Legal rights, human rights—and claiming a right.

BELIEVE IT OR NOT, legal rights, human rights, and claiming a right are all different matters, whether you’re undocumented or not. The easy definition of an undocumented person is that he or she is foreign-born and doesn’t have a legal right to be or remain in the United States. But that’s where the easy part stops.

Many gray areas exist, where someone who might be considered undocumented has what almost amounts to a right to remain in the United States based on a valid claim for asylum, temporary protected status (TPS), or another form of immigration relief. For example, people whose country persecutes them might have no choice but to enter the United States illegally. If stopped at the border, they’re allowed to state their claim and, if their fear is credible, our laws provide a legal right to see an immigration judge. And human rights (just claims) demand that this legal proceeding be conducted in such a way that the undocumented person understands what the judge is saying. This is why rights’ advocates are so upset when a child—or even an adult who doesn’t understand English—is tried without an advocate. If an asylum seeker makes it into the United States unseen, he or she has 1 year to prepare an application for asylum. Although the person has no legal right to be in the country, a would-be applicant who’s caught and placed into removal proceedings can legally claim asylum and may be approved for asylum (and 1 year later, be eligible for a green card). For this reason, mass roundups of undocumented people is problematic at best. And no legal policy has legitimate power to permit actions that violate human rights.

Under a policy called “prosecutorial discretion,” various immigrants, such as students and those with close family members in the United States, are supposed to be left alone by the immigration authorities.* Some may be granted a sort of limbo status (deferred action) and in some cases receive a work permit.

Legal rights vs. human rights

What’s the difference between a legal right and a human right? Legal rights are defined by law and limited by jurisdiction. They end at a country’s border. Human rights, as defined in Article 1 of the United Nations Universal Declaration of Human Rights, “are rights inherent to all human beings, whatever our nationality, place of residence, sex, national or ethnic origin, color, religion, language, or any other status. We are all equally entitled to our human rights without discrimination. These rights are all interrelated, interdependent and indivisible.” They don’t stop at any border.

Claiming a right

A claim right entails responsibilities, duties, or obligations on other parties regarding the right-holder. A liberty right or privilege is a freedom or permission for the right-holder to do something, and other parties have no obligation to do or not do anything. Liberty is defined as freedom from captivity or control so long as you don’t infringe on the claims rights of others. In short, it stops where my nose begins.

However, you have a human right to life (a claim right), which means others have an obligation not to kill you and, under some circumstances, to save you. For a claim right to be active, a claim must be made—either by oneself or some other who acts for the right-holder.

All of this is to explain why the American Nurses Association (ANA) Code of Ethics for Nurses with Interpretive Statements requires nurses to provide healthcare— and certainly lifesaving care—to all people regardless of their legal status. The ANA notes that the Code “establishes the ethical standard for the profession in its fervent call for all nurses and nursing organizations to advocate for the protection of human rights and social justice.”

– Leah Curtin, RN, ScD(h), FAAN Executive Editor,
Professional Outreach American Nurse Today

*The rationale for this position is that the authorities can concentrate on immigrants who are criminals or otherwise a risk to U.S. society.

Selected References:

American Nurses Association. ANA president responds to executive order on immigration. January 31, 2017. nursingworld.org/news/news-releases/2017-news-releases/ana-president-responds-to-executive-order-on-immigration

American Nurses Association. Code of ethics for nurses with interpretive statements. 2015. nursingworld.org/practice-policy/nursing-excellence/ethics/code-of-ethics-for-nurses/coe-view-only

United Nations. Universal declaration of human rights. un.org/en/universal-declaration-human-rights