SURVEY OF 2002-2003 DEVELOPMENTS IN INTERNATIONAL LAW IN CONNECTICUT
77 Connecticut Bar Journal 171 (2003)
BY HOUSTON PUTNAM LOWRY (fn*) AND PETER W. SCHROTH (fn**)
With this twelfth article in our series, again covering two years, we are now up to date. In some areas that have been perennials in these pages, such as child abduction and service of process, the courts now have more experience in international law, so that the new cases deal with subtleties and details. This year, for the first time, we devote a large part of our Survey to immigration law, especially as it concerns removal of aliens following conviction of an “aggravated felony,” noting the rapid increase in the number of cases of this kind and that most of the contested cases involve claims based on human rights treaties.
In the continuing saga of the Vienna Convention on Consular Relations (“VCCR”),(fn1) the news is better than it was last year. The Connecticut Judicial Department has instituted a comprehensive procedure to implement its obligations under the VCCR. Two Justices of the United States Supreme Court filed opinions declaring their improved understanding of the relevant law, but that Court’s record remains unacceptable.(fn2)
case(fn3) was to call attention to Connecticut’s lack of procedures to fulfill its obligations under Article 36 of the VCCR. That has been corrected.
Since March 2003, persons arrested or detained by the State of Connecticut are to be advised by the court as follows:
If you are not a U.S. citizen, you are entitled to have your consulate notified of your arrest.
If your consulate has not been notified yet and you want the Judicial Marshal Services to do so, you can request this now.(fn4)
As this advisement text implies, the Judicial Marshals have the primary responsibility for compliance with the VCCR. The new procedures for Judicial Marshals, issued in April 2003, call for:
prompt, courteous notification to the foreign national of the possibility of consular assistance, and prompt, courteous notification to the foreign national’s nearest consular officials so that they can provide whatever consular services they deem appropriate.(fn5)
To support this responsibility, the Marshals have been provided a 25-page, quite detailed Policy and Procedure,(fn6) which includes longer versions of the advisement,(fn7) a list of mandatory notification countries and jurisdictions, a form to be used for telefax notification to a consulate and a list of the telephone and telefax numbers of foreign embassies and consulates.
is based mostly on State Department models.(fn8) The step-by-step procedure begins with determining – from the arrest paperwork, from the prisoner’s passport or other travel documentation or by simply asking – whether each prisoner is a foreign national and continues through the details of consular notification, recordkeeping and permission for exceptions. Although the Policy and Procedure does not tell the Marshals what to do if the prisoner does not understand English(fn9) (or even that they ought to determine whether he understands what he is being told), the United States would have been spared a great deal of international embarrassment if even a much less comprehensive policy than that now in place in Connecticut had been in effect throughout the United States since the effective date of the VCCR in 1969.
Osbaldo(fn10) Torres, a Mexican national, was arrested for two murders(fn11) and burglary in Oklahoma in 1993, then convicted and sentenced to death. In 1999, he filed a petition for habeas corpus in the U.S. District Court, on the ground, among others, that he was not advised of his rights under Article 36 of the VCCR.(fn12) The writ was denied on the impermissible grounds of procedural default and harmless error,(fn13) in an unpublished opinion(fn14) that apparently applied Breard v. Greene(fn15) as if it had not been overruled by the International Court of Justice in 2001,(fn16) and without a certificate of appealability. In an opaque footnote,(fn17) the Tenth Circuit Court of Appeals refused to allow Mr. Torres to include the VCCR point in his appeal.
Mr. Torres petitioned the Supreme Court for a writ of certiorari, with the support of an amicus curiae brief on behalf of the Government of México. In addition, in January 2003, México filed a case in the International Court of Justice, charging that Mr. Torres and other Mexican nationals had been convicted in the United States in violation of the VCCR.(fn18) In February 2003, the ICJ issued an order requiring the United States to take “all measures necessary” to prevent the execution of the three Mexican nationals in question while the case was pending in the ICJ.(fn19) In November 2003, in full awareness of the ICJ’s order (and that it was binding on the United States, including the United States Supreme Court(fn20)), the Supreme Court denied certiorari(fn21) – which, it must be emphasized, does not constitute an endorsement or affirmance of the Tenth Circuit’s decision. In contrast to prior cases, however, Mr. Torres was not promptly executed.
In March 2004, the International Court of Justice ruled, as expected, that Mr. Torres’s and other Mexican nationals’ rights under the VCCR had been violated.(fn22) In May 2004, the Governor of Oklahoma, referring to the VCCR, commuted his death sentence to a sentence of life without the possibility of parole.(fn23) “I took into account the fact that the U.S. signed the 1963 Vienna Convention and is part of that treaty,” the Governor said.(fn24)
The good news is that Justices Stevens and Breyer filed vigorous dissents to the denial of certiorari. Justice Breyer believed “further information, analysis, and consideration”(fn25) were necessary before the vote on whether to grant certiorari, in particular because:
the United States has not filed a brief directly addressing the issues Torres has raised in this case, nor has any group of individuals expert in the subject of international law. The United States has filed a brief in opposition in the related cases Ortiz v. United States, No. 02-11188, and Sinesterra [sic] v. United States, No. 03-5286, in which it argues, inter alia, that “the ICJ does not exercise any judicial power of the United States, which is vested exclusively by the Constitution in the United States federal courts.” Brief in Opposition 18. While this is undeniably correct as a general matter, it fails to address the question whether the ICJ has been granted the authority, by means of treaties to which the United States is a party, to interpret the rights conferred by the Vienna Convention. The answer to Lord Ellenborough’s famous rhetorical question, “Can the Island of Tobago pass a law to bind the rights of the whole world?” may well be yes, where the world has conferred such binding authority through treaty. See Buchanan v. Rucker, 9 East 192, 103 Eng. Rep. 546 (K. B. 1808). It is this kind of authority that Torres and Mexico argue the United States has granted to the ICJ when it comes to interpreting the rights and obligations
This is not as clear as it might be, but perhaps Justice Breyer is saying that the International Court of Justice, rather like the Island of Tobago, is small and generally unimportant; if so, his education should continue.
Justice Stevens, in contrast, spoke directly, and correctly, to the merits:
Breard v. Greene- rested on procedural grounds: The Court’s departure from its normal rules governing the processing of certiorari petitions deprived us of the briefing and argument necessary for the careful consideration of important issues-. I am now persuaded that my dissent should have been directed at the merits of the Court’s holding-.
Applying the procedural default rule to Article 36 claims is not only in direct violation of the Vienna Convention, but it is also manifestly unfair. The ICJ’s decision in LaGrand underscores that a foreign national who is presumptively ignorant of his right to notification should not be deemed to have waived the Article 36 protections simply because he failed to assert that right in a state criminal proceeding.(fn27)
II. INTERNATIONAL ALTERNATIVE DISPUTE RESOLUTION
,(fn28) we collected some previously published figures on the annual caseloads in 2000 and 2001 of some of the most popular providers of international alternative dispute resolution services. For this Survey, we did our own modest primary research on the point. For these four years, the annual caseload for the top three providers(fn29) was:
American Arbitration Association International Chamber of Commerce London Court of International Arbitration(fn30)
Although the absolute numbers are smaller, the rate of growth of the caseload of the International Centre for the Settlement of Investment Disputes (“ICSID”)(fn31) has been much greater. In the period 1 July 2002 through 30 June 2003, over 25 new arbitration cases were registered, raising to 63 the number of pending cases.(fn32)
Inter-American Arbitration Commission Rule Changes
The Inter-American Commercial Arbitration Commission (“IACAC”)(fn33) was established in 1934, on the basis of a Resolution of the Seventh International Conference of American States at Montevideo, Uruguay, in 1933. It has national sections – usually, except in the United States,(fn34) the national Chamber of Commerce – in the Western Hemisphere countries Argentina, Bolivia, Brazil, Canada, Chile, Colombia, Costa Rica, Dominican Republic, Ecuador, Guatemala, México, Panamá, Paraguay, Perú, United States, Uruguay and Venezuela, while sections are in process of formalization in Canada and Honduras.(fn35) The IACAC coordinates the dispute-resolution activities of the national sections; it also provides administrative services and serves as an appointing authority for arbitrators.(fn36) The Inter-American Convention on International Commercial Arbitration,(fn37) or Panamá Convention, begins:
“An agreement in which the parties undertake to submit to arbitral decision any differences that may arise or have arisen between them with respect to a commercial transaction is valid.”(fn38) Article 3 adds: “In the absence of an express agreement between the parties, the arbitration shall be conducted in accordance with the Rules of Procedure of the Inter-American Commercial Arbitration Commission.”(fn39) The Convention was ratified by the United States in 1990, with three reservations, including the following:
2. The United States of America will apply the rules of procedure of the Inter-American Commercial Arbitration Commission which are in effect on the date that the United States of America deposits its instrument of ratification, (fn40) unless the United States of America makes a later official determination to adopt and apply subsequent amendments to such rules.(fn41)
That has meant the Rules of Procedure of the Inter-American Arbitration Commission, as amended and in effect 1 July 1988,(fn42) which mostly follow the UNCITRAL Rules.(fn43) More recently, the IACAC has updated its Rules of Procedure. The amended rules took effect automatically on 1 April 2002 in all other States party to the Convention, but required specific approval in the United States, as a result of the reservation. After some negotiations between the IACAC and the State Department,(fn44) that approval was published in the Federal Register of 27 February 2002 and also provides for an effective date of 1 April 2002.(fn45) Unless the parties agree otherwise, arbitrations commenced before that date will be administered under the old rules. The material in the Federal Register includes the full text of the new version of the Rules(fn46) and also the IACAC’s Internal Administrative Procedures for Cases Administered Under Its Rules.
As our faithful readers are aware,(fn47) the UNCITRAL Model Law on Commercial Arbitration(fn48) has been in force in Connecticut since 1989 and, since 1991, applies to all international arbitrations in Connecticut, regardless of when the agreement to arbitrate was executed. In Jarrar v. Colt’s Manufacturing,(fn49) the dispute, between Colt’s and its representative in the Middle East (a citizen of Jordan), was clearly within the definition of an international commercial arbitration. (fn50) However, Jarrar applied to have the award confirmed pursuant to Connecticut General Statutes section 52-417 and Colt’s applied to have the award vacated pursuant to Connecticut General Statutes section 52-418. This does not appear to have affected the result, which was confirmation of the award, but it might make a difference in another case. For instance, in Jarrar, applying the law of domestic arbitration, the court held it was for the court, not the arbitrators, to determine whether the arbitral tribunal had jurisdiction.51 Under
the Model Law, however, an international commercial arbitral tribunal has Kompetenzkompetenz, the jurisdiction to determine whether it has jurisdiction.(fn52)
Hartford Accident & Indem. Co. v. Equitas Reinsurance Ltd.,(fn53) the plaintiffs sought an order compelling arbitration of reinsurance contracts. This declaratory judgment action was initiated on 19 January 2001. On 24 May 2001, the plaintiffs sent a letter to some of the defendants, demanding arbitration of certain disputes and requesting that the arbitration defendants “name their arbitrator within thirty days of the date of this demand.” On 8 June 2001, the plaintiffs filed their amended complaint, alleging that “although the time within which the arbitration defendants must respond to the arbitration demand has not yet expired, upon information and belief, one or more of the arbitration defendants do not intend to arbitrate, and will refuse to arbitrate, pursuant to Hartford’s demand.”(fn54) Judge Covello was not impressed:
The court therefore concludes that Hartford has not sufficiently alleged – that one or more of the arbitration defendants have failed, neglected, or refused to arbitrate. Hartford’s petition to compel arbitration under the Convention is therefore denied without prejudice.(fn55)
The point of the exercise appears to have been to bootstrap the court into supplemental jurisdiction over other matters, but “[h]aving concluded that it is without jurisdiction to hear the federal question before it, i.e, the petition to compel arbitration, the court is without supplemental jurisdiction over the remaining causes of action,”(fn56) so the entire case was dismissed.
Finally, we note a point from one of the many opinions in the litigation over reinsurance contracts between Security Insurance Company of Hartford and Trustmark Insurance Company.(fn57) The defendant, Trustmark, objected to discovery of documents relating to a prior arbitration in the United Kingdom, on the ground that British law required these materials to be kept confidential. Judge Dorsey made short shrift of this, citing English decisions to the effect that the confidentiality of arbitration materials is limited to the documents created specifically for the arbitration and that even this confidentiality can be waived by the parties or by order of the court. Silently interpreting this last possibility as including a non-English court, he ordered the defendant to consent.(fn58)
In 2000 and 2001,(fn59) the Connecticut Supreme Court(fn60) and the Second Circuit Court of Appeals(fn61) provided clear guidance and thoughtful discussion of the Hague Convention on the Civil Aspects of International Child Abduction (“Hague Child Abduction Convention”)(fn62) and its implementing state(fn63) and federal(fn64) statutes. Perhaps as a result, this year, we have only two cases to report, concerned mainly with the details of “habitual residence.” In Paz v. Mejia de Paz,(fn65) the Second Circuit accepted as not clearly erroneous a District Court’s determination that the child’s habitual residence, in the particular case, was established by an express agreement of the parents that her visit to New Zealand was to be temporary.
The Court of Appeals was careful to note, however, that parental intent is not always dispositive.(fn66)
(fn67) Judge Carroll found that the child had been wrongfully removed from Connecticut to Portugal by his mother in 1998, without the father’s knowledge or consent.
The father, however, did not file an action under the Hague Child Abduction Convention, but instead traveled to Portugal in 1999, remained there for eight months, then returned with the child. A year later, the mother filed an action under the Convention in the Connecticut Superior Court; she then failed to pursue that action for almost two more years. When she did, the court responded:
Habitual residence cannot change simply as a result of a wrongful abduction. Here, there is no doubt that the Plaintiff’s removal of the minor child from the United States to Portugal was a wrongful abduction. The child’s habitual residence cannot and did not become Portugal simply as a result of the Plaintiff mother removing the child to Portugal.
There must be additional facts upon which a Court can base a finding that Portugal is the state of habitual residence of the minor child in this matter.(fn68)
While the Plaintiff mother may argue, and this Court may agree, that the Defendant father deceptively and dishonestly engaged in conduct – which led to the Plaintiff mother voluntarily allowing the Defendant father to remove the minor child from Portugal to the United States of America for what was purported to be a visit with the paternal grandparents, that dishonesty and deception was no less offensive than the dishonesty and deception in which the Plaintiff mother engaged when she initially removed the minor child from the United States to Portugal. Neither party here can be charged with good parenting or fair play. These are facts that can and should be considered by another court when it considers issues of custody and visitation.(fn69)
As Stephen Dedalus put it, “No later undoing will undo the first undoing.”(fn70) However, this court was not charged with the custody decision, but only with whether the child should be “returned” to Portugal. Judge Carroll held he should not, because Connecticut was the child’s habitual residence, and dismissed the petition.
For a number of years, the United States has complained about how slowly some Central Authorities served process under the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (“Hague Service Convention”).(fn71) It was pointed out the Central Authority for the United States (the Department of Justice(fn72)) was also slow. It was not unusual for six months to elapse before incoming process was served in the United States.
Recognizing this delay was unacceptable, the United States contracted with a private company, Process Forwarding International, to perform the services of the Central Authority for the United States for five years, commencing 1 June 2003.
The Department of Justice remains, formally, the Central Authority. The contract designates PFI under both the Hague Service Convention and the Inter-American Convention on Letters Rogatory,(fn73) as well as for letters rogatory from non-convention countries. PFI’s address details are:
910 Fifth Avenue
Seattle, WA 98104 USA
(206) 521-2979
fax: (206) 224-3410
e-mail: info@hagueservice.net
www.hagueservice.net
incoming to a country. A lawyer who wishes to serve papers in a Hague Service country should contact its Central Authority directly, (fn74) rather than attempting to send the papers through his own country’s Central Authority.
When process is to be served in a foreign country, the first step is to determine whether that country is among the 51 parties to the Hague Service Convention,(fn75) and, if so, whether that country allows service to be made by mail or only through the country’s Central Authority. The formally correct way to do this is by a query to the depository named in the treaty, which, in this case, is the Ministry of Foreign Affairs of the Netherlands.(fn76) As a practical matter, the web site of the Hague Conference on Private International Law(fn77) provides the necessary information in a form that ought to be sufficient for stipulation or judicial notice.
,(fn78) however, the attorneys for the defendant led Judge Corradino down a bizarre path through the details of Québec law. In one branch of this motor vehicle accident case, the plaintiff had sent a request for service under the Hague Service Convention to the designated Central Authority, which proceeded to serve the papers on the Canadian defendants. It seems the defendant argued sending the papers to the Central Authority by certified mail violated a Québec rule against service by mail, except when authorized by a Québec judge, but this is nonsense: service was performed when the Central Authority in Québec delivered the papers to the defendant, not when the plaintiff mailed them to the Central Authority. The opinion of a Montréal lawyer was introduced, citing decisions of the Canadian Supreme Court and the Judicial Committee of the Privy Council, all to the effect that civil procedure is a matter of provincial, not federal, law in Canada and that “the Province of Quebec has not enacted the provisions of the Hague Convention through its legislature nor has the federal authority tried to legislate in this regard for Quebec.”(fn79) But all of this is irrelevant: Canada is a party to the Hague Service Convention and has designated a Central Authority for each Province, including Québec.(fn80) It is sufficient for the plaintiff to provide the certification of the Québec Central Authority that it has served the defendants.
To add to the confusion, the plaintiff had filed two, apparently identical, actions the against the same defendants. In one case, service was made in accordance with the Hague Service Convention; in the other, service was made on the Connecticut Department of Motor Vehicles in accordance with Connecticut General Statutes section 52-62. The defendants moved to dismiss the second suit based upon the prior pending action doctrine, then to dismiss the first suit based upon the claim that Québec is not a party to the Hague Service Convention. This would have left the plaintiff without a remedy, because the statute of limitations had passed.
Citing equitable principles, the court reached a sensible result – that one of the suits could be withdrawn to save the other – but these opinions should not be relied on for any point relating to the Hague Service Convention.
A more straightforward case involving Québec was Rochester v. Guth,(fn81) also arising from a motor vehicle accident.
In this case, service was made on the DMV under section 52-62, but not in accordance with the Hague Service Convention under section 52-59d. The plaintiff sent a copy by certified mail, return receipt requested, directly to the defendants at their residences in Québec.
As far as we know, Canada and Cyprus are the only countries that have expressly declared they do not object to service of process by mail.(fn82) Where a country has remained silent on the point, opinion is divided. Last year, we said that “authority in the Connecticut Superior Courts is clearly on the side of what we consider the better view, namely that Article 10(a) [of the Hague Service Convention] does not authorize service of process by mail, unless the target jurisdiction has filed a statement that it does not object.”(fn83)
Judge Martin held that service under section 52-62 was not proper, because Canada was a party to the Hague Service Convention and “section 52-59d supercedes [sic] section 52-62.” Relying on Canada’s express consent, and citing Bednarsky v. Rose Wreath & Tree,(fn84) he held that “mail service under the Hague Convention is valid on a Canadian resident.” (fn85) The point is not discussed explicitly, but this appears to mean mailing the defendants a copy of what was served on the DMV constitutes sufficient service under the Hague Service Convention, even though the intended service on the DMV is not sufficient. We suggest counsel try to avoid the need to rely on this argument in future cases.
Another detail was addressed by Judge Corradino in Johnson v. Pfizer,(fn86) in which Brokk AB, a Swedish corporation, filed a motion to dismiss, claiming it was not served in accordance with the Hague Service Convention. Under the Convention,(fn87) the documents being served may be required to be translated into one of the official languages of the state addressed. When Sweden became a party to the Convention, it required the documents being served be translated into Swedish.(fn88) Although the complaint was translated, the summons was not, so the court correctly granted the motion to dismiss. (fn89)
The defendant also asserted, as a ground for dismissal, that the “request for service” form(fn90) was not translated into Swedish. After a careful explanation of the distinction, the court correctly ruled that this translation was not required. The Convention requires that the request form be in English or French. The first paragraph of Article 7 merely allows the requesting country to add its own language when it prints the form and could never require a Swedish version: the standard terms in the form “may also be written in the official language, or in one of the official languages, of the State in which the documents originate.” (fn91) The blanks may be filled in “either in the language of the State addressed or in French or in English,” so any one of Swedish, French or English will do. As Judge Corradino put it, The dichotomy between the “document” to be served and the “request for service” makes sense. The purpose of the Convention was as said in Schlunk(fn92) “to provide a simpler way to serve process abroad, to assure that the defendants sued in foreign jurisdictions would receive actual notice of suit, and to facilitate service abroad.” It, of course, comports with that purpose that the person or entity being sued receive a document describing the nature of the suit in his, her or its native language – nothing else would be fair. But there is no such necessity for documents sent to the central authority for its use by the plaintiff.(fn93)
Three points are most of what the generalist needs to know about removal (formerly known as deportation) of noncitizens who have been convicted of a crime. First, many “aggravated felonies” are rather like the Holy Roman Empire (fn94) or Madison Square Garden (fn95) – not aggravated and not even felonies. Second, the writ of habeas corpus remains available, despite the statutes eliminating judicial review of removal orders. Third, the convicted alien who resists removal, perhaps on the basis of the Convention Against Torture or other international law, faces a difficult burden of proof and usually fails. All three points are well illustrated in the recent cases, of which Wang v. Ashcroft,(fn96) which arose in Connecticut, is particularly important.
The number of removal cases has increased considerably since September 2001, but a five-year summary shows that only fiscal year(fn97) 2003 was greatly above the previous range. The percentage of removal orders by Immigration Judges has been remarkably consistent since fiscal year 2000.
Immigration Judge Decisions by Disposition(fn98)
ordered removed ordered removed
The Immigration Court in Hartford completed 2,707 matters in fiscal year 2003, an increase of 35% from the 1,998 matters it completed in fiscal year 2002.(fn99) Nationally, 32,929 CAT claims were handled by the Immigration Courts in fiscal year 2003; 225 of these claims were decided in Hartford.
Only 490 CAT claims were granted.(fn100) The percentage of appeals to the Board of Immigration Appeals has been increasing, but, as a result of various reforms aimed at improved efficiency, its completion rate has increased even more rapidly.
(fn101)
IJ decisions
of IJ decisions
This last figure – which increased by more than 150% from fiscal year 2000 to fiscal year 2003 – suggests the potential for habeas corpus petitions. Figures for fiscal year 2003 are not expected to be available until October 2004, but the annual increase in habeas corpus petitions in exclusion and deportation cases through fiscal year 2002 was dramatic:
Writs of Habeas Corpus in Exclusion and Deportation Cases(fn102)
(fn103)
“I must commend Mr Rumpole on being so candid to the court,” pronounced Justice Bullingham, in his most sarcastic tone. “Over the years, I have heard others describe you as incompetent, but I can’t recall that you have ever before accused yourself. Whilst I don’t dispute the facial plausibility of it, I believe you have done something altogether new this morning, in basing a motion to re-open your client’s deportation proceeding on the ground that you yourself provided ineffective assistance to him.”
“Oh, how I wish it were my own invention, my Lord,” I responded, as obsequiously as I could manage. He was quite right, nonetheless: to the extent I am still capable of embarrassment, after a lifetime of alternation between the Old Bailey and She Who Must Be Obeyed, I was acutely embarrassed to be saying what this day required me to say.
“But I’m afraid this line of argument has become obligatory in such cases. I am saving the court’s time, in fact, because,” and here I took a deep breath, “if I failed to argue that I had been ineffective, that would itself constitute ineffective assistance of counsel. Your Lordship would then have to hold another hearing at some later date to rule on a motion asserting that I had been ineffective today. This way, if it please your Lordship, we can do it all in one go.”
His Lordship was evidently nonplussed and needed a moment to digest what he had just heard. “All right, Mr Rumpole,” he rumbled at last, “you may carry on, but let’s try to get to the point quickly. If you have been providing ineffective assistance up to now, how is it that your client is satisfied to let you continue representing him? Does he understand English?”
“My Lord, he understands it quite well now,” said I, “although your Lordship will recall that I have another motion pending on the ground that he did not understand it very well when he was questioned by the authorities at the time of his arrival in this country. That explains his failure to mention to them that he had been threatened with torture in the country from which he was fleeing.(fn104) My client now understands that I was only temporarily ineffective in assisting him.”
I looked up adoringly at the Bull, hoping my simulated subservience might soften him. “Although some judges of the District Court might not take this point, I can see that your Lordship, a student of the classics and a Lord Justice of the Circuit Court of Appeals, has grasped its full subtlety. There is a perfect analogy to the situation of certain defendants who are shown to have been only temporarily insane when they involuntarily killed someone, as a result of which they can neither be convicted of murder nor be committed as insane.”
“Were you temporarily insane, Rumpole, or had you taken too much of your lunch in liquid form? No, strike that.” He stared at the court reporter, then turned grimly back toward me. “Mr Rumpole,” intoned Justice Bullingham, “is it your position that you were temporarily incompetent this one time only, or do you have, shall we say, – episodes?”
“Oh, your Lordship will understand that, as a matter of my professional responsibility, my response to this excellent question must depend entirely on my brief in each case. If I were to assert in open court today that I was ineffective only the one time, then my learned friend might attempt, on behalf of the Crown, to use my statement to the detriment of another client. That is, by abstaining from future prior episodes of temporary ineffectiveness, I would render myself ineffective in pressing that other client’s motion for re-opening.”
I bathed his Lordship in my most ingratiating smile and continued. “Surely, your Lordship would not want me to do that, because – as your Lordship will recall that I pointed out, just a moment ago – if I were ineffective in asserting my prior ineffectiveness, that would necessarily be the basis for a subsequent motion to re-open. Or – and I am certain your Lordship is ahead of me on this point, but for the record,” and I looked at the court reporter, hoping she could carry the burden of the remainder of my sentence, ” – if I failed to make the latter motion, asserting my own ineffectiveness in myself providing evidence to undermine my motion to re-open on the ground of prior, temporary ineffectiveness, that failure would constitute grounds for a subsequent motion to re-open. Is your Lordship aware that, in Queen Victoria’s reign alone, our majestic English law granted over five hundred patents for perpetual motion machines?”
“I am indeed,” replied Justice Bullingham, “and, in this instance, I am the friction. Motion denied.”
The right to habeas corpus review was considered so fundamental by the Founders – even those who thought limiting the federal government to enumerated powers sufficient protection from abuse – that it is explicit in Article I of the Constitution, before the addition of the Bill of Rights:
The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.(fn106)
Congress has expressly deprived certain categories of aliens of judicial review of removal orders(fn107) – which, according to Beharry v. Reno,(fn108) may in some cases be a violation of international law – but the Supreme Court has insisted that Congress did not speak sufficiently explicitly(fn109) to eliminate review by the Great Writ.(fn110) This must be understood as the Court reaching to avoid construing an act of Congress as violating the Constitution if any other construction is possible:(fn111)
A construction of the amendments at issue that would entirely preclude review of a pure question of law by any court would give rise to substantial constitutional questions-.(fn112)
The fact that this Court would be required to answer the difficult question of what the Suspension Clause protects is in and of itself a reason to avoid answering the constitutional questions that would be raised by concluding that review was barred entirely.(fn113)
Even without considering the status of treaties under the Constitution, it requires no great insight to identify some possible Constitutional difficulties with eliminating access to the writ of habeas corpus in removal cases. For example, what is the “Invasion or Rebellion” requiring this suspension of the writ? If one can be identified as the basis for these 1996 and 1998 statutes (plainly not the events of 11 September 2001), how does the threat to “the public Safety” from that “Invasion or Rebellion” require suspending the writ as to these categories of aliens? (Were such aliens to blame for the “Invasion or Rebellion”? How long does the need for the suspension continue?)
As a matter of practice, closing off ordinary judicial review of the administrative action of removing aliens has made application for a writ of habeas corpus routine in these cases.
Last year, we offered a lengthy discussion of such a case in the Connecticut Federal District Court, Wang v. Ashcroft.(fn114) Briefly, Mu-Xing Wang, a member of the Chinese military, deserted and entered the United States illegally in 1993. He was convicted of robbery and unlawful restraint in 1995 and the INS began deportation proceedings in 1997. Mr. Wang asked for political asylum and for withholding of deportation under the United Nations Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”),(fn115) which, after he first made these claims but well before all the proceedings in the INS and the Board of Immigration Appeals (“BIA”) were completed, was implemented by Congressional legislation and federal regulations. (fn116) Recognizing this, the BIA remanded the case to the Immigration Judge for further consideration of the CAT claim. Mr. Wang testified that he had been beaten in 1990, after his first attempt to escape from Chinese military service, and told by his lieutenant at that time “that he would be beaten to death if he ever tried to escape again.”(fn117) The Immigration Judge found Mr. Wang not credible and ordered his removal. The BIA affirmed, basing its decision not on Mr. Wang’s lack of credibility,(fn118) but on his failure to prove “that the threats of death were more than the threat of a lawfully imposed sanction under Chinese law that would [not] defeat the purposes of the convention-.”(fn119)
Mr. Wang petitioned for a writ of habeas corpus in the U.S. District Court for Connecticut, which found that the BIA had made no error of law and that its position was supported by substantial evidence.(fn120) He appealed to the Second Circuit, which affirmed the decision of the District Court and seized the occasion, in an eloquent opinion by Judge Cabranes, to emphasize the Constitutional inviolability of the Great Writ.(fn121) The statute implementing the CAT, part of the Foreign Affairs Reform and Restructuring Act of 1998 (“FARRA”),(fn122) includes the following:
Notwithstanding any other provision of law, and except as provided in the regulations described in subsection (b), no court shall have jurisdiction to review the regulations adopted to implement this section, and nothing in this section shall be construed as providing any court jurisdiction to consider or review claims raised under the Convention or this section, or any other determination made with respect to the application of the policy set forth in subsection (a), except as part of the review of a final order of removal pursuant to section 242 of the Immigration and Nationality Act (8 U.S.C. 1252). Agreeing with a decision of the Ninth Circuit,(fn123) the Second Circuit held:
Because FARRA does not expressly mention either “habeas corpus or 28 U.S.C. §2241,” it does not meet the requirements set forth in [INS v.] St. Cyr, 533 U.S. [289] at 299, 308-09, 312, for the elimination of §2241 jurisdiction. . . . In reaching this conclusion, we are able to avoid serious constitutional concerns that would be raised if FARRA prohibited petitioners from bringing CAT claims in §2241 petitions.(fn124)
In addition, the court clarified that “the Constitution requires habeas review to extend to claims of erroneous application or interpretation of statutes,”(fn125) correcting the narrower interpretation, based in part on earlier Second Circuit decisions, that such review is limited to pure questions of law.(fn126)
On the merits of the particular case, however, the Court of Appeals agreed with the BIA and Judge Goettel that Mr. Wang had not borne his burden of proof that he was “more likely than not” to be tortured if he returned to China. The Court of Appeals pointed out, in particular, that the applicant’s burden of proof is greater under the CAT than in a petition for asylum:
To warrant asylum, an applicant need only establish that either (1) he has a well-founded fear of being persecuted on account of his race, religion, nationality, membership in a particular social group, or political opinion if returned to his country of origin, or (2) he suffered persecution in his country of origin in the past on account of race, religion, nationality, membership in a particular social group, or political opinion.(fn127)
Sol v. INS,(fn128) in which it held “that federal jurisdiction over section 2241 petitions does not extend to review of discretionary determinations by the IJ and the BIA.”(fn129) The reasoning that led to this holding in Sol appears to have been based, at least in large part, on decisions in other Circuits limiting habeas corpus review to questions of pure law,(fn130) so Wang‘s holding that “the Constitution requires habeas review to extend to claims of erroneous application or interpretation of statutes”(fn131) would seem at least to narrow the rule of Sol. However, ten months after the Second Circuit’s decision in Wang, but without mentioning it at all, Judge Hall relied on Sol, in Torres-Cruz v. INS,(fn132) for the proposition that “this federal court lacks jurisdiction to review discretionary decisions by the BIA to grant or deny §212(c)(fn133) waivers of deportation.”(fn134) One of Ms. Torres-Cruz’s claims was based on the Convention Against Torture; Mr. Wang’s CAT claim was treated as a matter of application of FARRA. If there is a way to reconcile these two lines of decisions, perhaps by identifying a category of CAT cases that involve application of FARRA and a category of CAT cases that involve only discretionary decisions, it will not be found until Sol and Wang are discussed in the same opinion.
For convenience, this section is divided into Convention Against Torture cases; the definition of terms such as “particularly serious” or “crime of violence”; and bail cases.
Please keep in mind, however, that most of these cases involve more than one of those issues.
We note first, although it seems rather self-serving to mention it, that parties who proceed in court without the assistance of lawyers often fare poorly. An example from the period under review is Julio Perreira, a citizen of El Salvador whose main point was that he had no access to an interpreter.
for a writ of habeas corpus and found it denied because he filed eleven days too soon.(fn135)
,(fn136) the pro se petitioner, a Nigerian who had been convicted of an “aggravated felony,”(fn137) sought a writ of habeas corpus in the Federal District Court to prevent her removal by the INS. One of her grounds was the CAT; to this point, Judge Burns responded:
In enacting the Convention against Torture, Congress specially wrote that the Convention is not a self-executing treaty. As such, a federal court has no general federal jurisdiction to entertain such a claim-. Resultingly, this Court may not consider Petitioner’s claim under the Convention Against Torture.(fn138)
It is true that Congress declared this Convention to be “nonself-executing,”(fn139) but it then adopted implementing legislation, as we explained in previous Survey articles,(fn140) including section 2242 of the Foreign Affairs Reform and Restructuring Act of 1998:
It shall be the policy of the United States not to expel, extradite, or otherwise effect the involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture, regardless of whether the person is physically present in the United States.(fn141)
, but eventually found a lawyer, who filed a brief on her behalf. The Second Circuit vacated and remanded, “on the basis of intervening case law,”(fn142) namely Wang v. Ashcroft.(fn143) On remand, the District Court was instructed to consider not only the petitioner’s CAT argument, but also an argument, based on Judge Weinstein’s decision in Beharry v. Reno,(fn144) that the International Covenant on Civil and Political Rights,(fn145) the Universal Declaration of Human Rights(fn146) and the Convention on the Rights of the Child(fn147) might prevent her deportation, because of the substantial hardship it would cause her disabled, U.S. citizen child.(fn148)
On remand, Judge Burns found some evidence that torture does occur in Nigerian prisons,(fn149) but that the only basis cited by petitioner for fearing imprisonment upon her return to Nigeria was 1990 Decree No. 33 of the Nigerian Drug Enforcement Agency.(fn150) This decree calls for imprisonment in Nigeria for five years and forfeiture of assets and properties of a Nigerian citizen convicted of a narcotic drug offense in a foreign country. Ms. Bankhole had been convicted of conspiracy to engage in money laundering, namely of the proceeds of her son’s drug-dealing, but Judge Burns found that petitioner was not convicted of a drug offense within the meaning of Decree No. 33%. Hence, it is unreasonable to believe that Petitioner will be imprisoned upon her return to Nigeria, let alone tortured therein.(fn151)
, Judge Burns found its specific holding “inapplicable in this case,”(fn152) because the crime of which Ms. Bankhole was convicted had already been included in the definition of “aggravated felony”in 1989.(fn153) We note that broader readings of Beharry are at least possible;(fn154) here is the paragraph in which Judge Weinstein states his narrow holding:
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. Those aliens eligible for section 212(h) – those who have seven years or more of residence, and whose removal would cause an “extreme hardship” to legally present family members – are already a carefully selected group with close ties to this country. It would be a violation of international law to categorically deny to all members of this group who have been categorized after their crime was committed as “aggravated felons,” relief under the provision. The statutory provision “No waiver shall be provided – if – the alien has been convicted of an aggravated felony” should be narrowly construed so as to accord with international law. That can be done by ruling that section 212(h) waivers are available for aliens, including petitioner, who meet its stringent requirements of seven years residence and “extreme hardship” to family – if these aliens have been convicted of an “aggravated felony” as defined after they committed their crime, but which was not so categorized when they committed the crime.(fn155)
The reader is cautioned that even the narrow holding of Beharry is uncertain as a precedent; the Second Circuit, in particular, has reserved that group of questions for another day.(fn156)
,(fn157) Judge Droney ruled on a motion to appoint counsel, which requires that “the indigent’s position [seem] likely to be of substance.”(fn158) He treated the petitioner’s claim of “civil strife” in her native country, Angola, as based on the CAT, but found, first, that she had not exhausted her administrative remedies as to that claim and, second, that the claim was not likely to be of substance, because she was also a citizen of Portugal and could as well be removed to that country. Whether the “civil strife” in Angola might pose a threat of torture was not addressed.
,(fn159) the petitioner’s first CAT claim was that she would be at risk of blackmail and extrajudicial killing by government officials if returned to the Dominican Republic;(fn160) this claim apparently was based only on general allegations that such things had happened there, so Judge Droney easily rejected it as “insufficient as a matter of law.”(fn161) Her second CAT claim may have been supported by more evidence: she said she had rendered assistance to New Jersey law enforcement authorities and that, in revenge, “she would be tortured by drug traffickers upset with her for cooperating with drug enforcement officials in the United States.”(fn162) This too failed as a matter of law, however, because the CAT’s definition of torture requires some involvement of a public official or other person acting in an official capacity:
For the purposes of this Convention, the term “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.(fn163)
2. Defining “Serious” or “Risk of Violence”
Just as “aggravated felony” is a term of art,(fn164) various other terms critical to a petitioner’s case may or may not have special definitions. Two cases during the period under review approached definitional problems in quite different ways, albeit in applying different statutes. In one case, the question appears to have been limited to whether the statutory definition of “aggravated felony” was fulfilled; in the other, however, the question involved the very purpose of the federal statute, which was to implement treaty obligations of the United States.
,(fn165) the petitioner had been convicted of sexual assault in the second degree(fn166) with a 14-year-old girl. If this was a “crime of violence,” then it was an “aggravated felony”under 8 U.S.C. §1101(a)(43)(F). There appears to have been no evidence of actual violence in the literal sense, so Judge Dorsey granted the petition for a writ of habeas corpus:
The statute does not inherently involve use of force – nor may it be read as expressly or implicitly involving the lack of consent of the victim, from which the use of force may be inferred-. The IJ and BIA injected an element of non-consent into a statute which on its face has no such requirement, thus improperly categorizing the statute as a crime of violence.(fn167)
For context, in other cases in 2003, the Second Circuit held that second degree manslaughter in New York(fn168) and third degree assault in Connecticut(fn169) were not “crimes of violence” for purposes of the definition of “aggravated felony.”
, however, the Second Circuit reversed,(fn170) reasoning from the statutory definition of “crime of violence,” namely:
any – offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.(fn171)
The particular facts do not matter: it is the nature of the offense that controls. Applying a “categorical approach,” whose focus is the “intrinsic nature of the offense rather than on the factual circumstances surrounding any particular violation” and “only the minimum criminal conduct necessary to sustain a conviction under a given statute is relevant,” the Court of Appeals held that “when the victim cannot consent – the statute inherently involves a substantial risk that physical force may be used in the course of committing the offense.”(fn172)
Steinhouse v. Ashcroft(fn173) remanded for more detailed examination of the particular facts. The plaintiff was a citizen of Thailand, originally Buddhist, who converted to Judaism when she married an American, in 1971, and became a lawful permanent resident. In 1998, she pled guilty to racketeering and selling drug samples,(fn174) the latter being an “aggravated felony,” but received a reduced sentence of three years imprisonment on the ground of significantly reduced mental capacity, namely bipolar II disorder.
When the INS sought to remove her, she asserted that Jews faced religious persecution in Thailand and applied for withholding of removal on the basis of subsection 241(b)(3)(A)(fn175) of the Immigration and Nationality Act: – the Attorney General may not remove an alien to a country if the Attorney General decides that the alien’s life or freedom would be threatened in that country because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion.
However, this rule does not apply “if the Attorney General decides that – (ii) the alien, having been convicted by a final judgment of a particularly serious crime is a danger to the community of the United States-.”(fn176) The statute continues:
For purposes of clause (ii), an alien who has been convicted of an aggravated felony (or felonies) for which the alien has been sentenced to an aggregate term of imprisonment of at least 5 years shall be considered to have committed a particularly serious crime. The previous sentence shall not preclude the Attorney General from determining that, notwithstanding the length of sentence imposed, an alien has been convicted of a particularly serious crime.(fn177)
case, the BIA announced a four-factor approach that has become the standard framework for applying the last quoted sentence:
In judging the seriousness of a crime, we look to such factors as the nature of the conviction, the circumstances and underlying facts of the conviction, the type of sentence imposed, and, most importantly, whether the type and circumstances of the crime indicate that the alien will be a danger to the community.(fn178)
, Judge Underhill interpreted the case law as establishing three categories: per se serious; per se not serious; and neither of the foregoing. Thus, “[o]nly where there is room for disagreement as to whether the crime in question was ‘particularly serious’ should the BIA resort to examining [the Frentescu factors].”(fn179) In the instant case, the BIA did not consider the “danger to the community” factor, in line with its apparently consistent practice in recent years, on the theory that any alien who commits a “particularly serious” crime is a danger to the community. Although Judge Underhill recognized that the majority of courts had agreed with this approach,(fn180) he distinguished the Second Circuit precedent(fn181) as a “per se serious” case and followed a Fourth Circuit precedent(fn182) clearly requiring a finding on the “danger to the community” point, which he called “the most important Frentescu factor”(fn183):
The purpose of the particularly serious crime exception is to preserve the safety and security of United States citizens. Article 33 of the 1951 United Nations Convention Relating to the Status of Refugees, 189 U.N.T.S. 150 (Apr. 22, 1954),(fn184) states that “no Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”
However, “the benefit of the present provision may not – be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.”
Similarly, Article 3 of the 1967 Declaration on Territorial Asylum(fn185) provides that “no person referred to in article 1, paragraph 1, shall be subjected to measures such as rejection at the frontier or, if he has already entered the territory in which he seeks asylum, expulsion or compulsory return to any State where he may be subjected to persecution.” However, “exception may be made to the foregoing principle only for overriding reasons of national security or in order to safeguard the population, as in the case of a mass influx of persons.”
The purpose of 8 U.S.C. § 1252(b)(3) is to codify these treaty obligations.(fn186)
(fn187) the petitioner won a favorable ruling of the Immigration Judge on her CAT claim. The petitioner had fled China with her husband and two children after being forced by family planning authorities to abort her third pregnancy. She was granted political asylum in 1993 and became a lawful permanent resident in 1994, but in 1999 she was convicted of the “aggravated felony” of conspiracy to collect extensions of credit by extortionate means,(fn188) as part of an alien-smuggling operation, and the INS sought her removal. The Immigration Judge found it more likely than not that she would be tortured, viz., forcibly sterilized, if she returned to China.(fn189) The Government appealed.(fn190)
Pending appeal, Ms. Lin was kept in custody and denied bail, pursuant to section 236(c) of the Immigration and Nationality Act,(fn191) which provides, in part:
The Attorney General may release an alien described in paragraph (1) only if the Attorney General decides pursuant to section 3521 of title 18 that release of the alien from custody is necessary to provide protection to a witness, a potential witness, a person cooperating with an investigation into major criminal activity, or an immediate family member or close associate of a witness, potential witness, or person cooperating with such an investigation, and the alien satisfies the Attorney General that the alien will not pose a danger to the safety of other persons or of property and is likely to appear for any scheduled proceeding.(fn192)
In 2001, the Third Circuit held section 236(c) unconstitutional. (fn193) At least as applied to petitioner Lin, Judge Arterton agreed, directing that she be released from custody unless the Attorney General made an individualized bond determination within ten days.(fn194)
Halil Bezmen used to be the Chairman and controlling shareholder of Mensucat Santral, one of the largest Turkish textile companies. In the early 1990s, with Turkey’s textile export sector faring poorly, the Santral group borrowed heavily as it diversified into copper and chemicals. In 1992, however, at least its textiles and copper businesses had large losses. In 1993, trading in Mensucat Santral and its affiliates was suspended on the Istanbul exchange, as the company sought to restructure its debts.(fn195) Mr. Bezmen moved to the United States in 1994 on an immigrant visa. Warrants for his arrest were issued in Turkey, on charges of smuggling historical documents, falsification of official documents and fraudulent bankruptcy, and Turkey requested his extradition in 1995.(fn196)
Connecticut Law Tribune already knew that he lived in Greenwich,(fn197) he was not taken into custody by the INS until 26 July 2002. From then on, however, he was held without bond.
Promptly on 7 August 2002, the Immigration Judge issued written decisions, holding, among other things, that Mr. Bezmen was not eligible for asylum or for protection under the Convention Against Torture, that he should be removed to Turkey and that he should be released on $200,000 bond pending further proceedings. Both Mr. Bezmen and the INS appealed to the BIA; meanwhile, he remained in custody, pursuant to the one of the emergency rules adopted in the wake of 11 September 2001.(fn198) There was no suggestion Mr. Bezmen was a danger to the public, but it was asserted he was a flight risk.
Over six months later, with the appeals to the BIA still pending, Judge Arterton granted Mr. Bezmen’s petition for a writ of habeas corpus and held the new automatic stay provision, in the context of an appeal process without time limits, a violation of the due process clause of the Fifth Amendment.(fn199) The court dissolved the automatic stay, but allowed the government three days to seek an emergency stay from the BIA. A month later, Mr. Bezmen was escorted back to Istanbul by Turkish police.(fn200)
After these cases were decided, the United States Supreme Court announced, in Demore v. Kim,(fn201) “this Court’s longstanding view that the Government may constitutionally detain deportable aliens during the limited period necessary for their removal proceedings,”(fn202) in the face of a due process challenge based on Zadvydas v. Davis.(fn203) “In the exercise of its broad power over naturalization and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens.”(fn204) Perhaps it can be argued that Lin and Bezmen survive Demore, because the period required for the appeal process is indefinite, rather than a “limited period”; if not, at least we can praise the recent, quite dramatic clearing by the BIA of its scandalous backlog. The uncertainty is not lessened by the conflicting views expressed by the Justices in five opinions.
V. BRITISH OVERSEAS TERRITORIES AS “FOREIGN STATES”
In a refreshing opinion by Justice Souter, the United States Supreme Court, in JPMorgan Chase Bank v. Traffic Stream (BVI) Infrastructure Ltd.,(fn205) unanimously interpreted the federal diversity jurisdiction statute according to its purposes, rather than searching for a “plain meaning.” Traffic Stream was a company organized under the laws of the British Virgin Islands,(fn206) an Overseas Territory of the United Kingdom. Chase Manhattan Bank, the petitioner’s predecessor, lent money to Traffic Stream, which failed to repay. The bank filed suit in the Southern District of New York, based upon diversity jurisdiction, and obtained summary judgment.
Traffic Stream appealed to the Second Circuit Court of Appeals. Diversity jurisdiction lies, under 28 U.S.C. §1332(a)(2), when a party is a “citizen or subject of a foreign state.” Although the point apparently was not raised by Traffic Stream, the Second Circuit considered sua sponte the jurisdictional question whether a citizen of a British Overseas Territory not recognized as an independent foreign state by the Executive Branch is a British “citizen or subject” within the meaning of the statute. Following its own precedent,(fn207) the Court of Appeals held that it was not,(fn208) but at least two other Courts of Appeals had disagreed.(fn209) The Supreme Court resolved the conflict between Circuits by reversing, finding the BVI to be under the ultimate political authority of the United Kingdom and therefore sufficiently British for the purposes of the statute.
Traffic Stream also offered an argument as impossible in modern English law as it is in modern American law: that a company or corporation is merely an association of shareholders, deriving its citizenship from them.(fn210) Significantly, the Court treated this as purely a question of U.S. federal law, declining even to consider the odd argument that the British Nationality Act, 1981, makes the people of the BVI, and therefore the companies of the BVI, mere nationals and not “citizens or subjects.” Relying on such sources as The Federalist No. 80 and the debates on the Constitution, the Court found that the legislative purposes of the U.S. diversity law, in allowing suits against foreign companies and corporations, are equally fulfilled when the relevant foreign state affords greater rights to some of its nationals than to others.
In a general way – although different federal statutes were involved – the Supreme Court thus brings the law of the Second Circuit regarding diversity jurisdiction into line with the law of the Second Circuit regarding extradition, as exemplified by the Connecticut case of Cheung v. United States,(fn211) which we reported on last year.(fn212) In both situations, the policy behind the statute was found to support an interpretation of “foreign country” or “foreign government” or “foreign state” broad enough to include such dependent territories as the BVI or Hong Kong.
The flurry of alien removal cases can be expected to subside as the BIA works through its backlog, but already it has led to clarification of points involving the Constitution, international treaties and statutory construction, among others.
As to the other matters discussed in this Survey, Connecticut law has matured considerably, so that most of the decisions evidence a more advanced understanding of international law, among both judges and lawyers, than we found in the 1990s.
* Of the Meriden Bar. Vice-Chair (External Affairs) and sometime Chair of the Connecticut Bar Association’s Section of International Law and World Peace.
** Editor-in-Chief of the Connecticut Bar Journal. Professor, Lally School of Management and Technology, Rensselaer Polytechnic Institute, Hartford. Vice-Chair and former Chair of the Connecticut Bar Association’s Section of International Law and World Peace.
1 Vienna Convention on Consular Relations, 24 April 1963, 596 U.N.T.S. 261, 21 U.S.T. 77, entered into force 19 March 1967, entered into force for the United States 24 Dec. 1969, available at http://www.un.org/law/ilc/texts/consul.htm. Article 36 provides:
COMMUNICATION AND CONTACT WITH NATIONALS OF THE SENDING STATE
1. With a view to facilitating the exercise of consular functions relating to nationals of the sending State:
(a) consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State;
(b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be 1 (cont.) forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph;
(c) consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgment.
Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action.
2. The rights referred to in paragraph 1 of this Article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this Article are intended.
2 The peculiar insularity of the United States in matters of constitutional law is discussed in other recent articles by one of us, e.g., Peter W. Schroth, National and International Constitutional Law Aspects of African Treaties and Laws Against Corruption, 13 TRANSNAT’L L. & CONTEMP. PROBS. 83, 85-87 (2003); Peter W. Schroth & Ana Daniela Bostan, International Constitutional Law and Anti-Corruption Measures in the European Union’s Accession Negotiations: Romania in Comparative Perspective, 52 AM. J. COMP. L. ___ (2004). Here, we need only note that, during the period under review, the three far right Justices of the United States Supreme Court continued to take the position, almost unique in the world, that international constitutional law is irrelevant to domestic issues. Examples are Foster v. Florida, 537 U.S. 990 n. * (2002) (Thomas, J., concurring in denial of certiorari); Atkins v. Virginia, 536 U.S. 304, 321, 323, 324-325 (2002) (Rehnquist, C.J., dissenting, joined by Scalia and Thomas, JJ.). In contrast, Justice Sandra Day O’Connor, a conservative, was recently quoted as saying, “I suspect that over time we will rely increasingly – take notice, at least – increasingly on international and foreign courts in examining domestic issues.” Bill Rankin, U.S. Justice is Honored: O’Connor Says Court Has Its Ear to the World, ATLANTA JOURNAL-CONSTITUTION, 29 Oct. 2003, at A3.
3 LaGrand Case (Germany v. United States of America), No. 104, Judgment, 27 June 2001, 2001 I.C.J. 104, 40 ILM 1069 (2001), www.icj-cij.org/icjwww/idocket/ igus/igusjudgment/igus_ijudgment_toc.htm, overruling Germany v. United States, 526 U.S. 111 (1999) and Breard v. Greene, 523 U.S. 371 (1998). These cases are discussed at length in Houston Putnam Lowry & Peter W. Schroth, Survey of 2000-2001 Developments in International Law in Connecticut, 76 CONN.B.J.227-237 (2002) (hereinafter “2000-2001 Survey“), and Houston Putnam Lowry & Peter W. Schroth, Survey of 1999 Developments in International Law in Connecticut, 74 CONN. B.J. 406, 425-429 (2000) (hereinafter “1999 Survey“).
4 This form of advisement, entitled “Vienna Convention on Consular Relations,” was distributed to all Judges, Senior Judges and Judge Trial Referees with a memorandum dated 24 March 2003 from Susan B. Handy, Chief Administrative Judge, Criminal Division, available at http://brownwelsh.com/Archive/Vienna_ Convention_Consular_Relations_CT_court_policy.pdf. It would have been more accurate for the advisement to say, “If you are a foreign national, you are entitled to have your consulate notified of your arrest.”
5 STATE OF CONNECTICUT, JUDICIAL MARSHAL POLICY AND PROCEDURE MANUAL, Policy and Procedure No. 208-03: Arrest and Detention of Foreign Nationals, issued and effective 22 April 2003. The original version of this Policy and Procedure is available at: http://brownwelsh.com/Archive/Vienna_Convention_Consular_ Relations_CT_marshal_policy.pdf.
Statement to Arrested or Detained Foreign Nationals Statement 1 When Consular Notification is at the Foreign National’s Option As a non-U.S. citizen who is being arrested or detained, you are entitled to have us notify your country’s consular representatives here in the United States. A consular official from your country may be able to help you obtain legal counsel, and may contact your family and visit you in detention, among other things. If you want us to notify your country’s consular officials, you can request this notification now, or at any time in the future. After your consular officials are notified, they may call or visit you. Do you want us to notify your country’s consular officials?
Because of your nationality, we are required to notify your country’s con-7 (cont.) sular representatives here in the United States that you have been arrested or detained. After your consular officials are notified, they may call or visit you. You are not required to accept their assistance, but they may be able to help you obtain legal counsel, and may contact your family and visit you in detention, among other things. We will be notifying your country’s consular officials as soon as possible.
Policy and Procedure No. 208-03, supra note 5.
Consular Notification and Access: Instructions for Federal, State, and other Local Law Enforcement and Other Officials Regarding Foreign Nationals in the United States and the Rights of Consular Officials To Assist Them, available at http://travel.state.gov/law/consul_notify.html.
9 The State Department’s web site now includes a good deal of information on this subject, including notifications on consular access in Arabic, Cambodian, Chinese, Creole, Farsi, French, German, Italian, Japanese, Korean, Laotian, Polish, Portugese, Russian, Spanish, Thai and Vietnamese. http://travel.state.gov/law/notify.html.
10 Or, according to the documents filed by México in the ICJ in Avena, infra note 18, Osvaldo.
11 The prosecution’s position was that Jorge Ochoa actually shot the two victims, while Mr. Ochoa and Mr. Torres were burglarizing their home. Mr. Torres was originally charged, in the alternative, with first degree murder or felony murder, on the basis that the killings took place during a felony burglary, and also with first degree burglary. After a mistrial, the charges were simplified for the second trial to first degree murder and first degree burglary, of all of which both defendants were convicted. See Torres v. State, 1998 Okla. Crim. 40, 962 P.2d 3 (Okla. Crim. App. 1998).
note 3, at 231-232, discussing LaGrand, supra note 3, ¶¶ 74 (harmless error) and 91 (procedural default).
14 Cited by Justice Breyer, 124 S.Ct. at 563, as Torres v. Gibson, No. CIV-99-155-R (WD Okla., Aug. 23, 2000). We failed to find this in LEXIS.
17 317 F.3d 1145, 1148 n. 1 (10th Cir. 2003), which reads, in full, “We DENY Mr Torres’s Supplemental Request for an Expanded Certificate of Appealability and we also DENY his Motion to Hold This Case in Abeyance and to Permit Petitioner/Appellant’s Counsel to Present a Second Post Conviction Motion in the Oklahoma State Courts.”
18 Case Concerning Avena and Other Mexican Nationals (Mexico v. United States of America), Order (provisional measures), 5 Feb. 2003, http://www.icjcij.org/icjwww/idocket/imus/imusorder/imus_iorder_20030205.PDF.
note 3, at 232-235.
22 Case Concerning Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment, 31 March 2004, http://www.icjcij.org/icjwww/ idocket/imus/imusjudgment/imus_toc_judgment.htm.
Gov. Henry Grants Clemency to Death Row Inmate Torres, 13 May 2004, available at http://www.governor.state.ok.us/ display_article.php?article_id=301&article_type=1.
26 124 S.Ct. at 565, 157 L.Ed. 2d at 457-458. Certiorari was later denied in Ortiz v. United States, 124 S.Ct. 920 (2003), and Sinisterra v. United States, 124 S. Ct. 920 (2003) [misspelled by Justice Breyer], with no dissents.
note 3, at 222.
29 For the AAA and the ICC in 2000 and 2001, the data are from 2000-2001 Survey, supra note 3, at 222 n. 22. At that time, we did not have sufficient information regarding the LCIA, but said, “147 cases were filed with the London Court of International Arbitration from 1999-2000, suggesting about 70 to 75 were filed in 2000.” In this year’s table, the data for the LCIA for all years and all data for 2002 and 2003 were obtained directly from the organizations by the authors. Incidentally, we can now confirm that the LCIA had 60 cases in 1999.
30 In an e-mail to the authors, a representative of the LCIA commented, “[These] raw data can be a little misleading, in that the LCIA is also very much involved in providing support services in non-LCIA matters, which do not find their way into the statistics, so what you are looking at here is just the core of the operation.”
31 Established by the Convention on the Settlement of Investment Disputes between States and Nationals of Other States, 18 March 1965, entered into force 14 Oct. 1966, 17 U.S.T. 1270, 575 U.N.T.S. 159. ICSID’s web site is extensive and informative: http://www.worldbank.org/icsid/index.html.
available at http://www.worldbank. org/icsid/pubs/1998ar/2003_ICSID_ar_en.pdf.
33 The web site of the IACAC, http://www.ciac-ciac.org/, is almost exclusively in Spanish.
34 The national section for the United States is the American Arbitration Association.
http://www.ciac-ciac.org/listado-nacional. html (in Spanish) and http://www.sice.oas.org/DISPUTE/comarb/iacac/ iacac1e.asp (in English).
, http://www.ciac-ciac.org/quienes.html.
37 30 Jan. 1975, entered into force 16 June 1976, entered into force for the United States 27 Sept. 1990, O.A.S. T.S. No. 42, 14 ILM 336 (1975), available at http://www.sice.oas.org/dispute/comarb/iacac/iacac2e.asp (in English) and http://www.ciac-ciac.org/ convencion-panama.html (in Spanish).
1. Unless there is an express agreement among the parties to an arbitration agreement to the contrary, where the requirements for application of both the Inter-american Convention on International Commercial Arbitration and the Convention on the Recognition and Enforcement of Foreign Arbitral Awards are met, if a majority of such parties are citizens of a state or states that have ratified or acceded to the Inter-american Convention and are member states of the Organization of American States, the Inter-american Convention shall apply. In all other cases, the Convention on the Recognition and Enforcement of Foreign Arbitral Awards shall apply.
3. The United States of America will apply the Convention, on the basis of reciprocity, to the recognition and enforcement of only those awards made in the territory of another Contracting State.
The complete status table for the Inter-American Convention on International Commercial Arbitration, including the U.S. reservations, is available at http://www.ciac-ciac.org/convencion-panama.html (in Spanish) and http://www. sice.oas.org/dispute/ comarb/iacac/iacac2e.asp (in English). No other country filed 41 (cont.) any reservation or understanding. The Convention has been ratified by Argentina, Bolivia, Brazil, Chile, Colombia, Costa Rica, Ecuador, El Salvador, Guatemala, Honduras, México, Nicaragua (in 2003, and not yet noted on the IACAC web site), Panamá, Paraguay, Perú, United States, Uruguay and Venezuela. It has been signed, but not ratified, by the Dominican Republic.
http://www.sice.oas.org/dispute/comarb/iacac/rop_e.asp.
43 The UNCITRAL Arbitration Rules, G.A. Res. 31/98, adopted in 1976, are available at http://www.uncitral.org/english/texts/arbitration/arb-rules.htm.
44 According to the IACAC, Normativa que recientemente fue reformada después de un proceso de negociación con el Departamento de Estado de los Estados Unidos y aprobadas por el Congreso de ese pas, quien haba hecho reserva de esa facultad con respecto a las normas que regan desde 1988. http://www.ciac-ciac.org/historia.html. The State Department’s version, which refers only to “clarifying some typographical and translation errors with IACAC,” appears in the Federal Register, infra note 45. Congressional approval was not sought or required. See 9 U.S.C. §306.
In Birbrower, Montalbano, Condon & Frank, P.C. v. Superior Court, 17 Cal.4th 119 (1998) (which may be interpreted as holding that only California lawyers may represent parties in arbitrations in California), Justice Kennard, dissenting, cited the Rules of Procedure of the Inter-American Arbitration Commission as among those allowing for representation by non-attorneys. 17 Cal.4th at 146. The rule he cited for this point, art. 4, has not changed in the new edition of the Rules.
45 67 Fed. Reg. 8860 (27 Feb. 2002), codified as 22 CFR Part 194.
46 What we believe to be the final text in Spanish is available at http://www.ciac-ciac.org/reglamentos.html, but we are somewhat uncertain about the point, because this text is labeled “Modificado y vigente a partir del 1 de Abril del 2001.”
Houston Putnam Lowry & Peter W. Schroth, Survey of 1990 Developments in International Law in Connecticut, 65 CONN. B. J. 70, 71-72 (1991); Houston Putnam Lowry & Peter W. Schroth, Survey of 1991 Developments in International Law in Connecticut, 66 CONN. B. J. 64, 74 (1992).
49 2003 Conn. Super LEXIS 2749 (1 Oct. 2003).
(a) The parties to an arbitration agreement have, at the time of the conclusion of that agreement, their places of business in different countries; or
(b) One of the following places is situated outside the country in which the parties have their places of business: (i) The place of arbitration if determined in, or pursuant to, the arbitration agreement; (ii) any place where a substantial part of the obligations of the commercial relationship is to be performed or the place with which the subject matter of the dispute is most closely connected; or
(c) The parties have expressly agreed that the subject matter of the arbitration agreement relates to more than one country.
51 “In this instance, over the objection of the respondent Colt’s, the arbitration panel implicitly determined that it could decide the issue of arbitrability. The question of arbitrability is in the first instance a matter to be determined by the court, unless the parties have agreed to have the issue determined by arbitration,” citing Welch Group, Inc. v. Creative Drywall, Inc., 215 Conn. 464 (1990). This is also a possible reading of First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 942 (1995), although that case is not cited in Jarrar. A helpful general discussion is Adriana Dulic, First Options of Chicago, Inc. v. Kaplan and the Kompetenz-Kompetenz Principle, 2 PEPP. DISP. RESOL. L.J. 77 (2002). It may be relevant, how – 51 (cont.) ever, that in all three of the cases on the point decided by the United States Supreme Court in the period under review, the arbitrators were held to have Kompetenzkompetenz. Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79 (2002); Pacificare Health Systems, Inc. v. Book, 538 U.S. 401 (2003); Green Tree Financial Corp. v. Bazzle, 539 U.S. 444 (2003).
The arbitral tribunal may rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement. For that purpose, an arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract. A decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause.
57 Judge Dorsey’s decision in Security Ins. Co. v. Trustmark Ins. Co., 283 F. Supp. 2d 602 (D. Conn. 2003), granting a stay of arbitration, has been appealed to the Second Circuit and likely will be discussed in next year’s Survey.
58 Security Ins. Co. v. Trustmark Ins. Co., 218 F.R.D. 18, 21 (D. Conn. 2003).
note 3, at 237-244.
60 Turner v. Frowein, 253 Conn. 312 (2000).
61 Blondin v. Dubois, 238 F.3d 153 (2d Cir. 2001).
62 25 Oct. 1980, TIAS No. 11670, 1343 U.N.T.S. 89, 51 Fed. Reg. 10498, entered into force for the United States 29 April 1988. For more details, see 2000-2001 Survey, supra note 3, at 238 n. 98.
63 Uniform Child Custody Jurisdiction Act, CONN. GEN. STAT. §§46b-93, 46b-113.
64 Child Abduction Remedies Act, 42 U.S.C. §11601 et seq.
67 2002 Conn. Super. LEXIS 4195, 02-CBAR-3101 (27 Sept. 2002).
70 JAMES JOYCE, ULYSSES (1922). In the Hans Walter Gabler edition (1986), page 161, line 459; in the Modern Library “New Edition, Corrected and Reset” (1961), page 196. This is Episode 9, “Scylla and Charybdis.”
71 15 Nov. 1965, 658 U.N.T.S. 163, 20 U.S.T. 1361, TIAS No. 6638, entered into force for the United States 10 Feb. 1969. The Hague Service Convention is reprinted in a note at 28 U.S.C.A., Fed.R.Civ.P. Rule 4, at 16 ILM 1339 (1977) and in the MARTINDALE-HUBBELL LAW DIRECTORY. It is now available in HTML at http://hcch.e-vision.nl/index_en.php?act=conventions.text&cid=17 and in PDF at http://hcch.e-vision.nl/index_en.php?act=conventions.pdf&cid=17; please note that these are recently changed URLs. The status table (“Full Status Report”), including such information as effective dates and any reservations for all parties, is now available at http://hcch.e-vision.nl/index_en.php?act=conventions.status&cid=17, which is also a recently changed URL.
72 The name and address of the formal Central Authority at the Department of Justice are given in 2000-2001 Survey, supra note 3, at 245 n. 129, but ordinarily there will be no need to contact it.
73 Inter-American Convention on Letters Rogatory, 30 Jan. 1975, entered into force 16 Jan. 1976, entered into force for the United States 27 Aug. 1988, O.A.S. T.S. No. 43, reprinted following 28 U.S.C. §1781, in 14 I.L.M. 339 (1975) and in the MARTINDALE-HUBBELL LAW DIRECTORY, available at http://www.oas.org/juridico/ english/treaties/b-36.html 18 ILM 1238 (1984). Additional Protocol to the Inter-American Convention on Letters Rogatory, 8 May 1979, entered into force 14 June 1980, entered into force for the United States 27 Aug. 1988, O.A.S. T.S. No. 56, reprinted following 28 U.S.C. §1781, in 18 ILM 1238 (1979) and in the 73 (cont.) MARTINDALE-HUBBELL LAW DIRECTORY, available at http://www. oas.org/juridico/ english/treaties/b-46.html. The Convention has been ratified by Argentina, Brazil, Chile, Colombia, Costa Rica, Ecuador, El Salvador, Guatemala, Honduras, México, Panamá, Paraguay, Perú, Spain, United States, Uruguay and Venezuela. All of the countries that have ratified the Convention have also ratified the Protocol, with the exceptions of Costa Rica, Honduras and Spain. The Convention has been signed, but not ratified, by Bolivia and Nicaragua. The Protocol has been signed, but not ratified, by Bolivia, Costa Rica, Dominican Republic, Haïti and Honduras. Status tables, including such information as ratification dates and any reservations for all parties, are available for the Convention at http://www.oas.org/juridico/english/Sigs/ b-36.html and for the Protocol at http://www.oas.org/juridico/english/Sigs/b-46.html. The United States made only two reservations to the Convention:
1. Pursuant to Article 2(b) of the Inter-American Convention on Letters Rogatory, letters rogatory that have as their purpose the taking of evidence shall be excluded from the rights, obligations and operation of this Convention between the United States and another State Party.
2. In ratifying the Inter-American Convention on Letters Rogatory, the United States accepts entry into force and undertakes treaty relations only with respect to States which have ratified or acceded to the Additional Protocol as well as the Inter-American Convention, and not with respect to States which have ratified or acceded to the Inter-American Convention alone.
That appears to mean Argentina, Brazil, Chile, Colombia, Ecuador, El Salvador, Guatemala, México, Panamá, Paraguay, Perú, Uruguay and Venezuela, although El Salvador is not listed by the State Department at http://travel.state.gov/law/interam. html. The United States made similar reservations to the Protocol, and also a declaration about a possible $25 fee, all of which are reprinted at the end of the second status table cited above. Letters rogatory to be executed in the United States must be in English or translated into English.
The State Department provides some helpful information about letters rogatory at http://travel.state.gov/law/interam.html and http://travel.state.gov/law/letters_ rogatory.html. See generally Anne-Marie Kim, The Inter-American Convention and Additional Protocol on Letters Rogatory: The Hague Service Convention’s “Country Cousins”?, 36 COLUM. J. TRANSNAT’L L. 687 (1998); Kim M. Forcino, International Service of Process: The Trend Moves Away from Uniformity, 8 PACE INT’L L. REV. 485 (1996).
Letters rogatory may also be used for discovery and taking of evidence. In Security Ins. Co. of Hartford v. Trustmark Ins. Co., 218 F.R.D. 24 (D. Conn. 2003), the court denied a protective order against a broadly drafted letter rogatory sent to Canada (which is not a party to the Inter-American Convention on Letters Rogatory), generally on the ground that the material sought was discoverable by U.S. standards. That is not necessarily the standard that will be applied by the courts of the country to which the letter is addressed.
74 Central Authorities, for purposes of the Hague Service Convention, are identified on the web page of the Hague Conference on Private International Law cited supra note 71. The same information is available from the State Department.
Service of process outside country to be in accordance with treaty or convention or court order.
(a) Notwithstanding any provision of the general statutes relating to service of process, civil process shall not be served outside of the United States of America in violation of any applicable treaty or convention, including without limitation, the Hague Convention on Service of Process Abroad.
(b) If service of process cannot be made under the applicable treaty or convention within sixty days, the Superior Court may, upon application, order service of process upon such terms as the court deems reasonably calculated to give the defendant actual notice of the proceedings in sufficient time to enable the defendant to defend.
76 Art. 26. Inquiries about the Hague Service Convention should be directed to Jannie Hoving, Ministry of Foreign Affairs, Treaties Division, The Hague, telephone +31 70 3486473, fax +31 70 3486000. The physical location of the Ministry is Bezuidenhoutseweg, 2594 AC Den Haag, Netherlands. The mailing address is Postbus 20061, 2500 EB Den Haag, Netherlands.
note 71. The several kinds of information on this page include, inter alia, effective dates of the Convention in each country; any declarations, etc.; and contact details for the Central Authorities.
78 2002 Conn. Super. LEXIS 3164 (26 Sept. 2002) and 2002 Conn. Super. LEXIS 4137 (24 Dec. 2002).
79 2002 Conn. Super. LEXIS 3164 at *2. Although it is not the right question, there can be no doubt that the provincial government of Québec considers the Hague Service Convention to be in force in Québec. For example, the provincial government itself reported in 2003 that service pursuant to the Convention had been accomplished in Québec the following number of times in each year from 1994 through 2002:
non partie
Hague Conference on Private International Law, Response Canada to Service Questionnaire: Central Authorities Response to the Questionnaire Accompanying the Provisional Version of the New Practical Handbook on the Operation of the Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters 10 (2003), available at http://hcch.e-vision.nl/upload/wop/lse_ca_e.pdf.
80 The list of Central Authorities for the various Canadian provinces is here: http://hcch.e-vision.nl/index_en.php?act=authorities.details&aid=248. Links to details of the Central Authorities for all countries that are parties to the Hague Service Convention are here: http://hcch.e-vision.nl/index_en.php?act=conventions.authorities &cid=17.
81 2002 Conn. Super. LEXIS 3379 (15 Oct. 2002), 02-CBAR-2463.
note 3, at 251. The exact wording is “Canada does not object to service by postal channels.” The entire text of Canada’s declarations regarding the Hague Service Convention is available at http://hcch. e-vision.nl/index_en.php?act=status.comment&csid=392&disp=resdn.
note 3, at 251.
84 2001 Conn. Super. LEXIS 2251 (27 July 2001), discussed in 2000-2001 Survey, supra note 3, at 249-250.
86 2002 Conn. Super. LEXIS 1481 (21 April 2002).
87 Art. 5 reads, in part, “If the document is to be served under the first paragraph above, the Central Authority may require the document to be written in, or translated into, the official language or one of the official languages of the State addressed.”
88 Sweden’s declaration on this point is “By virtue of the third paragraph of Art. 5 of the Convention the Central Authority requires that any document to be served under the first paragraph of the same article must be written in or translated into Swedish.” http://hcch.e-vision.nl/index_en.php?act=status.comment&csid=423& disp= resdn.
89 However, at *14 n. 2, Judge Corradino said, “The court is not aware if there is a statute of limitations problem here. If there is, the court would direct counsel’s attention to [Vorhees v. Fischer & Krecke, 697 F.2d 574, 576 (4th Cir. 1983)].” In Vorhees, the Fourth Circuit said, the district court dismissed the action without prejudice to the plaintiffs to refile the complaint and to serve the papers pursuant to the Hague Convention. At the time that the district court’s order was entered, however, the statutes of limitations had run on the plaintiffs’ various causes of action. Without reaching the question of the consequences of failure to conform to the treaty, we find that the action should not have been dismissed until the plaintiffs were given a reasonable opportunity to attempt to effect valid service of process on the defendant in a manner complying with the Hague Convention.
The standard terms in the model annexed to the present Convention shall in all cases be written either in French or in English. They may also be written in the official language, or in one of the official languages, of the State in which the documents originate.
The corresponding blanks shall be completed either in the language of the State addressed or in French or in English.
As this says, the entire form is given as an annex to the Convention.
92 Volkswagenwerk v. Schlunk, 486 U.S. 694, 698 (1988).
94 “Ce corps qui s’appelait et qui s’appelle encore le saint empire roman n’était en aucune manière ni saint, ni romain, ni empire.” Attributed to VOLTAIRE, ESSAY SUR L’HISTOIRE GÉNÉRALE ET SUR LES MOEURS ET L’ESPRIT DES NATIONs, chap. 70 (1756), although we failed to find it there.
95 Not at Madison Avenue or Madison Square; not square; not a garden.
notes 105-127 and accompanying text.
97 The federal government’s fiscal year is from 1 October to 30 September, three months ahead of the calendar year.
98 The information in this table is taken from the more detailed table in U.S.
DEP’T OF JUSTICE, EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, FY 2003 STATISTICAL YEARBOOK D2 (2004).
at B4. “Matters” is a category about half again as large as “Immigration Judge Decisions”; the STATISTICAL YEARBOOK does not break down the latter by Immigration Court. The Local Operating Procedures for the United States Immigration Court at Hartford are available at http://www.usdoj.gov/eoir/efoia/ocij/ localop/HAR.pdf and links to those of other Immigration Courts are collected at http://www.usdoj.gov/eoir/efoia/ocij/locopproc.htm.
. at M1-M2. There is no breakdown by Immigration Court.
101 The information in this table is taken from two more detailed tables in the same STATISTICAL YEARBOOK at S2.
102 The information in this table is taken from U.S. CITIZENSHIP AND IMMIGRATION SERVICES, FISCAL YEAR 2002 YEARBOOK OF IMMIGRATION STATISTICS 211, Table 54 (2003), available at http://uscis.gov/graphics/shared/aboutus/ statistics/ENF2002list.htm.
103 Neither Mr. Lowry nor Mr. Mortimer (nor, for that matter, Mr. Cox) is in any way responsible for this story, which was inspired by Lin v. INS, 61 Fed. Appx. 729, 730 n. 1 (2d Cir. 2003).
104 Compare Wang v. Ashcroft, 320 F.3d 130, 137 (2d Cir. 2003):
During the hearing, the Government asked Wang why he had not mentioned this beating in his earlier applications for asylum-. Wang maintained that other people prepared his earlier asylum applications for him because he could not speak or write English, and that he was advised not to tell the INS about his desertion from the Chinese Army.
106 U.S. CONST. art. I, §9, cl. 2 (the Suspension Clause).
107 Antiterrorism and Effective Death Penalty Act of 1996, §440(d), Pub. L. No. 104-132, 110 Stat. 1214, 8 U.S.C. §1101 note; Illegal Immigration Reform and Immigrant Responsibility Act, §304(b), Pub. L. No. 104-208, §803, 110 Stat. 3009 (1996), 8 U.S.C. §1101 note. In general, these two related laws expanded the grounds for deportation of convicted criminals and restricted aliens’ access to discretionary relief in removal proceedings. Congress expanded the definition of “aggravated felony” to include hundreds of offenses, many of which would not ordinarily be felonies, let alone aggravated felonies. Aliens – including long term, permanent residents – convicted of “aggravated felonies” are presumed deportable; ineligible for asylum, cancellation of removal or voluntary departure; and subject to mandatory detention without bond. They are not entitled to judicial review of their removal orders and, in most cases, are never allowed to return to the United States. See generally Valerie Neal, Slings and Arrows of Outrageous Fortune: The Deportation of “Aggravated Felons,” 36 VAND. J. TRANSNAT’L L. 1619 (2003).
rev’d on other grounds, 329 F.3d 51 (2d Cir. 2003):
Petitioner seeks relief from deportation under the Immigration and Naturalization Act, 8 U.S.C. 1101 et seq. (INA), or under principles of international law. Because of treaty and international law requirements, applicable immigration statutes should be interpreted to require that petitioner be granted a hearing where he can attempt to show the effect his deportation would have on his family (both citizen and lawful permanent resident aliens) and himself, as against the risks of his continued presence in this country. If the statutes are not so interpreted, then in this instance treaties and international law override the statutes and require such a hearing.
An additional quotation appears in the text infra at note 155. Treaties considered relevant by Judge Weinstein in Beharry include:
– the International Covenant on Civil and Political Rights, 16 Dec. 1966, G.A. Res. 2200A.(XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, S. Treaty Doc. 95-2 (1978), entered into force 23 Mar. 1976
– the Universal Declaration of Human Rights, G.A. Res. 217A (III), UN Doc. A/810, at 71 (1948) (“While the UDHR is not a treaty, it has an effect similar to a treaty.” 183 F. Supp. 2d at 596.)
– the Convention on the Rights of the Child, 20 Nov. 1989, G.A. Res. 44/25, U.N. GAOR, 44th Sess., Supp. No. 49, at 167, U.N. Doc. A/44/49 (1989), 1577 U.N.T.S. 3, 28 ILM 1457 (1989) (“The United States signed the CRC on February 16, 1995; it has never been sent to the Senate for ratification, but every other nation except Somalia – which is effectively without a government
– has ratified the CRC. The CRC does not have the force of domestic law under the treaty clause of the Constitution. Non-ratification does not, however, eliminate its impact on American law.” 183 F. Supp. 2d at 596.).
Maria v. McElroy, 68 F. Supp. 2d 206 (E.D.N.Y. 1999). See J. Ryan Moore, Reinterpreting the Immigration and Nationality Act’s Categorical Bar to Discretionary Relief for “Aggravated Felons” in Light of International Law: Extending Beharry v. Reno, 21 ARIZ. J. INT’L & COMP. L. 535 (2004).
109 While the title of § 401(e) – “ELIMINATION OF CUSTODY REVIEW BY HABEAS CORPUS” – would seem to support the INS'[s] submission, the actual text of that provision does not. . . . As we have previously noted, a title alone is not controlling. . . . The actual text of § 401(e), unlike its title, merely repeals a subsection of the 1961 statute amending the judicial review provisions of the 1952 Immigration and Nationality Act. . . . Neither the title nor the text makes any mention of 28 U.S.C. § 2241. INS v. St. Cyr, 533 U.S. 289, 308-309 (2001).
.; also Calcano-Martinez v. INS, 533 U.S. 348 (2001).
Murray v. Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804).
Calcano-Martinez, 533 U.S. at 351, similarly speaks of “serious constitutional questions.” This approach to construction of such statutes continues in Demore v. Kim, 538 U.S. 510, 517 (2003).
114 2001 U.S. Dist. LEXIS 21245 (D. Conn. 7 Dec. 2001), discussed in 2000-2001 Survey, supra note 3, at 262-264.
115 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 Dec. 1984, G.A. Res. 39/46, annex, 39 U.N. GAOR Supp. (No. 51) 197, U.N. Doc. A/39/51 (1984), 1465 U.N.T.S 84, CTIA 8,623.000, 23 ILM 1027 (1984), entered into force 26 June 1987, entered into force for the United States 20 Nov. 1994, implemented by Foreign Affairs Reform and Restructuring Act of 1998 (“FARRA”), Pub. L. No. 105-277, div. G, Title XXII, § 2242, 112 Stat. 2681-822 (1998), 8 U.S.C. § 1231 note, quoted infra note 122. The Convention is available electronically at www.un.org/documents/ga/res/39/ a39r046.htm, www.unhchr.ch/html/menu3/b/h_cat39.htm and many other places.
The latest list of all ratifications is available at www.unhchr.ch/ pdf/report.pdf. As 115 (cont.) usual, the U.S. ratification is subject to extensive reservations and understandings, which appear at 136 CONG. REC. S17486-01 (27 Oct. 1990).
These include reservations to the effect that art. 16 does not require anything more than do the first, eighth and fourteenth amendments to the United States Constitution and that the United States is not bound at all by the arbitration requirement of art. 30(1), the latter being a reservation expressly authorized in art. 30(2) of the CAT. Article III of the Convention provides:
1. No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.
2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.
There is a helpful discussion and collection of materials on the CAT in the IMMIGRATION JUDGE BENCHBOOK 239-321 (2001), available at http://www.usdoj. gov/eoir/statspub/benchbook.pdf.
116 We discussed the implementation of the Convention Against Torture in 1999 Survey, supra note 3, at 407-408, and 2000-2001 Survey, supra note 3, at 263 n. 199.
118 Often, however, the petitioner’s credibility vel non is the crux of the case, and the court gives ” particular deference to the credibility determinations of the IJ.” Montero v. INS, 124 F.3d 381, 386 (2d Cir. 1997). See 8 U.S.C. §1252(b)(4)(B), (D). For example, in Vukelj v. McElroy, 51 Fed. Appx. 53 (2d Cir. 2002), the court found the BIA’s ruling – which relied heavily on a government report that “Vukelj’s birth certificate was ‘probably a fabricated document,'” id. at 54 – to be supported by substantial evidence. In Fernando v. Ashcroft, 84 Fed. Appx. 117, 118 (2d Cir. 2003), “the BIA’s adverse credibility determination was supported by substantial evidence, including Petitioner’s initial failure to mention his 1999 trip to Singapore, and his subsequent obfuscation of the date upon which this voyage occurred, and the fact that he previously filed two fraudulent immigration documents.” In Lin v. INS, 61 Fed. Appx. 729 (2d Cir 2003), there were several points against the petitioner, but the court’s opinion closed with “the question of why Lin did not mention the sterilization threat in his original asylum application.” 61 Fed. Appx. at 732. In Chen v. Dep’t of Justice, 55 Fed. Appx. 585 (2d Cir. 2003), the court noted, among several other points casting doubt on the petitioner’s credibility, that although Chen testified during his removal hearing that both his father and his father-in-law were detained by Chinese officials for a number of days as 118 (cont.) a result of his wife’s failure to comply with Chinese birth control regulations, Chen never mentioned these alleged detentions in his two previous interviews. The BIA emphasized the fact that, during his airport interview, Chen “was specifically asked if he or anyone in his family had been arrested,” and yet he still failed to mention these detentions at that time.
119 As quoted by the Second Circuit, 320 F.3d at 138. The standard applied here by the BIA is found in 8 C.F.R. §208.18(a).
note 115. Here is the full text of §2242:
SEC. 2242. UNITED STATES POLICY WITH RESPECT TO THE INVOLUNTARY RETURN OF PERSONS IN DANGER OF SUBJECTION TO TORTURE.
(a) POLICY. – It shall be the policy of the United States not to expel, extradite, or otherwise effect the involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture, regardless of whether the person is physically present in the United States.
(b) REGULATIONS. – Not later than 120 days after the date of enactment of this Act, the heads of the appropriate agencies shall prescribe regulations to implement the obligations of the United States under Article 3 of the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment, subject to any reservations, understandings, declarations, and provisos contained in the United States Senate resolution of ratification of the Convention.
(c) EXCLUSION OF CERTAIN ALIENS. – To the maximum extent consistent with the obligations of the United States under the Convention, subject to any reservations, understandings, declarations, and provisos contained in the United States Senate resolution of ratification of the Convention, the regulations described in subsection (b) shall exclude from the protection of such regulations aliens described in section 241(b)(3)(B) of the Immigration and Nationality Act (8 U.S.C. 1231(b)(3)(B)).
(d) REVIEW AND CONSTRUCTION. – Notwithstanding any other provision of law, and except as provided in the regulations described 122 (cont.) in subsection (b), no court shall have jurisdiction to review the regulations adopted to implement this section, and nothing in this section shall be construed as providing any court jurisdiction to consider or review claims raised under the Convention or this section, or any other determination made with respect to the application of the policy set forth in subsection (a), except as part of the review of a final order of removal pursuant to section 242 of the Immigration and Nationality Act (8 U.S.C. 1252).
(e) AUTHORITY TO DETAIN. – Nothing in this section shall be construed as limiting the authority of the Attorney General to detain any person under any provision of law, including, but not limited to, any provision of the Immigration and Nationality Act.
(1) CONVENTION DEFINED. – In this section, the term “Convention” means the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment, done at New York on December 10, 1984.
(2) SAME TERMS AS IN THE CONVENTION. – Except as otherwise provided, the terms used in this section have the meanings given those terms in the Convention, subject to any reservations, understandings, declarations, and provisos contained in the United States Senate resolution of ratification of the Convention.
123 Cornejo-Barreto v. Seifert, 218 F.3d 1004, 1016 n. 13 (9th Cir. 2000). See Abra Edwards, Cornejo-Barreto Revisited: The Availability of a Writ of Habeas Corpus to Provide Relief from Extradition under the Torture Convention, 43 VA. J. INT’L L. 889 (2003).
notes 109-113 and accompanying text.
126 Judge Arterton provided a detailed exposition of the narrower view in Pickett v. INS, 237 F. Supp. 2d 175 (D. Conn. 2002), relying on Henderson v. INS, 157 F.3d 106 (2d Cir. 1998); Sol v. INS, 274 F.3d 648 (2d Cir. 2001); INS v. St. Cyr, 533 U.S. 289 (2001); and Liu v. INS, 293 F. 3d 36 (2d Cir. 2002). As to the scope of habeas corpus review, Pickett must now be considered to have been overruled by Wang. (Pickett also made a CAT claim. Her “aggravated felony” was conspiracy to possess with intent to distribute heroin, 21 U.S.C. §§841(a)(1), 846, although she “was given a sentence reduction for being a minor participant.” 237 F. Supp. 2d at 177.)
127 320 F.3d at 144 n. 20, citing Guan Shan Liao v. U.S. Dep’t of Justice, 293 F.3d 61, 67 (2d Cir. 2002). See 8 U.S.C. § 1101(a)(42) and 8 C.F.R. §§208.13, 1208.13.
536 U.S. 941 (2002).
130 For instance, in the sentence immediately preceding the holding quoted supra in the text at note 129, the Second Circuit quotes the Fourth Circuit as saying, “Only questions of pure law will be considered on § 2241 habeas review. Review of factual or discretionary issues is prohibited.” Bowrin v. INS, 194 F.3d 483, 490 (4th Cir. 1999).
132 2003 U.S. Dist. LEXIS 21972 (5 Dec. 2003).
133 Of the Immigration and Nationality Act, 8 U.S.C. §1182(c).
134 2003 U.S. Dist. LEXIS 21972 at *6-*7. The holding in Uduojie v. INS, 2002 U.S. Dist. LEXIS 25748 (6 Sept. 2002), is similar, and also relies on Sol, but Uduojie was decided six months before Wang.
135 The 90-day removal period would have expired on 6 May 2001, but Mr. Perreira filed his petition on 26 April 2001. Perreira v. Faraquharson, 2002 U.S. Dist. LEXIS 17681 (D. Conn. 2002). There were other grounds for denying the petition; however, we suspect there were also other grounds that arguably supported it, but were not raised.
136 2002 U.S. Dist. LEXIS 25745 (6 Aug. 2002).
note 107. In this case, the convictions were for conspiracy to engage in money laundering, perjury and obstruction of justice. 8 U.S.C. §1101(a)(43) makes any federal money laundering crime under 18 U.S.C. §1956 an “aggravated felony” if the sentence is at least five years imprisonment, even if suspended. Ms. Bankhole was sentenced to 63 months, although it is not clear to us that 60 or more of those months were for the conspiracy.
138 2002 U.S. Dist. LEXIS 25745 at *1 n. 1.
136 CONG. REC. 36,194 (1990).
note 122.
142 Bankhole v. INS, 67 Fed. Appx. 49 (2d Cir. 2003).
supra notes 105-127 and accompanying text.
149 Bankhole v. INS, 306 F. Supp. 2d 185, 187-188 (D. Conn. 2003). The evidence cited is U.S. DEP’T OF STATE, BUREAU OF DEMOCRACY, HUMAN RIGHTS, AND LABOR, COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES – 2000, Nigeria, available at http://www. state.gov/g/drl/rls/hrrpt/2000/af/700.htm. Many other sources support the conclusion that Nigerian police are often guilty of torture. For example, the Amnesty International report on Nigeria for calendar 2002 says, “Dozens of criminal suspects were tortured by the police; according to reports, at least two people died in custody as a result. At least five people were unlawfully killed by the police.” http://web.amnesty.org/report2003/Nga-summary-eng.
150 This is National Drug Law Enforcement Agency (“NDLEA”) Decree 33 of 1990, amending NDLEA Decree 48 of 1989. Along with other military decrees of this period, Decree 33 was subsequently given the status of a law; it appears to be still in force at this writing. Its main thrust is to create the crime of “bringing the name of Nigeria into disrepute” and is often described as creating double jeopardy. It has been criticized as violating §36(9) of the Nigerian Constitution, although that clause is an almost illusory prohibition of double jeopardy (emphasis added):
No person who shows that he has been tried by any court of competent jurisdiction or tribunal for a criminal offence and either convicted or acquitted shall again be tried for that offence or for a criminal offence having the same ingredients as that offence save upon the order of a superior court. See, e.g., Jafaru v. National Drug Law Enforcement Agency, No. FHC/L/CS/106/2000, Federal High Court of Nigeria; Jean Redpath, Forfeiting Rights? Assessing South Africa’s Asset Forfeiture Laws, 9 AFRICAN SECURITY REV. No 5/6 (2000), available at http://www.iss. co.za/pubs/ASR/9No5And6/Redpath. html#Anchor-Chapter-12811. A report published by the Austrian Red Cross suggests that there may have been no convictions (or prosecutions?) under Decree 33 % which seems to support Judge Burns’s conclusion – but the news is not really encouraging:
With regard to the question whether a Nigerian citizen who has served a sentence for a drug-related crime in a European country would be subjected to a conviction based on Decree 33 (“Bringing Nigeria into disrepute” – punishable with up to five years of prison and loss of assets), Mr Jockers responded that he is not aware of any such convictions. He also does not know whether the Nigerian police or the embassies would dispose of sufficient resources to follow up such cases. Most likely, the person in question will be handed over to the police and beaten up very severely, ending up in a suburb of Lagos with no clothes and their money taken away.
Austrian Red Cross, 8th European Country of Origin Information Seminar (Vienna, July 2002), Country Report: Nigeria 35, available at http://www.ecoi.net/pub/ mv154/Ngr-cois-2002-rep.pdf.
151 306 F. Supp. 2d at 188. Neither of the authors of this article is a Nigerian lawyer and we have not consulted a Nigerian lawyer on the point, so we are not able to comment on this construction of the decree.
note 108.
, 329 F.3d at 63, and in Bankhole, 67 Fed. Appx. at 52.
157 2002 U.S. Dist. LEXIS 13608 (28 June 2002). Ms. Custodio’s “aggravated felony” was larceny in the fourth degree, CONN. GEN. STAT. §53a-125.
158 Hodge v. Police Officers, 802 F.2d 58, 61 (2d Cir. 1986).
159 2002 U.S. Dist. LEXIS 13606 (20 June 2002), aff ‘d, 75 Fed. Appx. 11 (2d Cir. 2003). Ms. Gomez-DeLeon’s “aggravated felony” was conspiracy to possess a controlled substance with intent to distribute, 21 U.S.C. §§841(a)(1), 846.
160 2002 U.S. Dist. LEXIS 13606 at *11-*12. Rather ingeniously, Ms. Gomez-DeLeon’s counsel based this argument on Matter of Toboso-Alfonso, 20 I. & N. Dec. 819, 1990 WL 547189 (BIA 1990), in which the petitioner avoided removal to Cuba by presenting evidence that he would be tortured there on the basis of his sexual orientation. “Gomez-DeLeon argues that she also is a member of a specific social group facing torture: a group comprised of [sic] individuals with criminal backgrounds who are targeted for blackmailing and extrajudicial killings by government officials in the Dominican Republic.” 2002 U.S. Dist. LEXIS 13606 at *12.
note 115. FARRA §2242(f)(2), quoted supra note 122, incorporates the Convention’s definitions by reference. The public official, etc. point is also in 8 C.F.R. § 208.18 (a)(1). Further, one of the U.S. understandings, supra note 115, with respect to the CAT is as follows:
(d) That with reference to Article 1 of the Convention, the United States understands that the term “acquiescence” requires that the public official, prior to the activity constituting torture, have awareness of such activity and thereafter breach his legal responsibility to intervene to prevent such activity.
167 Chery v. Ashcroft, 2002 U.S. Dist. LEXIS 26034 at *10-*11 (D. Conn. 2002).
168 Jobson v. Ashcroft, 326 F.3d 367 (2d Cir. 2003).
169 Chrzanoski v. Ashcroft, 327 F.3d 188 (2d Cir. 2003). The conviction was under CONN. GEN. STAT. §53a-61.
170 Chery v. Ashcroft, 347 F.3d 404 (2d Cir. 2003).
174 Under 18 U.S.C. §1962 and 21 U.S.C. §§353(c)(1) and 333(b)(1)(B), respectively.
177 8 U.S.C. §1231(b)(B), unnumbered paragraph at end of subsection.
178 Matter of Frentescu, 18 I. & N. Dec. 244, 247 (B.I.A. 1982)
179 247 F. Supp. 2d at 208, quoting Ahmetovic v. INS, 62 F.3d 48, 52 (2d Cir. 2001).
180 “The BIA’s interpretation conflating the two requirements has been accepted by every circuit that has considered the issue.” Ahmetovic v. INS, 62 F.3d 48, 53 (2d Cir. 2001).
181 Ahmetovic v. INS, 62 F.3d 48 (2d Cir. 2001).
182 Yousefi v. INS, 260 F.3d 318, 329 (4th Cir. 2001).
.
184 19 U.S.T. 6259, 28 July 1951, entered into force 22 April 1954. The United States is not a party to this Convention, under which, by art. 1, the status of refugee is limited to those whose situation is “a result of events occurring before 1 January 1951.” However, the Protocol Relating to the Status of Refugees, 31 Jan. 1967, 606 U.N.T.S. 267, 19 U.S.T. 6223, T.I.A.S. No. 6577, entered into force for the United States 1 Nov. 1968, builds directly on the Convention, including the definition in art. 1(2): For the purpose of the present Protocol, the term “refugee” shall, except as regards the application of paragraph 3 of this article, mean any person within the definition of article I of the Convention as if the words “As a result of events occurring before 1 January 1951 and . . .” and the words “. . . as a result of such events,” in article 1 A (2) were omitted.
Art. 1(1) of the Protocol says, “The States Parties to the present Protocol undertake to apply articles 2 to 34 inclusive of the Convention to refugees as hereinafter defined,” which is to say, all of its substantive provisions.
The point that the purpose of the “danger to the community” provision was to codify the obligation of the United States under the Protocol rests on very solid ground:
If one thing is clear from the legislative history of the new definition of “refugee,” and indeed the entire 1980 Act, it is that one of Congress'[s] primary purposes was to bring United States refugee law into conformance with the 1967 United Nations Protocol Relating to the Status of Refugees, to which the United States acceded in 1968.
INS v. Cardoza-Fonseca, 480 U.S. 421, 436-437 (1987).
185 G.A. res. 2312 (XXII), 22 U.N. GAOR Supp. (No. 16) at 81, U.N. Doc. A/6716 (1967).
189 It appears that the Convention Against Torture has improved the legal position of Chinese nationals making this sort of claim. Contrast their lack of success when the claim was for asylum, e.g., Dong v. Slattery, 84 F.3d 82 (2d Cir. 1996), Zheng v. INS, 44 F.3d 379 (5th Cir. 1995), Chen v. INS, 95 F.3d 801 (9th Cir. 1996), Matter of Chang, 20 I. & N. Dec. 38 (BIA 1989).
190 A footnote in Judge Arterton’s opinion gives something of the Government’s attitude in these cases:
According to the Government, even if she prevails on her Torture Convention claim before the BIA, Lin can only “remain in this country as long as she faces forced parental planning practices in China. This situation may change should the political climate change in China or when she is no longer of child bearing age.” Govt’s Response [Doc. # 9] at 37. 183 F. Supp. 2d at 558 n. 8. (Mrs. Lin was 37 in 2002.)
The Attorney General’s discretionary judgment regarding the application of this section shall not be subject to review. No court may set aside any action or decision by the Attorney General under this section regarding the detention or release of any alien or the grant, revocation, or denial of bond or parole. Of course, the teaching of such cases as Wang, supra note 105, is that subsection (d) must be construed as not intended to affect the writ of habeas corpus.
193 Patel v. Zemski, 275 F.3d 299 (3d Cir. 2001).
Mensucat Santral Suspended, Financial Times, 13 July 1993, at 21.
, Turkish Daily News, 14 March 2003; Extradition: Halil Bezmen Returns to Turkey, Turkish Daily News, 28 March 2003.
197 The strange story of a Turkish “tabloid-television celebrity” and Mr. Bezmen’s cook is told by Joseph Calve, “Turkish Geraldo” Asks Court to Free Seized Video, Connecticut Law Tribune, 12 Dec. 1994, at 6, and Cheryl Winokur, Assault, Lies and Videotape, Connecticut Law Tribune, 19 June 1995, at 3.
198 66 Fed. Reg. 54909 (31 Oct. 2001), codified at 8 C.F.R. § 3.19(i)(2):
In any case in which the district director has determined that an alien should not be released or has set a bond of $10,000 or more, any order of the immigration judge authorizing release (on bond or otherwise) shall be stayed upon the Service’s filing of a Notice of Service Intent to Appeal Custody Redetermination (Form EOIR-43) with the immigration court within one business day of the issuance of the order, and shall remain in abeyance pending decision of the appeal by the Board of Immigration Appeals. The stay shall lapse if the Service fails to file a notice of appeal with the Board in accordance with § 3.38 within ten business days of the issuance of the order of the immigration judge. If the Board authorizes release (on bond or otherwise), that order shall be automatically stayed for five business days. If, within that five-day period, the Commissioner certifies the Board’s custody order to the Attorney General pursuant to § 3.1(h)(1) of this chapter, the Board’s order shall continue to be stayed pending the decision of the Attorney General.
Until this provision was adopted, the automatic stay applied only to certain criminal aliens subject to mandatory detention.
199 Bezman v. Ashcroft, 245 F. Supp. 2d 446 (D.Conn. 2003).
Extradition: Halil Bezmen Returns to Turkey, Turkish Daily News, 28 March 2003.
203 533 U.S. 678 (2001) (aliens cannot be detained indefinitely where their removal is no longer practically attainable).
204 Mathews v. Diaz, 426 U.S. 67, 79-80 (1976), quoted in Demore, 538 U.S. at 521.
Michael Cornell Dypski, The Stateless Corporation Finds a Home: Alienage Jurisdiction and Dependent Overseas Territories – J.P. Morgan Chase Bank v. Traffic Stream (BVI) Infrastructure Limited, 4 SAN DIEGO INT’L L.J. 319 (2003).
206 Justice Souter’s opinion also includes a helpful description of the legal status of the BVI.
207 Matimak Trading Co. v. Khalily, 118 F.3d 76 (1997) (Hong Kong, which was a British Dependent Territory when this suit was filed).
209 Southern Cross Overseas Agencies, Inc. v. Wah Kwong Shipping Group Ltd., 181 F.3d 410 (3d Cir. 1999) (Hong Kong, which was a British Dependent Territory when this suit was filed); Wilson v. Humphreys (Cayman) Ltd., 916 F.2d 1239 (7th Cir. 1990) (Cayman Islands, a British Dependent Territory). Justice Souter also cites Koehler v. Dodwell, 152 F. 3d 304 (4th Cir. 1998), which involved a Bermudan individual and BVI company, but does not clearly address the issue decided in Traffic Stream. In 1998, all British Dependent Territories became British Overseas Territories, without any corresponding change in the substance of the arrangements.
210 For example, 28 U.S.C. §1332(c) provides, “a corporation shall be deemed to be a citizen of any State by which it has been incorporated and of the State where it has its principal place of business.” Even more to the point: on “the outdated legal construct of corporations as collections of shareholders linked by contract,” 536 U.S. at 98, Justice Souter cites MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW 1870-1960: THE CRISIS OF LEGAL ORTHODOXY 69-107 (1992). We think, however, that the opinion writer’s reliance on a liberal historian does not undermine the optimism expressed in the first sentence of our discussion of Traffic Stream. Nevertheless, we might have preferred a citation to Dean Blumberg, such as PHILLIP
I. BLUMBERG, THE MULTINATIONAL CHALLENGE TO CORPORATION LAW 3-51 (1993), if only to make clearer the Connecticut connection justifying inclusion of the case in this Survey.
211 213 F.3d 82 (2d Cir. 2000), involving 18 U.S.C. §3184, on “Fugitives from foreign country to United States.”
note 3, at 259-262.