Wednesday, May 18, 2011

Undocumented migrants have rights too

(My thanks to IntLawGrrls for the opportunity to contribute this guest post)

Member states of the European Union may not imprison undocumented immigrants who violate deportation orders, according to a judgment issued by the Luxembourg-based European Court of Justice at the end of last month. (photo credit)
The case, Hassen El Dridi alias Soufi Karim, was prompted by an Italian law authorizing up to four-year prison sentences for immigrants who failed to leave the country after receiving a deportation order. The European Court of Justice held that this violated the immigration law of the 27-member European Union (in green on globe below right). It further held that the rights of the immigrants, who faced charges under the Italian law, were threatened. (map credit)
The criminalization of immigration violations has been a hotly debated topic in both the EU and United States. (IntLawGrrls' prior immigration posts available here.) The tension between national laws and EU law is not unlike the growing tension between U.S. states and the federal government in the immigration arena. In both instances, these tensions are driven by growing hostility towards undocumented immigrants and a parallel frustration with the overarching legal scheme. More and more people in Europe and the United States support the idea of treating undocumented immigrants as criminals, and they are calling on lawmakers on all levels to do so.
U.S. law currently criminalizes unlawful entry into the country, though the primary enforcement mechanism is removal, also known as deportation, an administrative rather than a criminal proceeding. U.S. law also includes various crimes: immigration fraud, harboring aliens, and employment-related violations.
Federal prosecutions of immigration crimes have increased substantially during the Obama administration, with unlawful reentry topping the list of convictions. At the same time, prosecutions of non-immigration crimes have fallen under the current administration.
These two trends raise numerous questions:
► For instance, who’s keeping us safe from all the non-immigration criminals out there?
► Also, why exactly is the United States (like many countries in the EU) so obsessed with “getting” immigration violators, and increasingly, with putting them in jail rather than immediately removing them?
► And what is that obsession leading us to do?
Many in the United States would likely say that the trend toward increased prosecutions of immigration crimes is not only not troubling, it is not enough; some state legislatures thus are demanding broader criminalization of immigration law violations. While the federal government has not made it a crime to live in the United States unlawfully -- as opposed to entering unlawfully -- the new immigration law in Arizona (in red at left) effectively does just that, as will numerous copycat laws popping up around the country. (map credit) This is part of the reason the U.S. Department of Justice has challenged the Arizona law.
DOJ's complaint asserted that this state law would “undermine the federal government’s careful balance of immigration enforcement priorities and objectives" by imposing "significant and counterproductive burdens on the federal agencies charged with enforcing" immigration laws, and by "diverting resources and attention from the dangerous aliens" designated as "top enforcement priority." This, the complaint continued, would cause "the detention and harassment of authorized visitors, immigrants, and citizens," would ignore "humanitarian concerns, such as the protections available under federal law for an alien who has a well-founded fear of persecution," and would interfere "with vital foreign policy and national security interests.”
All are valid concerns. But it seems like something is missing.
In El Dridi, the European Court of Justice, like the U.S. Department of Justice (seal below right) in its complaint, expressed concern that the local law at issue would frustrate the larger immigration scheme. (image credit) But the European decision also repeatedly stressed the importance of protecting the “fundamental rights and dignity” of the immigrants in question. The federal complaint did not.
Though DOJ raised concerns over the treatment of refugees under Arizona’s law, its complaint otherwise overlooked the rights of those immigrants whom the state law is meant to target.
DOJ’s concerns were, essentially, conflict with federal law, violations of the rights of lawfully present immigrants and citizens, and recognition that the way we treat foreign nationals can affect relations with foreign governments.
Yes, true, these deserve concern. But doesn’t the way we treat foreign nationals -- or anyone in the United States, in its territories, or in the custody of U.S. officials -- also say something about us as a nation, about the strength of U.S. commitments to human rights? Does an action only have the potential to be a due process or human rights violation if it angers foreign officials, or creates extra work for executive agencies, or implicates any of the DOJ’s stated concerns?
Human rights are universal: they apply regardless of where you were born, where you currently live, or exactly how you got from the first place to the second. Human rights apply to person charged with or convicted of crimes just as much as they apply to the victims of crimes. They apply even when the violations do not create diplomatic tension or subvert what the DOJ complaint, quoted above, calls "vital foreign policy."
DOJ was right to challenge the Arizona law, but let’s hope the court remembers to consider not just how the law effects the federal government, or how it might affect people who are mistakenly targeted by Arizona police. Those who violate the law – criminal, administrative, or otherwise – have rights too, and leaving their rights out of the equation severely biases the debate.

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