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Deportation and Human Rights

Values: All human beings deserve equal rights and dignity.

All human beings have the same inherent dignity and equal and inalienable rights, and governments have a responsibility to respect, promote, and protect those rights, which include the right to basic security, to family unity, and to fair treatment under the law.

Problem: US immigration law and policy fall short of human rights standards.

Immigrants, including longterm lawful residents, who have contact with the US criminal justice and immigration systems face harsh discrimination. In incarcerating and deporting individuals regardless of their close family ties in the U.S. or the persecution they face in their country of birth, US authorities violate basic human rights laws and standards, including the right to fair treatment under the law, which includes:

  • The right to proportionate punishment: A growing body of civil and human rights scholarship finds that the sanction of deportation for migrants convicted of crimes in the United States is so disproportionate as to rise to the level of cruel and unusual punishment. And note that in many cases the migrant has already been punished for his or her offense in the criminal justice system, so deportation constitutes a second punishment.
  • The right to due process of law: Anyone who goes before a judge has the right a fair day in court. Yet the criminal justice and immigration systems combine to form one continuum of enforcement that lacks basic procedural protections. Under laws expanding automatic detention and deportation, migrants with many kinds of criminal conviction have very limited opportunity to have a judge take humanitarian circumstances — such as family ties in the US — into account.
  • The right to family unity and the rights of the child: The US practice of separating families through detention and deportation is at odds with its obligations under the International Covenant on Civil and Political Rights (ICCPR), which recognizes “family as the natural and fundamental group unit of society,” and assures protections of family rights and family unity, and its failure to consider the interests of the children of those facing deportation violates the right of the child to special protection, as guaranteed by the Convention on the Rights of the Child (CRC).
  • The right to be free from discrimination: Migrant communities (overwhelmingly comprising racial and ethnic minorities) are typically on the receiving end of discriminatory, harsh and increasingly violent tactics by US local law enforcement and immigration enforcement agencies. Abundant evidence exists showing these agencies racially profile and abuse migrants with virtual impunity, in violation of the ICCPR and the Convention on the Elimination of All Forms of Racial Discrimination (CERD)
  • The right to non-refoulement: The UN Refugee Convention limits state power to deport refugees to places where their lives or freedom would be threatened, except in cases where an immigrant has been convicted of a “particularly serious crime” or constitutes a public safety threat. The US construes these exceptions far too broadly, to include, for example, a conviction for shoplifting.

Solution: Ensure that US immigration policy respects human rights

  • Bring US immigration policy into line with the human rights instruments and treaties to which the United States is a party
  • End mandatory detention and deportation and restore judicial discretion, so that judges can judge cases on an individual basis;
  • Eliminate immigration detention. At the very least, use it only in exceptional cases and as a last resort
  • Eliminate the use of criminal convictions as a basis for deportation; at the very least narrow the range of convictions that can lead to deportation
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