Keeping in Mind International Law when Evaluating U.S. Immigration Policy

The Supreme Court of the United States will hear a challenge to President Obama's executive action on immigration.

The Supreme Court of the United States will hear a challenge to President Obama’s executive action on immigration | Photo by Mr. Kjetil Ree.

On Tuesday, January 19th, 2016, the Supreme Court indicated that it would hear a challenge to President Obama’s executive action relating to immigration. On November 20th and 21st, 2014, Mr. Obama announced a series of reforms to immigration, collectively referred to as the Immigration Accountability Executive Action. These reforms both expanded the Deferred Action for Childhood Arrivals (DACA) program and created the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program. The DACA program provides relief from deportation for undocumented immigrants who came to the U.S. as children and meet other qualifications. The intent of DAPA is to allow as many as five million undocumented immigrants whose children are citizens or lawful residents to be protected from deportation and to be provided with work permits. Some say that DAPA and the expanded DACA programs will both keep families united and be economically beneficial, increasing tax revenue, GDP, and raising wages. The president has suggested that he took such actions following Congress’ inability to pass bipartisan legislation updating the United States’ immigration laws.

The programs derive from the executive branch’s authority to exercise discretion in the prosecution and enforcement of immigration cases. In both instances, the President has authorized the Department of Homeland Security to defer for three years the deportation of qualified individuals who pose no threat to the United States in the hope that the Department may better be able to focus on deporting high-priority offenders who pose a national security risk, are convicted criminals, or have recently crossed the border illegally. President Obama hopes that over the time period that the program covers, Congress will comprehensively update and change the United States’ immigration policy.

Texas filed its lawsuit in December of 2014 and is joined by twenty-five other states in contending that the president overstepped his authority in his creation of DAPA.  Some states have indicated their support of President Obama’s executive actions: a group of twelve states and the District of Columbia filed an amicus brief with the District Court, and a group of 30 mayors filed a separate amicus brief.  The mayors, when announcing their brief, said that the President’s policies would improve the economies of their cities and make residents more willing to engage with police. Nevertheless, plaintiffs made their initial arguments before Judge Andrew Hanen of the U.S. District Court for the Southern District of Texas in January of 2015. On February 16, 2015, Hanen temporarily enjoined DAPA pending a higher court’s contrary order or a trial on the merits.

The government subsequently appealed the lower court’s decision to the Fifth Circuit Court of Appeals. In addition, the government asked Judge Hanen to “stay” the injunction. When the judge did not rule quickly, they requested an emergency stay from the Fifth Circuit.  On May 26, 2015, a divided panel of the Fifth Circuit Court of Appeals denied the government’s request for a stay of the preliminary injunction. Then, on November 9, 2015, the Court of Appeals upheld the District Court’s order granting the preliminary injunction. While acknowledging that the government’s action is one committed to agency discretion and exempt from judicial review under the Administrative Procedure Act, they still found that the plaintiff states were likely to prevail on their claim that the federal government should have pursued notice-and-comment procedures, as the DAPA and expanded DACA determinations are non-discretionary.

This case, President Obama’s programs, and the opinions of those who oppose them are part of a wider debate and discussion of what the United States must do to address the large number of undocumented immigrants in the country. Policy-makers and members of the judiciary should keep in mind the United States’ obligations under international law in considering alternative options. Should the Supreme Court rule against President Obama’s plan, the government must remember its obligations to abstain from refoulement and the required procedures it must undertake under international law in expelling aliens from its territory.

The principle of non-refoulement prohibits States from returning refugees and asylum seekers to territories where there is a risk that their lives or freedoms would be threatened on account of race, religion, nationality, membership of a particular social group, or political opinion.

One of the most well known elaborations of the principle is in Article 33 of the 1951 Convention Relating to the Status of Refugees. The principle of non-refoulement is also applied as a part of the prohibition against torture or cruel, inhuman or degrading treatment or punishment. For example, the 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment provides: “No State Party shall expel, return (‘refouler’) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.”

In addition, the government should note that the Draft Articles on the Expulsion of Aliens adopted by the International Law Commission in 2014, which set forth the parameters within which a State may conduct a lawful expulsion of an alien from its territory, prohibit collective expulsions as well as discrimination in the expulsion process. This means that a State may not decide who to expel on the basis of race, sex, language or other factors.

The United States is party to both the 1951 Convention Relating to the Status of Refugees, and the 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. It is also a member of the United Nations whose International Law Committee produced the Draft Articles on the Expulsion of Aliens.  American policy makers thus have an affirmative duty in each instance to conduct a meaningful inquiry into whether a potential deportee faces a risk of persecution, if applying for asylum, or torture, no matter the circumstances, upon return to his home country. They also should heed the recommendations of the International Law Committee in deciding whom to deport. While many may view immigration as a domestic economic issue, it is also an international humanitarian issue, and policy makers must find a way to balance both of these competing interests.

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