By Courtney Dunn ’18
Since early last year, when the presidential campaign began to rev up, the issue of immigration has been a hot and divisive topic. Recently, President Trump has decided to review many of the United States immigration policies. One of the policies under review is the Deferred Action for Childhood Arrivals (DACA). DACA is a program that was developed under President Obama that allowed immigrants, who were minors when they came to America, to remain in the United States on renewable deferred action permits so they would not face deportation. As of today, nearly 800,000 individuals are enrolled in the DACA program.
On September 5, 2017, President Trump officially stated that the DACA program would end in six months unless Congress came together and saved it by passing new legislation. Although there have been reports that a deal has been made between lawmakers, there still has been no legislation passed in either the House of Representatives or the Senate. As the United States continues to debate how to handle young undocumented immigrants, it is interesting to view how the rest of the world deals with this issue.
International Human Rights Law
The protection of fundamental human rights is a duty owed to all individuals regardless of their national origin or country of residence. Migrants in particular are vulnerable to human rights violations because they are not citizens of the states receiving them. Whether migrants are authorized or undocumented upon entry, they will generally find their rights diminished in comparison to the citizens of their country of origin. This is because although human rights should not be granted on the basis of citizenship, states possess wide authority in deciding how to run their country, who to let in, and the expulsion of non-nationals. But a state’s authority is not absolute; international law obligates states to regulate the migration process in such a way that upholds the rights of individuals within their borders.
International human rights law provides guarantees to individuals of all ages civil, cultural, economic, political and social rights without discrimination, regardless of migration or citizenship status. These rights are made formal in international legal instruments, including the International Bill of Human Rights, which comprises the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic, Social and Cultural Rights (ICESCR). Both the ICESCR and ICCPR bear provisions that are important when considering the treatment of migrants, including adolescent and youth individuals. The ICESCR guarantees to all individuals within a state’s jurisdiction, including undocumented migrants, the right to education under Article 13; the right to health under Article 12; the right to adequate housing under Article 11; and the right to protection of the family unit under Article 10. Civil and political rights guaranteed by the ICCPR include birth registration under Article 24; life, liberty and security of person under Article 6 and 9; freedom from torture and inhumane and degrading treatment under Article 7, and equality before the law under Article 14.
United Nations Directives for Young Undocumented Immigrants
The United Nations (U.N.) uses the age cohort 10-19 when referring to adolescence and 15-24 as the age cohort for youths. Adolescents are afforded additional protection as children under the U.N. Convention on the Rights of the Child (CRC), which sets minimum standards for the treatment of children and prescribes four general principles: non-discrimination under Article 2, best interest of the child under Article 3, the right to life, survival and development under Article 6, and the rights of the child to be heard under Article 12. Parties to the CRC must ensure that all of the provisions of the CRC are given legal affect in domestic legislation and national policies are reflective of the four principles.
The CRC also recognizes certain inseparable rights granted to all children, including but not limited to the right to health care and education, a right to a social security, a right against arrest and detention except as a means of last resort, a right to protection against violence, and a right against separation from his or her parents. As the most comprehensive document on children’s rights, the CRC, which is based exclusively on the number of substantive rights it provides, is significant because it enshrines, “for the first time in biding international law, the principles upon which adoption is based, viewed from the child’s prospective.”
The U.N. has also spoken on the rights afforded to young migrant workers. The U.N.’s International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families Article 25 states that migrant workers shall have equal footing with citizen workers in terms of pay, working conditions, and other terms of employment. Article 25.3 of the Convention specifically states that the government must take appropriate measures to make ensure that migrant workers are not deprived of any of the rights derived from this article simply because of “any irregularity in their stay.” This demonstrates the U.N.’s commitment to protecting this class of individuals beyond that which is provided from a human rights perspective.
Comparison of Crime Rates of DREAMers vs. Non-DREAMers
Those who support the repeal of DACA have pointed to the level of criminality amongst undocumented immigrants as a significant reason for their position. News outlets, and even the current administration, often make references to immigrants “committing crimes” in the United States. When examining statistical data on the relation of crime and DREAMers, it becomes clear that the perception is misguided in regards to the view many opposed to the program may have.
Data collected estimates that there is anywhere from 1.1 million to 1.9 million individuals in the United States that would fall into the category of a DREAMer. Though, a statistical analysis has found that the “incarceration rate for DREAMers in 2015 was .98%.” The same analysis found that people who were born in the United States have a “1.12% incarceration rate.” Further, it was found that DREAMers who were males have a 12.5% less incarceration rate than males born in the United States. It was also found that DREAMers who are female have an incarceration rate that is 2.86 times less than females born in the United States. These statistics provide information that paints a different picture than those who portrait DREAMers as “criminals.” These statistics actually demonstrate that DREAMers are on the whole less likely than the rest of United States citizens to commit a crime.
Thus International Law explicitly recognizes the protection of young people’s rights, with an eye toward respect and autonomy for all children. Protecting and respecting the rights of all individuals, including migrant children, does intrude on state’s sovereign right to determine migration policies. A rights based approach does not only benefit the individuals concerned, but promotes respect for all.
DACA as it stands does not vary much from the stance taken in many international circles. Repealing this program without an adequate replacement would clearly leave the United States behind its International brethren in terms of the rights afford to young undocumented immigrants. The argument that these individuals pose a criminal threat to our communities is unfounded through the data available. Thus, it is up to our legislatures to work together and provide the United States with a law that meets or exceeds the standards already set forth by the International Community.
 Consideration of Deferred Action for Childhood Arrivals, https://www.uscis.gov/archive/consideration-deferred-action-childhood-arrivals-daca (last visited Sept. 29, 2017).
 Jens Manuel Krogstad, DACA has Shielded Nearly 790,000 Young Unauthorized Immigrants from Deportation, Pew Research Center: Fact Tank (Sept. 1, 2017), http://www.pewresearch.org/fact-tank/2017/09/01/unauthorized-immigrants-covered-by-daca-face-uncertain-future/.
 Michael Shear & Julie Hirschfeld Davis, Trump Moves to End DACA and Call on Congress to Act, N.Y. Times, Sept. 5, 2017, at A1.
 See Geoff Bennett, Democrats Try to Force Cream Act Vote, As GOP Rolls Out Conservative DACA Fix, NPR (Sept. 29, 2017, 5:00 AM), http://www.npr.org/2017/09/29/554073453/democrats-try-to-force-dream-act-vote-as-gop-rolls-out-conservative-daca-fix.
 Laura Thompson, Protection of Migrants’ Rights and State Sovereignty, UN Chronicle (Sep. 2013), https://unchronicle.un.org/article/protection-migrants-rights-and-state-sovereignty.
 Global Migration Group, Human Rights of Undocumented Adolescents and Youth 17 (2013).
 Id. at 18.
 Id. at 11.
 Id. at 18.
 Global Migration Group, Human Rights of Undocumented Adolescents and Youth 18 (2013).
 Id. at 19.
 Wendy Zeldin, Children’s Rights: International Laws, Library of Congress, https://www.loc.gov/law/help/child-rights/international-law.php#_ftnref3 (last updated July 02, 2015) Citing, Geraldine Van Bueren, The International Law on the Rights of the Child 10-11 (Dordrecht/Boston/London, Martinus Nijhoff Publishers, 1995. 35 International Studies in Human Rights).
 G.A. Res. 45/158, art. 25 (Dec. 18, 1990).
 G.A. Res. 45/158 art. 25.3 (Dec.18, 1990).
 Michelangelo Landgrave & Alex Nowrasteh, The DREAMer Incarceration Rate, 3 Immigration Research and Policy Brief: Cato Institute, 1, 1 (2017). https://object.cato.org/sites/cato.org/files/pubs/pdf/immigration-research-policy-brief-3.pdf.
 Landgrave, supra note 1, at 1. (citing Migration Policy Institute, Deferred Action for Childhood Arrivals (DACA) Data Tools, Migration Policy Institute: Data Hub. (http://www.migrationpolicy.org/programs/data-hub/deferred-action-childhood-arrivals-daca-profiles); Jens Manuel Krogstad & Ana Gonzalez-Barrera, If Original DACA Program Is a Guide, Many Eligible Immigrants Will Apply for Deportation Relief, Pew Research Center: FactTank. (December 5, 2014) (http://www.pewresearch.org/fact-tank/2014/12/05/if-original-daca-program-is-a-guide-many-eligible-immigrants-will-apply-for-deportation-relief/).
 Landgrave, supra note 1, at 1. (citing Figure 1 in Landgrave, supra note 1 at 3).
 Id. at 3 (citing Table 2 in Landgrave, supra note 1 at 4).
 Id. at 2-3 (citing Table 2 in Landgrave, supra note 1 at 4).
 Landgrave, supra note 1, at 1, 4.