By: Tyler Shappee

Currently, the topic of immigration is front and center in United States domestic discourse. On August 24, the Biden administration issued a final rule to preserve and fortify DACA. Meanwhile, the Fifth Circuit issued a decision on October 5 affirming a District Court’s finding that DACA is illegal but remanded to consider in light of Biden’s August 24 final rule. While the area of immigration is the Federal government’s domain, states are taking action as well. For example, the Governor of Texas has bused thousands of immigrants to DC and New York and the Governor of Florida flew immigrants to Massachusetts. As the midterm elections loom, candidates are, and will continue, to use immigration in polarizing ways. While the United States’ immigration policy might be for America to decide, the world has taken notice of its choices. A United Nations body recently condemned several of the United States’ immigration policies and practices.

The United Nations’ Committee on the Elimination of Racial Discrimination monitors States parties’ adherence to the International Convention on the Elimination of All Forms of Racial Discrimination. The Convention was adopted in 1965 and remains the principal international human rights instrument defining and prohibiting racial discrimination in all sectors of private and public life. To date it has 182 States parties, including the United States. The Committee is made up of 18 members who are independent human rights experts drawn from around the world, who serve in their personal capacities and not as representatives of state parties.

On August 30 the Committee released a report on the United States’ adherence to the Convention. The Committee noted positive aspects but also identified various concerns and recommendations. It first took issue with the use of racial profiling by law enforcement officials, including from the Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE). In response to the concern of racial profiling the Committee recommended that the United States enact legislation to prohibit racial profiling in law enforcement and to revise policies that permit or enable it. The Committee also recommended ending immigration enforcement programs and policies which indirectly promote racial profiling, such as the Immigration and Nationality Act 287(g) programs. 287(g) was added to the Immigration and Nationality Act in 1996 and authorizes the Director of ICE to enter into agreements with state and local law enforcement agencies to identify and remove noncitizens who are amenable to removal. The ACLU has long condemned the 287(g) program for exactly the same reasons that the Committee does now: the harm inherent in racial profiling.

The Committee was also concerned with the United States’ policies toward and treatment of immigrants. It specifically pointed out the use of excessive force and the mandatory detention of non-citizens without due process or access to legal representation, rights that are guaranteed to citizens of the United States. The Committee noted that these policies often lead to detention centers without adequate conditions and even killings of undocumented migrants by CPB and ICE officers. The Committee called on the United States to make drastic changes in this area. It recommended that the United States end mandatory detention, ensure due process and access to legal counsel, prevent excessive force, and thoroughly investigate all instance of excessive force and killings.

The United States is a party to a Convention that seeks to eliminate racial discrimination. Therefore, eliminating racial discrimination in its immigration policies and practices is not just a domestic issue but an international obligation. This obligation is largely fulfilled, or not, by elected officials. Citizens of the United States have the opportunity to select candidates that will fulfill this obligation and bring the treatment of immigrants up to the international standards the United States has promised to uphold.

Tyler is currently a 2L at Arizona State University’s Sandra Day O’Connor College of Law. After law school he hopes to work in international human rights law. He was born and raised in Phoenix, Arizona but enjoys to travel whenever possible, especially internationally. Outside of law school he enjoys reading, watching old movies, and attempting to learn French.

Published by Law Journal for Social Justice at Arizona State University

The Law Journal for Social Justice ("LJSJ") is the first student-run and student-created online journal at Sandra Day O'Connor College of Law. LJSJ aims to edit, publish, and produce notable works through its online website from legal scholars, practitioners and law students. LJSJ also publishes twice a year, featuring articles that focus on important, novel and controversial areas of law. LJSJ will provide a fresh perspective and propose solutions to cornerstone issues that are often not discussed, which may also have the potential to positively impact local communities.