Deporting Dreamers as a Crime Against Humanity

• Publication year: 2019

Deporting Dreamers as a Crime Against Humanity

William Thomas Worster

DEPORTING DREAMERS AS A CRIME AGAINST HUMANITY

William Thomas Worster^*

Introduction

Much has been written about the "DREAMers" (Dreamers) and their moral claim to a right to remain in the United States and the legal mechanisms by which such a moral right might be realized. What has not been explored is whether their removal from the United States might implicate international law, and, specifically, whether it would constitute a crime against humanity. On its face, it seems to be an outrageous claim: that deporting non-citizens from a state would be a criminal act. International law protects a State's ability to remove unlawfully present aliens. This is not in debate. The argument is, however, far narrower. Specifically, the forcible, arbitrary deportation of Dreamers with an intent to permanently remove them from their residence, which is protected under international law, would be criminal.

This Article will first consider the current law on the crime against humanity of deportation. The crime, which has a considerable pedigree, prohibits individuals from pursuing deportation of persons in certain situations. Among the key considerations is that the crime does not only apply to the forcible removal of citizens, but also to non-citizens in some circumstances. The distinction is whether the person is lawfully present in the state and that the removal is unlawful. As befitting an international crime, both of these standards are measured by international law, not domestic law, so whether the persons are lawfully present or their removal is unlawful under domestic law is not determinative.

The Article then considers the case of the Dreamers. While it is true that they do not have U.S. nationality or other authorized status, and thus a right to remain in the United States under domestic law, they do have strong enough ties to consider the United States their "own country," a wider concept than nationality. Once an individual has an "own country," he or she

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may not be arbitrarily removed from that State under international human rights law, unless the removal can be justified as non-discriminatory, necessary and proportionate to the risk to society. Further, under international human rights law, permissible cases of removal are very few. The removal of a non-criminal minor from the United States with a longstanding home there cannot be justified as necessary and proportionate. Provided that the possible future removal was by force, in pursuit of a policy as such, committed with intent, and that the removals were widespread and systematic, then the removal would be a crime against humanity.

I. Background on the "Dreamers"

Dreamers are a group of approximately 1.8 million individuals¹ who do not have authorized status to live in the United States. They were brought to the United States as children and have lived in the United States for a substantial period of their lives. Some Dreamers were not even aware that they were not U.S. citizens until their status was discovered. Some only speak English. The majority hail from Mexico, but a range of other countries are also represented. The name "Dreamers" comes from the Development, Relief, and Education for Aliens Minors (DREAM) Act,² which was introduced in 2001 but never adopted by Congress. Twenty-eight percent of the Dreamers were under fifteen years of age at the time the policy was announced.³

On June 15, 2012, the Obama administration decided to exercise its prosecutorial discretion and refrain from removing Dreamers in a program called Deferred Action for Childhood Arrivals (DACA).⁴ Formally, DACA

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"confer[red] no substantive right, immigration status or pathway to citizenship," as "[o]nly the Congress, acting through its legislative authority, can confer these rights."⁵ If Dreamers registered as DACA recipients, then they would have their removal deferred,⁶ receive social security numbers⁷ and employment authorization,⁸ and through that authorization, have the ability to purchase health care insurance and other benefits such as access to education and eligibility for driving licenses. DACA further enabled registered Dreamers to travel abroad and return to the United States without a visa (advance parole).⁹ The program did not include access to U.S. citizenship¹⁰ nor did it provide access to federal welfare programs or student financial aid,¹¹ although some aid in cases of medical emergencies was available.¹²

Individuals wishing to participate in the program would have to make an application, provide identifying information,¹³ and would only qualify if they had a degree of formal education and did not have any felony or serious misdemeanor convictions or more than two misdemeanor convictions. DACA status was valid for two years and could be renewed. At least 800,000 people registered.¹⁴

On September 5, 2017, the new administration froze the DACA program and initiated its reversal.¹⁵ The Attorney General argued that DACA had been "effectuated by the previous administration through executive action, without proper statutory authority and . . . after Congress' repeated rejection of proposed legislation that would have accomplished a similar result," and that "[s]uch an open-ended circumvention of immigration laws was an unconstitutional exercise

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of authority by the Executive Branch."¹⁶ New applicants and renewals are no longer possible, although existing grants will remain valid until the normally expired at the end of the two-year validity period. Some DACA beneficiaries began losing their status in March 2018, and unless a new remedy is developed, all will be phased out of the program by March 2020. The Department of Homeland Security (DHS) Secretary has announced that DACA participants will not be a deportation priority unless they commit crimes,¹⁷ but then, of course, they would no longer be eligible for DACA anyway if they committed crimes.¹⁸ Notwithstanding the statements of the DHS Secretary, U.S. Immigration and Customs Enforcement (ICE) has already begun deportation proceedings against non-criminal DACA recipients,¹⁹ and both former and current acting-Directors have stated that any undocumented person will be removed.²⁰ On April 24, 2018, the U.S. District Court for the District of Columbia ruled that the decision to abolish DACA was "arbitrary and capricious"²¹ and that the question of DACA's legal authority was not the

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relevant question; the relevant question was "whether or not DHS made a reasoned decision to rescind DACA based on the Administrative Record."²² The future status of DACA and the Dreamers remains uncertain at the time of this writing,²³ although current ICE policy, light of the court order, is to continue renewing requests for protection under DACA, but not register new admissions to the program.²⁴

II. The Crime Against Humanity of Deportation

The crime against humanity of deportation has a long history.²⁵ It was considered a crime against humanity at least as far back as the Nuremberg²⁶ and Tokyo Tribunals,²⁷ as well as the Control Council ten tribunals.²⁸ The crime was also included in the statutes of the International Criminal Tribunal for the former Yugoslavia (ICTY),²⁹ International Criminal Tribunal for Rwanda (ICTR),³⁰ Special Court for Sierra Leone,³¹ Extraordinary

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Chambers in the Courts of Cambodia,³² and Kosovo Specialist Chambers.³³ It can be found in the International Law Commission (ILC) Principles of International Law Recognised in the Charter of the Nuremberg Tribunal,³⁴ the 1954 Draft Code of Offences against the Peace and Security of Mankind,³⁵ and in the most recent Draft Articles on Crimes Against Humanity.³⁶ It is also considered a war crime when committed in the context of an armed conflict,³⁷ and the elements are largely the same whether it is a war crime or crime against humanity.³⁸ More recently, it was listed in the Rome Statute of the International Criminal Court (ICC).³⁹

A. Jurisdiction

The initial question is where such a crime can be prosecuted. This question is critical because the precise requirements of the offense can differ among jurisdictions. Most importantly, before the ICC, the prosecution

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needs to prove the additional element of a state policy.⁴⁰ The particular elements will be discussed further after this section on jurisdiction.

There are some possibilities for the ICC to exercise jurisdiction. The ICC would have jurisdiction over actions taken against the Dreamers if any of the expelling agents were nationals of a state party to the Rome Statute,⁴¹ but it is not apparent that anyone involved is a dual national, with the other nationality being a state party to the Rome Statute.

The ICC also has jurisdiction over crimes that take place on the territory of a state party.⁴² The United States is not a party to the Rome Statute.⁴³ However, there may be a solution. Just recently the ICC Prosecutor decided to inquire about a case involving the deportation of Rohingya people.⁴⁴ The Rohingya people were expelled from Myanmar, which is not a state party to the Rome Statute.⁴⁵ However, the prosecution is arguing that the people were expelled into Bangladesh,⁴⁶ which is a state party. In order for the Court to have jurisdiction, it would have to find that the expulsion to another state was part of the offense, and thus, part of the crime occurred on the territory of a state party.⁴⁷

The same reasoning could be applied to the expulsion of Dreamers. Although the United States is not a party to the Rome Statue, Mexico is.⁴⁸ If it could be argued that the expelled persons were removed to Mexico which is a state party to the Rome Statute, there is a possibility that this aspect of the crime would take place on the territory of a state party. The Court would then have jurisdiction unless the United States was careful enough only to expel individuals to a state that is not a...