Should International Law Overrule American Law?


Atlantic Legal, working with co-counsel Pacific Legal Foundation, filed an amicus brief in support of the United States in Beharry v. Reno. Donald Beharry is a convicted felon (for burglary and armed robbery) who held a green card. Pursuant to statute, the Immigration and Naturalization Service ordered him deported. Beharry sought a "hardship exemption" because his daughter, now 8 years old, was born in the U.S. and thus is a citizen. The exemption was denied on the grounds that Beharry’s claim does not fall within any of the statutory exemption categories because he was convicted of an "aggravated felony." Beharry petitioned for a writ of habeas corpus in the U.S. District Court for the Eastern District of New York. Judge Jack Weinstein granted the petition and, while acknowledging that the U.S. statutes do not provide for an exemption in this case and that he was making new law, decided that "customary international humanitarian law," including treaties and conventions to which the U.S. is not a party, or which have not been ratified, "overrides" U.S. statutory law, and that "in the interests of the child," Beharry should be permitted to have a "discretionary hearing" on his claim for a waiver of deportation on "compassionate grounds." Atlantic Legal and PLF argued in their amicus brief that even if "customary international law" is part of "federal common law" it does not override clear statutory provisions, and that the district court also overreached its constitutional authority essentially supplanting the judgment of Congress by using "customary international law" to "interpret" an unambiguous federal statute.

In deciding the case, now entitled Beharry v. Ashcroft, in May 2003, the Second Circuit Court of Appeals reached the right result, reversing the district court’s decision and dismissing the petition on the basis that Beharry had not exhausted his administrative remedies, but largely sidestepped the crucial issue briefed by Atlantic Legal and PLF. But, the court did observe that,

"Nothing in our decision to reverse on other grounds the judgment of the district court should be seen as an endorsement of the district court’s holding that interpretation of the INA [the Immigration and Naturalization Act] in this case is influenced or controlled by international law."

At the least this egregious example of judge-made law was voided. For our part, Atlantic Legal’s fight to preserve our nation’s sovereignty and constitutional form of government continues.