Why International Human Rights Matter to Latino Undocumented Workers and Permanent Resident Aliens

Sylvia R. Lazos Vargas

United States immigration law allows for harsh treatment against foreign nationals who are detained for violating entry requirements.  The Mexican government acknowledges the right of another sovereign to regulate its borders and apprehend foreign nationals who have violated conditions of entry.  However, the US  treatment of Mexican undocumented workers  and Mexican nationals who are permanent resident aliens in the United States may in fact violate human rights, standards that Mexico and the United States have agreed are due to each human being, regardless of their status in a sovereign country under UN convention and other international treaties. The argument is that human rights norms limit the exercise of sovereign power even within a state's constitutional parameters, including immigration regulations.   

Here are some examples where a notion of human rights as legal obligations could limit how the US government treats Mexican nationals,

1.  In the United States deportation proceedings are not subject to the full protections under the US constitution because the US Supreme Court has found deportation to be a civil proceeding that establishes the right “to stay and live and work" and does not punish a "crime."   However, deportation can involve extreme suffering and severe personal consequences.

            a.  In Lake of the Ozarks, 15 Mexican nationals are currently being held in a sheriff’s jail (in rural Missouri, INS routinely contracts a local sheriff jail at about $45 per day per INS detainee) subject to deportation.  They have been in jail since October 2002.  IN February 2003, the US Attorney General issued an order detaining them as witnesses in a case that the US government is trying to make against a resort at Lake of the Ozarks.  Because US law does not place any strict limits on time that an individual will be held in deportation proceedings, these fifteen Mexican nationals may now be held in this Ozark sheriff’s jail for an indefinite period -- a year or more does not seem out of the question.  (ADELANTE! is currently writing up this story)

            This kind of detainment conceivably violates human rights norms.  International human rights standards place limits on indefinite detentions when they are “cruel” and “unusual.” 

            b.  It is not clear whether sheriff’s jails contracted by INS offer adequate conditions for INS detainees.  There seems to be no system of inspection that would ensure that INS detainees are being treated adequately.  In US, prison conditions are held in check by prisoner’s civil rights lawsuits, but no such avenue would be available or would be likely feasible for Mexican nationals.  Consider also that these detainees typically have no family that could visit them and  no watch dog group is likely to be aware of what is happening in rural sheriff’s jails.

           c.  At the Cambio de Colores 2002 conference, witnesses testified that the INS detains Mexican nationals at periodic raids at meat packing plants in rural Missouri.  When workers are detained they are not allowed to change into their street clothing or get their coats.  Individuals are being arrested in rubber boots, cotton clothing  and TShirts in the middle of winter.  When they are transported back to Mexico they are not given any money or facilitated transportation.  Witnesses reported that Mexican nationals have to walk in T shirts and rubber boots for miles getting blisters on their feet until they can find help.  It seems that basic human dignity mandates that INS adhere to standards that minimize the physical and moral suffering when  Mexican nationals are apprehended in INS raids.

   d.  At the 2003 Cambio de Colores conference Namcy Malugani will be presenting the case of her son, Pablo Ureta, who as a permanent resident alien is being deported at the age of 22 for drug offenses he committed when a teenager.  He has a wife and young son, and had a promising career.  He is being deported to a country of which he is a national but he has never lived in.  (reported in ADELANTE!; see their website ADELANTESI.com)  The story of Nancy Malugani’s son is not an isolated case.  Every day Mexican nationals who have lived and contributed for many years are being deported because they are convicted of crimes that range from passing bad checks, shoplifting, or using false identification purporting to be a US citizen.  The US system of deporting legal permanent residents for criminal conduct is extremely harsh, harms families who are left behind, and embodies a throw-away attitude about people.  It also severely deprecates the status of lawful permanent residents.

2. Because immigration proceedings are considered civil proceedings, US law does not provide for free representation by counsel for detainees or other safeguards that criminal proceedings provide detainees.  Mexican nationals who find themselves in trouble under immigration law must find their own attorneys.  There is no listing available in Missouri of reputable immigration counsel that speak Spanish.  This means that Mexican nationals have become easy prey for unscrupulous US lawyers.  There are too many cases of unscrupulous American (and until now Anglo, White) lawyers  who take the money of these hopeful people, falsely promise solutions,  and disappear without filing any papers in court.  Unfortunately, some judges have taken the view that Mexican nationals in such straits should not be given any breaks in their courtrooms, so filing extensions are routinely not granted.  This kind of reaction, again, underscores an attitude that Mexican undocumented workers are “throw away” people,  who are not due minimum safeguards and should be deported summarily regardless of the human suffering caused to them and their families.

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3. The US Congress in  1996 under the Immigration Reform Act determined that undocumented persons were not entitled to public benefits, such as Aid to Families With Dependent Children ("AFDC"), food stamps, or Medicaid – regardless of how long an undocumented had worked in the United States, and whether he of she had paid US federal income and social security taxes (amounts retained by employers regardless of whether a worker is documented or not) .  Undocumented foreigners are only eligible for limited emergency medical care.   International human rights documents recognize the right of everyone to "the highest attainable standard of physical and mental health."    By denying medical care to all undocumented immigrants, with the exception of emergency medical care, the law is preventing such persons from attaining the "the highest attainable standard of physical and mental health" as mandated by various international documents.  The restriction on access to health care for undocumented immigrants potentially has severe consequences.  Undocumented immigrants may suffer serious health problems because of the conditions in which they live and the high-risk jobs they perform.  Meatpacking is the most dangerous job in the United States.  Migrant farm-worker population suffer more respiratory, infectious, and digestive disorders due to pesticides used in farm work.  Fear of deportation results in undocumented immigrants not seeking medical care or preventive medicine.  ALIANZAS has heard of at least one instance where a Mexican national died in Missouri because he did not go to the doctor fearing deportation and knowing he could not afford medical care. 

4. DRIVERS LICENSES.  In Missouri undocumented workers cannot legally obtain a drivers license.  Yet many undocumented workers are providing the necessary labor for the many meatpacking and food processing plants and factories located in rural Missouri.  In rural Missouri there is not public transportation.  El Centro’s survey shows that at least 25 percent of Mexican immigrants drive without a license.  Breaking of the drivers licensing laws is being driven by necessity.  In the US public transportation is sometimes non-existent, and often inadequate.  A car is essential to obtain basic medical care, buy food, go to church, and taking children to school. Yet states are denying Mexican nationals the necessary means, a drivers license, to obtain basic necessities.  Conceivably, these laws violated internal constitutional norms of due process and equal protection of the laws, but as of yet they have not been challenged.

The impact of draconian immigration provisions fall hardest on Latino undocumented immigrants and permanent resident aliens, and more specifically, Mexican undocumented immigrants and permanent resident aliens, because they compose such a large part of the foreign working population in the US.  Although the US clearly benefits from this labor, the US has been very slow to remedy these harsh laws.  In part this is because undocumented workers, although a population that is very large in the United States, does not vote and has no internal political voice.

  The first avenue of international redress for violations of international human rights is diplomacy. Moreover, state-to-state diplomacy may well be the only avenue of representation for undocumented workers who labor in the United States.  Will Mexico exercise diplomatic pressure on the US to influence its actions towards Mexican nationals?

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