However, your post is, at least to some extent, about individual judgments over collective judgments because the rule you propose as “more in harmony with church teachings” requires an individual judgment for someone in Beharry’s situation. Would you take your argument further to say that the position most consistent with church teaching is that all groups should have the chance to demonstrate that their family circumstances merit cancellation of removal?

I don’t think that is tenable. Certainly some of these decisions can be made in the abstract – particularly with regard to certain types of crimes. So, what distinguishes Beharry is the particular type of crime for which you think family circumstances require an individualized judgment prior to cancellation of removal. And perhaps you are right that Beharry’s family situation should have been considered by a judge (and not by congress in the abstract) given his crime. But decisions over what crimes deserve automatic deportation and what crimes require individual hearings are decisions that legislators should be able to make (even though I would grant you that they didn’t make a nuanced one when adopting this particular law – any law that attaches severe legal consequences to committing a “felony” is not nearly nuanced enough given the breadth of crimes encompassed by the term). I tend to agree with Eric that the decision in Beharry was less about “interpreting” the statute as it was deciding that international law trumped the statute. On its face, the statute was pretty clear.

By the way, do you think the decision in Beharry would have been upheld on appeal? Seems unlikely to me. Who was on the panel?

I understand that particularized judgments can, depending on the situation, be even as unjust as broad rules.

Beharry wasn’t about the individual judgments as much as it was about a particular broad rule. The old rule said “don’t ever look at family situations for certain groups of aliens.” And Beharry proposed a contrasting broad rule which I thought was legally correct, and which is I think also much more in harmony with church teachings: “this group will always have a chance to try to demonstrate that family situations merit cancellation of removal.”

In the prior situation, all aliens situated as Beharry was will be removed. It doesn’t matter if their crime was 30 years back; if they are the sole supporter of a family of 15; if they are a bishop or branch president; if they are supporting a handicapped child who needs special care; if it’s a father or a mother. There is no hearing, no examination of individual facts, just automatic deportation.

Under Beharry, there would be an opportunity to show that the equities favored cancelling removal. There would certainly be many aliens who would still be removed. But some, as determined at the hearing, would be able to show that they deserved to have removal cancelled.

At least in cases that are decided by courts, and subject to review by higher courts, there is some promise that law will be understood and applied correctly to the facts. Unfortunately, an increasing number of decisions about admission into the US and granting of other benefits (such as drivers licenses) which turn on a person’s immigration status are made by persons not trained in the law, whose decisions are not subject to any meaningful right to judicial review. But that’s a topic for another day.

I understand that the primary difference between judicial decisionmaking and congressional decisionmaking is the judge’s ability to make more particularized judgments. That is certainly a good thing in many contexts, but it has its downsides as well. Judges who are given unqualified discretion to determine the outcome of a particular case often tend to ignore larger institutional concerns for the sake of “fairness” to the individual. In large quantities, such decisions can undermine the very purpose for which laws are enacted.

Moreover, while the broad congressionally enacted categories can certainly lead to inequities like those you mentioned, individualized decisions can also lead to concerns about unfairness. One defendant might receive a one year sentence, draw immigration Judge A and get to stay in the country, while another defendant with identical circumstances draws Judge B and gets deported. Neither result is fair in the abstract.

I understand persuasive authority. But in the Beharry case, it is not merely persuasive.

Read part IV: Application of Law to Facts. The petitioner admits that the plain language of section 212(h) is not applicable to him. However, the court says, “As now interpreted and implemented against this petitioner, the statute would violate treaty
obligations and customary international law.” The court then decides “The most narrowly targeted way to bring the INA into compliance with international law requirements is to read into section 212(h) a requirement of compliance with international law.” So it is not that the international law is persuasive as to interpreting the language of the statute when there is doubt over its meaning — as is the case when state courts look to other state courts or back to old English common law cases. The court does not speak understanding the persuasive suggestions of international law; it speaks of complying with the requirements of international law.

And which international laws does it use as independent justifications for its decision? The International Covenant on Civil and Political Rights, and the Convention on the Rights of the Child. The ICCPR was, at least, ratified by the Senate — although the Senate conditioned its ratification, saying the treaty was not self-executing and that therefore it did not create a private right of action in U.S. courts. (I doubt the wisdom of ratifying treaties with conditions to which the other parties have not agreed, but it happens.) And if there is no right of action, no relief can be granted under the treaty. The treaty might be persuasive, but it cannot be a requirement. If, as some have argued, the lack of implementing legislation is a breach of our nation’s treaty obligations, that is an international political matter to be resolved between signatories to the treaty. Unless Congress has created a cause of action for a private person to sue to enforce a treaty’s provisions, any claim under the treaty should be dismissed.

And, as I’ve mentioned before, the Convention on the Rights of the Child has not been ratified. Which leaves it as customary international law which the court has decided overrules the plain language of a statute passed by Congress.

Despite the failings of the immigration judges (I have yet to meet one that I thought was perfect, even when they’ve granted my clients’ applications), there is something considerably different between a congressional act and a judicial decision. Congress makes decisions about broad categories of persons, and cannot make individual judgments about individuals based upon factors that are specific to that person alone. That is why there is relief from removal for certain classes of aliens, but the granting of that relief is left to an immigration judge who can consider the facts specific to the person seeking it.

The broad categories that congress establishes necessarily create apparent inequities–particularly at the margins. For example, a theft crime where the sentence imposed is one year or more is an “aggravated felony,” from which there is available no relief from removal. Is it fair that one defendant is sentenced to a year and a day, and is thus ineligible for relief, where another defendant, guilty of the same crime, is sentenced to 364 days, and can apply for relief–and in the immigration court’s discretion, may receive it?

Even if Kaimi’s (or Judge Weinstein’s) creative decision were good law, it seems unlikely that fathering children to avoid removal from the US will become a substantial problem. The Immigration and Nationality Act already provides ways for parents to benefit from their children’s status: for example, a US citizen child can file a petition on behalf of his/her parents, and they can thereby become lawful permanent residents (the child has to be over 21, so it’s not going to help anytime soon, if the child is still in utero). Another example: an alien who entered the US without passport or visa can obtain permanent residence through a process called “cancellation of removal” if his removal would cause “exceptional and extremely unusual hardship” to his US citizen spouse or child. I haven’t seen any people rushing to the maternity ward to cash in on that one–particularly because it helps if your child has some rare disease that couldn’t be treated if you were deported to Lower Slobbovia.

Besides, as Kaimi says, the process of hearing before an immigration judge would give the government a chance to weed out those who are not “worthy” of a favorable exercise of discretion.

Does the right to be raised in a two-parent household include the right to be raised in the United States? I realize that as a practical matter the deportation may lead to a split in the family, but it doesn’t necessarily have to. Perhaps adherence to the proclamation would require accepting the consequences of violating the law but keeping the family together elsewhere. Might be harsh, but I see no necessary conflict with the proclamation.

Moreover, if you think it is okay for an immigration judge to balance the equities and conclude that splitting the family is justified, is there something inherently unjustified about congress making that decision prior to the fact?

Kaimi replied:
> What’s the ridiculous part?

The U.S. Constitution requires that treaties be ratified by the U.S. Senate in order to become the law of the land.

Your position seems to be that if a sufficient number of other nations ratify a treaty that the U.S. has not ratified, the terms of that treaty could become customary international law. At that point, the treaty would become the law of the land in the U.S., despite the failure of the Senate to ratify it.

If treaties can make customary international law, is it possible for the U.S. to relieve itself from the obligations of a treaty by withdrawing? Under your interpretation, I don’t think so, since it doesn’t seem to matter whether the U.S. is a party or not.

The U.S. Supreme Court recently overturned application of the death penalty for crime committed by those under eighteen years of age. But assume for a moment that the Supreme Court had upheld the penalty.

Now, if the U.S. Senate ratified the Convention on the Rights of the Child, that would ban the death penalty for crimes committed by juveniles. And, under those circumstances, I would agree that it would be illegal for states to execute anyone for such crimes, because the treaty has been ratified by the Senate in accordance with the Constitution, thus becoming the law of the land.

However, under your theory, such executions would be illegal even if the Senate did not ratify the treaty, because the Convention on the Rights of the Child has become customary international law.

So according to you, the Constitutional provision on treaties should be read as if it said, “[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present or a sufficient number of foreign governments concur….”

And that, I submit, is a ridiculous interpretation.

Now, the Beharry case did not go that far, recognizing at least that Congress could override customary international law by specifically passing something to overrule it. (And that overruling must be done after the international law has become customary. It cannot be preemptively overruled.) But it still seems backwards that Congress must specifically pass a law to overrule something which, if it were presented as a treaty rather than just a new provision of customary international law, would require a 2/3 majority in the Senate to pass in the first place.

Foreign courts are, of course, free to apply customary international law as overriding U.S. law. But I think U.S. courts should not overturn customary U.S. law on the basis of new customary international law. If Congress wants to apply the provisions of the Convention on the Rights of the Child, let them act to do so. They don’t even need to ratify the whole treaty — they could just pass laws on deportation in order to mandate that the best interest of the potential deportee’s children be a primary consideration.