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District Court Holds International Law Requires INS to Weigh Interest of Child Before Removing Father Convicted of Aggravated Felony
by Carl R. Baldwin

In a startling decision, Judge Jack B. Weinstein, the Senior District Court Judge of the Eastern District of New York, held on January 22, 2002 that international law requires the INS to consider, before removing an alien convicted of an aggravated felony, the impact of the removal on his U.S. citizen child. The decision, which seems at first glance to flatly contradict the 1996 immigration law, will be appealed by the INS.

An article in the New York Times for February 12, 2002, "Judge Gives Children Voice in Deportation," described the dilemma of a Trinidad-born father, a long time lawful permanent resident, and his young U.S. citizen daughter, who is now being taken care of by her grandmother. The father had been convicted of robbery and sentenced to a term of imprisonment of several years, had served his time, and was then placed under removal proceedings by the INS. Robbery is an aggravated felony under the 1996 law's definition: "a theft offense, for which the term of imprisonment is at least one year." According to the statute, INA 240A (a)(3), cancellation of removal for a lawful permanent resident is precluded if the alien has been convicted of an aggravated felony. From the facts of the case and a reading of the statute, it seemed clear that the alien faced removal to his home country, which he had not seen since childhood.

In his decision in Don Beharry v. Janet Reno, 98 CV 5381 (JBW), Judge Weinstein manages to get around this roadblock by reference to international law. Of particular interest to the court is the Convention on the Rights of the Child (CRC), which has been "adopted by every organized government in the world except the United States." The lack of U.S. adoption, however, according to the court, does not diminish the fact that "some CRC provisions have attained the status of customary international law." Among these is the provision that "in all actions concerning children.the best interests of the child shall be a primary consideration." The court emphasized the policy reasons for adhering to customary international law: "This nation's credibility would be weakened by non-compliance with treaty obligations or with international norms. The United States seeks to impose international law norms--including, notably, those on terrorism--upon other nations. It would seem strange, then, if the government would seek to avoid enforcement of such norms within its own borders."

The solution, according to the court, is to read INA 212(h) to conform to the Convention on the Rights of the Child. INA 212(h)(1)(B) allows the Attorney General to waive inadmissibility for an alien convicted of certain crimes (not including aggravated felonies) where the "denial of admission would result in extreme hardship to United States citizen or lawfully resident spouse, parent, son or daughter of such alien." To conform to international law, the court holds that the statute should be read broadly: "Because of treaty and international law requirements, applicable immigration statutes should be interpreted to require that petitioner be granted a hearing where he can attempt to show the effect his deportation would have on his family (both citizen and permanent resident aliens) and himself, as against the risks of his continued presence in this country." This leads to the court's startling conclusion: "If the statutes are not so interpreted, then in this instance treaties and international law override the statutes and require such a hearing."

The court's order that the INS hold a hearing to determine whether the child would suffer "extreme hardship" upon her father's removal does not mean, it makes clear, that it is forbidding removal altogether. But such orders, if generally applied to the INS, could dismantle the enforcement component of the 1996 immigration law.

Where Congress expresses itself clearly and unambiguously on a matter as closely linked to sovereignty as the admission and removal of aliens, can its wishes be overridden by an international law treaty that the United States has not even adopted? This seems to me to be extremely doubtful.

The court's opinion in Don Beharry v. Janet Reno can be found at: http://www.ilw.com/immigrationdaily/cases/2002,0227-Debarry.pdf.


About The Author

Carl R. Baldwin graduated from Columbia University Law School in 1980, and became a member of the New York State Bar a year later. He worked for three years with the New York City Law Department, and then entered solo practice in immigration law, which he has continued to the present. His work with clients has included asylum applications, deportation defense, visa processing, adjustment of status, and naturalization. He has also worked to implement special laws, such as the 1986 "amnesty" (The Immigration Reform and Control Act), and the 1998 Haitian reform act (The Haitian Refugee Immigration Fairness Act). Mr. Baldwin is the author of Immigration News Monthly. He can be rached by e-mail at Carl.Baldwin@immigrationnewsmonthly.com.

He has written a book on immigration law, called "Immigration Questions and Answers," 1997, Allworth Press, 10 East 23rd Street, New York, NY 10010 (212) 777-8395. The book, which contains essential background information about how the immigration law works, can be ordered in both an English Edition and a Spanish version from www.amazon.com


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