Oliva v. U.S. Dept. of Justice



Oliva v. U.S. Dept. of Justice


United States Court of Appeals, Second Circuit


30 December 2005

CRC Provisions:  

Article 3: Best interests of the child

Article 7: Name and nationality

Domestic Provisions:

U.S.C. § 1229b(b)(1)

Case Summary:


The complainant, a Guatemalan citizen, had entered the United States illegally without a visa, and was ordered by an Immigration Judge (“IJ”) in an oral decision to be removed from the United States. The complainant appealed to the Board of Immigration Appeals (“BIA”), arguing that he was entitled to seek relief from removal on the basis of the best interests of his children as protected by the CRC, and requested to be remanded to the IJ for a further hearing on this issue. His appeal was dismissed by the BIA without any mention of his CRC claim. The complainant appealed the BIA's decision, arguing that the BIA erred as a matter of law in failing to remand his case to the IJ to permit him to apply for relief under the CRC.

Issue and resolution:

Immigration and deportation, best interests of the child. The Court found that the CRC should not be applied because U.S. legislation controls a non-permanent resident alien's request for relief from removal on the basis of family hardship.

Court reasoning:

The complainant attempted to rely on a principle of statutory interpretation elaborated in Beharry v. Reno, which holds that an ambiguous statute should be construed, whenever possible, not to conflict with international law. The Court held that Beharry offered no support for the complainant’s claim that the CRC affords him relief from removal unavailable to him under U.S.C § 1229b(b)(1), as this provision was unambiguous in limiting relief based on family hardship to aliens who have been continuously physically present in the United States for ten years, a requirement which the complainant did not satisfy. The Court held that it could not interpret the statute to afford the complainant a CRC hearing, as this would effectively eliminate an unambiguous requirement specifically written into the statute by Congress: "clear congressional action trumps customary international law."

Excerpts citing CRC and other relevant human rights instruments:

Petitioner Oscar Oliva seeks review of a June 30, 2003 order of the Board of Immigration Appeals ("BIA"), upholding a September 7, 2001 oral ruling by an Immigration Judge ("IJ") ordering Oliva's removal from the United States. See 8 U.S.C. § 1252(a) (2000). Oliva submits that the BIA erred in failing to remand his case to the IJ for a further hearing pursuant to an international treaty, the United Nations Convention on the Rights of the Child ("CRC"), Nov. 20, 1989, 1577 U.N.T.S. 3, 28 I.L.M. 1448. Although the United States has not ratified the CRC, Oliva asserts that certain of its provisions, notably Articles 3(1) and 7(1), have attained the status of "customary international law," requiring immigration authorities to afford "the best interests" of his American-born child "primary consideration" in deciding whether to order Oliva's removal. We need not here decide whether CRC Articles 3(1) and 7(1) have attained the status of customary international law or whether their terms apply to Oliva's removal proceedings because, even if these two issues were to be resolved in Oliva's favor, he would not be entitled to a further hearing. This is because Section 304(a)(3) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub.L. No. 104-208, 110 Stat. 3009-546 (Sept. 30, 1996) (codified at 8 U.S.C. § 1229b(b)(1)), constitutes a "legislative enactment" that is a "controlling act[] which prevail[s] over international law," Guzman v. Tippy, 130 F.3d 64, 66 (2d Cir.1997) (per curiam), and Oliva does not qualify for cancellation of removal under that statute. Accordingly, his petition for review is denied.


Two provisions of the CRC are here at issue. Article 3(1) 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." Article 7(1) states that "as far as possible," a child shall have "the right to know and be cared for by his or her parents." Oliva submits 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.


The applicability of the CRC to Oliva's removal proceeding is by no means clear. Although the United States signed the CRC on February 16, 1995, the treaty has never been presented to the Senate for its consent and, therefore, has never been ratified by the President.6 Oliva appears to concede that, absent the consent of the Senate, the CRC does not constitute a treaty made "under the Authority of the United States." See U.S. Const. art. VI, cl. 2 (recognizing "all Treaties made ... under the Authority of the United States," as well as the Constitution and the laws made thereunder, as "the supreme Law of the Land"); see also Avero Belg. Ins. v. Am. Airlines, Inc., 423 F.3d 73, 78 (2d Cir.2005) (explaining that a treaty has the force of domestic law only after receiving Senate consent and ratification by the President). Nevertheless, he argues that Articles 3(1) and 7(1) of the CRC have the force of United States law because they have attained the status of customary international law. He bases this claim on the fact that the CRC has been ratified by every nation in the world except for the United States and Somalia. See I United Nations, Multilateral Treaties Deposited with the Secretary General 282-83 (2003).


On September 30, 1996, Congress amended the Immigration and Nationality Act by adding Section 240A to address applications for cancellation of removal or adjustment of status. See IIRIRA § 304(a)(3) (codified in relevant part at 8 U.S.C. § 1229b). This amendment expressly authorizes the Attorney General (or his designated representative) to "cancel removal" if a nonpermanent resident alien establishes that his removal from this country "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." 8 U.S.C. § 1229b(b)(1)(D). Congress, however, conditioned the availability of this relief upon the satisfaction of certain criteria. Specifically, an alien requesting relief from removal under § 1229b(b)(1) must show that 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]." 8 U.S.C. § 1229b(b)(1)(A-C). Oliva concedes that he fails to satisfy the first of these criteria. Nevertheless, he insists that he is entitled to relief under CRC Articles 3(1) and 7(1) because these provisions establish that the best interests of his U.S. citizen child, specifically his interest in knowing and being reared by his father, must be given primary consideration in any administrative proceeding, including removal hearings. We disagree.

CRIN Comments:

CRIN believes this decision is inconsistent with the CRC. The obligation to give primary consideration to the best interests of the child is incumbent on all state organs. Article 3 paragraph 1 serves as a fundamental right, a principle and a rule of procedure and should not be overruled by prior legislation.


433 F.3d 229 (6th Cir. 2005)

Link to Full Judgment:


This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice.

Monitoring body: 
US Court of Appeals, Second Circuit
Friday, December 30, 2005 - 10:45


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