Deportation Proceedings and The Rights of the Child Convention

by Roger Alford

The Second Circuit last week rendered an important decision on the U.N. Convention on the Rights of the Child in the context of a deportation proceeding of an illegal alien. In Oliva v. U.S. Dep’t of Justice, available here, the Second Circuit was faced with the question of whether the U.N. Convention on the Rights of the Child had achieved the status of customary international law such that the “best interests of the child” standard should be a primary consideration in determining whether to deport Oliva.

Oliva entered the United States illegally in 1992. He is the father of three children, two of whom live in Guatemala. The third child, a son, was born in the United States on May 21, 1997. Although Oliva is not married to this child’s mother, he states that he lived with and provided support for her and their son. On February 25, 1998, INS issued Oliva a Notice to Appear to answer charges that he was present in the United States without having been lawfully admitted or paroled. In essence the issue is whether in deportation proceedings of an illegal alien the INS should take into account the fact that he is caring for a young American-born child.

Two provisions of the Convention at issue were Article 3(1), which states that “[i]n all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration” and Article 7(1), which states that “as far as possible,” a child shall have “the right to know and be cared for by his or her parents.” Oliva submitted that, consistent with these provisions, he cannot be ordered removed from the United States without some hearing affording “primary consideration” to whether his removal would be in “the best interests of” his American son with whom he has resided while in this country.

While recognizing the customary international law is part of our law, the Court emphasized that resort to it is appropriate only “where there is no treaty and no controlling executive or legislative act or judicial decision” that speaks to the issue in dispute. This Second Circuit concluded that this principle controlled resolution of the appeal, for Congress has enacted legislation defining the circumstances under which hardship to a child may appropriately be considered as a ground for granting relief from removal to a nonpermanent resident alien, (8 U.S.C. § 1229b(b)(1)) and that statute, not international law, determines the outcome of Oliva’s request for a hardship exception to removal.

That statute allows a hardship exception if removal “would result in exceptional and extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.” But the hardship exception is only available if he “(A) has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application; (B) has been a person of good moral character during such period; [and] (C) has not been convicted of [certain specified offenses].”

Applying the statute, the Court concluded that the statute precluded his hardship claim, because he indisputably had failed the meet the ten-year requirement of Section 1229(b)(1). It refused to interpret the statute in light of international law under the Charming Betsy doctrine, finding no ambiguity in the statute. As a result, the Court avoided a direct finding that the Convention had achieved the status of customary international law binding in the United States.

As painful as the result is for Oliva and his eight-year old son, this is the right result. Congress has considered the criteria for hardship claims based on the impact of an alien’s dependants, it has specified the criteria that must be satisfied for invocation of this hardship, and applying these facts, it is undisputed that Oliva does not meet the ten-year criterion. The Second Circuit correctly applied the law to the facts and concluded that deportation was required under the law. In so doing, it apparently had the unintended result of directly benefiting two children in Guatemala at the expense of one child in the United States.

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