Matter of Medina

• Decision Date: 07 October 1988
• Docket Number: A-26949415.,Interim Decision Number 3078
• Citation: 19 I&N Dec. 734
• Parties: MATTER OF MEDINA. In Deportation Proceedings.
• Court: U.S. DOJ Board of Immigration Appeals

19 I&N Dec. 734

MATTER OF MEDINA.

In Deportation Proceedings.

Interim Decision Number 3078

A-26949415.

Board of Immigration Appeals.

Decided by Board October 7, 1988.

(1) Neither the Geneva Convention Relative to the Protection of Civilian Persons in Time of War nor customary international law creates a potential remedy from deportation that can be sought by individual aliens in deportation proceedings over and above that provided by the Immigration and Nationality Act, as implemented by regulation.

(2) Neither an immigration judge nor the Board of Immigration Appeals has authority to grant extended voluntary departure, deferred action, or withholding of deportation of displaced persons to "war refugees"; that is, individuals seeking refuge outside their country of origin because of war, who do not meet the refugee definition of section 101(a)(42) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(42) (1982).

CHARGE:

Order: Act of 1952—Sec. 241(a)(2) [8 U.S.C. § 1251(a)(2)]—Entered without inspection

ON BEHALF OF RESPONDENT: Clare Cherkasky, Esquire Proyecto Libertad 101 A East Jackson Harlingen, Texas 78550

Carol Wolchok, Esquire American Civil Liberties Union Fund of the National Capital Area 122 Maryland Avenue, N.E. Washington, D.C. 20002

ON BEHALF OF SERVICE: David Ayala General Attorney

David M. Dixon Appellate Counsel

BY: Milhollan, Chairman; Dunne, Morris, and Vacca, Board Members. Board Member Michael J. Heilman has abstained from consideration of this case.

On July 25, 1985, the immigration judge entered a decision that found the respondent deportable as charged, denied her applications for asylum and withholding of deportation and for relief under the Geneva Conventions of 1949, but granted her the privilege of voluntary departure. The immigration judge certified his decision in this case to the Board pursuant to 8 C.F.R. §§ 3.1(c) and 242.8(a) (1985), in view of his findings regarding "unusually complex and novel questions of law." Along with the briefs of the respondent and the Immigration and Naturalization Service on certification, the American Civil Liberties Union, the Lawyer's Committee for International Human Rights, and the Department of State submitted amicus curiae briefs. The decision of the immigration judge will be affirmed in part and reversed in part.

The respondent is a 26-year-old single female, a native and citizen of El Salvador, who entered the United States without inspection in November 1980, at Hildago, Texas. She conceded the allegations contained in her Order to Show Cause, Notice of Hearing, and Warrant for Arrest of Alien (Form I-221S), which establish her deportability under section 241(a)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(2) (1982). Accordingly, her deportability is established by evidence that is clear, unequivocal, and convincing. Woodby v. INS, 385 U.S. 276 (1966).

At her deportation hearing, the respondent applied for asylum and withholding of deportation under sections 208(a) and 243(h) of the Act, 8 U.S.C. §§ 1158(a) and 1253(h) (1982). She also sought relief from deportation under the provisions of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War ("Fourth Convention" or "Convention").¹ The respondent asserts that there exists a private right of relief under the Fourth Convention that provides relief from deportation over and above any provided for in the Act, which can be pursued in deportation proceedings. In the alternative, the respondent seeks relief based on rights she submits are provided by customary international law. She maintains that in a situation of open hostilities, such as presently exists in El Salvador, customary international law, binding on the United States and enforceable by private persons, provides relief from deportation that can be sought before an immigration judge. On these bases, the respondent has requested what amounts to extended voluntary departure until such time as the hostilities in El Salvador cease and it will be safe for her to return, or until another country grants her request for asylum. Alternatively, the respondent seeks a remand of this case for a further evidentiary hearing to determine whether El Salvador is violating the provisions of the Convention.

In his findings, the immigration judge determined that El Salvador is currently in a state of noninternational armed conflict and that the respondent left El Salvador both to escape the armed conflict and to seek better employment in the United States. The immigration judge further found that El Salvador and the United States are "high contracting parties" under the Fourth Convention; that he was empowered to consider the Convention on the issue of deportability; and that the Convention was "self-executing" and provided potential relief to respondents in deportation proceedings not otherwise found in the Act. The immigration judge found, however, that the respondent had failed to sustain her burden of showing that El Salvador was in violation of the Convention and thus denied her request for relief under it.² For the reasons set forth below, we find that the immigration judge erred in holding that the Fourth Convention creates a basis for relief from deportation that can be advanced by a respondent in deportation proceedings before an immigration judge.

I. The Fourth Convention

(a) Scope of Articles 1 and 3

The Fourth Convention was the first Geneva convention to address the protection of civilians in time of war. It is limited in scope in several respects, the most significant of which is the fact that, with the single exception of Article 3, this Convention is concerned exclusively with international armed conflicts. Only Article 3, which is common to all four Geneva Conventions, specifically applies to conflicts of a noninternational character, such as the present conflict in El Salvador.³

Article 3 provides:

In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:

(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.

To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(b) taking of hostages;

(c) outrages upon personal dignity, in particular humiliating and degrading treatment;

(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

(2) The wounded and sick shall be collected and cared for.

An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.

The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.

The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.

From its plain language, it is apparent that Article 3, which does not refer to the repatriation of displaced persons, applies only to each party to a noninternational conflict. Since it binds only the parties to the conflict (in this case the Government of El Salvador and the guerrillas), by its terms it does not apply to the United States, which the respondent does not assert is a party to the conflict. In fact, if the United States were such a party, Article 3 would not apply as the conflict would then be of an international character and thus would come within the scope of Article 2, which encompasses international armed conflicts between two or more "high contracting parties." Hence, Article 3 itself cannot be found to impose obligations on the United States as regards the present conflict in El Salvador.

It is instead submitted, and the immigration judge found, that Article 1 of the Convention is the vehicle for imposing legal obligations on the United States, enforceable in deportation proceedings, with respect to noninternational conflicts to which it is not a party. Article 1, one of the shortest articles of the Convention, provides:

The High Contracting Parties undertake to respect and ensure respect for the present Convention in all circumstances.

For two separate reasons, we do not find that Articles 1 and 3 can be read together to create a basis for relief from deportation that can be asserted by a respondent in deportation proceedings.⁴

First, both the provisions of the Convention itself and the accompanying commentary make clear that Article 3 is a self-contained provision that constitutes the totality of the Convention as it relates to noninternational conflicts. Article 3 is like a "Convention in miniature." It "applies to non-international conflicts only, and will be the only Article applicable to them until such time as special agreement between the Parties has brought into force between them all or part of the other provisions of the Convention." Commentary, supra note 3, at 34.

The conclusion that Article 3 is a "Convention in miniature" (i.e., the sole and entire statement of the agreement regarding noninternational conflicts) is supported by the terms of Articles 4 and 6 of the Convention. Article 6 provides that the "present Convention shall apply from the onset of any conflict ......