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Bloggings: Human Rights: A Neglected Concept In Immigration Law? By Roger Algase

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My distinguished colleague and fellow-blogger, Danielle L.C. Beach-Oswald, has called attention to Human Rights Day, which we celebrated last Monday as mentioned in her comment: Make Human Rights Day Last All Year 'Round. Human Rights are rarely mentioned in discussions about immigration policy.


At least this is the case compared to economics (the main argument of immigration supporters in both parties) and, especially after the 2012 election, demographics (now that the Republicans have discovered that Latino and other ethnic minority US citizens actually vote in presidential elections, no matter how many attempts are made to stop them from coming to the polls).


Immigration opponents, on the other hand, tend to look at immigration mainly as a law enforcement and "national sovereignty" issue; but they also try to muster other arguments, including economic ones (such as that immigrants allegedly "steal jobs" and "lower wage levels", not to mention "overcrowded schools and emergency rooms"). Supposed environmental concerns are another favorite, as well as the  "cultural" (i.e. race) argument against immigration, which has been around ever since the time of Benjamin Franklin. 


In order to combat anti-immigrant racism and prejudice, as well as abuses in connection with overzealous immigration enforcement, immigration supporters have no hesitation in relying on the concept of Constitutional rights, but as we all know, this can be a very limited tool in protecting vulnerable people, including immigrants, against abuse. Anyone who has doubts on this point can read the majority opinion in last June's decision in Arizona v. US, 567 US        (2012) not to mention Justice Scalia's dissent in the same case, referred to in my December 12 blogging.


Does Human Rights Law have the potential to provide a broader and more reliable framework for protecting immigrant rights? If so, are there mechanisms for making at least the basic concepts of Human Rights Law part of America's immigration law and practice? The starting point for this discussion is to define what Human Rights Law is and how it applies specifically to immigration.


The UN Special Rapporteur on the Human Rights of Migrants and the Committee on Migrant Workers have stated that although countries have a sovereign right to determine conditions of entry and stay, they also have an obligation to respect, protect and fulfill the human rights of all individuals under their jurisdiction, regardless of their nationality or origin and regardless of their immigration status. (See, United Nations, Office of the High Commissioner for Human Rights).


Is America now adhering to this standard? Not according to the ACLU, which has, with a great deal of justicification, criticized the Obama administration's enforcement policies on human rights grounds. See: The Truth about the Current State of Immigration Enforcement, ACLU, December 12. 


Perhaps the best way to look at the connection between Human Rights Law and immigration would be through The Universal Declaration of Human Rights. I will discuss this in future comments.

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