America's Human Rights Challenge: International Human Rights Implications of U.S. Immigration Enforcement Actions Post-September 11

This report examines post-9/11 immigration enforcement practices in the United States through the lens of international human rights. The report identifies gaps in the protection of noncitizens’ civil rights under U.S. constitutional law, and then evaluates—through a number of case studies—whether post-9/11 immigration control measures have complied with obligations under international human-rights law with respect to due process protections and the prohibition of discrimination on the basis of national origin or race.

The report identifies numerous aspects of new enforcement procedures and immigration policies—arrests and detention without a legal basis, abusive treatment in detention facilities, the wholesale denial of bond, expedited removals without a hearing opportunity, denial of access to counsel, closure of formerly public immigration hearings—that violate the fundamental tenet of due process, as set forth in the International Covenant on Civil and Political Rights (ICCPR). While human-rights law permits derogation under special public emergency circumstances, the report finds that it is unclear whether the “state of emergency” declared by the Bush administration meets the universally established criteria.

The report also finds that post-9/11 counterterrorism initiatives infringe upon guarantees of nondiscrimination by using criteria such as race, national origin, and ethnic identity as a proxy for dangerousness and evidence of suspected criminal activity when targeting individuals for arrest and enforcement initiatives. Furthermore, new security clearance procedures appear to subject visa applicants of certain nationalities—Arabs and other Muslims in particular—to additional screenings, processing delays, and prejudicial classifications that increase the likelihood of wrongful admission denials with no possibility of appeal.