Immigration in the United States: Rights Violations and the Case for Reform

Chelsea Matheson ID# 6225586 POL 310 American Politics April 15, 2013

The United States is a nation built upon immigration; it was a nation colonized by the British in the 17th century and was subsequently filled with immigrants to become the nation that it is today. Immigration has therefore been an integral part of American history since it's very conception, yet this issue has become explosively controversial, and hotly debated in recent decades. Many people see immigrants as a threat to American society, especially since the events of 9/11, and policies enacted by the federal government likewise reflect this attitude. The rights of immigrants, both legal and unauthorized, have been severely curtailed by this current policy status quo, however, immigration policy reform may prove to be difficult given the institutional features of American politics that impede change. In the last decade, immigration has risen to the top of the national agenda, with broad support on both sides of the national debate (Eastman 2012, 59). This debate has largely come to be almost exclusively framed as a security concern, supplanting the previous concern for the economic need for immigrant labour (Rosenblum 2009, 21). The debate broadly follows two camps, restrictionists, who desire the border with Mexico to be secured through increased militarization of the border, with a corresponding crackdown on interior immigration enforcement, and a lesser flow of legal immigration into the country (Rosenblum 2009, 21). On the other hand, comprehensive reformists, would like to see a program implemented to legalize the existing undocumented population, and an increase in the number of permanent visas available, while also still maintaining a secure, but humane border (Rosenblum 2009, 21). Borders have become a key element in the immigration debate (Rosenblum 2009, 18). Since the nineties, there has occurred an explosion of illegal immigration through Arizona's desert, shifting from the previous pattern of migrants entering through urban areas in lower numbers (Eastman, 2012, 36). This change can largely be attributed to the militarization of the border along urban crossing points into the country, which has served to encourage migrants to take more dangerous routes into the country through remote stretches of desert (Golash-Boza 2012, 7). Thus

the Arizona border with Mexico has come to be framed both as a major human tragedy, and as a major security risk, largely depending on what side of the debate one stands on (Eastman 2012, 5). This debate was exemplified with the arrest of two volunteers with the humanitarian organization No More Deaths, who were arrested for assisting migrants in the desert to get medical attention for severe dehydration (Eastman, 2012, 91). This provoked outrage on both sides, for those believing humanitarian aid should never be a crime, and those who believed this constituted facilitating entrance of illegal aliens into the U.S. (Eastman, 2012, 92). Arizona has come up with its own response to the problem of the recent increase in the flow of undocumented migrants, with their 2010 enforcement bill SB 1070. This bill criminalized several federal immigration offences that were previously considered civil violations (Kretsedemas 2012, 96). Controversially, within this bill included provisions that would allow police to detain those suspected of being undocumented, which effectively mandated racial profiling for those who look like they could be undocumented immigrants (Kretsedemas 2012, 96). While this provision was later struck down by a federal district court as a violation against arbitrary detention, it still served to rekindle immigration debates around the nation (Kretsedemas 2012, 96). The September eleventh terrorist attacks have proven to be a major watershed moment for American immigration policy. After 9/11, widespread fear arose of unsecured borders that could invite terrorists into the country and the link between immigration and terrorism became solidified in immigration policy (Rosenblum 2009, 19). Emphasis was put on securing the border and enhanced interior immigration enforcement, instituting an era of anti-immigrant and restrictionist policies (Golash-Boza 2012, 6). This is largely because immigrants have come to be equated with potential terrorists in the new post-9/11 discourse. Immigration policy has become almost synonymous with counterterrorism policy, and the border with Mexico became a key front for the U.S. War on Terror (Waslin 2009, 39-41). Furthermore, in 2002 the Department of Homeland Security was founded, in which immigration services and enforcement were incorporated. The

stated mission of this department is to protect the nation from dangerous people, and statistics of detentions, and deportations have been used as proof of the department succeeding in removing dangerous people from the country (Golash-Boza 2012, 174). This is significant, as it shows the conceptual lens that immigration is seen through, in this case, as a security concern (Waslin 2009, 41). Despite this, evidence is still lacking that immigration enforcement leads to the removal dangerous people (Golash-Boza 2012, 9). These measures more often resulted in making life for immigrants more difficult, while doing little to actually reduce terrorism (Golash-Boza 2012, 12). In fact, measures that have been taken under the name of counterterrorism, have been exceedingly harmful to the immigrant population in the U.S., and national security concerns have largely taken precedence over fair treatment of immigrants in the nation (Martin 2003, 137). Current American immigration policy is replete with violations of rights and liberties of immigrants. Nowhere is this more apparent than that situation along the border with Mexico of which, Senate leader of 2006 Bill Frist characterized as a humanitarian crisis (Eastman 2012, 55). The federal government is employing draconian border policies that use death as a deterrent for potential border-crossers, rather than addressing the causes of this loss of human life (Golash-Boza 2012, 7). The government has failed to alter the immigration policies that have funnelled migrants from urban crossing areas into dangerous deserts, resulting in high numbers of migrant deaths (Golash-Boza 2012, 7). In fact, more migrants died trying to cross the border between 1995 and 2005 than did the victims killed in 9/11 (Cornelius 2005, 780). Furthermore, the Inter-American Court of Human Rights, the UN Human Rights Commission and Amnesty International all came to the conclusion that the migrant deaths resulting from U.S. border enforcement policy constitute human rights violations (Eastman 2012, 105). Since 2001, the federal government has introduced numerous bills to reduce immigration and increase interior enforcement (Waslin 2009, 46). This has had the effect of denying certain rights to non-citizens, while simultaneously limiting the avenues of legal challenges available to

these same people (Waslin 2009, 47). For example, a new procedure implemented in 1996 and further elaborated by President George Bush in the wake of 9/11, called expedited removal, allows immediate detention and deportation of aliens and non-citizens without a hearing or judicial review (Martin 2003, 142). This process is especially detrimental to asylum seekers who may have their claims unfairly denied and have no further legal recourse to have the decision reviewed, vesting tremendous unchecked power in immigration officers (Koulish 2010, 42). Moreover, all subjected to expedited removal do not have the right to basic due process, such as the right to a removal hearing, the right to counsel, the right to examine the government's evidence, and the right to an impartial adjudicator (Martin 2003, 142). Another striking rights violation of the American federal government with regards to immigration is the immigration detentions system currently in place, which has been widely criticized as inhumane and cruel (Golash-Boza 2012, 13). The United States now has a policy of mandatory detention, replacing the previous policy of assessing each individual for their potential threat and flight risk, resulting in many being needlessly detained (d'Appollonia 2012, 251). Migrants awaiting trial or deportation are held in immigration detention facilities or private prisons, and often endure overcrowding, physical and verbal abuse from guards, insufficient food, lack of access to phone and legal council, and inadequate medical attention (d'Appollonia 2012, 250). Furthermore, most are held for several months, and many are children and asylum seekers (Golash-Boza 2012, 66). These immigrants endure these conditions of detention, despite the fact that undocumented migration is a civil, not a criminal violation, and they therefore have committed no crime (Koulish 2010, 48). The vast majority are therefore detained and deported on administrative, not criminal grounds, leading many to condemn this practise of incarcerating those who have committed no crime, as a gross violation of fundamental rights and liberties (Koulish 2010, 48). In fact, Amnesty International has spoken out against the United State's detention policy, condemning the cruel conditions that are imposed without any judicial review to determine

the legality of their detention (Koulish 2010, 51). Indeed, it does seem ironic that criminals held in maximum security prisons, convicted for the most serious crimes, have more legal recourse and legal resources than vulnerable detained immigrants (Koulish 2010, 51). The Department of Homeland Security has drastically increased raids, detentions, and deportations in the last decade (Golash-Boza 2012, 2). These home raids have been pointed out by many to be in violation of fourth amendment rights protecting against unreasonable search and seizure (Koulish 2012, 48). In these raids, many citizens and legal immigrants end up being arrested for being suspected of having alien status, also violating fourth amendment constitutional rights against arbitrary arrest (Koulish 2012, 48). Furthermore, fifth amendment rights to due process and sixth amendment right to counsel, are also routinely violated with current immigration enforcement practises, such as mandatory detainment of undocumented migrants with no judicial review (Koulish 2012, 48). While there is some degree of ambiguity as to whether the constitution applies to non-citizens, the constitution actually only limits the right to vote and run for public office exclusively to citizens, while the others have no such specification, and the fifth amendment is written so as to apply to all persons (Cole 2003, 370). This curtailment of constitutional rights to apprehended immigrants, essentially amounts to being treated like criminals for civil offences, and yet not having the rights of the criminally accused (Cole 2003, 388). The government then wields significant unaccountable power over immigrants (Koulish 2012, 40). The divide between citizens and noncitizens, in reality, is not as distinct as is defined in current immigration rhetoric and in immigration law, as these two categories of people are profoundly connected through family ties (Golash-Boza 2012, 9). Undocumented immigrants are often parents of U.S. citizen children, who were born in the country, and spouses of citizens, and are integrated members of their communities. This means that policies designed at eradicating an undocumented presence in the country will invariably affect American citizens as well (Waslin 2009, 42). This is especially worrisome for the children of these mixed-status families, who then

face the dilemma of giving up their right to live in the United States as citizens when their parents face deportation, or their human right, as enshrined in Article 16 of the Universal Declaration of Human Rights, to remain together with their parents (Golash-Boza 2012, 4-9). Thus, current immigration policy often tears families apart, despite the longstanding officially stated priority of family reunification (Golash-Boza 2012, 2). In light of all of these rights violations inherent within current American immigration policies, it is hard to justify its continuation, as this current policy status quo is profoundly unjust. The traditional commitment of the United States to including and integrating immigrants into American society has largely been replaced with hostility (Martin 2003, 132). The post-9/11 popular discourse on immigration frames immigrants as potential threats to the nation, and undocumented immigrants as potential terrorists and criminals needing to be eliminated from the country (Koulish 2003, 40). However, there is very little evidence to support these claims, and more likely represents a process of demonizing the other to be become the political scapegoat in times of crisis (d'Appollonia 2012, 248). Furthermore, the rule of law and accountability of the government is at stake as it continues to increase its unchecked power over immigrants and removing their avenues of legal recourse, and by creating an alternate set of policies for which due process does not apply, inviting the arbitrary into the legal realm (Martin 2003, 132). Not only is government immigration policy detrimental to the well-being of those it applies to, it is largely ineffective, which should also serve as a motivation for reform. For example, increased border enforcement, while designed to keep unauthorized migrants out of the country, ironically has had the effect of keeping them in the country, for many deem it too risky to return home (Eastman 2012, 55). Furthermore, despite evidence that current immigration policy is ineffective at reducing illegal immigration, and has resulted in unprecedented numbers of deaths of migrants, more money continues to be allocated to yet more border enforcement, rather than reforming the system, which could save hundreds of lives each year (Eastman 2012, 55).

Moreover, the current strategy of searching out undocumented migrants, is in many ways an exercise in futility, for it is just not feasible to find and deport the eleven million strong undocumented immigrant population, nor is it ethical to conduct home and work raids, and detain these people in substandard conditions for inordinate periods of time with no legal recourse (Wang 2012, 763). Lastly, current immigration policy is unjust, as the United States is indirectly creating the undocumented immigration problem through their foreign economic policies, and is failing to see the interconnection between their economic policies and patterns of migration into their country. Since the implementation of the North American Free Trade Act in 1994, economic inequality increased between the U.S. and Mexico, resulting in increased unauthorized migration (Eastman 2012, 46). The effects of NAFTA on corn farmers has been devastating, as they are now competing with heavily subsidized American corn flooding Mexican markets, and have found themselves unable to compete; migration for many seemed the only escape from absolute poverty (Eastman 2012, 48). This is evidenced by the shift in demographics of unauthorized migrants attempting to gain entry to the US; since the nineties, more and more migrants from Southern Mexico, who have been the hardest hit by trade liberalization under NAFTA, are appearing at the U.S. border (Eastman 2012, 50). In fact, net migration from Mexico to the U.S. nearly tripled during the first decade of NAFTA (Eastman 2012, 51). It is therefore fundamentally unjust for Americans to be running this type of foreign economic policy, then allowing the people most affected by these policies to lose their lives crossing the border. Despite the fact that many find American immigration policy unjust and teeming with rights violations, certain features within the American political system prevent reform. Civil society has the capacity to mobilize collectively and put pressure on politicians, as was done with the large social movement advocating comprehensive immigration reform. However, certain institutional features of the American political system mitigate this influence (Eastman, 2012,

103). Furthermore, pressure from civil society in the case of immigration reform is heavily divided with popular support for both sides, such as the Minuteman Civil Defence Corps that garnered headlines around the country, swaying the immigration debate towards tougher border and immigration control (Eastman, 2012, 109). Thus a clear, united position from civil society was not presented to policymakers, and consequently the ability of civil society to facilitate change in the immigration policy arena was impeded. The institution of separation of powers constitutes a formidable obstacle to overcome in implementing immigration reform, as it was originally designed to present inherent challenges to policymakers in instituting checks and balances on power, and forcing compromise between the branches of government. This can be exemplified in the 2006-2007 immigration reform attempts made by Congress. In 2006, the U.S. federal government was divided over approaches each branch wanted to take for immigration reform; the executive and House of Representatives had a more restrictionist orientation, desiring a more secure the border, rejecting amnesty for current undocumented immigrants, and an increase temporary guest worker visas (Rosenblum 2009, 21). The Senate on the other hand, advocated more comprehensive immigration reform, for a more secure the border, but with a program to legalize existing undocumented immigrants in an earned legalization scheme, and an increase in the number of permanent visas (Rosenblum 2009, 21). In 2005 the House of Representatives passed a bill that exemplified the restrictionist approach, while in the Senate responded with a bill of its own, exemplifying the comprehensive reform approach (Rosenblum 2009, 22). The Senate and the House, with two very different bills having passed, could not reach a compromise before the midterm election of 2006, and therefore the two bills were terminated (Rosenblum 2009, 25). A new round of negotiations was initiated in 2007, and the House passed a bill including a grand compromise entailing bipartisan support for legalization procedures for undocumented immigrants, however the bill was killed in the senate with too many poison pill amendments proposed both by the left and the right, and bipartisan support was

eroded with each amendment proposed (Rosenblum 2009, 27). Thus, the need for the Senate and House of Representatives to cooperate on passing a bill was a main contributing factor in the failure of implementing immigration reform in 2007, and will continue to be a significant hurdle in the future, especially in times of divided government. Another obstacle to immigration reform, is the nature of immigration politics that tend to defy bipartisan coalitions because of the complicated nature of the issue, and the cross-cutting cleavages it entails (Rosenblum 2009, 27). Immigration not only does this, but also internally divides parties within themselves. The Democrats became divided by the desire to appear more tough on national security on the one hand, and the desire to appeal to Latino voters and labour unions who largely support comprehensive reform (Rosenblum 2009, 27). Conversely, the Republicans face even more internal division, with some wanting to make gains with Latino voters and therefore supporting comprehensive reform, some wanting to appeal to business and religious organizations who likewise support comprehensive reform. Others, however, cater to social conservatives who advocate restricted immigration (Rosenblum 2009, 27). The fact that parties are internally divided presents an obstacle to passing immigration reform, and this coupled with the lengthy policy making process, makes passing such a bill with such controversial status, and of such national importance, a difficult feat to accomplish (Rosenblum 2009, 28). The constitution may prove to be a source of change to the current policy of detaining and deporting undocumented migrants and asylum seekers without due legal process. Over time, it has been largely overlooked that constitutional rights and protections have been written, such that the only exclusive rights awarded to citizens are the right to vote and run for public office (Cole 2003, 370). All others could then be inferred to apply to all those who may happen to be within the United States' borders. This is especially reinforced by the fact that the fifth and fourteenth amendments are written to apply to all persons, of which there can be little dispute that immigrants, no matter their legal status, constitute. James Madison himself argued that those who

are subject to the legal system, ought to be offered its protection (Cole 2003, 371). Furthermore, the Bill of Rights were included as guarantees of inalienable natural rights, that were thought to apply to all, regardless of nationality (Cole 2003, 372). This would also support the argument that Constitutional protections should apply to undocumented immigrants, especially considering that the contemporary human rights regime, of which the United States is largely a party to, directly derive from the principle of natural rights (Cole 2003, 372). An obstacle toward this approach is the popularly held belief that noncitizens are not entitled to the same constitutional rights and protections as citizens, and the role of the Courts who have in the past, and likely will in future, interpret constitutional rights of non-citizens by favouring the government's approach (Cole 2003, 388). However, the Courts have the potential to be both traditional and progressive with regards to immigrant rights. For example, in 2006, the Supreme Court found that beyond six months, an alien is entitled to be released from detention, recognizing at least in part, a non-citizen's fourth amendment right against arbitrary detention. Therefore, progressive immigration reform may come piecemeal from Court decisions, or also may equally serve to bolster the current policy status quo. The politics of immigration in the United States remain to this day, at the top of national debates, providing a testament to this issue's national importance. This issue is characterized by a fierce debate with little room for compromise, with such vastly different outlooks on the presence of immigrants in the country. However, immigrants have suffered too long from demonizing caricatures of them as terrorists and criminals since 9/11, and the oppressive policies stemming from this. The time is overdue for change, for every year of governmental inaction in implementing reform, represents hundreds of migrant lives lost, tens of thousands cruelly detained, and millions living in fear. Significant institutional hurdles present themselves to reform, however, the possibility for change is not impossible, and therefore the campaign for comprehensive immigration reform should only be fought harder and should only be fought harder for the sake of these vulnerable human lives.

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