"Federalizing" immigration law: International law as a limitation on congress's power to legislate in the field of immigration

Fordham Law Review

Volumn 77, Issue 2, 2008, Pages 501-527

  Kadidal, Shayana ^a  

^a Center for Constitutional Rights

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EID: 58049171766     PISSN: 0015704X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (132)

1. See, e.g., Alexander Tabarrok, Economic and Moral Factors in Favor of Open Immigration, INDEP. INST., Sept. 14, 2000, http://www.independent.org/issues/article.asp?id=486 ("Virtually all economists agree that immigration increases the wealth of the United States. For example a group of economists all of whom had been either president of the American Economic Association or a member of the President's Council of Economic Advisors, were asked 'On balance, what effect has twentieth century immigration had on the nation's economic growth.' 81% of these prominent economists answered 'very favorable,' 19% said slightly favorable, not a single one said slightly or very unfavorable.").
2. See, e.g., PHILLIPPE LEGRAIN, IMMIGRANTS: YOUR COUNTRY NEEDS THEM 19 (2007) ("The World Bank reckons that if rich countries allowed their workforce to swell by a mere 3 per cent by letting in an extra 14 million workers from developing countries between 2001 and 2025, the world would be $356 billion a year better off, with the new migrants themselves gaining $162 billion a year, people who remain in poor countries $143 billion, and natives in rich countries $139 billion."); JULIAN L. SIMON, IMMIGRATION: THE DEMOGRAPHIC AND ECONOMIC FACTS, EXECUTIVE SUMMARY (1995), http://www.cato.org/pubs/policy-report/pr-immig.html ("Immigrants do not increase the rate of unemployment among native Americans, even among minority, female, and low-skill workers. The effect of immigration on wages is negative for some of these special groups and positive for others, but the overall effects are small. Total per capita government expenditures on immigrants are much lower than those for natives, no matter how immigrants are classified.. . . Natural resources and the environment are not at risk from immigration."); Tabarrok, supra note 1.
3. See James F. Hollifeld, Immigration and Republicanism in France: The Hidden Consensus, in CONTROLLING IMMIGRATION: A GLOBAL PERSPECTIVE 145 (Wayne A. Cornelius et al. eds., 1st ed. 1994) ("To sustain the surge in economic growth during the belle epoque . . . French industrialists needed access to additional supplies of labor, which they had great difficulty finding at home.... French population growth slowed dramatically during the first half of the nineteenth century and never really recovered until the post- World War II period.").
4. THE DECLARATION OF INDEPENDENCE para. 9 (U.S. 1776) ("He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.").
5. Although voting, as the most fundamental of political rights, is typically considered exclusive to the citizenry-"the most common form of tyranny in human history," as Michael Walzer puts it, see MICHAEL WALZER, SPHERES OF JUSTICE 62 (1983)-there is, of course, no reason to assume that aliens must be denied the right to vote. Indeed, throughout most of the history of the United States (from the founding onward), aliens voted in local, state, and even federal elections, although the practice rapidly vanished by the 1920s. See RON HAYDUK, DEMOCRACY FOR ALL: RESTORING IMMIGRANT VOTING RIGHTS IN THE UNITED STATES 15-40(2006).
6. For instance, one proposal set forth by Davon Collins would have the federal government set an annual national quota but then allocate visas to state governments (perhaps by population, perhaps based on past rates of immigration to those states) and then let the states experiment with different arrangements for parsing them out-or not using them at all. See Davon M. Collins, Note, Toward a More Federalist Employment-Based Immigration System, 25 YALE L. & POL'Y REV. 349 (2007).
7. See Beharry v. Reno, 183 F. Supp. 2d 584, 604 (E.D.N.Y. 2002), rev'd on other grounds, Beharry v. Ashcroft, 329 F.3d 51 (2d Cir. 2003) (discussed in detail infra text accompanying notes 11-28); Maria v. McElroy, 68 F. Supp. 2d 206, 234 (E.D.N.Y. 1999). The district court reached a similar conclusion in Mojica v. Reno, 970 F. Supp. 130 (E.D.N.Y. 1997), aff'd in part on other grounds and question certified sub nom. Henderson v. INS, 157 F.3d 106 (2d Cir. 1998). For a discussion of the background and procedural history of Mojica, see Sara A. Rodriguez, Exile and the Not-So-Permanent Resident: Does International Law Require a Humanitarian Waiver of Deportation for the Non-Citizen Convicted of Certain Crimes?, 20 GEO. IMMIGR. L.J. 483, 495-96 (2006).
8. 68 F. Supp. 2d 206.
9. 183 F. Supp. 2d 584.
10. See INS v. St. Cyr, 533 U.S. 289, 293-97 (2001) (recounting history of section 212(c) of the Immigration and Nationality Act).
11. Full disclosure: Don Beharry was also a client of the Center for Constitutional Rights, which argued his case before the U.S. Court of Appeals for the Second Circuit.
12. See Beharry, 183 F. Supp. 2d at 586.
13. The legislative history of the 1996 Acts is generally unenlightening. The 1996 Acts-the Antiterrorism and Effective Death Penalty Act (AEDPA), enacted first, and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA)-were notable for the great speed with which they were drafted and rushed into law. See Claudia Wilner, Note, "We Would Not Defer to That Which Did Not Exist": AEDPA Meets the Silent State Court Opinion, 77 N.Y.U. L. REV. 1442, 1458 (2002) ("AEDPA was a hastily drafted statute, enacted as part of a highly politicized legislative response to the Oklahoma City bombing in 1995."); Alexander Rundlet, Comment, Opting for Death: State Responses to the AEDPA 's Opt-In Provisions and the Need for a Right to Post-Conviction Counsel, 1 U. PA. J. CONST. L. 661, 704 (1999) ("The result [of AEDPA's rushed drafting], as the cases reveal, has been sloppy legislation . . . ."); Jacqueline P. Ulin, Note, A Common Sense Reconstruction of the INA's Crime-Related Removal System: Eliminating the Caveats from the Statue of Liberty's Welcoming Words, 78 WASH. U. L.Q. 1549, 1558 n.50 (2000) ("As other commentators have noted ... the [IIRIRA] legislation is sloppy." (internal quotation marks omitted)). Interestingly, an examination of the legislative history of the relevant statutes indicates not only that Congress did not intend to violate international law, but also that Congress remains committed to family unification, which had long been a central principle of our immigration policy. The House report for the IIRIRA declares that "[t]he preservation of the nuclear family... should continue to be a cornerstone of U.S. immigration policy." H.R. Rep. No. 104-469, pt. 1, at 134 (1996). Congress intended to give "highest priority in the immigration system to unification of the nuclear family." Id. at 171.
14. The central provision at issue in Beharry was section 212(h), which allowed waiver of deportation under special circumstances for aliens whose deportation would result in substantial hardship to a citizen spouse or child.
15. The Second Circuit had announced in a pre-INS v. St. Cyr case that, where crimes predated the change in law but the convictions did not, section 212(c) relief would be foreclosed. See Domond v. INS, 244 F.3d 81 (2d Cir. 2001). Judge Jack Weinstein's opinion seemed to indicate that he believed Domond v. INS might be overturned. See Beharry, 183 F. Supp. 2d at 589, 605.
16. 5 U.S. (1 Cranch) 1, 43-45 (1801).
17. Id. at 43.
18. Id.
19. Id.
20. Id. at 44.
21. 6 U.S. (2Cranch)64(1804).
22. Id.. at 118.
23. See, e.g., INS v. Cardoza-Fonseca, 480 U.S. 421, 436-41 (1987) (international law used as a guide to the construction of Refugee Act of 1980 and the IN A); see also Weinberger v. Rossi, 456 U.S. 25, 32-33 (1982) (construing statute so as not to abrogate preexisting executive agreements); McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 21-22 (1963) (construing labor relations statute so as not to violate customary rules of maritime jurisdiction); Lauritzen v. Larsen, 345 U.S. 571, 578 (1953) (applicability of statute determined by customary maritime law in the absence of clearly expressed congressional intent to the contrary); cf. Hartford Fire Ins. Co. v. California, 509 U.S. 764, 815 (1993) (Scalia, J., dissenting) ("Though it clearly has constitutional authority to do so, Congress is generally presumed not to have exceeded those customary international-law limits on jurisdiction to prescribe.")- See generally Ralph G. Steinhardt, The Role of International Law as a Canon of Domestic Statutory Construction, 43 VAND. L. REV. 1103(1990).
24. See Charming Betsy, 6 U.S. (2 Cranch) at 119 ("extraordinary intent" of Congress to violate the law of nations must be "plainly expressed" to be given effect by the courts); RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 115(1)(a) (1987) ("An act of Congress supersedes an earlier rule of international law or a provision of an international agreement as law of the United States if the purpose of the act to supersede the earlier rule or provision is clear or if the act and the earlier rule or provision cannot be fairly reconciled."). The Supreme Court has often invoked a "clear statement" rule of construction with regard to statutes that would otherwise contradict earlier-in-time treaty obligations, even though statutes are often said to stand at parity with treaties. See Trans World Airlines, Inc. v. Franklin Mint Corp., 466 U.S. 243, 252 (1984) ("There is ... a firm and obviously sound canon of construction against finding implicit repeal of a treaty in ambiguous congressional action."); Cook v. United States, 288 U.S. 102, 120 (1933) ("A treaty will not be deemed to have been abrogated or modified by a later statute unless such purpose on the part of Congress has been clearly expressed."); Chew Heong v. United States, 112 U.S. 536, 559-60 (1884) (creating exception to a statutory scheme in order to avoid a conflict with an earlier internationally binding treaty; Court would not deem a treaty abrogated "unless compelled to do so by language so clear and positive as to leave no room to doubt that such was the intention of the legislature").
25. See infra Part III.
26. Beharry v. Reno, 183 F. Supp. 2d 584, 605 (E.D.N.Y. 2002), rev'd on other grounds, Beharry v. Ashcroft, 329 F.3d 51 (2d Cir. 2003).
27. Id. at 604-05.
28. Id. at 605. The "compassionate hearing" ordered by Judge Weinstein never took place. Id. at 604. The Second Circuit eventually overturned the judgment on other grounds, finding that Beharry had failed to exhaust his remedies by raising these international-lawbased arguments in his administrative proceedings, and thus that the district court lacked subject-matter jurisdiction. See Beharry, 329 F.3d 51. The Center for Constitutional Rights moved the panel for reconsideration on a variety of grounds. Due to an administrative error, the court of appeals did not realize that a petition for rehearing had been filed for several weeks. Eventually, it issued a revised opinion, adding a single footnote asserting that it would have been an abuse of discretion for Beharry to prevail on these facts. Oddly, because of the delay engendered by the administrative error, the bound hardcover volume of the Federal Reporter does not include the footnote; the reissued opinion, which is available on LEXIS, is the only one that contains it. Cf. Beharry v. Ashcroft, No. 02-2171, 2003 U.S. App. LEXIS 8279, at *3 n.1 (2d Cir. May 1, 2003, revised July 24, 2003) ("But even if the exhaustion requirement here is not jurisdictional, we believe that it would be an abuse of discretion on the facts of this case for the district court to exercise jurisdiction."). In an unpublished opinion, a panel of the Second Circuit eventually rejected similar arguments made by a similarly (though not identically) situated petitioner. See Gordon v. Mule, 153 F. App'x 39, 41 n.1 (2d Cir. 2005) (Gordon-in contrast to Beharry-may not have qualified for section 212(h) relief at the time of conviction in any event because his conviction involved the sale of heroin).
29. The exhaustion requirement hesitantly implied in Beharry's Second Circuit panel opinion would, if it were actually read as binding and enforced by the courts, further reduce the usefulness of these arguments, though it did not stop at least one enterprising petitioner-Alfien Gordon-from raising, pro se, the arguments made in Beharry during his administrative appeals. See Brief for the Petitioner-Appellant at 4-6, 6 n.4, Gordon v. Mulé, No. 02-2051 (2d Cir. Apr. 28, 2005).
30. Judge Weinstein's opinion in Beharry turned on statutory ambiguity and the Charming Betsy canon. However, the following argument was set forth in the opinion: Like admiralty, immigration law is founded on international law. The Supreme Court has repeated that the basis for Congress's extremely broad power over aliens comes not from the Constitution itself, but from international law. "It is an accepted maxim of international law that every sovereign nation has the power, as inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominions." It is because of international norms that Congress has such broad authority: That aliens remain vulnerable to expulsion after long residence is a practice that bristles with severities. But it is a weapon of defense and reprisal confirmed by international law as a power inherent in every sovereign state. Such is the traditional power of the Nation over the alien and we leave the law on the subject as we find it. The Harisiades court further noted that "a State can expel even domiciled aliens without so much as giving the reasons." As authority for this proposition, the Court cited to Oppenheim's 1920 treatise (3d ed.) on international law. That treatise has, of course, been superceded ....Since [C]ongress's power over aliens rests at least in part on international law, it should come as no shock that it may be limited by changing international law norms. Beharry, 183 F. Supp. 2d at 598 (citations omitted) (quoting Harisiades v. Shaughnessy, 342 U.S. 580, 587-88 (1952); Nishimura Ekiu v. United States, 142 U.S. 651, 659 (1892)).
31. See, e.g., McCullogh v. Maryland, 17 U.S. (4 Wheat.) 316, 405 (1819) ("This government is acknowledged by all, to be one of enumerated powers. The principle, that it can exercise only the powers granted to it... is now universally admitted.").
32. Of course, the Slave Migration Clauses are an exception to the general absence of an immigration power in the Congress. U.S. CONST, art. I, § 9, cl. 1 ("The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.")
33. Id. art. I, § 8, cl. 4 ("The Congress shall have power... [t]o establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States.").
34. See Sarah H. Cleveland, Powers Inherent in Sovereignty: Indians, Aliens, Territories, and the Nineteenth Century Origins of Plenary Power over Foreign Affairs. 81 TEX. L. REV. 1, 98-99 (2002) ("Federal activity in the immigration area was minimal during the pre-Civil War period. The federal government's express policy was to encourage settlement in the new nation, and naturalization was extended to free white residents. Federal legislation was adopted to ensure the health and safety of passengers and to grant duty-free admission to their personal and professional possessions. No meaningful federal restrictions on immigration were imposed." (footnotes omitted)); Gerald L. Neuman. The Lost Century of American Immigration Law (1776-1875), 93 COLUM. L. REV. 1833, 1834 (1993) ("[T]he myth [that the borders of the U.S. were legally open prior to the 1870s] has a substantial foundation in fact: U.S. legal policy warmly welcomed certain kinds of immigration, and restrictive laws were often poorly enforced. Neither Congress nor the states attempted to impose quantitative limits on immigration." (footnote omitted)).
35. See Neuman, supra note 34, at 1841 ("State opposition to the immigration of persons convicted of crime continued a longstanding dispute of the colonial period. The sentencing of felons to transportation to America and their shipment to the colonies as indentured servants had sparked repeated protests, including Benjamin Franklin's famous proposal to ship rattlesnakes to England in return. Several colonies attempted to pass restrictive legislation, but after the enactment of the Transportation Act of 1718 such legislation was frequently vetoed by the British government. Independence released the states from that control, but also widened the field by tempting other European nations to dump their convicts in the United States."). Limitations on the migration of slaves-and of free blacks as well-were imposed by many states as well. See Cleveland, supra note 34, at 98.
36. 36 U.S. (11 Pet.) 102 (1837).
37. "New York was receiving 60,500 immigrants annually, and ... argued that it should not be required to bear the cost of the Western states' demand for 'emigrati' by supporting those who entered and became a burden on the city." Cleveland, supra note 34, at 100.
38. MiIn, 36 U.S. (11 Pet.) at 136-37 ("But how can this apply to persons? They are not the subject of commerce; and not being imported goods, cannot fall within a train of reasoning founded upon the construction of a power given to congress to regulate commerce . . .."). In the Passenger Cases, Justice James Moore Wayne later argued that this language did not enjoy the support of a majority of the Court. See The Passenger Cases, 48 U.S. (7 How.) 283, 410-11 (1849) (Wayne, J., concurring).
39. The majority all agreed that nothing they said limited the ability of states to exclude blacks. See The Passenger Cases, 48 U.S. (7 How.) at 406 (McLean, J., concurring); id. at 426, 428 (Wayne, J., concurring); id. at 457 (Grier, J., concurring).
40. Id. at 408 (McLean, J., concurring) (arguing that passengers are the subjects of commerce and that Congress has exclusive power to regulate them); id. at 426 (Wayne, J., concurring) (arguing that state immigration laws are inconsistent with the Naturalization Clause); id. at 440-42 (Catron, J., concurring) (concluding that "Congress has covered, and has intended to cover, the whole field of legislation over this branch of commerce").
41. See The Head Money Cases, 112 U.S. 580, 600 (1884) ("[C]ongress [has] the power to pass a law regulating immigration as a part of [the] commerce of this country with foreign nations ...."). Previous cases had come to the same result, finding that Congress had exclusive power over the field under the Commerce Clause. See People v. Compagnie Générate Transatlantique, 107 U.S. 59, 60, 63 (1883) (holding that "[i]t has been so repeatedly decided by this court that such a tax ... is a regulation of commerce with foreign nations, confided by the Constitution to the exclusive control of Congress," and that the "legislation [at issue] covers the same ground as the New York statute, and they cannot coexist"); Chy Lung v. Freeman, 92 U.S. 275, 280 (1875) ("The passage of laws which concern the admission of citizens and subjects of foreign nations to our shores belongs to Congress, and not to the States."); Henderson v. Mayor of N.Y., 92 U.S. 259, 270 (1875) ("[T]he transportation of passengers from European ports to those of the United States has attained a magnitude and importance far beyond its proportion at that time to other branches of commerce. It has become a part of our commerce with foreign nations, of vast interest to this country .. .."); id. at 272-74 ("[T]his whole subject has been confided to Congress by the Constitution ....");
42. Cleveland, supra note 34, at 110.
43. Id. at 111 (first, third, fourth, and fifth alterations in original) (emphasis added) (footnotes omitted) (internal quotation marks omitted).
44. Juilliard v. Greenman, 110 U.S. 421, 450 (1884) (Congress could exercise "powers belonging to sovereignty in other civilized nations, and not expressly withheld from Congress by the Constitution"); The Legal Tender Cases, 79 U.S. (12 Wall.) 457, 555-56 (1870) (Bradley, J., concurring) ("The United States is not only a government, but it is a National government, and the only government in this country that has the character of nationality.... [I]t is invested with all those inherent and implied powers which, at the time of adopting the Constitution, were generally considered to belong to every government as such, and as being essential to the exercise of its functions.").
45. See, e.g., United States v. E. C. Knight Co., 156 U.S. 1 (1895) (holding that the Sherman Antitrust Act did not allow the federal government to prevent the formation of a monopoly in the manufacture of sugar via merger of five Pennsylvania companies); Kidd v. Pearson, 128 U.S. 1 (1888) (holding that the Commerce Clause did not preempt Iowa law prohibiting manufacture of alcohol, even if intended for export out of state).
46. 130 U.S. 581(1889).
47. Cleveland, supra note 34, at 126.
48. Chae Chan Ping, 130 U.S. at 603-04, 607.
49. Cleveland, supra note 34, at 132.
50. Id. at 132-33, 133 n.910 (citing Musgrove v. Chun Teeong Toy, 1891 A.C. 272 (P.C.) (appeal taken from Sup. Ct. of Vict.)).
51. 142 U.S. 651(1892).
52. Id. at 659 (citations omitted).
53. Fong Yue Ting v. United States, 149 U.S. 698 (1893).
54. 342 U.S. 580, 587-88 (1952) (describing the "traditional power of the Nation over the alien," "confirmed by international law"); see also Kleindienst v. Mandel, 408 U.S. 753, 765 (1972) ("ancient principles of the international law of nation-states" justify measures against excludible aliens); Tiaco v. Forbes, 228 U.S. 549, 556 (1913) ("It is admitted that sovereign states have inherent power to deport aliens ....").
55. Beharry v. Reno, 183 F. Supp. 2d 584, 598 (E.D.N.Y. 2002).
56. Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations, Advisory Opinion, 1989 I.C.J. 177, 210-11 (Dec. 15) (separate opinion of Judge Evensen) (internal quotation omitted).
57. Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. Doc. A/810 (Dec. 10, 1948).
58. Id. art. 16(3).
59. Id. art. 12.
60. See RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 701, reporters' note 6 (1987) ("[T]he Declaration has become the accepted general articulation of recognized rights.").
61. See, e.g., Filartiga v. Pena-Irala, 630 F.2d 876, 883 (2d Cir. 1980).
62. International Covenant on Civil and Political Rights, opened for signature Dec. 19, 1966, 999 U.N.T.S. 171 [hereinafter ICCPR] (entered into force for the United States Sept. 8, 1992).
63. The United States ratified the ICCPR in 1992. See OFFICE OF THE U.N. HIGH COMM'R FOR HUMAN RIGHTS, STATUS OF RATIFICATIONS OF THE PRINCIPAL INTERNATIONAL HUMAN RIGHTS TREATIES 11 (2004) [hereinafter STATUS OF RATIFICATIONS], available at http://www.unhchr.ch/pdf/report.pdf. The Covenant is a binding treaty obligation and is indicative of customary international law. Even if its provisions are found to be non-selfexecuting, the Covenant is still relevant for purposes of determining the status of customary international law. In proceedings before the Human Rights Committee, the U.S. Representative indicated that U.S. courts "could refer to the Covenant and take guidance from it even though it was not self-executing." U.N. Human Rights Comm., Consideration of Reports Submitted by States Parties Under Article 40 of the Covenant: United States of America, ¶ 8, U.N. Doc. CCPR/C/SR.1405 (Nov. 28,1995). The U.S. ratification of the Covenant, coupled with President William J. Clinton's Executive Order, No. 13107, 63 Fed. Reg. 68, 991 (Dec. 10, 1998), suggest that the United States is fully committed to the protection and promotion of human rights. According to section 1(a) of the executive order, "[i]t shall be the policy and practice of the Government of the United States, being committed to the protection and promotion of human rights and fundamental freedoms, fully to respect and implement its obligations under the international human rights treaties to which it is a party, including the [Covenant]." Id. That executive order and its commitment to the values espoused by the Covenant has not been repealed or superseded by any executive order issued by succeeding administrations.
64. ICCPR, supra note 62, art. 23(1).
65. Id. art. 17.
66. Organization of American States, American Convention on Human Rights, Nov. 22, 1969, O.A.S.T.S. No. 36, 1144 U.N.T.S. 123, available at http://www.oas.org/juridico/english/treaties/b-32.html.
67. See Filartiga v. Pena-Irala, 630 F.2d 876, 883-84 (2d Cir. 1980) (citing American Convention and European Convention as sources of customary international law); Fernandez v. Wilkinson, 505 F. Supp. 787, 797 (D. Kan. 1980), aff'd sub nom. Rodriguez-Fernandez v. Wilkinson, 654 F.2d 1382 (10th Cir. 1981) ("Two other principle sources of fundamental human rights are the European Convention for the Protection of Human Rights and Fundamental Freedoms . . . and the International Covenant on Civil and Political Rights....").
68. X & Y v. Argentina, Case 10.506, Inter-Am. C.H.R., Report No. 38/96, OEA/Ser.L./V/II.95, doc. 7 rev. ¶ 96 (1996).
69. Convention for the Protection of Human Rights and Fundamental Freedoms art. 8(1), Nov. 4, 1950, 213 U.N.T.S. 222 [hereinafter European Convention].
70. Fernandez, 505 F. Supp. at 797; see also Filartiga, 630 F.2d at 883-84.
71. Scozzari & Giunta v. Italy 2000-VIII Eur. Ct. H.R. 471, 503, 524; see also Johansen v. Norway 1996-III Eur. Ct. H.R. 966, 1001-02 ("[T]he mutual enjoyment by parent and child of each other's company constitutes a fundamental element of family life and... domestic measures hindering such enjoyment amount to an interference with the right protected by Article 8.").
72. Ciliz v. Netherlands, 2000-VII Eur. Ct. H.R. 267, ¶ 52.
73. See Declaration on the Human Rights of Individuals Who Are Not Nationals of the Country in Which They Live, G.A. Res. 40/144, Annex, art. 5(1), U.N. Doc. A/RES/40/144 (Dec. :13, 1985) (aliens enjoy right to family).
74. U.N. Human Rights Comm., General Comment No. 15: The Position of Aliens Under the Covenant, ¶¶ 1-2 (Nov. 4, 1986) [hereinafter General Comment No. 15], available at http://www.unhchr.ch/tbs/ doc.nsf/0/bc561aa81bc5d86ec12563ed004aaalb? Opendocument.
75. The U.N. Human Rights Committee has opined that the deportation of a person from a country where close members of his or her family are living constitutes an interference with that individual's right to his or her family life. See Aumeeruddy-Cziffra v. Mauritius, U.N. Human Rights Coram., Commc'n No. 35/1978, ¶ 9.2(b)(2)(i)(2), U.N. Doc. CCPR/C/12/D/35/1978 (1981).
76. Thus the Oppenheim treatise states, "[D]iscretion ... to expel aliens ... is not absolute. Thus, by customary international law [the state] must not abuse its right[s] by acting arbitrarily in taking its decision to expel an alien, and it must act reasonably in the manner in which it effects an expulsion." I OPPENHEIM'S INTERNATIONAL LAW 940 (Sir Robert Jennings & Sir Arthur Watts eds., 9th ed. 1992).
77. "The introduction of the concept of arbitrariness is intended to guarantee that even interference provided for by law should be in accordance with the provisions, aims and objectives of [the ICCPR] . . . ." U.N. Human Rights Coram., General Comment No. 16: The Right to Respect of Privacy, Family, Home, and Correspondence, and Protection of Honour and Reputation (Art. 17),¶ 4, U.N. Doc. CCPR/C/21/Rev.1 (Mar. 23, 1988).
78. Fernandez v. Wilkinson, 505 F. Supp. 787, 797 (D.Kan. 1980), ajf'd sub nom. Rodriguez-Fernandez v. Wilkinson, 654 F.2d 1382 (10th Cir. 1981); see also Lawrence v. Texas, 539 U.S. 558, 573, 576 (2003) (citing Dudgeon v. United Kingdom, 45 Eur. Ct. H.R. (ser. A) (1981), and subsequent decisions of the ECHR); Filartiga v. Pena-Irala, 630 F.2d 876, 884 & n.16 (2d Cir. 1980) (recognizing that judicial decisions constitute a source of customary international law and citing a decision issued by the ECHR); Beharry v. Reno, 183 F. Supp. 2d 584, 597 (E.D.N.Y. 2002).
79. Berrehab v. Netherlands, 138 Eur. Ct. H.R. (ser. A) 15-16 (1988) ("[T]he legitimate aim pursued has to be weighed against the seriousness of the interference with the applicants' right to respect for their family life."); see also Ciliz v. Netherlands, 2000-VIII Eur. Ct. H.R. 265, 284.
80. 193 Eur. Ct. H.R. (ser. A) (1991).
81. Id. at 10.
82. Id. at 19-20.
83. See, e.g., Yildiz v. Austria, 36 Eur. H.R. Rep. 553 (2003) (noting that a violation of the right to family life where deportation imposed for shoplifting and traffic offenses on father with small child born in Austria); Boultif v. Switzerland, 2001-IX Eur. Ct. H.R 119 (finding that, despite a robbery conviction, petitioner did not pose a danger to society proportionate to the hardship of removing him after eight years of marriage to a Swiss woman who was unlikely to be able to follow him to Algeria); Mokrani v. France, 40 Eur. H.R. Rep. 123 (2003), available at http://www.stranieriinitalia.it/ briguglio/immigrazione-easilo/2003/ottobre/bollettino-ecre-10-03.html (translated summary) (concluding that, since drug trafficker lived his entire life in France, was seriously involved with a French woman, and had no ties with his country of origin other than his nationality, his expulsion was disproportionate to the legitimate state interest); Mehemi v. France, 1997-VI Eur. Ct. H.R. 1959 (barring deportation of Algerian national whose parents, brothers, sisters, wife, and three minor children were all French citizens). National courts have reached similar conclusions. See Beldjoudi v. France, 234 Eur. Ct. H.R. (ser. A) 3 (1992) (noting that the presence of Algerian national's spouse, parents, and four siblings in France and lack of any links to Algeria outweighed state interest in removal, despite serious criminal convictions); PARLIAMENT OF THE COMMONWEALTH OF AUSTL., HUMAN RIGHTS COMM'N, DEPORTATION AND THE FAMILY: A REPORT ON THE COMPLAINTS OF MRS. M. ROTH AND MR. C.J. BOOKER, REP. NO. 8, PARLIAMENTARY PAPER NO. 272/1984, (1984) (Declaration of the Rights of the Child and ICCPR Article 23 violated by order separating noncitizen from long-term cohabitant and her children).
84. 2003-X Eur. Ct. H.R. 229.
85. Id. at 237-38.
86. See id. at 258-67.
87. See, e.g., Winata v. Australia, U.N. Human Rights Comm., Commc'n No. 930/2000, ¶ 7.3, U.N. Doc. CCPR/C/72/D/930/2000 (2001) (finding that, in light of petitioners' fourteen-year residence in Australia and the Australian citizenship of their thirteen-year-old child, Australian government did not achieve a proper balance between its interest in the enforcement of immigration law and its duty to refrain from arbitrary interference with petitioners' family life); Canepa v. Canada, U.N. Human Rights Comm., Commc'n No. 558/1993, U.N. Doc. CCPR/C/59/D/558/1993 (1997); Hopu & Bessert v. France, U.N. Human Rights Comm., Commc'n No. 549/1993, U.N. Doc. CCPR/C/60/D/549/1993/Rev.1 (1997); Stewart v. Canada, U.N. Human Rights Comm., Commc'n No. 538/1993, U.N. Doc. CCPR/C/58/D/538/1993 (1996).
88. U.N. Human Rights Comm., Commc'n No. 35/1978, U.N. Doc. CCPR/C/12/D/35/1978 (1981).
89. Id ¶ 1.2.
90. Id. ¶ 9.2(b)(2)(i)(3).
91. Id.¶ 19.2(b)(2)(i)(2).
92. Joseph Goldstein was a law professor at Yale, and Anna Freud a renowned child and developmental psychologist. See, e.g., JOSEPH GOLDSTEIN, ANNA FREUD & ALBERT J. SOLNIT, BEYOND THE BEST INTERESTS OF THE CHILD (1973).
93. See Beharry v. Reno, 183 F. Supp. 2d 584, 600 (E.D.N.Y. 2002); see also Tenenbaum v. Williams, 193 F.3d 581, 594 (2d Cir. 1999) (noting that, in family law cases concerning abuse, "the child's welfare predominates over other interests"); 2 AM. JUR. 2D Adoption § 136 (1994) (noting that, in adoption by unmarried couples, the "best interests" of the child is the paramount consideration); 59 AM. JUR. 2D Parent and Child § 1 (1987) (noting that the general tenets of family law include the best interests of the child).
94. Convention Concerning the Powers of Authorities and the Law Applicable in Respect of the Protection of Infants, opened for signature Oct. 5, 1961, 658 U.N.T.S. 143.
95. Sonja Starr & Lea Brilmayer, Family Separation as a Violation of International Law, 21 BERKELEY J. INT'L L. 213,216-17 (2003).
96. Id. at 225.
97. Convention on the Rights of the Child, G.A. Res. 44/25, art. 24(2)(e), U.N. Doc. A/44/49 (Nov. 20, 1989) (entered into force Sept. 2, 1990).
98. Beharry, 183 F. Supp. 2d. at 600. One hundred ninety-three nations have ratified, acceded to, or accepted the Convention on the Rights of the Child (CRC) or succeeded to such status. Only the United States and Somalia (which lacks a functioning government) have not. See Convention on the Rights of the Child, supra note 97.
99. David P. Stewart, Ratification of the Convention on the Rights of the Child, 5 GEO. J. ON FIGHTING POVERTY 161, 178-82 (1998). The United States became a signatory to the CRC on February 16, 1995, and the treaty awaits ratification by the Senate. See STATUS OF RATIFICATIONS, supra note 63, at 11; see also S. Res. 144, 104th Cong., 141 CONG. REC. S8400 (1995) (expressing the Senate's disapproval of the CRC).
100. Beharry, 183 F. Supp. 2d at 600.
101. Id. at 601.
102. Convention on the Rights of the Child, supra note 97, art. 3,¶ 1.
103. Id. art. 9,¶ 1.
104. Id. art. 9, ¶ 2. Both the best interests principle and other norms relevant to this case are embodied in the CRC. See id. pmbl. (the child should grow up in a family environment); id. art. 7, ¶ 1 (each child shall have, "as far as possible, the right to know and be cared for by his or her parents"); id. art. 16, ¶ 1 (protecting children from "arbitrary or unlawful interference" with their family).
105. Id. art. 3.
106. See, e.g., African Charter on the Rights and Welfare of the Child, art. 19, ¶ 1, OAU Doc. CAB/LEG/24.9/49 (1990) (entered into force Nov. 29, 1999), available at http://www.africa-union.Org/official-documents/ Treaties_%20Conventions_%20Protocols/A .%20C. %200N%20THE%20RIGHT%20AND%20WELF%200F%20CHILD.pdf ("No child shall be separated from his parents against his will, except when a judicial authority determines in accordance with the appropriate law, that such separation is in the best interest of the child.").
107. See, e.g., Minister of State for Immigration & Ethnic Affairs v. Teoh (1995) 183 C.L.R. 273, 289 (Austl.) ("A broad reading and application of the provisions in Art 3, one which gives to the word "concerning" a wide-ranging application, is more likely to achieve the objects of the Convention."); see also Jonathan Todres, Emerging Limitations on the Rights of the Child: The U.N. Convention on the Rights of the Child and Its Early Case Law, 30 COLUM. HUM. RTS. L. REV. 159, 172 (1998) ("The domestic courts of several States Parties have adopted a broad reading of the 'in all actions concerning children' phrase. Cases relating to the deportation of non-citizen parents of citizen children have been deemed to be 'actions concerning children' by some courts."); id. at 172 n.59 (listing cases from Australia and New Zealand).
108. 183 F. Supp. 2d 584 (E.D.N.Y. 2002) (finding that international law places limitations on the ability of immigration officials to remove aliens, notwithstanding a statute that arguably removes official discretion to do otherwise).
109. 970 F. Supp. 130 (E.D.N.Y. 1997).
110. In Mojica v. Reno, one petitioner arrived in the United States at age twelve and lived here for nine years, had a large family in the United States (but had no children himself), and had no immediate family in his native Panama. Id. at 138. The other petitioner had lived here for twenty-five years, was married, and had two citizen children. Id. at 140.
111. See Beharry, 183 F. Supp. 2d at 604.
112. Id. at 601.
113. Id. at 604-05; Mojica, 970 F. Supp. at 182.
114. Olsson v. Sweden, 130 Eur. Ct. H.R. (ser. A) 33-34 (1988); see also Scozzan & Giunta v. Italy, 2000-VIII Eur. Ct. H.R. 471, 506 (quoting Olsson).
115. Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, ¶¶ 69-70, 76 (Can.) (reading statute in light of CRC to allow alien mother of four citizen children relief); Minister of State for Immigration & Ethnic Affairs v. Teoh (1995) 183 C L R 273, 290-91 (Austl.) (administrative decisions must conform with CRC).
116. See Inter-Am. Comm'n on Human Rights, Report on the Situation of Human Rights of Asylum Seekers Within the Canadian Refugee Determination System, OEA/Ser.L./V/II.106, doc. 40 rev. (Feb. 28, 2000), available at http://www.cidh.org/countryrep/Canada2000en/table-of-contents.htm.
117. Id. ¶ 159.
118. Id. ¶ 166.
119. ICCPR, supra note 62, art. 9.
120. Id. art. 14.
121. Id. art. 13 (emphasis added).
122. General Comment No. 15, supra note 74, ¶ 9.
123. U.N. Human Rights Comm., Commc'n No. 155/1983, ¶¶ 19.2, 20, U.N. Doc. CCPR/C/29/D/155/1983 (1987).
124. U.N. Human Rights Comm., Commc'n No. 193/1985, ¶ 5, U.N. Doc. CCPR/C/39/D/193/1985 (1990).
125. See Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms, art.1, Nov. 22, 1984, Europ. T.S. No. 117 (entered into force Nov. 1, 1998), available at http://conventions.coe. int/treaty/en/Treaties/html/117.htm; cf. European Convention, supra note 69, art. 3.
126. Ciliz v. Netherlands, 2000-VIII Eur. Ct. H.R. 265.
127. Starr & Brilmayer, supra note 95, at 286.
128. Arguably, deportation should not be allowed at all if the child cannot follow the parent to his or her country of citizenship. "Some nations ... as a general rule bar the deportation of aliens with citizen children; international law could reasonably be interpreted to require such a rule." Id. at 267 (citations omitted).
129. Maria v. McElroy, 68 F. Supp. 2d 206, 234 (E.D.N.Y. 1999).
130. 183 F. Supp. 2d 584, 604-05 (E.D.N.Y. 2002).
131. Id. at 605.
132. Leading legal scholars have opined that the provisions of the IIRIRA and the AEDPA that allow for such summary deportation "violate the United States' international obligations to protect families." Starr & Brilmayer, supra note 95, at 259.