08/18/2010 07:10 pm ET | Updated May 25, 2011

IACHR Rules That Deportation Not in the Child's Best Interest

There are myriads of ways family units can come under strain - death or illness of a parent, separation or divorce. In immigrant communities, mandatory deportation has emerged as one of the primary causes or stressors, when a parent with a criminal conviction (however minor or old), is sent back to the country of birth without any consideration given to the U.S. citizen children left behind. Since new legislation was enacted back in 1996, the rate of deportation of lawful permanent residents (LPRs) with dependent children has grown exponentially. But a recent ruling by the Inter-American Commission on Human Rights (IACHR), an autonomous organization within the Organization of American States (OAS), is the first case to be decided by an international body against the United States as well as address the issues of family separation and the "best interest of the child" in the context of immigration policy.

In Wayne Smith, Hugo Armendariz et al, v. United States, IACHR found that U.S. deportation policy violates fundamental human rights because "it fails to consider evidence concerning the adverse impact of the destruction of families, the best interest of the children of deportees, and other humanitarian causes." The case involves Wayne Smith and Hugo Armendariz, both lawful permanent residents of the United States for 25 and 35 years respectively, before being deported for nonviolent criminal offenses.

In March 1996, the Immigration and Naturalization Service (INS) initiated deportation proceedings against Mr. Smith based on a conviction for drug possession. When he requested a humanitarian waiver of deportation it was denied, because by the time his case was heard the law had changed, making him ineligible for the waiver. When he was deported to Trinidad, the country of his birth, Mr. Smith left behind in the United States a young business enterprise, an ailing wife with their two-year old daughter, his older children and various extended family members, all U.S. citizens who depended on him for both material and moral support.

In September 1995, Hugo Armendariz was convicted by jury trial for drug related charges. At the time of his conviction and at the time the deportation order was issued, Mr. Armendariz was eligible for a waiver of deportation. But by the time the Immigration Judge considered the case, the law had been amended now making Mr. Armendariz ineligible for the waiver. Not only did Mr. Armendariz appeal the decision, but he also submitted a writ of certiorari before the Supreme Court, all to no avail. At the time of his deportation to Mexico, the country of his birth, Mr. Armendariz had been out of jail, working steadily and living lawfully in his community for almost five years. Now a home-owner, Mr. Armendariz was helping to support two U.S. citizen children and care for his elderly parents. He and his fiance were planning a wedding celebration set for March 19, 2005.

The IACHR concluded that mandatory deportation pursuant to Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) violates international norms. Neither Mr. Smith nor Mr. Armendariz was afforded the opportunity to present evidence at either the administrative or judicial level showing how their U.S. citizen children or spouses would be impacted by their deportation.

While recognizing the need of the government to control the entry as well as the expulsion of non-citizens, the IACHR determined that a 'balancing test' must be applied in situations where a decision-making process involved the potential separation of family. Not only must the interference with family life be justified where necessary to meet a pressing need to protect public order, but the means must be proportional to that end. The IACHR found that "a balancing test is the only mechanism to reach a fair decision between the competing individual human rights and the need asserted by the State".

Petitioning the IACHR is not exactly unorthodox. Yet this avenue was deliberately selected by lawyers for Mr. Smith et al. According to Attorney David Baluarte, "Our hope in bringing their cases to the IACHR was that international human rights law would be applied by a relevant regional authority to lend legitimacy to the plight of millions of families that have been torn apart by unnecessarily harsh laws, and exposing injustice to their situation ... The fix, in reality, would be relatively simple. The United States must reinstitute a waiver of deportation, so that Immigration Judges regain their pre-1996 power to stop deportations where the evidence clearly shows that families will be destroyed and children's lives will be ruined."

The U.S. government has stated that it is not bound by the IACHR's decisions but, as a member of the OAS, is subject to the international duties set forth in the American Declaration. Attorney Baluarte remains confident that "the ability to use this decision to recast a situation that appears unjust as a violation of human rights will hopefully help some individuals to better convince Immigration Judges to consider children's rights in their deliberations in individual cases." And those cases are innumerable. In March 2010, University of California (Davis and Berkeley Schools of Law) released a report which estimates that more than 100,000 children have been affected by parental deportation of lawful permanent residents between 1997 and 2007, and that at least 88,000 of impacted children were U.S. citizens. Moreover, the analysis estimates that approximately 44,000 children were under the age of 5 when their parent was deported. In addition to these children, the stats estimate that more than 217,000 others experienced the deportation of an immediate family member who was a lawful permanent resident.

Arlene M. Roberts is the author of The Faces of Detention and Deportation: A Report on the Forced Repatriation of Immigrants from the English-speaking Caribbean.

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