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BEHARRY v. RENO

January 22, 2002

DON BEHARRY, PETITIONER,
V.
JANET RENO, AS ATTORNEY GENERAL OF THE UNITED STATES; DORIS MEISSNER, AS COMMISSIONER OF THE IMMIGRATION AND NATURALIZATION SERVICE; EDWARD MCELROY, DISTRICT DIRECTOR, IMMIGRATION AND NATURALIZATION SERVICE, NEW YORK DISTRICT; AND THE IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENTS.



The opinion of the court was delivered by: Weinstein, Senior District Judge.

AMENDED MEMORANDUM AND JUDGMENT

Table of Contents:

I. Introduction ................................................................ 586
II. Facts ........................................................................ 586 A. Background ................................................................ 586 B. Procedural History ........................................................ 587
III. Law .......................................................................... 587 A. Equal Protection and Due Process .......................................... 587 B. Immigration and Naturalization Act ........................................ 588
 
1. Aggravated Felony ...................................................... 588 2. Section 212(c) Relief .................................................. 588 3. Asylum Under Section 208 ............................................... 591 4. Withholding of Deportation Under Section 243(h) ........................ 591 5. Other Statutory Provisions for Relief from Removal ..................... 592 C. Treaty Obligations ........................................................ 593 1. Treaty Power ........................................................... 593 2. Human Rights Treaties .................................................. 595 A. International Covenant on Civil and Political Rights ................ 595 B. Universal Declaration of Human Rights ............................... 595 C. Convention on the Rights of the Child ............................... 596 D. Customary International Law ............................................... 596 1. Definition of Customary International Law .............................. 596 2. Authority of Customary International Law ............................... 597 3. Provisions of the Convention on the Rights of the Child as Customary International Law .................................................... 600 E. Policy Reasons for Honoring International Human Rights Obligations ........ 601
IV. Application of Law to Facts .................................................. 603 A. Relief Under the Immigration and Naturalization Act ....................... 603 B. Relief Under the International Covenant on Civil and Political Rights ..... 603 C. Relief Under Customary International Law .................................. 604 D. Appropriate Remedy ........................................................ 604
V. Conclusion .................................................................. 605

I. Introduction

Petitioner seeks relief from deportation under the Immigration and Naturalization Act, 8 U.S.C. § 1101 et seq. (INA), or under principles of international law. 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 lawful permanent resident aliens) and himself, as against the risks of his continued presence in this country. If the statutes are not so interpreted, then in this instance treaties and international law override the statutes and require such a hearing.

II. Facts

A. Background

Petitioner entered the United States from Trinidad as a lawful permanent resident in April of 1982, when he was seven years old. He has resided here without interruption since that time. He completed an eleventh-grade education in the United States and has worked at a variety of jobs here.

Many of petitioner's immediate family live in the United States, including his mother, a lawful permanent resident, and his sister, a United States citizen. He has a six-year-old daughter who is a United States citizen.

In November 1996 petitioner was convicted of robbery in the second degree for an alleged July 1996 theft of $714 from a coffee shop. According to facts presented at his deportation hearing, petitioner acted with the aid of an accomplice and the help of a friend working at the store. He and his accomplice took the money from the cash register.

The record is unclear about whether petitioner and his accomplice used force, displayed an apparent firearm, or were in possession of a firearm when they were arrested. A presentence report indicated that force was used. The insider accomplice testified at the deportation hearing that no force was used against her, and that she was not aware of any force being used against the manager. The immigration judge credited her testimony.

Petitioner had unrelated prior criminal violations, including two convictions for petty larceny (one as a juvenile), a conviction for criminal mischief, and a conviction for second degree riot. None resulted in incarceration.

A sentence of two-and-a-quarter to four-and-a-half years was imposed for the robbery. During his incarceration, petitioner secured an interview for employment at a non-profit computer recycling organization. It offered him training and employment. The director wrote a letter to immigration court recommending that he be placed on work release to begin training.

B. Procedural History

While petitioner was incarcerated, the Immigration and Naturalization Service (I.N.S.) commenced deportation proceedings in February of 1997. He appeared before an immigration judge of the Executive Office for Immigration Review at a series of hearings from May 1997 to January 1998. Except for the first hearing petitioner was represented by counsel.

In September 1997 petitioner admitted deportability as an aggravated felon. He requested three types of relief: a compassionate hearing under section 212(c) of the INA; asylum under section 208 of the INA; and withholding of deportation under section 243(h) of the INA. The immigration judge found him 1) statutorily ineligible for 212(c) relief as an excludee; 2) statutorily ineligible for asylum; and 3) not covered by section 243(h) since he did not fall within the special classes enumerated in that section.

A timely appeal was taken to the Board of Immigration Appeals (BIA). It affirmed the administrative judge's decision. The BIA reversed the finding of the immigration judge that petitioner's robbery was not a "serious crime," thus providing another bar to section 243(h) relief.

This petition for a writ of habeas corpus in federal district court followed. Petitioner is presently being detained by I.N.S. awaiting deportation.

III. Law

A. Equal Protection and Due Process

The Constitution requires that "[n]o person shall . . . be deprived of life, liberty, or property, without due process of law." U.S. Const. amend. V. It also provides "nor shall any State . . . Deny to any Person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV. The equal protection clause has been held to apply to the Federal government as well as the states. It seems significant that "person" rather than "citizen" is the object of these protections, adding some weight to petitioner's contention that even though he is not a citizen he is entitled to equal protection. "The Due Process Clause applies to all `persons' within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent." Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 2499-2500, 150 L.Ed.2d 653, 669 (2001). See also Landon v. Plasencia, 459 U.S. 21, 25-28, 103 S.Ct. 321, 325-26, 74 L.Ed.2d 21, 25-28 (1982) (permanent resident aliens are entitled to a high degree of due process, approaching that accorded to citizens); cf. Restatement (Third) of Foreign Relations Law (1986) § 701 ("A state is obligated to respect the human rights of persons subject to its jurisdiction."), § 722 ("An alien in the United States is entitled to the guarantees of the United States Constitution other than those expressly reserved for citizens.").

Courts have recognized that a right to privacy is related to equal protection and due process. This right has been defined as the "right to be let alone." See Hill v. Colorado, 530 U.S. 703, 716-17, 120 S.Ct. 2480, 2489-90, 147 L.Ed.2d 597, 612 (2000) (citing Olmstead v. United States, 277 U.S. 438, 478, 48 S.Ct. 564, 572, 72 L.Ed. 944, 956 (1928) (Brandeis, J., dissenting)). At the very least, the right to privacy includes the right to procreate, see Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942), and the right to marry, see Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967); Zablocki v. Redhail, 434 U.S. 374, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978). These rights cover a person's relationship with his or her family, including the right to live with one's family and control one's children without unnecessary government interference. See, e.g., Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (parental right to guide children's upbringing); Moore v. East Cleveland, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977) (right of family to live together); Tenenbaum v. Williams, 193 F.3d 581 (2d Cir. 1999) (right of families to be free from arbitrary state removal of children). Forcible separation of a noncitizen legal resident of this country from his citizen child or spouse implicates this right to familial integrity. See In Re Sharwline Nicholson, et al., CV 00-2229, slip op. at 8-9 (E.D.N.Y. Jan. 3, 2002).

The law has been less protective of aliens' rights than of citizens' rights, although equal protection concepts cannot be ignored even in immigration cases. "The power to expel or exclude aliens is a fundamental sovereign attribute exercised by the government's political departments largely [but not completely] immune from judicial control." Fiallo v. Bell, 430 U.S. 787, 794, 97 S.Ct. 1473, 1479, 52 L.Ed.2d 50, 56-57 (1977) (emphasis and addition supplied).

B. Immigration and Naturalization Act

The interpretation of the INA by the I.N.S. is arguably compatible with the complex statutory scheme. Were it not for its international implications, a dismissal would arguably be warranted based on a literal reading of the statutes and caselaw. A brief statutory analysis follows.

1. Aggravated Felony

The definition of "aggravated felony" is found in INA section 101(a)(43). It includes "a theft offense . . . for which the term of imprisonment is at least one year."

At the time petitioner's robbery was committed the definition would not have included his criminal history. Instead of "one year," the earlier version of the statute covered theft offenses actually resulting in a term of imprisonment greater than five years. The maximum petitioner was ordered to serve was four-and-a-half years.

When petitioner pled in November 1996, the one-year definition was in place and petitioner was thereafter an aggravated felon under the INA. This was conceded at his immigration hearing.

2. Section 212(c) Relief

Prior to 1996, section 212(c) of the INA allowed immigrants in petitioner's position an opportunity for a discretionary hearing where they could urge waiver of deportation on compassionate grounds. See I.N.S. v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 2276-78, 150 L.Ed.2d 347, 358-60 (2001) (history of section 212(c)); Mojica v. Reno, 970 F. Supp. 130 (E.D.N.Y. 1997), aff'd in part by Henderson v. I.N.S., 157 F.3d 106 (2d Cir. 1998); Maria v. McElroy, 68 F. Supp.2d 206, 212 (E.D.N.Y. 1999); Drax v. Ashcroft, 2001 WL 1464241 (E.D.N.Y. 2001). Section 212(c) was limited and then eliminated by two statutes adopted in 1996, the Antiterrorism and Effective Death Penalty Act (AEPDA) and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) (collectively, the "1996 Acts"). St. Cyr, 121 S.Ct. at 2278. Limiting retroactivity, the Supreme Court has required section 212(c) hearings for an alien whose conviction predates the 1996 Acts if the law would have permitted section 212(c) relief under the statute as it existed at the time of conviction. Id. at 2293-94.

St. Cyr does not answer the question of what happens where the crime itself predates the 1996 changes, but the convictions came after the 1996 acts. Prior to St. Cyr, the court of appeals for the Second Circuit addressed this issue and held that the legal changes created by the 1996 Acts, including the unavailability of section 212(c), apply to petitioners whose criminal acts predate the statutory change, so long as their convictions come after the Acts. Domond v. I.N.S., 244 F.3d 81 (2d Cir. 2001). This, it reasoned, was because "it is the conviction, not the underlying criminal act, that triggers" the new legal consequences. Id. at 85 (quotation marks omitted). Domond predates the Supreme Court decision in St. Cyr by a few months, and that opinion does not mention Domond. Domond's reasoning that there is no reliance on the state of the immigration law when committing crimes might be read as conforming with the holding of St. Cyr, which focused on an alien's mental state when making a plea bargain, not on the state of mind when the crime is committed. See St. Cyr, 121 S.Ct. at 2291-93 ("There can be little doubt that, as a general matter, alien defendants considering whether to enter into a plea agreement are acutely aware of the immigration consequences of their actions."). The court of appeals for the Second Circuit reaffirmed the Domond holding after St. Cyr. See Kuhali v. Reno, 266 F.3d 93, 112 (2d Cir. 2001) (citing both St. Cyr and Domond and holding that retroactive redefinition of an aggravated felony does not violate due process or the rule against ex post facto changes in criminal law).

Neither St. Cyr, Kuhali nor Domond ruled on the international law questions presented in the instant case and described in detail below. See infra Parts III.C, D, and E, and IV. These questions were not briefed in Kuhali and Domond. In a subsequent important immigration case, the Supreme Court was presented with arguments invoking international law, but did not find it necessary to address them, although they had been addressed by the court of appeals. Compare Zadvydas, 121 S.Ct. 2491, 2491 (Breyer, J., majority opinion) (unnecessary to consider arguments in Brief of Lawyers Committee for Human Rights on international law in reaching holding that aliens cannot be detained indefinitely) and Zadvydas, id. at 2507, 2515 (Kennedy, J., dissenting) (passing mention of "international views on detention") with Ma v. Ashcroft, 257 F.3d 1095, 1114-15 (9th Cir. 2001) (discussing international law and the rule of Charming Betsy, 6 U.S. (2 Cranch) 64, 118, 2 L.Ed. 208 (1804), that statutes be construed in accordance with international law), aff'd on other grounds by Zadvydas, supra. The ninth circuit in Ma considered briefs from Human Rights Watch and Lawyers Committee for Human Rights in applying international law and statutory construction principles. See 2000 WL 1881913 (Brief of Lawyers Committee for Human Rights); 2000 WL 1890982 (Brief of Human Rights Watch et al.). The Supreme Court's decision not to consider these issues in Zadvydas can be construed as recognition that it was unnecessary to do so given the facts of the case. The matter is open in that court in a case such as the one before us.

Domond and Kuhali could well have gone the other way, even without the requirements of international law. The court of appeals' argument in Domond that "It would border on the absurd to argue that these aliens might have decided not to commit drug crimes . . . had they known that . . . they could not ask for a discretionary waiver of deportation," Domond, 244 F.3d at 84, might be viewed by some as missing the mark. Most criminal or civil penalties do not deter drug or other crimes. Nevertheless, the principle of nulla poena sine lege (there can be no punishment without law) is central to our legal system. This principle has a long history:

The principle that a person can be found guilty of a crime and punished for his acts only if the state beforehand has made the commission of those acts a crime and has authorized punishment to be imposed upon proof that a person has in fact committed those acts is at the heart of the "rule of law" characteristic of Anglo-American jurisprudence. . . . The history of this principle has been traced to Greek and Roman legal systems. This principle also figured prominently in the development of the English common law from a decisional to a statutory system of criminal law.

U.S. v. Walker, 514 F. Supp. 294, 316 & n. 20 (D.La. 1981). "Nulla poena sine lege is not only an ancient maxim; it is a requisite of due process." U.S. v. Bodiford, 753 F.2d 380, 382 (5th Cir. 1985). A corollary is that the applicable punishment for a crime can not be increased after the crime was committed. See, e.g., Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981); Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977); Marks v. United States, 430 U.S. 188, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977); Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964).

In Kuhali the court of appeals rejected the ex post facto argument on the ground that "Deportation is a civil, not a criminal proceeding." 266 F.3d at 112; see also Zadvydas, 121 S.Ct. at 2499 (assuming for the sake of argument in that case, where the court found for the alien, that immigration proceedings "are nonpunitive in purpose and effect"). Characterizing a serious penalty as civil rather than criminal does not reduce its sting or make it any less punitive. However bottled, poison is toxic. An alternative of exile was, we should recall, rejected by Socrates in favor of hemlock. Plato, Apology 38-39, Crito 44, 50-54, Phaedo 117; Plato, Complete Works 38 (John M. Cooper ed., 1997) ("Did justice really require that Socrates stay to accept his death?"). The Supreme Court has recognized on more than one occasion that "deportation may result in the loss `of all that makes life worth living'." Bridges v. Wixon, 326 U.S. 135, 147, 65 S.Ct. 1443, 1449, 89 L.Ed. 2103, 2112 (1945), citing Ng Fung Ho v. White, 259 U.S. 276, 284, 42 S.Ct. 492, 495, 66 L.Ed. 938, 943 (1922). The Bridges court declared that:

The impact of deportation upon the life of an alien is often as great if not greater than the imposition of a criminal sentence. A deported alien may lose his family, his friends and his livelihood forever, Return to his native land may result in poverty, persecution and even death.

Bridges, 326 U.S. at 164, 65 S.Ct. 1443. It defies common experience to characterize deportation of an alien such as petitioner as anything other than punishment for his crimes.

Viewed from the perspective of the international law reviewed in this memorandum beginning with Charming Betsy, the rationales of Domond and Kuhali fail to account for the full necessary interpretive statutory background. Immigration statutes must be woven into the seamless ...


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