Huynh Thi Anh v. Levi

• Decision Date: 20 October 1978
• Docket Number: No. 78-1094,78-1094
• Citation: 586 F.2d 625
• Parties: HUYNH THI ANH and Dao Thanh Linh, Plaintiffs-Appellants, v. Edward LEVI, Attorney General of the United States, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 625

586 F.2d 625

HUYNH THI ANH and Dao Thanh Linh, Plaintiffs-Appellants, v. Edward LEVI, Attorney General of the United States, et al Defendants-Appellees.

No. 78-1094.

United States Court of Appeals Sixth Circuit.

Argued Jan. 30, 1978.

Decided Oct. 20, 1978.

Martin Guggenheim, Rena K. Uviller, Bruce J. Ennis, American Civil Liberties Union Foundation, New York City, for plaintiffs-appellants.

Frank J. Kelley, Atty. Gen. of Mich., Robert Derengoski, Sol. Gen., Lansing, Mich., Lawrence W. Chamblee, Dept. of Justice, Washington, D. C., Donald E. Shelton, Forsythe, Campbell, Vandenberg, Clevenger & Bishop, Ann Arbor, Mich., for defendants-appellees.

Before PHILLIPS, Chief Judge, MERRITT, Circuit Judge, and PECK, Senior Circuit Judge.

MERRITT, Circuit Judge.

Several thousand children were evacuated from South Vietnam to the United States by "Operation Babylift," an effort to airlift Vietnamese orphans out of South Vietnam just before the fall of the Saigon government in 1975. It turned out that 2700 of the children were not orphans. This case involves a dispute over the custody of four of those children. The dispute is between their grandmother and uncle on the one hand, and their American foster parents, who hope to adopt them, on the other. Treating plaintiffs' claims questioning custody of the children solely as a habeas corpus action, District Judge Churchill dismissed the complaint for failure to exhaust state judicial remedies. 427 F.Supp. 1281 (E.D.Mich.1977). We affirm his judgment.

I.

The theory of the grandmother's case is that she is entitled to immediate custody of the children as a matter of fundamental biological and moral right recognized by international law and incorporated in our federal domestic law by various constitutional, treaty and statutory provisions. She argues that she is entitled to this relief in habeas corpus under 28 U.S.C. § 2241, and in equity under 42 U.S.C. § 1983. She contends that her right is recognized in the following federal laws:

1. Treaties enforceable under 28 U.S.C. § 1331.

2. Section 9 of the Judiciary Act of 1789, now codified as 28 U.S.C. § 1350, which provides for a federal right of action "by an alien for a tort only, committed in violation of the Law of nations or a treaty of the United States."

3. The immigration laws, specifically 8 U.S.C. § 1101(b), which she claims prevent adoption of aliens by U. S. citizens unless the children are "orphans because of the death or disappearance of, abandonment or desertion by, or separation or loss from, both parents."

4. The equal protection and due process clauses of the fourteenth amendment.

This case is not the first case involving "Operation Babylift" which has found its way into the courts. See Nguyen Da Yen v. Kissinger, 528 F.2d 1194 (9th Cir. 1975). When the operations were over, it soon became apparent that some of the children brought to the United States and placed in foster homes were not in fact orphaned or abandoned. They had been evacuated by mistake or through the efforts of concerned relatives who viewed the airlift as the safest means of getting their children out of the country.

According to the complaint, this was the situation here. The children's grandmother, Huynh Thi Anh, who had cared for them in South Vietnam, arranged for their evacuation by turning them over temporarily to another person who turned them over to an orphanage in April, 1975. She then followed them to the United States later by ship with their uncle, Dao Thanh Linh. The grandmother and uncle were detained at Camp Pendleton pending government processing. Meanwhile, the four boys, ages 12, 11, 9 and 8 at that time, had arrived in San Francisco and were moved for a temporary stay to a convent in Mount Angel, Oregon. By the time the grandmother and uncle reached Mount Angel, representatives of the Michigan Department of Social Services had taken the children, separated them, and placed them in two foster homes in Michigan. The Michigan social workers relied upon "releases" signed by the director of an orphanage in Vietnam which stated that the children were orphans. At the time the children were removed from Oregon, the social workers were advised that the grandmother was in the country and that the releases were probably invalid.

The foster parents instituted adoption proceedings in local Michigan courts. The grandmother and uncle then brought this suit in federal district court seeking to enjoin the state adoption proceedings and acquire custody of the children.

There are four groups of defendants which the plaintiffs allege currently exercise or control the custody of the children: (1) The federal defendants are the Attorney General of the United States and various officials of the Immigration and Naturalization Service. The plaintiffs claim in essence that these federal officials not only have the power under the immigration laws to admit or exclude the children from the United States, but also have the duty to grant custody of the children to the plaintiffs. (2) The state defendants are the Michigan Department of Social Services and several of its employees. The plaintiffs say that the Michigan defendants took the children and have continued to deprive their relatives of custody by placing the children in foster homes. (3) The judicial defendants are Michigan probate judges. The plaintiffs originally sought to enjoin adoption proceedings in their courts, but they have not appealed the lower court's dissolution of its preliminary injunction. (4) The foster parent defendants are Mr. and Mrs. Arvidson and Mr. and Mrs. Donaldson, residents of Michigan.

The substance of the claims is this: Having reared the children in her home in Saigon in the absence of their natural parents due to the war, the grandmother claims she has parental rights or interests in the children under Vietnamese law or, more broadly, an interest in the unity and integrity of their family under federal and international law. She says she turned the children over for evacuation to others in Vietnam who mistakenly signed papers releasing the children for adoption, but she has never intentionally abandoned or released them. She asks us to find in the sources of international and domestic law enumerated above the following rule of law for the protection of aliens: Where a close relative other than the natural parents has reared and cared for a child in a different culture but has voluntarily given up custody temporarily for evacuation to another country due to the exigencies of war, the relative is entitled to custody in the new country if she has not abandoned or otherwise abused or neglected the child.

We hold that there is no rule or principle of international law or federal domestic law which requires that the children be returned to plaintiffs' custody without determining their eligibility for adoption and weighing the desires of the children and their best interests in accordance with the law of the state of their residence.

II.

1. Treaties. The treaties or conventions on which plaintiffs rely do not create a private right of action for aliens in the federal courts. Plaintiffs point to general language in Articles 24 and 49 of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 75 U.N.T.S. 287 (education of children separated from parents by war should be entrusted to "persons of a similar cultural tradition"); Article 4 of the Convention Relating to the Status of Refugees, 19 U.S.T. 6264 (refugees entitled to practice their religion and teach it to their children), and Article 16 of the United Nations Declaration of Human Rights (the family is the foundation of society and entitled to protection). The language relied on in each of these three documents is very general and does not answer the custody question presented by this case. In addition, it does not appear that the Geneva Convention or the Declaration of Rights are in fact treaties in force in the United States. Moreover, there is no evidence that any of the general language relied upon by plaintiffs was intended to be self-executing or to create private rights of action in the domestic courts of the signatory countries, in the absence of further domestic legislative action. ¹ The international documents relied upon by plaintiffs, therefore, do not create private rights and duties respecting custody enforceable as treaties under28 U.S.C. § 1331.

2. The Alien Tort Claims Act. The statute gives federal courts jurisdiction of civil actions "by an alien for a tort only, committed in violation of the law of nations." 28 U.S.C. § 1350. Assuming Arguendo that the wrongful refusal to return a child to the custody of its parent is a "tort only" within the meaning of the statute, ² and that Congress has the constitutional authority under Article III to grant federal courts jurisdiction to create a federal common law of torts for aliens, our research does not disclose in the traditional sources of the "law of nations," or private international law, a universal or generally accepted substantive rule or principle which grants custody of children to grandparents over foster parents, as a matter of right, in the absence of weighing the desires of the children and the other available alternatives.

To find the applicable law respecting adoption and custody of alien children, we must therefore turn to international choice-of-law rules. The most recent Hague Convention on choice-of-law rules governing the status of children, entitled the Hague Convention Concerning the Powers of Authorities and the Law Applicable in Respect of the Protection of Infants, adopted September 17, 1971, appears to modify the rule of the Hague Convention of 1902 Governing the Guardianship of Infants. The 1902 Convention provided that a child's status is governed by the law of its nationality or its parents' nationality. The 1971 Hague Convention modifies the 1902 Convention by...