Inter-American Commission On Human Rights Points Out US Deportation System Violates Human Rights

The Inter-American Commission on Human Rights concluded on July 12, 2010 that the United States is violating the human rights of immigrants under Articles V, VI, VII, XVIII, and XXVI of the American Declaration of the Rights and Duties of Man by failing to provide an individualized balancing test in immigration court.

The case is Smith and Armendariz v. United States, Report No. 81/10, Case No. 12.562 (IACHR July 12, 2010).

A copy of the decision is at
http://cejil.org/sites/default/files/Final%20Report_CIDH_Wayne_Smith.pdf

Congratulations to the Center for Justice and International Law (CEJIL), Gibbs Houston Pauw, and the Center for Human Rights and Justice! The articles that the United States violated concern the right to private and family life, the right to family, the right to protection for mothers and children, the right to fair trial, and the right to due process of law.

In that specific case, the IACHR focused on how the United States refuses to allow immigration judges to consider anything about family life, family unity, or protecting mothers and children for most people who have green card status along with an aggravated felony conviction. As with tribunals around the world, the United States is required to protect basic rights. The United States system fails to provide adequate protection of fundamental rights by requiring what could essentially be considered mandatory deportation without allowing the immigration judge to consider the family, mothers, or children.

It is disappointing to read that in December 2009 the IACHR told the United States to help the plaintiffs in the case, but over six months later (in June 2010), the United States had repeatedly refused to help the men who won their case in front of the IACHR.

What's important to understand is that under the Supremacy Clause and Congress's intent to honor international human rights, there are arguments that immigration judges should agree with the same rationale that the IACHR used in its decision.

In a press release, the lawyers who worked on the case correctly urge the President and Congress to pass laws to make extremely clear that immigration judges must honor and respect international human rights, just as the IACHR ruled. It will be fascinating to see whether judges analyze the legal framework and will rule that immigration judges are required to honor international human rights even if the President and Congress have not yet passed laws to clarify the situation.