Court/Judicial body: United States Court of Appeals for the Fifth Circuit
Date: 29 June 2006 CRC
Provisions: General reference to the CRC without specific articles cited
Domestic provisions: Tex. Health & Safety Code Ann. § 481.115(b) (Vernon Supp. 1999) (providing that possession of less than one gram of cocaine is a felony) Immigration and Nationality Act, 8 USC § 1227(a)(2)(B)(i) & (a)(2)(A)(iii) (2000) (providing that certain drug offences and “aggravated felonies” are deportable offences) Immigration and Nationality Act, 8 USC § 1229b(a)(3) (Supp. V 2005) (prohibiting the Attorney General from cancelling the removal of a permanent resident convicted of an “aggravated felony”)
Other international provisions: International Covenant on Civil and Political Rights (ICCPR) Universal Declaration of Human Rights (UDHR)
Background: Joaquin Martinez-Lopez, a Mexican citizen living in the United States as a lawful permanent resident alien, became subject to removal proceedings after pleading guilty in Texas state court to possession of less than one gram of cocaine, which is a felony under state law. The immigration judge found that the offence meant that Martinez-Lopez could be removed, and that he was ineligible for cancellation of his removal because the offence constituted an “aggravated felony” under the Immigration and Nationality Act (“INA”), even though it was only a misdemeanor under federal drug laws. Martinez-Lopez appealed the decision on several grounds. Among other things, he argued that construing the crime as an “aggravated felony” under the INA violated the CRC, ICCPR, and customary international law, including principles in the UDHR. In particular, he argued that his forced deportation would separate him from his children, who were US citizens, and prevent him from remaining with them and participating in their rearing, in violation of the CRC.
Issue and resolution: Separation from parents; enforceability of international law. Any rights granted under the CRC, the ICCPR, or principles of customary international law were not enforceable and could not provide grounds for relief from removal.
Court reasoning: The CRC does not give rise to individually enforceable rights in the United States because the United States has not ratified the CRC. The ICCPR does not provide a right to relief because it is not a self-executing treating. Customary international law cannot be used to directly challenge the INA because it cannot override legislative acts such as the INA.
Excerpt citing CRC and other relevant human rights Martinez-Lopez argues that his removal violates two treaties, the Convention on the Rights of the Child (“CRC”) and the International Covenant on Civil and Political Rights (“ICCPR”). The United States has not ratified the CRC, and, accordingly, the treaty cannot give rise to an individually enforceable right. The Amiable Isabella, 19 U.S. (6 Wheat.) 1, 72, 5 L. Ed. 191 (1821) (a treaty requires “a formal ratification”); Garza v. Lappin, 253 F.3d 918, 925 (7th Cir. 2001) (explaining that when the United States has signed, but not ratified, an international agreement, the agreement “does not yet qualify as one of the ‘treaties’ of the United States that creates binding obligations”). In addition, this Court cannot grant relief under the ICCPR because it is not a self-executing treaty. Beazley v. Johnson, 242 F.3d 248, 267 (5th Cir. 2001). Martinez-Lopez also argues that customary international law, including principles in the Universal Declaration of Human Rights, prevents his removal. International customs, however, cannot override congressional intent as expressed by statute. Sosa v. Alvarez-Machain, 542 U.S. 692, 731 (2004) (holding that Congress may “shut the door to the law of nations” either “explicitly, or implicitly by treaties or statutes that occupy the field”); Bradvica v. INS, 128 F.3d 1009, 1014 n.5 (7th Cir. 1997) (“[C]ustomary international law is not applicable in domestic courts where there is a controlling legislative act, such as the statute here.”). Given that Martinez-Lopez is directly challenging a statute, he cannot appeal to customary international law.
Notes: The US Supreme Court has since held that a state offence constitutes a “felony punishable under the Controlled Substances Act,” and, therefore, an “aggravated felony” under the INA, only if it proscribes conduct punishable as a felony under federal law. See Lopez v. Gonzales, 549 U.S. 47 (2006). However, the Supreme Court’s decision did not involve principles of international law and the Fifth Circuit continues to apply the reasoning in Martinez-Lopez with respect to the enforceability of international law. See, e.g., Garrido-Morato v. Gonzales, No. 05-60555, 485 F.3d 319, n.1 (5th Cir. Apr. 24, 2007) (“Garrido’s argument that the effective elimination of hardship relief violates international law also fails, as we recently rejected this precise argument [in Martinez-Lopez].”)
CRIN comments: CRIN believes this decision is not consistent with the CRC. Article 3 provides that the best interests of the child must be a primary consideration in all actions concerning children. Moreover, Article 9 provides that a child must not be separated from their parents against their will, except when it is deemed necessary for the best interests of the child. In this case, the court failed to take into account the best interests of the appellant’s children.
Citation: Martinez-Lopez v. Gonzales, No. 05-60503, 454 F.3d 500 (5th Cir. June 29, 2006) (summary calendar) Link to Full Judgment: http://www.ca5.uscourts.gov/opinions/pub/05/05-60503-CV0.wpd.pdf