Excerpt from March 7, 2008 report of UN Special Rapporteur on the Rights of Migrants.
I.A. Right to fair deportation procedures
10. The governmental power to deport should be governed by laws tailored to protect
legitimate national interests. United States deportation policies violate the right to fair
deportation procedures, including in cases in which the lawful presence of the migrant in
question is in dispute, as established under article 13 of the International Covenant on Civil and Political Rights (ICCPR). These deportation policies, particularly those applied to migrants lawfully in the United States who have been convicted of crimes, also violate (a) international legal standards on proportionality; (b) the right to a private life, provided for in article 17 of the ICCPR; and (c) article 33 of the Convention relating to the Status of Refugees, which prohibits the return of refugees to places where they fear persecution, with very narrow exceptions.
11. The ICCPR, which the United States ratified in 1992, states in article 13 (to which the United States has entered no reservations, understandings or declarations): “An alien lawfully in the territory of a State Party to the present covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority.”
12. The Human Rights Committee, which monitors State compliance with the ICCPR, has
interpreted the phrase “lawfully in the territory” to include non-citizens who wish to challenge the validity of the deportation order against them. In addition, the Committee has made this clarifying statement: “. . . if the legality of an alien’s entry or stay is in dispute, any decision on this point leading to his expulsion or deportation ought to be taken in accordance with article 13.” and further: “An alien must be given full facilities for pursuing his remedy against expulsion so that this right will in all the circumstances of his case be an effective one.” (Human Rights Committee general comment No. 15 (1986) on the position of aliens under the Covenant, paras. 9 and 10.)
13. Similarly, article 8, paragraph 1 of the American Convention on Human Rights, which the United States signed in 1977, states that “Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law . . . for the determination of his rights and obligations of a civil, labor, fiscal, or any other nature.”
14. Applying this standard, the Inter-American Commission on Human Rights has stated that detention and deportation proceedings require “as broad as possible” an interpretation of due process requirements and include the right to a meaningful defence and to be represented by an attorney.
15. Because United States immigration laws impose mandatory deportation without a
discretionary hearing where family and community ties can be considered, these laws fail to
protect the right to private life, in violation of the applicable human rights standards.
16. Article 16, paragraph 3, of the Universal Declaration of Human Rights and article 23, paragraph 1, of the ICCPR state that “The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.” Furthermore, article 23, paragraph 3 states that the right of men and women to marry and found a family shall be recognized. This right includes the right to live together. Article 17, paragraph 1 of the International Covenant on Civil and Political Rights states that “No one shall be subjected to arbitrary or unlawful interference with his privacy, family or correspondence . . . “.
17. As the international body entrusted with the power to interpret the ICCPR and decide cases brought under its Optional Protocol, the Human Rights Committee has explicitly stated that family unity imposes limits on the power of States to deport.
18. The American Declaration of the Rights and Duties of Man features several provisions
relevant to the question of deportation of non-citizens with strong family ties. Article V states that “Every person has the right to the protection of the law against abusive attacks upon . . . his private and family life.” Under article VI, “Every person has the right to establish a family, the basic element of society, and to receive protection therefor.” The American Convention on Human Rights, to which the United States is a signatory, contains analogous provisions. The case of Wayne Smith and Hugo Armendáriz v. United States of America, which came before the Inter-American Commission on Human Rights in 2006 relies on several of these provisions to challenge the United States policy of deporting non-citizens with criminal convictions without regard to family unity. In light of these international standards, the United States has fallen far behind the practice of providing protection for family unity in deportation proceedings.
19. Moreover, the rights of children to live together with their parents are violated by the lack of deportation procedures in which the State’s interest in deportation is balanced against the rights of the children. United States mandatory deportation laws harm the human rights of children of non-citizen parents.
20. United States restrictions on relief for refugees convicted of crimes violate the Convention and the Protocol relating to the Status of Refugees (see note 3 below). The United States provides two forms of relief for refugees fleeing persecution – withholding of removal, which provides bare protection against refoulement, and more robust asylum relief, which provides a pathway to permanent residence (see note 4 below). Even the weaker form of relief – withholding of removal – is per se unavailable to non-citizens with aggravated felonies sentenced to an aggregate term of at least five years’ imprisonment and to those whom the Attorney General determines have been convicted of a particularly serious crime (see note 5 below). United States law denies these refugees even a hearing for their refugee claims, instead denying relief on a categorical basis. United States laws therefore contravene the due process and substantive protections of the Declaration of the Rights and Duties of Man and the Convention and the Protocol relating to the Status of Refugees, which allow for exceptions to non-refoulement in only a narrow set of cases and after individualized hearings (see note 6 below).
Notes to Section I.A.
(Note 3) Although petitioners’ cases do not involve claims for refugee protection, a discussion of the effect of United States immigration laws on non-citizens with criminal convictions would be incomplete without an exploration of the effect of the laws on non-citizen refugees.
(Note 4) See US Code, Title 8, Chapter 12, Subchapter II, Part 1, § 1158 (asylum) and Part IV, § 1231 (b) (3) (Restriction on removal to a country where alien’s life or freedom would be threatened).
(Note 5) Ibid.
(Note 6) The principle of non-refoulement is enshrined in article 33 of the Convention relating to the Status of Refugees. See Sir Elihu Lauterpacht and Daniel Bethlehem, “The Scope and Content of the Principle of Non-Refoulement”, Office of the United Nations High Commissioner for Refugees.