Court/Judicial body: United States District Court for the Eastern District of New York
Date: 8 January 2002 CRC
Provisions: Article 3: Best interests of the child Article 7: Right to know and be cared for by parents
Other international provisions:International Covenant on Civil and Political Rights, Article 13 (Expulsion of an alien), Article 17 (No one shall be subjected to arbitrary or unlawful interference with his family), Article 23(1)( Family as the natural and fundamental group unit of society end to protection by the State)Universal Declaration of Human Rights, Article 9 (Right to a fair and public hearing)
Domestic provisions: Fifth Amendment of the US Constitution: Due process and equal protection under the law. Section 243(h), Immigration and Nationality Act (INA): Deportation of an alien having been convicted of serious crimes. Section 212(h), INA: Waiver of deportation under special circumstances for aliens whose deportation would result in substantial hardship to a citizen spouse or children.
Background: Beharry was an adult convicted of the felony crime of robbery in the second degree. He had lived in the United States from the age of seven as a lawful permanent resident, but did not have US citizenship. Following his conviction, the immigration authority decided that he should be deported. Beharry’s six-year-old daughter and sister were US citizens and his mother – a lawful permanent resident. Under Section 212(h) of the Immigration and Nationality Act (INA), a waiver of deportation can be granted in special circumstances where it would result in hardship to citizen spouse or children. This provision was not available to aggravated felonies and so Begarry was unable to rely on it. Prior to his deportation Beharry was placed under detention by the immigration authority. He filed a writ seeking relief from deportation on the basis of the principles of international law. The Court considered the principles of the International Covenant on Civil and Political Rights (ICCPR) and also the Convention on the Rights of the Child (CRC) on account of the petitioner’s six year old daughter.
Issue and resolution: Immigration. Best interests of the child. Whether the petitioner’s deportation is consistent with the principles of international law. The Court ruled statutes must be read in compliance with international law. The immigration authority was ordered to conduct a hearing to determine whether the Beharry could remain in the United States.
Court reasoning: The Court held that the INA had to be interpreted in compliance with international law including the CRC, ICCPR, Universal Declaration on Human Rights and customary international law. The Court accepted that the United States has not yet ratified the CRC but explained that provisions of the CRC have the status of international customary law, making it binding on United States courts. The Court explained when statutes appears to be in conflict with international law, an appropriate remedy is to interpret the statute in a way complying with international law. The INA must be read incompliance with customary international law including the principle that the best interests of the child be considered. As an aggravated felon Beharry could not rely on section 212(h) INA which waivers deportation where a citizen spouse or children would suffer hardship. The Court ruled the Act had to be read in compliance with customary international law, where this is not done it denies the principle of the best interests of a child in all cases concerning aggravated offences which would breach international law. The Court also found that summary deportation of a long term resident without considering the effects violates the guarantee against arbitrary interference with one’s family ( Article 23), and the provision that an alien shall “be allowed to submit the reasons against his expulsion” ( Article 13) under the ICCPR. Where the INA is read in conformity with ICCPR it prevents incompatibility with the UDHR which prohibits arbitrary exile ( Article 9) and a right to a fair trial ( Article 10). The Court ruled in order to bring INA into compliance with international law there must be a requirement to interpret section 212(h) in compliance with international law. The Court granted the writ and ordered the immigration authority to conduct a hearing under section 212(h).
Excerpt citing CRC and other relevant human rights C. Convention on the Rights of the Child The CRC declares in its preamble that “the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance…. The child should grow up in a family environment.” Article 3 states that “in all actions concerning children, whether undertaken by private or public social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” Article 7 provides children with, “as far as possible, the right to know and be cared for by his or her parents.” Commentators have noted that the CRC is designed to protect both parental and children’s interests: “The child’s well-being normally is best-served through the assumption, by parents or legal guardians, of primary responsibility for the child.” The United States signed the CRC on February 16, 1995; it has never been sent to the Senate for ratification, but every other nation except Somalia-which is effectively without a government-has ratified the CRC. The CRC does not have the force of domestic law under the treaty clause of the Constitution. Non-ratification does not, however, eliminate its impact on American law. D. Customary International Law 3. Provisions of the Convention on the Rights of the Child as Customary International Law The CRC has been adopted by every organized government in the world except the United States. This overwhelming acceptance is strong reason to hold that some CRC provisions have attained the status of customary international law. While the CRC is relatively new, it contains many provisions codifying longstanding legal norms. It states that “the family… should be afforded the necessary protection and assistance” and that “in all actions concerning children. . . the best interests of the child shall be a primary consideration.” CRC, Preamble and Art. 3. These provisions of the CRC are not so novel as to be considered outside the bounds of what is customary… Given its widespread acceptance, to the extent that it acts to codify longstanding, widely-accepted principles of law, the CRC should be read as customary international law. “The rights to be free from arbitrary interference with family life and arbitrary expulsion are part of customary international law.” Maria, 68 F. Supp. 2d 206 at 234. Congress’s failure to ratify the CRC is not a sufficiently clear statement to constitute repudiation of the customary international law principles contained in and underlying this treaty. This ruling of law does not mean that other, more novel sections of the CRC must be adopted as customary international law. This is especially true for some novel sections of the CRC which Congress has specifically sought to repudiate, such as provisions intended to regulate the application of the death penalty. IV. Application of Law to Facts B. Relief Under the International Covenant on Civil and Political Rights The “ICCPR prevents a nation from separating families in a manner that, while in accordance with its domestic law, is nonetheless unreasonable and in conflict with the underlying provisions of the ICCPR”… While the ICCPR is non-self-executing, provisions of non-self-executing treaties have been employed before by both this court and the court of appeals for the second circuit… Summary deportation of this long term legal alien without allowing him to present the reasons he should not be deported violates the ICCPR’s guarantee against arbitrary interference with one’s family, and the provision that an alien shall “be allowed to submit the reasons against his expulsion. The statute should be interpreted in a way not inconsistent with international law to permit a compassionate hearing… Interpreting the statute in conformity with the ICCPR will also remedy any possible incompatibility with the Universal Declaration of Human Rights, which prohibits “arbitrary… exile”, UDHR Art. 9, and also requires that parties be allowed a full and fair hearing. UDHR, Art. 10.
CRIN Comments: CRIN believes this decision is in compliance with CRC. Article 3 requires all actions concerning children to take into account their best interests. States are to ensure children are not separated from their parents unless this in the best interests of the child under Article 9.
Citation: 98 CV 5381 (JBW) 183 F. Supp. 2d 584; 2002 U.S. Dist. LEXIS 757
Link to Full Judgment:http://www.leagle.com/decision/2002767183FSupp2d584_1720/BEHARRY%20v.%20RENO