The southern border of the United States has become one of the hottest spots on the planet, posing an extremely controversial issue about immigrants, which has divided the United States Congress and society into two adversarial camps.
In the past year, the United States southwest border also has received historic numbers of migrants. More than 2.4 million people. It's been record-breaking numbers for the past few years. San Diego alone has received more than 230,000 people this year. That's a 30% increase from the year before. (See NPR Nov. 12, 2023)
But do immigrants indeed pose real threat to the United States considering that the United States has been dealing with this issue for decades and has a well developed and comprehensive legislation?
To my opinion, the reaction of some of the United States politicians expressed in the attempt to provoke a hatred and hysteria in American society to this problem is more dangerous for the United States than the surge of immigrants as a phenomenon itself. However, the problem cannot be underestimated because on one hand a national security of the United States might be painfully touched, but on the other hand, abdication of the United States as a global leader to follow a commitment to the important international obligations, laws, treaties, and principles might pose a bad example for others entailing collaps of the international architecture that has been created for years. Such an international architecture is based on the United Nations and Universal Declaration on Human Rights.
For decades the United States, became one of the most (even if not the most) successful country maintaining its leadership in the global international community and providing perhaps one of the best ratio between pros and cons of living in this country. Among other advantages, the geographic location embracing almost all climate zones existing on the Earth attracts people accustomed to living in almost all existing climate conditions.
Such leadership beckons immigrants from all over the world. These new immigrants like the ancestors of those politicians attempting to sow hatred within the society by claiming immigrants as the evil-like issue for the U.S., dream of living, doing business, and raising their children in the United States.
The United States has contributed itself to this situation many efforts not only by maintaining a high standard of people's living but also by initiating a specific international institution well-known as the United Nations that came into existence in San Francisco, California on October 25, 1945 after four years of preparations with the United States proximate and vigorous involvement.
Later, on September 28, 1948, at the Sorbonne University in Paris, France, Eleanor Roosevelt delivered her historic speech titled and well known as "The Struggle for Human Rights." Mrs. Roosevelt's speech was recognized as the driving force for the Universal Declaration of Human Rights' adoption.
The Universal Declaration of Human Rights (UDHR) enshrines the fundamental and undeniable rights of people on our planet, regardless of their political, religious, national beliefs, or authenticity. Among those rights is Article 14(1): "Everyone has the right to seek and to enjoy in other countries asylum from persecution."
Following the Universal Declaration, in 1951 the Convention Relating to the Status of Refugees (Convention 1951) was drafted. This Convention defined the term "refugee" and outlined their rights and the international standards of treatment for their protection as well as the legal obligations of nations to protect them.
However, the 1951 Convention focused on protection of refugees stemming from World War II within the European part of the world, and the definition of the term "refugee" contained the time limitation "before 1 January 1951." Despite the Convention being ratified by 146 countries, the United States was not among them.
In 1967 the Protocol Relating to the Status of Refugees was presented which simly amended the Convention 1951 by abolishing geographic and time limitation on the definition of the term "refugee" that was mentioned in the Convention 1951.
The United States signed this Protocol in 1968. The pivotal principle of these two documents (Convention and Protocol) is a restriction on removal the refugee to the country when an alien fears persecution on account of his race, religion, nationality, membership of a particular social group or political opinion. Thus, by signing the Protocol 1967 the United States adopted the Convention from Article 2-34 among which, sure things, was Article 14(1) - "Everyone has the right to seek and to enjoy in other countries asylum from persecution"
These two seminal internatioonal documents embody an important international legal obligation that the United States has undertaken as the U.S. Supreme Court noticed in Johnson v. Guzman Chavez, 141 S. Ct. 2271, 2294 (2021).
However, the Convention and Protocol are not self executing treaties and thus legally binding. Rather, by the context of the Article III of the Protocol providing that the signatories are to communicate to the United Nations the “laws and regulations which they may adopt to ensure the application of the present Protocol,” they provided the framework under which the countries signed Protocol and Convention must create a national legislation adhearing the principles established by the Convention and Protocol.
Even after, the United States did not stop its energetic contributions to the process of enshrining the refugees' and asylum seekers' rights and finally, the International Covenant on Civil and Political Rights (ICCPR), that is a multilateral treaty that obligates nations to respect the civil and political rights of individuals, entered into force on 23 March 1976. The United States is a signatory of this treaty however, ratifying it only in 1992, subjecting to Reservations, Understandings and Declarations (RUDs) several articles.
One of the crucial RUDs attached by the U.S. Senate was that the ICCPR is “not self-executing” international treaty. It means that none of the requirements of this treaty might be considered as a state or federal law authomatically. Consequently, that limits the ability of litigants to sue in court for direct enforcement of the treaty. For that "understanding" of the international treaty the United States is being repeatedly critisized by the Human Rights Committee. Practically, it means that you cannot hold accountable the U.S. for violations of the provisions of ICCPR even though the signed and ratified it.
The Committee expressed concern over what it interprets as serious non-compliance, exhorting the United States to take immediate corrective action. However, things are not moving at all as the U.S. Supreme Court explained "Several times, indeed, the Senate has expressly declined to give the federal courts the task of interpreting and applying international human rights law, as when its ratification of the International Covenant on Civil and Political Rights declared that the substantive provisions of the document were not self-executing. 138 Cong. Rec. 8071 (1992)" Sosa v. Alvarez-Machain, 542 U.S. 692, 728, 124 S. Ct. 2739, 2763 (2004)
In 2008 the U.S. Supreme Court determining whether the U.S. courts were bound to give effect to the International Court of Justice's (ICJ) decision reached the same (as always) result holding that, the pertinent international agreements, including the Optional Protocol Concerning the Compulsory Settlement of Disputes to the Vienna Convention, Apr. 24, 1963, 21 U.S.T. 325, T.I.A.S. No. 6820 and the United Nations Charter, did not provide for direct enforcement of ICJ judgments.
Factually, that Supreme Court's decision the U.S. Supreme Court held that they did not care to the international obligations and decisions by providing a very unilateral analysis and relying only on few precedent decisions
Dissenting to that opinion of the majority, Justice Breyer, with whom Justice Souter and Justice Ginsburg joined, provided its own comprehensive analysis which relied on numerous decisions and authorities. Concluding their findings, they expressed concerns as the following:
"In sum, a strong line of precedent, likely reflecting the views of the Founders, indicates that the treaty provisions before us and the judgment of the International Court of Justice address themselves to the Judicial Branch and consequently are self-executing. In reaching a contrary conclusion, the Court has failed to take proper account of that precedent and, as a result, the Nation may well break its word even though the President seeks to live up to that word and Congress has done nothing to suggest the contrary." See Medellin v. Texas, 552 U.S. 491, 567, 128 S. Ct. 1346, 1392 (2008) dissenting opinion.
So, as was written in the blog from the Yale Journal on Regulation and ABA Section of Administrative Law & Regulatory Practice relatively to the legal obligations the United States owes to Asylum Seekers pursuant the 1967 Protocol:
"[the] world leaders have become increasingly creative in their efforts to deny refugees access to possible host countries, and increasingly militaristic in their treatment of them once they arrive, suggesting that the grey areas in treaties as to provide ways to circumvent them when (say) populist-style governments are looking to live up to their draconian election promises."
Backing to the Immigration crisis at the Southern Border nowadays, I assume the society of the United States would be less likely be glad realizing that its country, following the panic of several representatives in Congress, was so frightened by the civil immigration crisis that it decided to break the Nation's word before the international community and resort to running away from the international obligations the United States not only signed and ratified but to which the Nation had contributed enormous efforts to create.
Occurrences of such situations would little by little undermine the United States' leadership in the international community and portray the United States as a nation showing weakness and incapability to keep its word when facing a civil issue, even though an unprecedented one.
At the same time no restrictions the United States has in order to make a reform which would seriously simplify and liberate some procedures for naturalization of several group of aliens by that, releasing a time and resources for processing cases of aliens raising some concerns.
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One of such measures could be a statutory amendment applied to a form of relief called "Cancellation of removal" provided by the Immigration and Nationality Act. By decreasing the ten-year threshold for 'cancellation of removal' eligibility in favor of a five-year threshold for remaining in the United States while remaining intact the requirements to establish good moral character and committing no crime during this period, regardless of any form of relief the alien initially claimed, it would be a reasonable amendment because aliens are staying in the United States anyway, regardless of whether or not this amendment exists.
So, aliens who crossed the border legally through the posts of entry and initially sought for asylum, if they demonstrated good moral character and contributed positive deeds to society, could automatically become eligible for permanent residency after showing their capability to be a good part of the U.S. community for five years.
By implementing these measures, asylum cases, which constitute perhaps the heaviest load for administrative agencies, would be automatically dismissed as moot, providing significant relief for the entire immigration system.
Moreover, there is a legislative mechanism to revoke permanent residency from aliens who, for example, refrain from committing a crime during five years but after obtaining the status of permanent residency, commit a crime, thinking that now, they can do whatever they want. I assume, the percentage of such individuals would be negligible.
So, I decisively believe that notwithstanding who comes to the presidency of the United States in 2024, the United States need not become a Soviet Union. The U.S. Congress need not imitate or become Communists or Nazists by usurping executive power towards immigrants and creating Nazi-like camps of detainees to resolve the immigration crisis across the southern border. I assert that the United States is capable of resolving the problem wisely and adhering to the spirit of the Universal Declaration of Human Rights and Protocol 1967, abiding by the important international obligation the United States is a signatory to. Otherwise what is the reason to comply or adhere to the principles enshrined in United Nations declaration, conventions, covenants for other countries? And what is the reason of the existence of the United Nations if its documents may be simply neglected or disregarded after signing them?
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