The Gaping Human Rights Loophole for Undocumented Immigrants

Ironically, even though pro-immigrant advocates have won the moral high ground in the current debate about the rights of undocumented immigrants, they have lost the war over how they will be treated. This loss will not be permanently reversed until the discrimination they experience can be challenged as civil rights violations.

Currently immigrant rights are being challenged as violations of the human rights of the undocumented, as defined by United Nation's Universal Declaration of Human Rights. This doctrine transcends the authority of any state and cannot be abrogated by states.

As defined by the UN, human rights include the right to life, liberty, legal equality, religion, free speech, migration, culture and economic well being. Their rarified status notwithstanding, states are not obligated to enact legislation guaranteeing these rights. These rights do, however, set a standard for evaluating a state's commitment to humanitarians and democratic principles.

All states, however, develop their own definitions of civil rights. To do so, they draw on their unique histories and traditions. The core sources for the American definition include the Constitution, the Bill of Rights, the Civil Rights Act of 1964, and the 1965 Voting Rights Acts and its subsequent amendments.  This definition includes the right not to be discriminated against in employment, education, public accommodations, housing and voting because of race, color, religion, sex, age, handicap, or national origin. It also includes procedural fairness in the right to seek legal redress and to fully participate in civil society and politics.

These overlapping but distinct types of rights create an anomaly. When there are human rights violations for undocumented residents, there is no state that authorizes any international agency to intervene within its territory to prevent such abuses. On the other hand, national governments have the authority and capacity to protect the immigrants' quality of life by enforcing their civil rights. However, since they have no right to reside within any state but their own, immigrant-receiving states do not acknowledge that unauthorized immigrants have the full range of civil rights that legal residents and citizens are guaranteed.

To advance and defend the interests of unauthorized immigrants it is necessary to give them the standing to protect themselves by invoking their civil rights. Short of enacting a general amnesty that legalizes all undocumented immigrants, which is unimaginable given the nation's current political environment, this is a way to prevent the continued violation of the human rights of unauthorized immigrants.

The best alternative is developing a long-term alternative to continued undocumented immigration. As I have argued before, this will require major political compromises including the collaboration of immigrant-sending states. Until then, the nation will be shamed by its legal, but undeniable, violation of internationally accepted human rights standards.

Rodolfo de la Garza, a Columbia University professor of Political Science, has studied immigration, political attitudes and voting for over 30 years. He directed the first national political survey of Latinos and has authored, co-authored and edited 18 books and more than 100 scholarly articles and reports on foreign policy, immigration and political attitudes and behavior.