Friday, January 7, 2011

Speaking (Soft) Law to Power

Just in time for the one-year anniversary of the Haitian earthquake, and just when the cholera crisis made one think that life could not get any worse for the Haitians, the Department of Homeland Security is planning to resume deportations of Haitians with criminal convictions. Yesterday, several immigrants' rights and civil rights groups including the Center for Constitutional Rights, the Florida Immigrant Advocacy Center, and the human rights and immigration clinics at the University of Miami (the former run by guest/alumna Carrie Bettinger-Lopez) filed a petition for precautionary measures with the Inter-American Commission on Human Rights, asking that it prevent the United States from resuming deportations to Haiti.
Though the petition is long, it's worth a read if only just for the brief but devastating portrait of U.S. policy towards Haitian immigrants since the early 1960s. The stories of the named petitioners in the case demonstrate the ongoing cruelty of our immigration laws. None of the petitioners have been convicted of violent crimes; one is being deported for two counts of drug possession with intent to sell, for which he was sentenced to six months in prison. All face likely imprisonment upon arrival in Haiti simply for the fact of being criminal deportees from the United States. All have lived in the United States for at least a decade and have significant family ties with U.S. citizens and permanent residents. Most were permanent residents themselves before removal proceedings were initiated against them. None have close relatives in Haiti who survived the earthquake, and as a result will have nobody to bring them food and water in prison or advocate for their release.
An older petitioner who suffers from serious medical conditions has not received proper medical care in immigration detention in the United States; one can only imagine what will happen to him in Haiti. A younger petitioner has a 6-year old U.S. citizen son who suffers from a serious medical condition that has worsened since his father has been detained. Another is the sole financial provider for his four U.S. citizen and permanent resident children. Approximately 350 Haitians are in the immigration detention system; 100 were transferred to Louisiana in mid-December to await deportation to Haiti.
The petition alleges violations of five provisions of the American Declaration of the Rights and Duties of Man (sic). The deportation of these Haitians abrogates their right to life given the inhumane prison conditions they will face at home, particularly during the cholera epidemic, which has hit prisons particularly hard. Their removal also breaches their right to freedom from cruel, infamous, or unusual punishments due to the severe lack of medical care and social services in post-earthquake Haiti. The arbitrary detention these criminal deportees will face upon return violates their right to security of person. The petition also argues that the failure of the U.S. immigration system to offer a humanitarian defense to deportation, either by measuring the impact of removal on U.S. citizen family members or assessing the gravity of conditions in their home country violates the Haitians' right to family life and their right to due process and a fair trial.
Though aspirational in nature, the Inter-American Court and Commission on Human Rights have held the American Declaration's obligations to be binding on members of the Organization for American States, an approach necessitated by the United States' failure to ratify the American Convention on Human Rights (as always, in good company, alongside Cuba). Given the dearth of domestic options to appeal or even obtain information about ICE's deportation policies, and given the Inter-American Commission's recent decision finding that some aspects of U.S. immigration law violate the American Declaration, the Commission seems a wise choice of forum. But even if the Commission finds in favor of the petitioners, will the U.S. follow its precautionary measures? Unlike the Medellin case, here the execution of the orders in question lies in the hands of the federal government. And despite the recent shellacking, it remains a Democratic administration, one that will hopefully be willing to engage the human rights issues at stake.

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