagnosed with penile cancer and had nearly his entire penis removed. Although he received chemotherapy upon his release, Mr. Castañeda passed away on February 16, 2008, leaving his daughter fatherless.

US District Judge Dean Pregerson argued that ICE officials’ alleged withholding of the necessary tests and treatments for Castañeda’s extreme pain was “beyond cruel and unusual” punishment, and that this was a “textbook case” of what cruelty looks like. Denials such as these of medical treatment to detainees abound, indicating that migrant detainees often face cruel and unusual punishment.   

It is common to hear arguments that the United States should stop being policeman of the world. How can the United States expect for other countries to hold to international standards when it fails to do so?

It is time for the United States to take a close look at international standards for immigrant rights and to implement those standards into its immigration policies.

Tanya Golash-Boza is an Associate Professor of Sociology at the University of California, Merced. She is the author of: Yo Soy Negro Blackness in Peru, Immigration Nation: Raids, Detentions and Deportations in Post-9/11 America, and Due Process Denied: Detentions and Deportations in the United States. She blogs at: http://stopdeportationsnow.blogspot.com.

You can follow Tanya on Twitter @tanyagolashboza