By Robert L. Reeves & Nancy E. Miller

The United States does not practice what it preaches in the area of human rights. In a report to the United Nations Human Rights Council, investigator Jorge Bustamante said that the United States has failed to uphold its international obligation to protect the human rights of migrants and has subjected too many to prolonged detention in substandard facilities while depriving them of adequate appeals processes. He noted that the annual detainee population has tripled in nine years to 230,000 and called on the U.S. to eliminate mandatory detention for certain migrants and to use alternatives such as electronic ankle bracelets. He cited a 2006 congressional report that concluded that electronic monitoring would cost the taxpayer about 20% of the $1.2 billion it now spends in the detention process that tears families apart.

Bustamante said that the United States lacks a clear, consistent, long-term strategy to improve respect for human rights of migrants. He called for changes that would give migrants the right to legal counsel, more impartial hearings and improved holding facilities, especially for women and children.

While he recognized that xenophobia had worsened since the September 11 attacks, he laid the blame for many of the abuses of aliens at the feet of two laws passed in 1996 that resulted in a much more harsh approach to the treatment of immigrants. While not mentioning the laws specifically, he cited the changes that came about through the passage of the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) and the Illegal Immigration Reform & Immigrant Responsibility Act of 1996 (IIRIRA). The report correctly noted that these laws increased the number of people subject to mandatory, prolonged and indefinite detention, expanded the list of crimes that would result in mandatory detention and removal to include minor offenses, reduced avenues of appeal and limited judge’s discretion to grant the right to remain in the United States.

Immigration & Customs Enforcement (ICE) defended the government’s treatment of aliens by asserting that the United States affords non-citizens the right to seek administrative review of detention and deportation decisions, along with access to federal court to challenge removal orders. What ICE omitted was the fact that administrative appeals of detention are not treated on an expedited basis and are often heard at the same time as the appeal of the denial of the ultimate relief sought. ICE also did not mention that administrative review of deportation decisions have been in many cases reduced to a one-sentence affirmance by one member of the administrative appeals board while access to federal court to review the propriety of those decisions has been increasingly restricted.

These are indeed harsh times for aliens. Government raids and family separation are just a few of the obstacles facing the non-citizen. Now, more than ever, it is essential that the immigrant make sure the rights he does have are protected. Anyone who is now, or is about to be, out of status should consult a reputable immigration attorney to determine whether there is anything that can be done to legalize their status and to determine what proper action to take if they are stopped or taken into custody by the Department of Homeland Security. Anyone who is placed into removal proceedings, or who has an existing deportation order, should also seek expert legal advice as to their rights. Ignorance is not bliss. It could result in removal from the United States.