By Tanya Golash-Boza, an associate professor of sociology and American studies at the University of Kansas
A critical debate among immigrant rights advocates is whether the battle for immigrants’ rights should invoke human rights or civil rights. The advantage to the civil rights option is that these rights are legally viable in U.S. courts. However, there are severe limits to this approach.
The United States has a strong tradition of civil and political rights, yet, unlike most other nations, it does not give much weight to the social, economic, or cultural rights that are central to the human rights tradition. This means that much of the human rights tradition has no legal foundation in the United States.
The importance of civil rights in legal debates over immigration policy is evident in the current conversation about Arizona’s Senate Bill (S.B.) 1070, and the related Supreme Court case: Arizona v. United States. Oral arguments in this case will be heard on April 25, 2012, and a decision is expected sometime after that.
In the controversy over the Arizona laws, critics have claimed that S.B. 1070 would violate the civil rights of Latinos in the state, as they would be subject to racial profiling. These claims were upheld in court when Judge Susan Bolton of the Federal District Court ruled on July 28, 2010 that Arizona police officers would not be able to check the immigration status of people during the course of stops, detentions, and arrests, as S.B. 1070 had mandated. Her ruling also blocked provisions that allowed police officers to hold anyone arrested for any crime until their immigration status was determined. This ruling is based on the prohibition against arbitrary detention in the U.S. Constitution – a political right. Other provisions blocked by Judge Bolton’s injunction include: 1) the warrantless arrest of anyone suspected of having committed a removable offense, 2) those that made it a crime to fail to apply for or carry alien registration papers, and 3) those that made it a crime for undocumented migrants to solicit, apply for, or perform work.
These rulings marked a gain for the civil and political rights of Latinos and other immigrants in Arizona. If the Supreme Court decides to uphold the injunction, this will be a clear win for the civil and political rights of immigrants in the United States. However, this win would only be a small step towards the realization of the human rights of immigrants.