LatinaLista — The immigration system is broken.
That phrase has been used so often in the immigration reform debate that it's now a cliche.
Yet it stands to reason that if the immigration system is broken, it can't be the only system broken. There are other systems that are impacted, whether directly or indirectly, by illegal immigration which also are in need of massive overhauls.
One such system is our judicial system. It is a system that suffers from just as many abused, obsolete, inadequate processes and practices, as well as, loopholes that states and counties have learned to manipulate it to the extent that the U.S. has held the dubious distinction over the past several years of being the country with the highest prison population rate in the world.
Now, it seems it's just getting worse.
Weâ€™ve known how Arizona and Oklahoma have declared war on undocumented immigrants by passing such punitive laws that these people canâ€™t cross a street without hearing police sirens blaring behind them.
In Oklahoma, news reports detail how some local police are intimidating the local Hispanic community to the point that people are afraid when they see anyone with a badge coming their way.
Yet, in probably one of the most cruel forms of using the judicial system to criminalize an otherwise nonviolent demographic is what Tennessee has in mind.
A proposal to make it a crime for illegal immigrants to accept pay for work done in Tennessee is headed for floor votes in both chambers of the General Assembly.
The Senate Commerce Committee voted unanimously today to advance the proposal to make it a misdemeanor for illegal immigrants to accept pay.
The measure sponsored by Sen. Joe Haynes, a Goodlettsville Democrat, could lead to fines of $500, up to six months in jail and require illegal immigrants to forfeit any earnings they receive.
These same legislators claim they canâ€™t enact tougher laws against the employers who hire undocumented immigrants because the â€œstate must defer to federal laws on that matter.â€
It seem to us that a law specifically targeting undocumented immigrants falls under the immigration issue â€” a federal issue and one that should also be deferred to federal laws and/or rulings.
The obvious intent of this law is to officially criminalize undocumented immigrants to make it that much easier to justify jailing them then slapped by ICE as a criminal offender who is barred from re-entering the United States.
Critics of immigrants who have arrived here illegally always repeat the fallacy: just get to the end of the line, if you want to come here. Thereâ€™s one problem â€” thereâ€™s no line.
Yet, there can be solutions to this issue. But it will take a willingness for both sides to compromise on all aspects of the issue save one aspect â€” the preservation of human dignity that is a universal right.
The following are portions of the full â€œConclusionsâ€ section of the March 7, 2008 report of UN Special Rapporteur on the Rights of Migrants as found on the Texas Civil Rights Review site.
104. Contrary to popular belief, United States immigration policy did not become more severe after the terrorist attacks on September 11. Drastic changes made in 1996 have been at work for more than a decade, affecting communities across the nation and recent policy changes simply exacerbate what was put in motion then. Also, contrary to popular belief, these policies do not target only undocumented migrants - they apply to citizens born in the United States of undocumented parents and long-term lawful permanent residents (or green card holders) as well.
105. Not only have immigration laws become more punitive - increasing the types of crimes that can permanently sever a migrantâ€™s ties to the United States - but there are fewer ways for migrants to appeal for leniency. Hearings that used to happen in which a judge would consider a migrantâ€™s ties to the United States, particularly their family relationships, were stopped in 1996. There are no exceptions available, no matter how long an individual has lived in the United States and no matter how much his spouse and children depend on him for their livelihood and emotional supportâ€¦
109. The Special Rapporteur would like to make the following recommendations to the Government.
On general detention matters
110. Mandatory detention should be eliminated; the Department of Homeland Security should be required to make individualized determinations of whether or not a non-citizen presents a danger to society or a flight risk sufficient to justify their detention.
111. The Department of Homeland Security must comply with the Supreme Courtâ€™s decision in Zadvydas v. Davis and Clark v. Martinez. Individuals who cannot be returned to their home countries within the foreseeable future should be released as soon as that determination is made, and certainly no longer than six months after the issuance of a final order. Upon release, such individuals should be released with employment authorization, so that they can immediately obtain employment.
112. The overuse of immigration detention in the United States violates the spirit of international laws and conventions and, in many cases, also violates the actual letter of those instruments. The availability of effective alternatives renders the increasing reliance on detention as an immigration enforcement mechanism unnecessary. Through these alternative programmes, there are many less restrictive forms of detention and many alternatives to detention that would serve the countryâ€™s protection and enforcement needs more economically, while still complying with international human rights law and ensuring just and humane treatment of migrants.
Create detention standards and guidelines
113. At the eighty-seventh session of the Human Rights Committee in July 2006, the United States Government cited the issuance of the National Detention Standards in 2000 as evidence of compliance with international principles on the treatment of immigration detainees (see note 13 below). While this is indeed a positive step, it is not sufficient. The United States Government should create legally binding human rights standards governing the treatment of immigration detainees in all facilities, regardless of whether they are operated by the federal Government, private companies, or county agencies.
114. Immigration detainees in the custody of the Department of Homeland Security and placed in removal proceedings, should have the right to appointed counsel. The right to counsel is a due process right that is fundamental to ensuring fairness and justice in proceedings. To ensure compliance with domestic and international law, court-appointed counsel should be available to detained immigrants.
115. Given that the difficulties in representing detained non-citizens are exacerbated when these individuals are held in remote and/or rural locations, U.S. Immigration and Customs Enforcement (ICE) should ensure that the facilities where non-citizens in removal proceedings are held, are located within easy reach of the detaineesâ€™ counsel or near urban areas where the detainee will have access to legal service providers and pro bono counsel.
Deportation issues impacting due process and important human rights
116. United States immigration laws should be amended to ensure that all non-citizens have access to a hearing before an impartial adjudicator, who will weigh the non-citizenâ€™s interest in remaining in the United States (including their rights to found a family and to a private life) against the Governmentâ€™s interest in deporting him or her.
Detention/deportation issues impacting unaccompanied children
117. The Government should urge lawmakers to pass the Unaccompanied Alien Child Protection Act of 2007 reintroduced in March 2007.
118. Children should be removed from jail-like detention centres and placed in home-like facilities. Due care should be given to rights delineated for children in custody in the American Bar Association "Standards for the Custody, Placement, and Care; Legal Representation; and Adjudication of Unaccompanied Alien Children in the United States" (see note 14 below).
119. Temporary Protected Status (TPS) should be amended for unaccompanied children whose parents have TPS, so they can derive status through their parents.
Situation of migrant women detained in the United States
120. In collaboration with legal service providers and non-governmental organizations that work with detained migrant women, ICE should develop gender-specific detention standards that address the medical and mental health concerns of migrant women who have survived mental, physical, emotional or sexual violence.
121. Whenever possible, migrant women who are suffering the effects of persecution or abuse, or who are pregnant or nursing infants, should not be detained. If these vulnerable women cannot be released from ICE custody, the Department of Homeland Security should develop alternative programmes such as intense supervision or electronic monitoring, typically via ankle bracelets. These alternatives have proven effective during pilot programmes. They are not only more humane for migrants who are particularly vulnerable in the detention setting or who have family members who require their presence, but they also cost, on average, less than half the price of detention.
122. The United States should ensure that the decision to detain a non-citizen is promptly assessed by an independent court.
123. The Department of Homeland Security and the Department of Justice should work together to ensure that immigration detainees are given the chance to have their custody reviewed in a hearing before an immigration judge. Both departments should revise regulations to make clear that asylum-seekers can request these custody determinations from immigration judges.
124. Congress should enact legislation to ensure that immigration judges are independent of the Department of Justice, and instead part of a truly independent court system.
125. Families with children should not be held in prison-like facilities. All efforts should be made to release families with children from detention and place them in alternative accommodation suitable for families with children.
On migrant workers
126. The Government should ensure that state and federal labour policies are monitored, and their impact on migrant workers analysed. Policymakers and the public should be continually educated on the human needs and human rights of workers, including migrant workers. In this context, the Special Rapporteur strongly recommends that the United States consider ratifying the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Familiesâ€¦