District Court Blocks Deportation Citing Non-Self-Executing International Treaty Provision
This case comes before this Court due to a lower court’s refusal to apply the plain language of the Immigration and Naturalization Act. In 1997, the Immigration and Naturalization Service (INS) attempted to deport, without a hardship hearing, an alien convicted of an aggravated felony, in accordance with a plain reading of the Act. The Federal District Court for the Eastern District of New York held that such a reading violated certain non-self-executing international treaty provisions and must be rejected in favor of a more expansive interpretation consistent with these provisions. See Beharry v. Reno, 183 F. Supp. 2d 584, 603-05 (E.D. N.Y. 2002). The court was wrong. Because a federal statute is superior to unratified and non-self- executing international treaties and related principles of customary international law, the Act must be applied as written. This case presents this Court with the opportunity to uphold the supremacy of United States law and the democratic process through which that law is enacted.
In 1982, Don Beharry (Beharry) came to the United States from Trinidad as a lawful, permanent resident. In the years that followed, he was convicted of numerous crimes, including several related to theft. In November of 1996, Beharry was convicted and jailed for committing second-degree robbery.
At the time of the conviction, Beharry’s crime was classified as an aggravated felony under the terms of 1996 amendments to the Act, though it would not have been so classified at the time he committed the underlying robbery. In 1997, the INS commenced deportation proceedings. After an immigration judge found Beharry ineligible for relief from deportation, he filed for a petition for habeas corpus. As the father of a United States citizen, Beharry grounded his petition on section 212(h), a provision that allows for a waiver of deportation when it would result in substantial hardship to a child who is a United States citizen. Section 212(h) does not apply, however, to lawful resident alien’s convicted of an aggravated felony. Beharry conceded that he was ineligible for relief under the terms of section 212(h), but challenged the provision on constitutional grounds.
The district court found that international law, rather than the asserted constitutional provisions, provided a basis for relief from straightforward application of the Act. The district court concluded that such an application was incompatible with provisions in three international instruments: the Convention on the Rights of the Child (CRC), the Universal Declaration of Human Rights (UDHR), and the International Covenant on Civil and Political Rights (ICCPR).
It determined that, as part of customary international law, these treaty provisions have the same status in domestic law as a federal statute and therefore supercede a prior inconsistent federal statute such as the Act. The court further held that federal statutes should be interpreted in a manner that is consistent with the treaty provisions, regardless of whether they have been ratified by the United States.
Ultimately, the court brought the Act into “compliance” with the treaty provisions by holding that section 212(h) requires a hardship waiver hearing for all aliens, including those convicted of an aggravated felony, if the underlying crime was not classified as an aggravated felony at the time it was committed. It did so despite the fact that this Court recently held that it is the date of conviction, not of the time of the criminal act, that determines whether the terms of the 1996 Act apply to persons subject to deportation. Domond v. United States Immigration and Naturalization Service, 244 F.3d 81 (2nd Cir. 2001). The United States has appealed to this Court to confirm that the plain reading of the Act, and the decision in Domond, are superior in domestic law to non-self-executing international human rights treaties and international rules not adopted by the United States.
Do non-self-executing treaty provisions supersede federal statutes?
ALF’s Amicus Brief:
The district court’s reinterpretation of section 212(h) of the Act rests on a series of utterly indefensible conclusions and assumptions about the status of international law in the domestic legal system. Specifically, the court incorrectly concludes that (1) it has jurisdiction to hear Beharry’s international law defense; (2) international customary law is co-equal with a federal statute and therefore supercedes an inconsistent statute; and (3) courts may rely on international treaty provisions rejected by the United States to interpret a federal statute. Together, the district court’s unprecedented conclusions result in a drastic and dangerous reallocation of domestic law-making power from internal democratic institutions to courts and foreign states.
Status:
On May 1, 2003, then Circuit Judge Sotomayor issued a favorable opinion.
