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Courts threaten the founding principles of the United States when they cross the line between upholding the law and inventing it. Fighting judicial activism is thus a key aspect of Atlantic Legal's commitment to ensuring fair and responsible judicial procedure. We took up arms in that fight in Beharry v. Ashcroft (earlier v. Reno), filing an amicus brief with the Pacific Legal Foundation urging the court to recognize that "customary international law" does not and cannot trump U.S. statutory law.
It should be obvious that unratified international treaties and conventions cannot override U.S. law. It should also be obvious that the U.S. is not bound by international treaties and conventions which it has not even signed. That these principles were not obvious to some judges became clear when Don Beharry, an armed robber with a green card, sought to avoid deportation after he was convicted of an "aggravated felony."
When Beharry was convicted, the Immigration and Naturalization Service ordered him deported as a matter of course. Beharry then sought a "hardship exemption" because his eight-year-old daughter was born in the U.S. and is thus a citizen. Initially, the exemption was denied--as a convicted felon, Beharry was not eligible for any of the existing statutory exemptions. Had Beharry accepted this decision, Atlantic Legal would never have become involved in the case. Beharry did not accept it, however, and instead petitioned for a writ of habeas corpus in the U.S. District Court for the Eastern District of New York. What happened next was a travesty of judicial process so extreme that Atlantic Legal simply could not let it go unchallenged.
Judge Jack Weinstein granted Beharry's petition. Acknowledging that U.S. statutes do not provide for an exemption in Beharry's case, Weinstein signaled his intention to use the Beharry case to make new law. Weinstein declared that "customary international humanitarian law," including treaties and conventions to which the U.S. is not a party, or has not ratified, "overrides" U.S. statutory law. "In the interests of the child," he determined, Beharry should be permitted on "compassionate grounds" to have a "discretionary hearing" regarding his request for a waiver of deportation.
Appalled by Weinstein's abuse of judicial privilege, Atlantic Legal and the Pacific Legal Foundation filed an amicus brief reminding the appellate court of its responsibility to the U.S. Constitution. We argued that even if "customary international law" is part of "federal common law," it does not override clear statutory provisions. We also pointed out that when the district court used "customary international law" to "interpret" an unambiguous federal statute, it both overreached its constitutional authority and attempted to circumvent Congress.
In May 2003, the Second Circuit Court of Appeals reversed the district court's decision, dismissing Beharry's petition on the grounds that he had not exhausted all available administrative remedies. Atlantic Legal respectfully notes that while the court reached the correct decision, it also largely sidestepped the crucial issues raised in our brief. The court's sole acknowledgement of the pressing questions of sovereignty, separation of powers, and judicial activism amounted to a single sentence: "Nothing in our decision to reverse on other grounds the judgment of the district court should be seen as an endorsement of the district court's holding that interpretation of the INA [the Immigration and Naturalization Act] in this case is influenced or controlled by international law.
Atlantic Legal will continue to defend our nation's sovereignty and to protect its constitutional government.