Human Rights Watch opposes H.R. 2671, the “Clear Law Enforcement for Criminal Alien Removal Act of 2003,” (hereinafter the “The CLEAR Act”) and its companion Senate bill, S. 1906, “the Homeland Security Enhancement Act of 2003” (hereinafter “HSEA”). Human Rights Watch is a non-governmental organization dedicated to the protection of human rights throughout the world, including in the United States. Both acts jeopardize those rights.
• Arbitrary and erroneous arrests and detentions because state and local officers will be required to imprison and/or fine non-citizens they determine to be “unlawfully present” – a complex term that non-immigration officers will have enormous difficulty enforcing;
• Arbitrary deportations that arise because on its face the CLEAR Act provides state and local officers with an unfettered power to deport non-citizens. This power could potentially be used to deport non-citizen refugees who have entered the country without valid documents to a place where they fear persecution – a serious violation of such refugees’ rights;
• Disproportionate fines imposed on undocumented immigrants that are draconian given the impoverished conditions of most such immigrants;
• Unjust and arbitrary deprivations of property since the CLEAR Act and HSEA allow state and local officials to take the property of persons who they have decided are unlawfully in the United States;
• Increased vulnerability of immigrant women and children to violence since the CLEAR Act and HSEA will cause immigrants to refrain from contacting police about abuses they have suffered for fear that they – or undocumented relatives who may live with them – will be arrested on immigration charges.
Given these and other concerns discussed in detail below, these bills cannot be squared with the United States’ obligation, as a party to the International Covenant on Civil and Political Rights (ICCPR) to protect the rights of all persons in the country, citizen and non-citizen alike. Those rights include the right to liberty and freedom from arbitrary detentions (art. 9) and the rights to due process safeguards and remedies in deportation proceedings (art. 13).
The CLEAR Act and HSEA allow for arbitrary arrests and detentions of non-citizens
Under the CLEAR Act or HSEA state and local officers are required to imprison and/or fine non-citizens apprehended who are determined to be unlawfully present in the United States. Encouraging state and local officers who will have little or no training in the complexities of federal immigration laws to enforce those laws will undoubtedly result in legally and factually unsound arrests and detentions. While Section 109 of the CLEAR Act and Section 108 of HSEA require the Attorney General or Department of Homeland Security to create training manuals and to make other training “available through as many means as possible,” the Acts do not make training a prerequisite to the enforcement of federal immigration laws by state and local officers.
The ease with which state and local officials acting under these laws could subject non-citizens to arbitrary and groundless arrests cannot be overestimated. A variety of documents are involved in regulating the presence of non-citizens in the United States, which are difficult to understand for any official not involved in the administration of those documents. For example, a foreign student’s passport may contain an expired visa, but he or she may have filed a valid I-20 form, which grants permission to remain in the country for another year. Moreover, other non-citizens may be in the midst of regularizing their status through marriage or adjustment, or maintaining their lawful presence after filing change of address forms, all of which the untrained local officer may not know about or understand. Yet they will be empowered to arrest non-citizens based on their on the spot assessments of those complicated technical documents.
In addition, in the federal system non-citizens detained on immigration charges are brought for bond hearings before judges familiar with immigration cases. This policy, although often problematic in practice, certainly places the letter of U.S. federal law in line with the ICCPR, which requires that any detainee “shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention” (art. 9). The CLEAR Act and HSEA do not address the issue of whether non-citizens arrested and detained for their unlawful presence would be afforded an opportunity for an independent hearing, and if so, who in the state and local system would hear these cases. While HSEA does provide a mechanism by which apprehended aliens could be turned over to federal authorities, this is not a requirement. By not addressing this issue, the CLEAR Act and HSEA appear to create a two-tiered system of justice: one for aliens in the federal system, who are afforded due process guarantees, and one for aliens arrested by state and local officials with far fewer, if any, protections.
Finally, the CLEAR Act and HSEA require local and state officials to incarcerate non-citizens they determine to be unlawfully present alongside prisoners, including those accused or convicted of violent crimes in state and local jails and prisons. Such incarcerations would contravene the ICCPR, which requires unconvicted persons to be “segregated from convicted persons and…[to] be subject to separate treatment appropriate to their status as unconvicted persons” (art. 10). Moreover, it would contradict several years of work on the part of federal immigration authorities to attempt to improve the conditions under which non-citizens are detained in the United States. The Act not only allows state and local authorities to incarcerate non-citizens who have committed no crime alongside potentially violent criminals: it also allows them to be imprisoned in facilities with conditions falling far below federal minimum standards for other immigration detention facilities.
The CLEAR Act grants unfettered power of deportation to state and local authorities
In addition to the power to arrest and imprison non-citizens, the CLEAR Act states that state and local law enforcement officials “are fully authorized to…remove [i.e. deport] aliens in the United States. . .in the enforcement of the immigration laws of the United States.” On its face, this provision appears to confer authority on state and local officials to remove non-citizens from the United States, a power heretofore conferred only on the federal government acting through the deportation (now called removal) process in the federal immigration courts. Under the CLEAR Act, however, state and local officials would be authorized to carry out removals of non-citizens without following even the most basic procedures and checks on decision making required in the federal system. State and local officials are thereby granted an extraordinary power, which far exceeds that enjoyed by traditional federal immigration authorities. Not only is this extreme measure in contradiction to the federal system of immigration, but it also threatens fundamental principles of human rights.
Under Article 13 of the ICCPR and constitutional law, the United States is required to give non-citizens facing deportation access to review by an independent tribunal in order to determine whether the decision to deport is lawful. However, Section 101 does not require that removal decisions by state or local officers to detain or remove be subjected to any form of independent scrutiny. Indeed, the CLEAR Act does not even require state or local officials to provide the Department of Homeland Security or any other federal agency with any oral or written statement of the immigration grounds upon which the decision to detain and remove a person was based.
One of the categories of persons state and local enforcement officials could detain and potentially remove from the United States under the CLEAR Act are those who have entered the country without valid documents. However, such a person may have a valid claim to asylum. According to U.S. immigration law, as well as the 1951 Refugee Convention and its related Protocol (the “Refugee Convention”) refugees must be protected against deportation to a place where they are likely to face persecution. Under the Convention against Torture and other Cruel, Inhuman, or Degrading Treatment or Punishment (the “Convention against Torture”), no person may be returned to a country where there are substantial grounds for believing they would be tortured. The United States has ratified both the Refugee Convention and the Convention against Torture; these treaties create international legal obligations for state and local officials as well as national authorities. Unfortunately the CLEAR Act does not require state and local officials to make asylum seekers aware of their rights, or to put federal immigration authorities in contact with possible asylum seekers, or to ensure that asylum seekers can submit their claims to adjudicators. As a result, the CLEAR Act does not prevent state and local authorities from sending a refugee or any non-citizen who might face torture back to a country where he or she is likely to face serious abuse, an egregious violation of such a person’s most basic human rights.
The CLEAR Act and HSEA increase the risk of violence against immigrant women and children
By requiring state and local officials to detain and remove non-citizens, the CLEAR Act and HSEA further endanger some of the most vulnerable members of immigrant communities in the United States: battered, trafficked, or sexually abused women and children. Many immigrants, even if they are in the United States legally, will refrain from contacting police about abuses they have suffered for fear that they – or undocumented relatives who may live with them – will be arrested on immigration charges. Indeed, in many immigrant communities today, batterers and traffickers often use the threat of deportation against their victims in order to prevent them from reporting the crimes they have suffered. The CLEAR Act and HSEA will simply give those criminals new confidence in their ability to act with impunity.
Even where limited relief for these victims may be available through new special visa categories, the CLEAR Act and HSEA risk harming these victims by making their recourse to justice and protection even more unlikely. Local law enforcement officers should protect women and children who are victims of trafficking and of domestic and sexual violence. But if local officials are also required to enforce federal immigration laws, traffickers and abusers will have greater power to trap their victims in violent or exploitative situations. Not only will women and children suffer serious abuse, but law enforcement will encounter much greater difficulty in identifying and prosecuting traffickers and other violent criminals. Passage of the Acts would undermine the United States’ ability to make good on its responsibility to provide a remedy to victims under article 2 of the ICCPR since victims of trafficking and domestic or sexual violence have had their rights violated under articles 7 (banning torture and cruel and inhuman treatment) and 8 (prohibiting slavery, servitude, and forced labor) of the ICCPR, respectively.
The CLEAR Act and HSEA will arbitrarily deprive persons of their property
The Universal Declaration of Human Rights as well as due process guarantees in the U.S. Constitution recognize that no one may be arbitrarily deprived of his or her property. In the United States, property forfeiture is most often imposed when individuals have been convicted of or when there is probable cause to prosecute them for (usually drug-related) crimes. In the immigration and civil law context, forfeiture is rarely imposed. Contrary to these traditions of law enforcement practice, as well as the fundamental prohibition on arbitrary deprivation of property, Section 103(e) of the CLEAR Act and 103 of HSEA allow state and local officials to take the property of persons who they have decided are unlawfully in the United States. The decision that their presence is unlawful, making them subject to property forfeiture, would be without judicial review. In addition, such an unfettered power to deprive individuals of property is likely to result in local and state officials subjecting lawful aliens or even U.S. citizens to forfeiture because of their marriage relationships with non-citizens determined to be unlawfully present.
The CLEAR Act and HSEA deny individuals a remedy for abuses suffered
Section 110 of the CLEAR Act and Section 109 of the HSEA grant state and local law enforcement officials complete personal immunity and state and local agencies immunity against lawsuits brought in connection with their enforcement of immigration laws. In so doing, it effectively denies noncitizens a civil remedy for any violations of their rights. Allowing civil rights violations to go unpunished will contravene the right of victims to a remedy for abuses suffered, which is affirmed in the ICCPR (arts. 2 & 9). The remedy provisions in the ICCPR supplements U.S. law because U.S. constitutional law does not explicitly prohibit certain forms of discrimination (such as nationality-based discrimination), which are addressed in more detail in the ICCPR. The treaty also requires remedies for specific violations that U.S. civil rights and constitutional law do not prohibit: for example the ICCPR’s prohibition against incarcerating convicted and unconvicted individuals together and the ICCPR’s requirement of an “enforceable right to compensation” for “unlawful arrest or detention.”
The CLEAR Act and HSEA will have negative and disproportionate policy consequences
Section 103(a) of the CLEAR Act and Section 103 of HSEA increase the penalties for common immigration law violations to levels that are nothing less than draconian given the impoverished conditions of most undocumented immigrants. For example, migrant farm workers typically enter the United States repeatedly because of the seasonal nature of their work. Yet these workers, whose earnings place them among the poorest in the country, would face a $10,000 fine for illegally entering the United States three or more times under the CLEAR Act. In addition, also under the CLEAR Act, those non-citizens who fail to depart the United States within 30 days of a final order of removal, and who have entered illegally three times previously, would be fined $50,000 – a stunning fine that many non-citizens could not pay even if given decades to do so. Such severe fines are both unnecessary and disproportionate.
Finally, the CLEAR Act and HSEA are intended to promote the national effort against terrorism. Instead, the measures will exacerbate the isolation and fear immigrant communities often face during their interactions with law enforcement personnel and thus undermine cooperative efforts between state and local officials and such communities. As a result, state and local police will be less likely to garner support for law enforcement from immigrant communities, or gain the trust of such communities to cooperate in criminal investigations. Non-citizens who might otherwise be helpful to investigations and crime prevention will be reluctant to report to local and state officials, for fear of immigration consequences. By further isolating and disempowering immigrant communities, the CLEAR Act and HSEA will undermine the anti-terrorism efforts it allegedly seeks to bolster.
For all of these reasons, Human Rights Watch urges the House of Representatives to vote against the CLEAR Act and the Senate to vote against the HSEA.
U.S. Advocacy Director