North Carolina Journal of International Law

"Connecting North Carolina to the World of International Law"

The American Dream: A Legal Nightmare for the Dreamers

By: Lauren Toole

With the end of the Deferred Action for Childhood Arrivals (DACA) on the horizon, the nearly 800,000 people who are protected by the Act are left wondering: what happens next? Deporting the Dreamers will undoubtedly have severe national level consequences in industries like labor, but it also begs serious international questions such as will the Dreamers have legal resident status? If not, can they be deported? Will that deportation violate the Universal Declaration of Human Rights?

 

The Dreamers primarily come from Mexico, while large numbers also come from El Salvador, Guatemala and Honduras.[1]  All four countries suffer from extreme political, social, and economic unrest, and each region has suffered through more than one humanitarian crisis. The United States stands in stark comparison, making it the common destination for the Dreamers and their families.

Where the Dreamers Come From

Mexico has been, and continues to be, plagued by drug-related violence, with cartels destroying cities and towns, and infiltrating governmental organizations.[2]  In 2011, the Zetas cartel swept through Allende and neighboring villages, murdering and mutilating possibly hundreds of people.[3]  The violence lasted for weeks: first, the city itself was destroyed, then the residents were kidnapped, and finally hostages were murdered and their bodies burned.[4]  There have also been reports of violence perpetrated by the police, the most famous of which is the Iguala mass kidnappings. The kidnappings attracted international attention in 2014 when 43 high school students went missing on a school trip.[5]  Police officers surrounded the bus, ordered everyone off, and the students were never heard from again.[6]  All are presumed dead.[7] While police officers facilitated the violence, they are also thought to have been working in concert with local gangs to carry out the attack.[8] The U.N. and E.U. separately conducted hearings on the Iguala kidnappings and noted that Mexico has nearly 120,000 cases of death or disappeared persons that the government has failed to investigate.[9]

 

Last year, El Salvador was deemed the murder capital of the world, with gang violence and illegal drugs driving the disturbingly high homicide rate of 116 dead per 100,000—nearly 17 times the global rate.[10]  Police forces have responded with brutal force. Between 2014 and 2017, gangs have killed nearly 238 security forces while 1,415 people have been killed in “alleged confrontations” between police forces.[11] The figures indicate that police have used extrajudicial force under the guise of “confrontations” to justify their actions. State efforts to counteract the crime rate have resulted in extrajudicial killings that have garnered international judicial attention.[12]  Reports on the nearly 630% increase in security officials accused of homicide have been sent to the Inter-American Commission on Human Rights (IACHR),[13] which works with the Inter-American Court of Human Rights for the protection of human rights.[14]

 

Guatemala, has suffered through civil war, atrocious war crimes, and political corruption. The U.N. instituted anti-corruption efforts by electing a panel tasked with eradicating the country’s organized crime.[15]  However, this month, Guatemala’s President expelled the U.N.-elected commissioner in charge of the panel. [16]  This declaration emerged after the commissioner called for the president’s impeachment after he failed to disclose illicit campaign contributions during his 2015 election.[17] The country’s political crisis will have huge implications on its fragile democracy, and could re-introduce an era of grave human rights violations.[18]   International investigations into past crimes in Guatemala have resulted in convictions related to sexual violence, organized crime, and homicide.[19]

 

Lastly, Honduras has one of the highest murder rates in the world.[20]  In 2009, the International Criminal Court (ICC) began a preliminary investigation into crimes against humanity that occurred in Honduras following a coup d’etat in 2009.[21]  Though the ICC declined to open a formal investigation,[22] the allegations included disproportionate use of force against protestors that resulted, in some cases, in death.[23]  On January 23, 2017, the U.S. Department of State issued a travel warning to Honduras, due to the country’s criminal activity, and additionally restricted U.S. government staff travel.[24]

The U.S.’s Historical Response

In 2014, the number of unaccompanied alien children (UAC) apprehended at the Southwest border reached a level that the Obama administration deemed a humanitarian crisis.[25]  Fleeing violent crime rates, economic conditions, impoverishment, and gang activity, the UAC were all coming from Mexico, El Salvador, Guatemala, and Honduras.[26]  The Dreamers may attempt to seek asylum in the U.S. given the conditions of their home countries that drove their families to flee. Under Article 14 of the Universal Declaration of Human Rights, “[e]veryone has the right to seek and to enjoy in other countries asylum from persecution.”[27]  The American Convention on Human Rights has expanded this to guarantee no deportation in cases where life or personal freedom is in danger of being violated because of race, nationality, religion, social status, or political opinion.[28]

 

Unfortunately, this “expansion” has actually limited the meaning of an asylum-seeker to only those who seek protection due to one of the five listed categories.[29] Though the U.S. grants asylum to those fleeing countries for persecution pursuant to the Universal Declaration of Human Rights, a threat of generalized violence is not enough to earn protection.[30]  But the limited data is clear: individuals who are forced back to countries in Central America face more than the mere threat of death—a number are killed almost immediately upon rearrival.[31]

 

If an individual is not granted asylum in the U.S., then removal proceedings begin against the seeker.[32]  Immigration and Customs Enforcement (ICE) notify the country of every foreign national removed from the U.S.[33] Implementing the removal order depends on whether the U.S. government can secure travel documents and whether the foreign government is willing to accept the return of their citizen.[34]  Both the Department of Homeland Security (DHS) and the Office of Refugee Resettlement (ORR) have noted that this raises serious issues when instituting a removal order against UAC or juveniles.[35]  Namely, foreign governments may have no record of that individual. This is typically the case with children.[36]  Cases that do not result in a removal order conclude by having the case administratively closed or terminated.[37]

 

It is likely that significant portions of the Dreamers have no official country of origin—that is, because they entered the U.S. at such a young age, their citizen status might never have been recorded. If foreign governments will not accept the Dreamers because they have no record of that individual, then removal proceedings must come to an end.[38] Zadvydas v. Davis held unconstitutional indefinite detention of undocumented immigrants with no country of origin, but it did not define what the legal status of those individuals would be in the U.S.[39] Consequently, the Dreamers, with no country of origin and no recognized nationality, would likely become stateless.

A New Dilemma

The international legal definition of a stateless person is a person without a recognized nationality of any country.[40]  For example, a child born in a foreign country can risk becoming stateless if that country does not permit nationality based on birth alone and if the country of origin does not allow a parent to pass on nationality through family ties.[41]  Under Article 15 of the Universal Declaration of Human Rights, every individual has a right to a nationality, and the right to not be arbitrarily deprived of one’s nationality.[42]  Two conventions—the 1954 Convention Relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness—sought to adhere to that guaranteed right, and ensured a minimum number of rights to stateless persons, including the right to education, employment and housing.[43]  The Conventions also guarantee the right to identity, travel documents, and administrative assistance.[44]  Perhaps most importantly, the 1954 Convention prohibits the expulsion of stateless persons who are lawfully in the territory of the State.[45]

 

The 1954 Convention also requires states to facilitate the naturalization and assimilation of a stateless person.[46]  As of 2017, 89 countries have signed onto the Convention; however, the U.S. is not a party to the treaty.[47]  The Convention prohibits states from allowing citizens to renounce their nationality if doing so would render them stateless.[48] Because this last provision runs counter to the U.S. tradition of voluntary renunciation of citizenship, the U.S. has declined to become a signatory to both the 1954 and 1961 Conventions.[49]  Though they may remain in the U.S., stateless persons lack any legal status and lose their right to work.[50]  This sets the U.S. apart from countries like Spain, France, and Sweden, who grant special status to stateless people.[51]

 

The U.S. has taken some preliminary steps towards addressing statelessness, but nothing that comprehensively responds to the issue like the 1954 and 1961 Conventions. The U.S. Department of State now officially recognizes the category on its website, and encourages other countries like Vietnam to naturalize their citizens.[52] However, it has done little politically or legally to address the issue within its own borders. In 2013, a handful of senators advocated for naturalizing stateless individuals, but the bill did not make it past the House.[53]

 

In the U.S., the absence of any viable legislative framework for dealing with statelessness will force the Dreamers to apply for resident status in any of the lawful permanent resident categories.[54]  In the event the Dreamers do not qualify for any of the categories, they will remain stateless, and in some countries this opens up the possibility of indefinite detention.[55]  Dreamers may be forced to seek status in other countries, but treatment of stateless people has not improved significantly in other countries, despite the 1961 Convention’s aim of preventing and reducing statelessness.[56]  For example, the U.K., a party to both Conventions, recently passed an amendment that made it lawful to deprive a citizen of nationality even if this resulted in statelessness—directly counter to the Conventions’ requirements.[57]

 

From both a human rights and an international legal perspective, addressing statelessness is critical in order to adhere to the Universal Declaration of Human Rights.  For the Dreamers, identifying the rights of the stateless in an international context may afford them answers here in the U.S. For the Trump administration, ending DACA will raise a host of international, domestic, and legal issues that will require more thought than an abrupt announcement of political intention. It will have to think critically of the persecution the Dreamers will face if forced back to Central America, and what it will mean to lose previously held rights here in the U.S. A designation of “stateless” is more than a loss of nationality—it equals a loss of right to work, to livelihood, that can propel an entire generation of persons into destitution.

 

[1] See Catherine E. Shoichet, Susannah Cuillinane and Tal Kopan, U.S. Immigration: DACA and Dreamers Explained, CNN (Sept. 5, 2017 4:21 PM), http://www.cnn.com/2017/09/04/politics/daca-dreamers immigration-program/index.html.

[2] See generally Ginger Thompson, How the U.S. Triggered a Massacre in Mexico, Nat’l Geographic, http://www.nationalgeographic.com/magazine/2017/07/making-of-a-massacre-mexico/ [hereinafter Massacre in Mexico]; See also Dan La Botz, Mexico: Crisis of Human Rights Becomes International Issue as Violence Continues, New Politics (Feb. 23, 2015), http://newpol.org/content/mexico-crisis-human-rights-becomes-international-issue-violence-continues [hereinafter Mexico: Crisis of Human Rights].

[3] See Thompson, supra note 2.

[4] See id.

[5] See Kirk Semple, Missing Mexican Students Suffered a Night of ‘Terror,’ Investigators Say, N.Y. Times (April 24, 2016), https://www.nytimes.com/2016/04/25/world/americas/missing-mexican-students-suffered-a-night-of-terror-investigators-say.html?mcubz=0&_r=0.

[6] Id.

[7] Id.

[8] See Federal Police Witnessed Abduction of 43 Missing Mexican Students – Witness, The Guardian (April 15, 2016), https://www.theguardian.com/world/2016/apr/14/missing-mexican-students-witness-federal-police-involved.

[9] See Botz, supra note 2.

[10] See Robert Muggah, It’s Official: San Salvador is the Murder Capital of the World, L.A. Times (Mar. 2, 2016), http://beta.latimes.com/opinion/op-ed/la-oe-0302-muggah-el-salvador-crime-20160302-story.html.

[11] See Parker Asmann, El Salvador’s Death-Squad Case Is Quickly Going International, Bus. Insider (Sep. 7, 2017), http://www.businessinsider.com/el-salvador-death-squad-international-2017-9.

[12] See id.

[13] See id.

[14] See What is the IACHR?, Inter-American Commission on Human Rights http://www.oas.org/en/iachr/mandate/what.asp

[15] See Anita Isaacs, Guatemala’s Democratic Crisis Point, N.Y. Times (Sept. 6, 2017), https://www.nytimes.com/2017/09/06/opinion/guatemala-democracy-organized-crime.html.

[16] Id.

[17] Id.

[18] See Nina Lakhani, Crisis Flares in Guatemala Over Corruption and Organised Crime, The Guardian (Aug. 27, 2017), https://www.theguardian.com/world/2017/aug/27/guatemalan-president-jimmy-morales-order-expel-head-un-body-suspended.

[19] See Guatemala: Events of 2016, Human Rights Watch, https://www.hrw.org/world-report/2017/country-chapters/guatemala. (last visited Sept. 24, 2017).

[20] See generally Honduras Travel Warning, U.S. Dep’t of State https://travel.state.gov/content/passports/en/alertswarnings/honduras-travel-warning.html.

[21] See Honduras, International Criminal Court, https://www.icc-cpi.int/honduras.

[22] See id.

[23] See Honduras: U.S. Legal Case over 2009 Coup, Human Rights Watch (Nov. 3, 2011) https://www.hrw.org/news/2011/11/03/honduras-us-legal-case-over-2009-coup.

[24] See id.

[25] See generally William A. Kandel, Cong. Research Serv., R43599, Unaccompanied Alien Children: An Overview (2017) [hereinafter Unaccompanied Alien Children].

[26] See id.

[27] Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. Doc. A/810 at Art. XIV (1948).

[28] American Convention on Human Rights, Nov. 21, 1969, 1144 U.N.T.S. 143, Art. 22(8).

[29] See Sibylla Brodzinsky & Ed Pilkington, U.S. Government Deporting Central American Migrants to their Death, The Guardian (Oct. 12, 2015), https://www.theguardian.com/us-news/2015/oct/12/obama-immigration-deportations-central-america.

[30] See id.

[31] See id.

[32] Unaccompanied Alien Children, supra note 23, at 7.

[33] See id.

[34] See id.

[35] See Olga Byrne & Elise Miller, The Flow of Unaccompanied Children Through the Immigration System: A Resource for Practitioners, Policy Makers, and Researchers 27 (2012).

[36] See Unaccompied Alien Children, supra note 23, at 7.

[37] See id. at 23.

[38] See Zadyvdas v. Davis, 538 U.S. 678, 669, 121 S.Ct. 2491, 2502, which held once removal is no longer reasonably foreseeable, continued detention is no longer authorized by statute).

[39] See id., (which declined to articulate a status for those without a country of origin and who were no longer removable.)

[40] See Ending Statelessness, United Nations High Commissioner for Refugees, http://www.unhcr.org/en-us/stateless-people.html.

[41] See id.

[42] Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. Doc. A/810 at Art. XV (1948).

[43] See generally, Convention on the Reduction of Statelessness, June 6, 1960, 989 U.N.T.S 175 [hereinafter 1961 Convention]; See also Convention Relating to the Status of Stateless Persons, Sept. 28, 1954,  [hereinafter 1954 Convention].

[44] See id.

[45] See 1954 Convention, supra note 41.

[46] See id.

[47] See 1961 Convention, supra note 41.

[48] See The Stateless in the United States, Center for Migration Studies, http://cmsny.org/the-stateless-in-the-united-states/.

[49] See id.

[50] See id.

[51] See id.

[52] Dep’t of State, Statelessness, https://www.state.gov/j/prm/policyissues/issues/c50242.htm.

[53] Congress.gov, https://www.congress.gov/bill/113th-congress/house-bill/1365.

[54] See Dep’t of Homeland Security, Green Card Eligibility Categories, https://www.uscis.gov/greencard/eligibility-categories.

[55] See generally Kim v. Russia (No. 44260/13), Eur. Ct. H.R. (2014).

[56] See Ruma Mandal & Amanda Gray, Out of the Shadows: The Treatment of Statelessness under International Law 4 (2014). https://www.chathamhouse.org/sites/files/chathamhouse/field/field_document/20141029StatelessnessMandalGray.pdf

[57] See id. at 5.

Post navigation

Leave a Reply

Your email address will not be published. Required fields are marked *