Court/Judicial body: United States Court of Appeals, Ninth Circuit
Date: 26 December 2002 CRC
Provisions: Article 3: Best interests of the child
Domestic provisions: 8 U.S.C. § 1101(f)(3) 8 U.S.C. § 1182(a)(6)(E) 8 U.S.C. § 1254, INA § 244 Illegal Immigration Reform and Immigrant Responsibility Act § 309(c)(4)(E)
Background: The complainant, a citizen and native of Mexico, appealed the district court’s dismissal of his petition for habeas corpus relief from deportation. In his habeas petition, he claimed that: (1) a statute providing relief to a limited group of foreign nationals who smuggle family members into the United States violated his constitutional right to equal protection; (2) the Board of Immigration Appeals (“BIA”) acted in contravention of customary international law by failing sufficiently to consider in his deportation hearing the best interests of his United States citizen children; (3) the BIA arbitrarily exercised its discretion on appeal when it declined to suspend his deportation under INA § 244; and (4) the BIA abused its discretion by denying his motion to reopen. This summary is focused on the claim that the BIA acted in contravention of Article 3 of the CRC and customary international law. Issue and Resolution Immigration and deportation, best interests of the child. The Court held that the the BIA had not violated Article 3 of the CRC.
Court reasoning: The Court found that the BIA had given significant consideration to the challenges and disadvantages the complainant’s children might face if they were forced to return to Mexico with their father. The Court held that Article 3 of the CRC required only that “best interest of the child shall be a primary consideration” and not that those interests shall always prevail.
Excerpt citing CRC and other relevant human rights Mr. Ayala-Caballero also asserts that, in making its determination the BIA failed sufficiently to consider the best interest of his citizen children. Citing a district court case for support, Ayala-Caballero asserts that this failure contravenes customary international law principles as incorporated in federal law. See Beharry v. Reno, 183 F.Supp.2d 584 (E.D.N.Y.2002) (holding that Article 3 of *672 the United Nations Convention on the Rights of the Child has attained the status of customary international law and is therefore incorporated in federal law). This court’s recent decision in Gutierrez-Chavez holds that federal courts may review habeas petitions that allege “the INS somehow failed to exercise discretion in accordance with federal law or did so in an unconstitutional manner.” 298 F.3d at 828. See also INS v. St. Cyr, 533 U.S. 289, 300, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001). Under Gutierrez-Chavez, we have jurisdiction over Mr. Ayala-Caballero’s claims that the BIA violated Article 3 of the United Nations Convention on the Rights of the Child (“CRC”). We need not decide whether Article 3 of the CRC is in fact enforceable as federal law. Even if it is, Mr. Ayala-Caballero has not shown that the BIA violated Article 3 of the CRC. The BIA gave significant consideration to the challenges and disadvantages Mr. Ayala-Caballero’s children might face if they are forced to return to Mexico with their father, both in its original decision and in its decision on the motion to reopen. Article 3 of the CRC requires only that “best interest of the child shall be a primary consideration,” not that those interests will always prevail. Mr. Ayala-Caballero therefore could not demonstrate that Article 3 of the CRC was violated during the conduct of his deportation proceedings.
CRIN comments: CRIN believes this decision is inconsistent with the CRC. The requirement laid out in paragraph 1 of Article 3 is a strong one, meaning that the child’s interests are not just one of several considerations and so must be given high priority, such that larger weight is attached to what serves the child best. The Committee on the Rights of the Child emphasised in its General Comment 14 that State organs are obliged to clearly and transparently describe how the child’s best interests have been examined and assessed, and what weight has been ascribed to them in the decision, with the justification of the decision showing that the right has been explicitly taken into account.
Citation: 58 Fed. Appx. 669 (9th Cir. 2002)