Beharry v. Reno, 98 CV 5381(JBW).

• Decision Date: 22 January 2002
• Docket Number: No. 98 CV 5381(JBW).,98 CV 5381(JBW).
• Citation: 183 F.Supp.2d 584
• Parties: 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.
• Court: U.S. District Court — Eastern District of New York

183 F.Supp.2d 584

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.

No. 98 CV 5381(JBW).

United States District Court, E.D. New York.

January 22, 2002.

Genet Getachew, Brooklyn, NY, for Petitioner Don Beharry.

Center for Constitutional Rights, New York, NY by Jennifer M. Green, William J. Aceves, Paul L. Hoffman, for Amicus Center for Constitutional Rights.

Alan Vinegrad, United States Attorney, Eastern District of New York, Brooklyn, NY by Scott Dunn, Mary E. Delli-Pizzi, for Respondents Janet Reno et al.

AMENDED MEMORANDUM AND JUDGMENT

WEINSTEIN, Senior District Judge.

                  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, ...