I've been haunted all week by an immigration horror story. Maria is an undocumented immigrant living in the United States. She has five children, and as a single mother, works hard to support them. Last week, Maria learned that her oldest child, Jose, who is also undocumented, was picked up by Immigration and Customs Enforcement and placed in detention. Jose is eligible for release from detention, but ICE informed Maria's lawyer that they will release him only to the custodial parent, which in this case is only Maria. But if Maria goes in to let her child out of jail, ICE will arrest her and place her in removal proceedings, leaving her other four children without a parent. ICE tells her lawyer that this is their policy, and they've no discretion to act otherwise.
This lack of discretion is key to the overloaded immigration courts and burgeoning immigration detention system. Over the past decade and a half since the 1996 immigration reform act, prosecutorial discretion in immigration cases has been on the wane. As a result, immigration courts have been swamped with cases. And in 2010, for the first time, the detained docket in immigration court will exceed the non-detained docket. In other words, most of the immigrants in removal proceedings will be locked up. It is of course an impossible task to catch, detain, and remove all of the undocumented immigrants in the country, and it makes no sense to jail those who pose no threat to society -- unless you're a state that receives federal funds to do so. But from a humanitarian perspective, the cost to individuals and families is simply too high.
International human rights law, drafted by sovereigns with an interest in controlling their borders, is less protective than one might hope of the rights of undocumented immigrants. As I've blogged before, home states can play an important role in protecting their citizens abroad; moreover, the humanitarian spirit of human rights law can and should animate interpretations of domestic immigration law. In any case, it doesn't take a moral philosopher to understand the problems with our current treatment of the undocumented population within our borders. It's imperative that Congress and the Obama Administration, particularly Secretary of Homeland Security Janet Napolitano, enable the principled and humane exercise of prosecutorial discretion in immigration cases before we become a police state that would make Eichmann proud.