Human Rights Watch believes that many aspects of the proposed House Bill (H.R. 10) raise serious human rights concerns. H.R. 10 undercuts U.S. commitments to vulnerable populations, and it does so disingenuously by dressing up its proposals in the language of terrorism, when in fact many of its provisions have nothing to do with terrorism. Instead, the bill will put populations of immigrants, such as refugees and persons without any links to terrorism, at risk of serious abuse.
Q: Does the proposed House bill raise human rights concerns?
A: Yes. Certain provisions of H.R. 10 jeopardize the rights of immigrants to be free from arbitrary detention, to claim asylum, to be protected from return to torture, and to receive a full and fair deportation hearing.
By threatening the rights of immigrants in this way, the bill blatantly contradicts the 9-11 Commission’s advice that the United States should “offer an example of moral leadership in the world, committed to treat people humanely, [and] abide by the rule of law.” Indeed, on September 30, 2004, the Commission itself publicly announced its opposition to the House bill’s controversial immigration provisions in H.R. 10.
Congress should stay true to the Commission’s recommendations and protect the human rights of non-citizens as a part of its commitment to justice and the rule of law. Unfortunately, many of the legislative proposals under consideration falter badly on both counts.
Q: Who are the “immigrants” threatened by the House bill?
A: The immigrants who would be affected include legal permanent residents; undocumented immigrants; people legally admitted for work, education, or tourism; refugees; asylum seekers; and people with temporary protected status.
Q: Aren’t human and constitutional rights only for citizens of a particular country, in this case the United States?
A: No. All immigrants—including those here illegally—are guaranteed the same rights as citizens, with only a few exceptions, e.g. the right to vote. The U.S. 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 be free from arbitrary detention or cruel and unusual punishments.1
International human rights law uses much the same terminology to recognize these—and a few additional—rights of immigrants. The proposed legislation undermines several human rights obligations of the United States, including:
- The U.S. is obligated to protect all immigrants against arbitrary arrest and detention, to ensure that immigrants facing deportation receive a fair hearing and appeal, and to guarantee a remedy for human rights violations that immigrants suffer. The U.S. undertook these obligations when it ratified the International Covenant on Civil and Political Rights (ICCPR), which mirrors many fundamental rights enshrined in the U.S. Constitution.
- Under the Convention Relating to the Status of Refugees and its related Protocol (Refugee Convention), the U.S. must recognize the refugee status of individuals who have a well-founded fear of persecution, based on at least one of five grounds, and protect them from return to a place where they fear persecution.
- U.S. obligations under the Convention Against Torture and other Cruel Inhuman or Degrading Treatment or Punishment (Convention Against Torture) prohibit the U.S. from sending or returning a person to another country where there are substantial grounds for believing that he or she would be in danger of being tortured.
Q: Does the House bill’s elimination of habeas corpus court review violate immigrants’ rights?
A: Under current law, immigrants can be deported for a wide variety of criminal convictions, but they can go to court using a petition of habeas corpus to ask for discretionary relief from deportation. Section 3009 of the House bill would eliminate judicial review by habeas corpus, making it impossible for immigrants with certain arguments against their deportation to have a fair day in court. For example, if an immigrant’s deportation would create extreme hardship for her family members, such as her U.S. citizen child, section 3009 would block her ability to argue her case before a judge.
This provision would impact tens of thousands of immigrants, including lawful permanent residents who have lived in the United States for many years and have U.S. citizen children and spouses. The crimes that render non-citizens deportable include crimes as minor as two shoplifting convictions.
Passage of this provision would violate article 13 of the ICCPR, which requires that deportation be undertaken “in accordance with law” and only after a hearing, where an immigrant can “submit the reasons against his expulsion … before the competent authority.”2 Non-citizens must also be able to appeal a deportation decision, according to article 13 of the ICCPR. While article 13 contains an exception for “compelling reasons of national security,” that section is inapplicable to people who have been accused of common crimes, such as drug possession, without any links to terrorism.
Q: Does the House bill allow the U.S. government to send a refugee to a place where he or she fears persecution?
A: Section 3009 of H.R. 10 would make it possible for the government to deport a refugee to a country where she fears persecution—including, for example, arbitrary arrest and detention for her political beliefs, sexual violence or rape, or other forms of torture—while her case is still pending in U.S. courts. This provision of the House bill would violate the most fundamental principle of refugee law, the prohibition against return to persecution, which is enshrined in article 33 of the Refugee Convention, and has become a binding principle of international customary law.
Under current U.S. law, judges have an option to issue a “stay of removal” in order to stop a person from being deported while his or her asylum case is being considered. The House bill would eliminate the judicial power to issue a temporary “stay of removal” to protect those persons with non-frivolous appeals cases from immediate deportation. This provision of the House bill would also violate article 33 of the Refugee Convention.
Q: Does the House bill set unjustifiable time limits on applying for asylum?
A: Yes. Section 3006 of the House bill withdraws protection from persecution or torture for immigrants who were not originally properly admitted to the United States and who have been in the country for more than one year but less than five years.
For example, this would mean that a student from the Darfur region in Sudan who entered the U.S. without permission two years ago would be prevented from seeking refugee status based on the serious human rights abuses going on in that region today.
This provision of the House bill violates the authoritative standards in the United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status (“UNHCR Handbook”),3 which states that a refugee may “ask for recognition of his refugee status after having already been abroad for some time.”4
Finally, section 3006 also permits the U.S. government to return individuals to a country where they would face torture, if they were not originally properly admitted to the United States and have been in the country for more than one year but less than five years. This provision would violate U.S. legal obligations under article 3 of the Convention against Torture.5
Q: Will the House bill unreasonably deny some refugees access to asylum?
A: Yes. All individuals have a right to seek asylum based on well-founded fears of persecution for reasons of race, religion, nationality, membership in a particular social group, or political opinion, according to U.S. law, the Refugee Convention, and the Universal Declaration on Human Rights. Section 3007 of H.R. 10 would deny genuine refugees access to asylum, if they cannot prove that the person persecuting them was or will be “centrally motivated” by at least one of the five reasons, as opposed to having mixed motives for the persecution.
Persecutors rarely explain the reasons for their abuse to their victims. It is for this reason that neither the Refugee Convention nor the UNHCR Handbook provides any support for this proposed “central motivation” requirement. The proposed law would make unrealistic demands on those fleeing persecution to prove what their persecutor is thinking.
Section 3007 of H.R. 10 would also allow decision makers to question asylum seekers’ credibility because of their “demeanor” and allow asylum to be denied to persons whose first and later statements to immigration authorities are inconsistent. These new standards for assessing the credibility and consistency of asylum seekers do not take into account that refugees fleeing torture, rape, and other forms of persecution may be traumatized and may not recall or feel comfortable discussing every detail of the abuses they suffered in their first encounter with an immigration officer. Governments must be sensitive to these issues when hearing asylum claims because, as the UNHCR handbook states, “an applicant for refugee status is normally in a particularly vulnerable situation. He finds himself in an alien environment and may experience serious difficulties, technical and psychological, in submitting his case to the authorities of a foreign country, often in a language not his own.”6
Q: Would H.R. 10 allow people to be sent to countries where they risk torture?
A: Yes. The international rule against subjecting any person to torture, either by deportation or by direct acts, is absolute. It applies to all persons without exception. Yet section 3032 of H.R. 10 would allow the return of certain people to situations where they would be tortured. This would be a clear violation of U.S. obligations under the Convention Against Torture.
The proposed law prevents certain immigrants convicted or suspected of terrorism or other crimes from seeking protection against removal to a country where they fear torture. This is contrary to current U.S. law, which allows all persons to seek protection against removal to countries where they risk being tortured and to ask a court to hear fears of torture by using the writ of habeas corpus.
There are legal alternatives to deporting suspected terrorists or convicted criminals to countries that torture. Under current law, such persons can be deported to another country where they would not be in danger of being tortured. Neither does existing law prevent deportation once the danger of torture has ended (e.g. because of a change in government).
1Only three constitutional rights—voting in elections, holding certain political offices, and the absolute prerogative to enter and remain in the country—are denied immigrants outright.
2An exception is provided in the treaty for cases in which “compelling reasons of national security” arise, but the vast majority of non-citizens would be deported under the proposed section for ordinary aggravated felonies or crimes of moral turpitude, and therefore their expulsion would not raise national security questions.
3The UNHCR Handbook has been recognized by the U.S. Supreme Court to provide “significant guidance” in construing U.S. obligations under the Refugee Convention, INS v. Cardoza-Fonseca, 480 U.S. 421, 439 n.22 (1997).
4UNHCR Handbook, Para. 94.
5Article 3 of the Convention against Torture was incorporated into law by the passage of the Foreign Affairs Reform and Restructuring Act in 1998.
6UNHCR Handbook Para. 190.