The United States, famous as a nation of immigrants, should also be infamous for its bouts of anti-immigrant sentiment. Often our intolerance has been fueled by national-security fears. At other times, Americans have made misguided assumptions about who immigrants are and the rights that protect them.
Foreigners in the United States illegally get a lot of publicity, but a substantial majority of noncitizens in America are here legally. They include permanent residents; people legally admitted for work, education, or tourism; refugees; asylum seekers; and people with temporary protected status. All of these noncitizens -- including those here illegally -- are guaranteed almost all the same rights as citizens. In fact, only three constitutional rights -- voting in elections, holding certain political offices, and the absolute ability to enter and remain in the country -- are denied noncitizens outright. Otherwise, the Constitution grants to “the people” or “persons” -- not just to citizens -- the rights to due process and equal protection of the law, to freedom of speech and assembly, and to freedom from arbitrary detention or cruel and unusual punishments.
International human-rights law uses much the same terminology to recognize these -- and a few additional -- rights of noncitizens. The parallels are no coincidence. When the nations of the world gathered together after the nightmare of Nazism to create the Universal Declaration of Human Rights, they looked to U.S. constitutional principles and the Bill of Rights for inspiration and guidance. The notion that all persons, whatever their legal status, have basic rights was then further elaborated in numerous international treaties.
In other contexts, the United States has a practice of limiting its human-rights obligations in the treaties it ratifies. But there are no such limits on immigrants' rights. None of the reservations and understandings the United States has entered for key treaties -- including the International Covenant on Civil and Political Rights, the 1951 Refugee Convention, the Convention on the Elimination of Racial Discrimination, or the Convention Against Torture and Other, Inhuman or Degrading Treatment or Punishment -- specifically limit noncitizens' rights.
On paper, constitutionally and internationally, Americans respect the rights of noncitizens. But inspiring words on a statue in New York Harbor notwithstanding, unadulterated welcome has never been our actual stance. From mid-19th-century attacks on Irish and German immigrant workers to legislated xenophobia in the Chinese Exclusion Act of 1882 to Japanese internment during World War II, the targets and expressions of hostility have shifted with the times. Since September 11, it is the 5.5 million persons of Arab or south Asian descent who are living under a pall of suspicion and resentment. Today the United States, which once motivated the world to take human rights seriously, must turn to the world's human-rights treaties to correct the mistreatment of the immigrants in our midst.
Slandered by “Special Interest”
Immediately after 9-11, the U.S. government questioned thousands of noncitizens of Arab and south Asian descent who were selected for no reason other than their ethnic or religious backgrounds. A full 752 were arrested for routine immigration violations. While none was ever charged with terrorism, the government gave them the slanderous moniker of being of “special interest” to the terrorism investigation.
The special-interest detainees were subjected to secret immigration hearings where even their families were excluded. All endured periods of detention without charge. Thirty-six were held for 28 days or more, 13 were held for more than 40 days, and nine were held for more than 50 days -- all without charge. One Saudi Arabian detainee was held for 119 days.
While detainees at one detention center in Brooklyn waited, correction officers slammed them against walls, causing pain and injuries. Other detainees had their fingers and wrists painfully twisted, or their restraints pulled to harm their legs and arms or to trip them so that they fell to the floor.
But even after they were charged with routine immigration violations (such as overstaying a visa) and ordered deported, the government continued to investigate them and to keep them jailed until it concluded they were not of interest. The government's assumption was that these noncitizens might be somehow linked to the 9-11 attacks. They were not. The special-interest detainees were treated like serious criminals when the worst they were ever charged with were run-of-the mill immigration violations.
Unfair detentions of “witnesses”
Under the U.S. material-witness law, individuals can be detained if a judge decides that they are unlikely to appear at trial and that their testimony is material. But after 9-11, the government used the law to detain at least 60 people, the majority of whom were noncitizens of Arab or south Asian descent, for the 9-11 grand juries while it interrogated and investigated them.
The government used appallingly circular logic when applying the material-witness law to noncitizens. First, the government alleged that noncitizens had some links to terrorism, often based on tenuous facts and assumptions about their religion and national origins. Without the supposition of guilt, these alleged witnesses could simply have been subpoenaed rather than incarcerated. Next, the government convinced judges that the witnesses had to be imprisoned because they were immigrants with relatives abroad and were at risk of fleeing the country. This was argued even when a witness was a legal immigrant, had lived here for several years with a spouse and children, and had voluntarily come forward to give information.
Many of the immigrants were never called to testify as witnesses. Instead, they were detained for months under punitive prison conditions. Some were questioned repeatedly without a lawyer present, and when their testimony changed, the government charged them with perjury.
Human-rights law prohibits detaining someone without charge or without carefully following the law (in this case, the material-witness law). U.S. law says the same, but in the post–9-11 atmosphere in the United States, courts were exceptionally deferential to the government's flawed assumptions.
Well before 9-11, assumptions about immigrants tended to harm their rights. It was the 1995 bombing of the U.S. federal building in Oklahoma City -- a crime committed by white U.S. citizens -- that prompted Congress to pass anti-terrorism and death-penalty legislation in 1996, which also contained the most draconian immigration restrictions in our recent history.
While U.S. citizens convicted of crimes pay their debts to society and then return to their lives, under the 1996 laws, noncitizens with identical criminal records are deported after serving their sentences. Previously, legal long-term residents had the chance to tell a judge why they believed deportation would unfairly harm them and their families. But under the 1996 law, it doesn't matter how long noncitizens have lived in the United States, what their contributions to their community have been, or whether they have been rehabilitated. Legal permanent residents, U.S. military veterans, and adults who have been here since childhood and do not even remember their countries of origin have been treated as harshly under U.S. immigration law as undocumented immigrants who have committed violent crimes.
For example, 8-year-old Brazilian Joso Herbert became the adopted son of an American family in 1987. Two months after his graduation from high school in 1997, he sold 7.5 ounces of marijuana to a police informant. Because he was a first-time offender, he was sentenced to probation and community service. But then he was deported to Brazil -- a place where he knows no one and where he no longer understands the language.
Despite their drastic nature, deportations can occur after proceedings in which immigrants have no lawyer to help them; because deportation is considered a civil matter, it does not trigger the Fourth Amendment right to counsel. This is particularly unfortunate because Congress decided to make the laws retroactive, and an immigrant may now face deportation for a crime he or she pleaded guilty to years ago when it carried no such consequence. Moreover, the new laws expanded the crimes that prompt deportation to include even minor misdemeanor offenses, e.g., violations of drug-paraphernalia laws. In the nine years the laws have been in place, 258,112 noncitizens have been deported for crimes.
These deportations are ripping apart American families and violating the human right to family unity. About one in every 10 children in the United States lives in a family that includes citizen and noncitizen members. Today, if a noncitizen parent faces deportation for a crime, he or she may not even have a chance to argue before a judge that removal from the United States equals separation from a U.S. citizen child.
All of the immigrant workers in the United States, whether here legally or not, have the same international labor rights as U.S. citizens. As the Inter-American Court of Human Rights has noted, “If undocumented workers are contracted to work, they immediately are entitled to the same rights as all workers.” As workers, for example, they have the right to organize and to a remedy if illegally fired. U.S. state and federal courts confirmed this view of the rights of workers up until 2002.
But in 2002, the U.S. Supreme Court's Hoffman Plastic Compounds Inc. v. National Labor Relations Board decision told undocumented workers that while their work is accepted, their basic human rights are not. The Hoffman decision stripped some 12 million undocumented workers of their ability to receive back pay for lost wages if they are illegally fired for organizing. The possibility of having to provide back pay has been a significant deterrent to employers seeking to squelch union organizing efforts by firing pro-union workers. But the Court said that immigration policy and labor law were in conflict, and that immigration law trumps laws intended to protect workers' rights.
Before Hoffman, unions could tell all workers that they need not fear employer retaliation for organizing because they would not lose wages due to them if they were illegally thrown off the job. Now, employers can take full advantage of the work of illegally present immigrants and then, if they stand up for their rights, fire them with impunity.
However, other labor rights of noncitizens, such as the right to a safe workplace and to compensation for injuries, are recognized in both international and U.S. law. After Hoffman, these rights remain in force, and U.S. courts and administrative tribunals are open to protect them. The problem is that noncitizens are afraid to vindicate their rights because they fear the immigration consequences of complaining. Legal or illegal, they do not want to end up in an immigration court.
Denied due process
Immigrant workers, indeed all noncitizens, have cause to fear immigration courts. Well before September 11, throughout the 1980s and '90s, U.S. immigration hearings were often marred by procedural failings that violated both constitutional and human-rights law. Immigrants weren't informed of their right to hire an attorney, interpreters were badly prepared or nonexistent, and some noncitizens were never notified of the case or charges against them.
Haitian asylum seekers have been interdicted at sea, where the United States claims it has fewer obligations, and denied their human right to fair and efficient asylum procedures. The Haitians were rushed through cursory hearings, if they received them at all, on board hot and overcrowded ships, without privacy, and with their testimony poorly translated.
The 1996 laws brought a new onslaught of substantive due-process problems. Besides mandating deportation for even minor criminal convictions, they subjected newly arrived refugees fleeing persecution in their home countries to mandatory detention. Asylum seekers were previously granted parole, which made it easier for them to access a lawyer, adjust psychologically, and prepare their cases. Now refugees have a slim chance of leaving prison before their cases are finally decided. They can wait months, sometimes years, before they are released.
A widening net
Three years after al-Qaeda's attacks, the United States is continuing to cast a wide and disparaging net over noncitizens, both at home and abroad. U.S. consular officials abroad have instituted elaborate screening procedures for visa applicants and refugees selected for resettlement in the United States. Instituting security checks on visa applicants may make sense for national security, but refugees who have already had their cases assessed and who are, by definition, fleeing for their lives should be placed in a speedier queue because the United States has a special international obligation to protect them.
At home, the Department of Homeland Security has decided to subject every noncitizen within 160 miles of the Mexican or Canadian borders to “expedited procedures” (meaning less due process) to determine whether they are legally present. If not, they will be immediately deported without a hearing.
The new policy raises questions about the training and capacity of border agents to assess the legal status of noncitizens and to effectively and fairly identify those who risk persecution in their home countries. A United Nations report leaked to The New York Times in August 2004 revealed that similar expedited procedures, in place at U.S. airports since 1997, have resulted in some asylum seekers being harassed and intimidated, discouraged from seeking asylum, and interviewed without translators by airport inspectors who lacked knowledge of asylum law.
No right to enter
All around the world, diverse factors, from conflict to international business, are prompting people to cross borders and start life anew in a country other than their own. As a result, governments are confronted each day with the question of what rights they must guarantee to noncitizens.
As much as they'd rather not admit it, world leaders settled that question long ago. Governments realized early on that the best way to make sure that their citizens were treated well abroad was to sign reciprocal treaties with other governments promising to treat foreigners fairly. Emmerich de Vattel, the most influential international-law scholar in the early days of the United States, wrote that “denial of justice” to aliens would justify their home country's decision to begin a war of reprisal against the United States. This is why international human-rights treaties are almost entirely blind to the citizenship status of the people they protect.
Many politicians fear that respecting immigrants' human rights will require granting them a broad or poorly policed “right to enter.” September 11 has only redoubled those fears. But an absolute right to enter is not what the international human rights of immigrants are about. Rather, they are about treating all human beings fairly and without discrimination. Americans in particular should look toward international human-rights laws because they compel us to strive toward becoming what, as a nation of immigrants united on behalf of freedom and democracy, we claim that we already are.
Alison Parker, a Human Rights Watch senior researcher, has conducted human-rights investigations in several U.S. prisons and refugee settings in west Africa, east Africa, and central Asia. She is the author of the book-length report “Hidden in Plain View: Refugees in Nairobi and Kampala.”