Magazine article The American Prospect

Inalienable Rights: Can Human-Rights Law Help to End U.S. Mistreatment of Noncitizens?

Magazine article The American Prospect

Inalienable Rights: Can Human-Rights Law Help to End U.S. Mistreatment of Noncitizens?

Article excerpt

THE UNITED STATES, FAMOUS AS A nation of immigrants, should also be infamous for its bouts of anti-immigrant sentiment. Often our intolerance has been fueled by national-security fears.

At other times, Americans have made misguided assumptions about who immigrants are and the rights that protect them.

Foreigners in the United States illegally get a lot of publicity, but a substantial majority of noncitizens in America are here legally. They include permanent residents; people legally admitted for work, education, or tourism; refugees; asylum seekers; and people with temporary protected status. All of these noncitizens--including those here illegally--are guaranteed almost all the same rights as citizens. In fact, only three constitutional rights--voting in elections, holding certain political offices, and the absolute ability to enter and remain in the country--are denied noncitizens outright. Otherwise, the Constitution grants to "the people" or "persons"--not just to citizens--the rights to due process and equal protection of the law, to freedom of speech and assembly, and to freedom from arbitrary detention or cruel and unusual punishments.

International human-rights law uses much the same terminology to recognize these--and a few additional--rights of noncitizens. The parallels are no coincidence. When the nations of the world gathered together after the nightmare of Nazism to create the Universal Declaration of Human Rights, they looked to U.S. constitutional principles and the Bill of Rights for inspiration and guidance. The notion that all persons, whatever their legal status, have basic rights was then further elaborated in numerous international treaties.

In other contexts, the United States has a practice of limiting its human-rights obligations in the treaties it ratifies. But there are no such limits on immigrants' rights. None of the reservations and understandings the United States has entered for key treaties including the International Covenant on Civil and Political Rights, the 1951 Refugee Convention, the Convention on the Elimination of Racial Discrimination, or the Convention Against Torture and Other, Inhuman or Degrading Treatment or Punishment specifically limit noncitizens' rights.

On paper, constitutionally and internationally, Americans respect the rights of noncitizens. But inspiring words on a statue in New York Harbor notwithstanding, unadulterated welcome has never been our actual stance. From mid 19th century attacks on Irish and German immigrant workers to legislated xenophobia in the Chinese Exclusion Act of 1882 to Japanese internment during World War II, the targets and expressions of hostility have shifted with the times. Since September II, it is the 5.5 million persons of Arab or south Asian descent who are living under a pall of suspicion and resentment. Today the United States, which once motivated the world to take human rights seriously, must turn to the world's human-rights treaties to correct the mistreatment of the immigrants in our midst.


Immediately after 9-11, the U.S. government questioned thousands of noncitizens of Arab and south Asian descent who were selected for no reason other than their ethnic or religious backgrounds. A full 752 were arrested for routine immigration violations. While none was ever charged with terrorism, the government gave them the slanderous moniker of being of"special interest" to the terrorism investigation.

The special-interest detainees were subjected to secret immigration hearings where even their families were excluded. all endured periods of detention without charge. Thirty-six were held for 28 days or more, 13 were held for more than 40 days, and nine were held for more than 50 days--all without charge. One Saudi Arabian detainee was held for 119 days.

While detainees atone detention center in Brooklyn waited, correction officers slammed them against walls, causing pain and injuries. …

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