ALFREDO LARES-REYES ET AL.
1. On November 21, 2000, the Inter-American Commission on Human Rights (the “Commission”) received a petition from the Center for Justice and International Law, the Washington, D.C. law firm of Gibbs Houston Pauw, and the Center for Human Rights and Justice (the “Petitioners”) against the Government of the United States (the “State” or “United States”). The petition was presented on behalf of three individuals, Mario Lares-Reyes, Vera Allen Frost and Samuel Segura (the “alleged victims”). The petition stated that the alleged victims, all of whom had been granted permanent resident status in the United States, were the subjects of decisions under the US Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) to be removed from the United States on the basis that they had been convicted of “aggravated felonies” as defined under that legislation.
In their initial petition and subsequent observations, the
Petitioners claim that each of the alleged victims had exhausted
domestic remedies, or alternatively that they are excused from the
exhaustion of domestic remedies requirement, and therefore that their
claims are admissible. With
regard to the merits of their complaint, the Petitioners contend that
the United States is responsible for violations of the right to family
and special protection for minor children, the right to protection from
arbitrary arrest, the right to a fair trial, and the right not to be
arbitrarily detained, under one or more of Articles V, VI, VII, XVIII
and XXV of the American Declaration of the Rights and Duties of Man (the
“American Declaration”) because of the manner in which the IIRIRA
authorized the alleged victims’ removal from the United States and the
consequences of those removals.
The State argued in its response to the petition that the
Petitioners’ claims are inadmissible on three main grounds, namely
that the American Declaration is no more than a recommendation to the
American States that does not create legally binding obligations, the
alleged victims have failed to exhaust domestic remedies, and the
petition does not state facts that would constitute a violation of the
Declaration if it could be the subject of violations.
As set forth in this Report, having examined the information and
arguments provided by the parties on the question of admissibility, the
Commission decided to declare the Petitioners’ claims to be
inadmissible, on the basis that the alleged victims failed to pursue and
exhaust remedies of the domestic legal system in accordance with
generally recognized principles of international law, or because the
petition fails to state facts that tend to establish a violation of the
rights under the American Declaration or other applicable instruments.
PROCEEDINGS BEFORE THE COMMISSION
Following the lodging of their initial petition on November 21,
2000, designated by the Commission as Petition Nº P12.379, the
Petitioners filed a further communication with the Commission on March
14, 2001, which elaborated upon the submissions in their initial
On April 23, 2001, the Commission transmitted the pertinent parts
of the Petitioners’ November 21, 2000 petition and March 14, 2001
observations to the State and requested information from the State on
the petition within 90 days as established by the Commission's former
In a letter dated August 13, 2001 and received by the Commission
on August 14, 2001, the Petitioners requested that a hearing on their
petition be convened by the Commission during its next period of
sessions. In their request,
the Petitioners noted that they had not yet received a response from the
State to the allegations in their petition, and that they believed that
a hearing in the case “would provide an opportunity to hear the
government’s position on the issues presented in the petition and thus
promote the prompt resolution of the matter.” By note dated August 28,
2001, the Commission informed the State and the Petitioners that it had
decided to grant a hearing, to be held on September 28, 2001 at the
Commission’s Headquarters in Washington, D.C.
By subsequent notes dated September 28, 2001 and October 3, 2001,
the Commission advised the Petitioners and the State that owing to the
tragic circumstances of September 11, 2001, the hearing into the matter
had been postponed until November 16, 2001.
In a communication dated November 9, 2001 and received by the
Commission on the same date, the State delivered its observations on the
Petitioners’ petition. In
its communication the State objected to the admissibility of the
petition and asserted that the Commission should cancel the hearing in
the matter and declare the petition inadmissible.
By note dated November 13, 2001, the Commission transmitted the
State’s response to the Petitioners and confirmed that the hearing in
the matter would proceed on November 16, 2001 as scheduled.
By note of the same date, the Commission likewise informed the
State of the Commission’s decision to proceed with the hearing.
At the November 16, 2001 hearing, representatives of the
Petitioners and the State attended and provided the Commission with oral
representations on the admissibility and merits of the complaints raised
in the petition. This
included submissions regarding the potential impact upon the
Petitioners’ claims of two decisions of the US Supreme Court issued in
June 2001 after the petition was filed with the petition, INS
v. St. Cyr and Zadvydas et al.
v. Davis; Attorney General et al. v. Ma, which addressed issues
similar to those raised before the Commission.
III. POSITIONS OF THE PARTIES
Position of the Petitioners
According to the Petitioners, each of the three alleged victims
had been the subject of proceedings under the IIRIRA, which amended the
provisions of the Immigration and Naturalization Act (“INA”)
governing the admission of individuals to and their deportation from the
United States. In
particular, the alleged victims were ordered removed from the United
States under the IIRIRA amendments based upon their convictions for
certain criminal offenses designated under the legislation as
The Petitioners claim that the “aggravated felonies” are defined so
broadly that lawful residents are being deported for criminal offenses
that occurred years ago without due process.
The Petitioners also claim that under IIRIRA, deportation upon
proof of an aggravated felony is automatic and does not permit
consideration of humanitarian or other mitigating factors.
More particularly, the Petitioners argue that the definition of
“aggravated felony” under the pre-1996 legislation has been
radically expanded beyond such offenses as murder, drug trafficking and
trafficking in firearms to cover an extremely long list of offenses
including minor non-violent criminal infractions such as gambling
offenses and re-entering the US after deportation.
The Petitioners also claim that the broadened definition of
“aggravated felony” is applied retroactively, by specifically
providing that the new definition applies “regardless of whether the
conviction was entered before, on, or after September 30, 1996.”
The Petitioners contend that the application of this definition of
“aggravated felony” is exacerbated by the statute’s focus on the
sentence imposed rather than the sentence served, such that even if an
individual’s sentence is suspended and they serve no time in jail, the
legislation will not take these circumstances into account in deeming a
The Petitioners similarly contend that relief from deportation
which could previously have been granted to individuals convicted of
aggravated felonies is no longer available.
According to the Petitioners, relief from deportation known as a
humanitarian waiver of deportation, or “212(c) waiver,” by which a
legal resident subject to deportation would be permitted to continue to
live with his or her family in the United States, is no longer allowed
for persons who have been convicted of an “aggravated felony.”
The Petitioners claim that, when available, the adjudication of a
request for a “212(c) waiver” involves consideration of the
seriousness and recency of the offense, the danger the applicant posed
to the community, family ties, length of residence in the US, evidence
of rehabilitation, and other equitable factors.
The Petitioners similarly claim that the IIRIRA eliminated the
right to judicial review, as the only levels of review for an initial
decision to deport made by an immigration judge is an appeal to the
Board of Immigration Appeals, but where any further review by courts is
specifically precluded for deportations based upon aggravated felonies
and other criminal offenses.
As a consequence, such persons have no recourse to a court of law to
challenge the deportation decision or to submit the social or humane
considerations that would weigh in favor of not deporting an individual.
Further, the Petitioners claim that the IIRIRA amendments permit
legal permanent residents to be detained arbitrarily and without bond
for prolonged periods of time during the deportation process.
According to the Petitioners the INS can also detain legal
residents subject to deportation in any location it chooses, thereby
cutting off contact with the person’s family and making
legal representation of the person difficult or impossible.
Finally the Petitioners claim that the current system of
mandatory detention and mandatory deportation seriously and
unjustifiably interferes with family rights, for example by causing the
family to lose the primary breadwinner and thereby suffer severe
hardship, and causing the family to suffer the emotional trauma of not
knowing whether they will ever be able to live with their loved one.
The Petitioners also complain that there is no forum in which the
family can explain their interest in continuing to live together.
With respect to the circumstances of each of the three alleged
victims in this complaint, the information provided by the Petitioners
reveal the following factual allegations.
19. Mario Alfredo Lares-Reyes came to the US from Mexico in 1979 when he was 17 years old, married a US citizen and has one son from that marriage born in March 1984. He obtained permanent resident status in 1985. In 1987, Mr. Lares-Reyes divorced his first wife, following which his son resided with his ex-wife. Mr. Lares-Reyes re-married, and in 1991 Mr. Lares-Reyes was convicted of a simple misdemeanor assault of his second wife, for which he received a suspended sentence of 12 to 18 months imprisonment and did not serve any time in jail. Following the entry into force of the IIRIRA, Mr. Lares-Reyes was deemed to have been convicted of an “aggravated felony,” was arrested and held in jail for over one year, and then was deported from the US in August 1999.
20. Vera Frost is a 41-year-old Canadian citizen who obtained permanent resident status in the US in 1980 and has three children who are US citizens and who were 18, 15 and 8 years of age as of January 2001. She is divorced from her husband and has sole custody of their two youngest children. In May 1987, Ms. Frost was attacked and shot in her chest and arms, following which she began using marijuana as pain medication. In 1998, Ms. Frost pleaded guilty to two misdemeanor charges for possession of a small amount of marijuana and was sentenced to one day in jail and given a fine. In lieu of her sentence, Ms. Frost performed community service and attended a drug and alcohol program. INS authorities then determined that she was guilty of an aggravated felony and therefore deportable. Ms. Frost’s appeal from this decision to the Board of Immigration Appeals was dismissed on October 11, 2000, following which she was arrested at her home and deported to Canada.
21. Samuel Segura arrived in the US from Mexico in 1975 when he was 8 years old, lived in the US since that time, and subsequently obtained permanent resident status. He was shot in 1994, which caused him to be paralyzed and confined to a wheelchair. On October 8, 1997, Mr. Segura was convicted of shoplifting with prior offenses and sentenced to serve two years in jail. After serving 13 months he was released from jail, and INS authorities took him into custody for deportation proceedings. He was held in jail without bond from October 1998 until August 2001 when he was deported from the US to Mexico.
Based upon these submissions, the Petitioners allege several
violations of the rights of the alleged victims under the American
Declaration on the part of the United States.
23. The Petitioners allege that the State is responsible for violations of the right to family life and special protections for minor children under Articles V, VI and VII of the American Declaration, because the three alleged victims were the subject of mandatory deportation without any consideration of mitigating factors such as family unity. In this regard, the Petitioners claim that unlike prior to the IIRIRA, legal residents who are subject to deportation can no longer apply for a humanitarian waiver of their deportation, by reason of their family situation or otherwise. They cite in support jurisprudence from the European Court of Human Rights addressing family rights in the context of the deportation of non-citizens.
24. The Petitioners also allege that the State is responsible for violations of the right not to be subjected to arbitrary arrest under Article XXV of the American Declaration due to the retroactive application of the expanded definition of “aggravated felony” to Alfredo Lares-Reyes and Samuel Segura, which the Petitioners allege deprived these individuals of their liberty according to procedures that were not established by pre-existing law.
25. In addition, the Petitioners contend that the State is responsible for violations of the right to a fair trial and to due process under Articles XVIII and XXV of the American Declaration due to the denial to the three alleged victims of the right to access to a court of law and access to counsel. In particular, the Petitioners argue that the IIRIRA amendments specifically bar an individual from appealing a deportation order to a court of law, with the result that the sole remedy for a final order of deportation is an appeal to the Board of Immigration Appeals, a tribunal within the US Department of Justice. Moreover, the Petitioners argue that the United States does not provide legal assistance to individuals detained and subject to deportation, despite the fact that such assistance is required in order to give effect to the rights of the alleged victims relating to their mandatory detentions and deportations.
26. Finally, the Petitioners argue that the State is responsible for violations of Articles I and XXV of the American Declaration relating to the right not to be arbitrarily detained, because Alfredo Lares-Reyes was held in mandatory detention without bond for over one year until he was deported, and Samuel Segura was held in jail without bond for over two years prior to his deportation, and this despite the fact that the US government has apparently not argued that these individuals pose security risks.
In relation to the admissibility of their complaints, the
Petitioners contend that the three alleged victims have exhausted
domestic remedies, as each has availed him or herself of the
administrative procedures provided under US laws, with the 1996
amendments explicitly precluding any appeal in these cases to a court of
law. Alternatively, the Petitioners argue that the alleged victims
should be exempted from exhausting domestic remedies because the IIRIRA
specifically bars an individual who has been convicted of a crime from
appealing a deportation to a court of law and therefore that US domestic
law does not provide appropriate remedies to protect the alleged
victims’ rights. Finally,
during the November 16, 2001 hearing before the Commission in this
matter, the Petitioners contended that as the State did not deliver a
response to the petition within the time period prescribed by the
Commission for doing so, the State should be taken to have waived any
objection to the exhaustion of domestic remedies requirement.
Also during the hearing before the Commission in this matter, the
Petitioners acknowledged that individuals who have been the subject of
deportation decisions under the IIRIRA amendments and who appeal their
deportations to the Board of Immigration Appeals may lodge judicial
review proceedings of those decisions with the US Courts of Appeals, and
indeed recognized that Mr. Lares-Reyes and Mr. Segura pursued such
proceedings. They argued,
however, that these review proceedings should not be considered
effective remedies, because the federal courts limit themselves to
determining whether the person was properly determined to have committed
an “aggravated felony” within the meaning of the IIRIRA. If the
courts find the definition to have been properly satisfied, they dismiss
the application on the basis that they lack jurisdiction under 8 U.S.C.
§ 1252(a)(2)(C) to entertain the petition for review any further.
At this stage, the Commission wishes to note the existence of two
decisions issued by the US Supreme Court in June 2001 after the lodging
of this petition and which appear to have direct relevance to the issues
raised before the Commission by the Petitioners.
In its June 25, 2001 decision in the case INS
v. St. Cyr,
the Supreme Court found that the federal courts could review
administrative actions taken under the IIRIRA amendments and that those
legislative provisions could not be interpreted so as to give
retroactive effect to the waiver revocation under the new legislation.
Further, in its June 28, 2001 decision in the consolidated case
of Zadvydas et al. v. Davis;
Attorney General et al. v. Ma (hereinafter “Zadvydas
v. Davis”), the Court found that the
post-review-period detention of a removable alien cannot exceed a period
reasonably necessary to secure removal, which generally should not
exceed 6 months.
During the hearing before the Commission, the Petitioners
acknowledged the existence of these two decisions by the Supreme Court.
They argued, however, that these decisions did not provide a
satisfactory response to the claims raised in the petition.
In particular, they argued that the decision in INS v. St. Cyr was of no assistance to aliens who were determined
removable from the US based upon post-1996 criminal convictions, or
aliens who were deported under the IIRIRA amendments before the Supreme
Court decision was issued. Second,
they claim that the Zadvydas v.
Davis decision applied to the special case of an individual who
cannot be sent back to his or her country of origin and effectively
remains in permanent detention following his or her removal proceedings.
In the Petitioners’ submission, this is distinct from the
circumstances of aliens like Mr. Lares-Reyes and Mr. Segura where they
are denied the possibility of obtaining a bond for their release during
the administrative process.
Position of the State
With respect to the admissibility of the claims in the petition,
the State asserts that the complaints of the three petitioners are
inadmissible on three grounds. First,
the State contends that the American Declaration does not create legally
binding obligations on OAS member states and cannot be said to create
rights or impose duties on the United States, and therefore any
assertion that the United States has violated any of the Declaration’s
provisions has no validity.
In addition, the State argues that the case is moot in view of
the fact that all three of the alleged victims have been deported and
are no longer in the United States.
Third, the State argues that the alleged victims failed to
exhaust their domestic remedies prior to being deported.
In particular, the State rejects the Petitioners’ suggestion
that the administrative procedures available to the alleged victims to
challenge their deportations are not fair and effective procedures.
Rather, the State contends that due process guarantees the
alleged victims no more than fair and effective procedures by which they
may seek to challenge the legality of their detentions and deportations
and that the US procedures satisfy these requirements.
The State also asserts that Mario Lares-Reyes failed to exhaust
domestic remedies, because he did not seek judicial review from the US
Supreme Court of the decision of the US Court of Appeals for the 11th
Circuit in his case, which he could have done prior to his deportation.
Similarly, the State contends that Samuel Segura did not seek judicial
review from the US Supreme Court of the decision of the US Court of
Appeals for the 9th Circuit in his case, which he could have
done prior to his deportation,
and that Vera Allen Frost only appealed as far as the US Board of
Immigration Appeals and failed to seek judicial review from either the
US Court of Appeals for the 9th Circuit or the US Supreme
Court, which she could have done prior to her deportation.
In these circumstances, the State contends that all three alleged
victims have failed to pursue all of the administrative and judicial
procedures available to them to challenge their detentions and/or
deportations and therefore that they have failed to exhaust domestic
The State also argues that it would have been open to all three
petitioners to challenge their deportations in the federal courts on
other statutory or constitutional grounds, which they did not do.
In support of its submissions, the State cites the US Supreme
Court’s June 2001 decisions in the cases INS
v. St. Cyr and Zadvydas v. Davis as examples of the types of additional challenges
that the alleged victims could have raised before domestic courts.
The State notes in particular that in its decision in INS
v. St. Cyr, the Supreme Court confirmed that while the IIRIRA took
away the federal courts’ appellate jurisdiction under the INA to
review criminal aliens’ pure statutory challenges to their removal
orders, it did not take away district courts’ habeas corpus
jurisdiction to review the same challenges under 28 U.S.C. §2241.
Further, at the hearing before the Commission, the State asserted
in response to questions from the Commission that in light of the
Supreme Court’s decision in St. Cyr, habeas corpus relief would have been available to the
alleged victims to raise constitutional challenges in respect of the
various claims that they have raised before the Commission, including
their contention that the expanded definition of “aggravated
felonies” under the IIRIRA is over broad and fails to take into
account mitigating circumstances. In
this respect, the State’s representative did not rule out the
possibility that the IIRIRA provisions defining “aggravated
felonies” might not withstand constitutional challenge but noted that
such a challenge had not been attempted by the alleged victims in the
With respect to the merits of the Petitioners’ claims, the
State asserts that the petition fails to state facts that disclose any
violations of the American Declaration.
In particular the State contends that Mario Alfredo Lares-Reyes
was properly deported based not only upon his October 1991 domestic
assault conviction, but also based upon his June 29, 1998 guilty plea to
a charge of knowingly maintaining a dwelling for the purpose of using,
keeping, or selling marijuana. Similarly,
the State argues that Samuel Segura was properly removed from the US
based upon his conviction of a felony charge of petty theft with prior
offenses, and that Vera Allen Frost’s removal was justified based upon
her convictions of criminal possession of a controlled substance on two
separate occasions. The State also reiterates that the Petitioners have
been provided access to fair and effective procedures by which they
could challenge the legality of their detentions and deportations.
In light of these circumstances, the State rejects the
Petitioners’ challenges to the propriety of their removals from the
United States. In
particular, the State argues generally that the Petitioners’ complaint
is a disguised attack on the legitimacy of the current immigration
legislation in the United States, which it claims the Petitioners have
no standing to assert and is beyond the mandate and jurisdiction of the
Commission. The State also
emphasizes that a sovereign state has the right to exclude from its
territory aliens whose presence is not in the public interest or is
potentially harmful to public safety or threatens the economic, social
or political well being of its citizens.
In this regard, the State asserts that one of the primary aims of
the IIRIRA when it was signed by the US President on September 30, 1996
was to address the widespread problem of illegal immigration in the
United States, on the premise that aliens who violate US immigration law
should be removed from the US as soon as possible. According to the
State, the legislation attempted to achieve this objective in part by
expanding the definition of “aggravated felonies,” expediting the
removal of aliens convicted of serious crimes, and denying aliens who
have been convicted of aggravated felonies discretionary relief known as
“cancellation of removal.” In support of its argument in this
connection, the State noted by comparison that asylum seekers and those
seeking refugee status who have committed “serious non-political
crimes” or particularly serious crimes are excluded from the benefits
of the 1951 Refugee Convention and the 1967 Refugee Protocol even if
they have a well-founded fear of persecution in their country of origin.
Accordingly, the State argues that the alleged victims in the
present case, none of whom had asylum or refugee status, are “hardly
entitled to better treatment under US immigration law, in view of their
In respect of the substantive violations of the American
Declaration raised by the Petitioners, the State presents several
arguments, as alternatives to its initial contention that the American
Declaration cannot be the subject of violations by states. With regard
to the alleged violations of the right to family and related rights
under the Declaration, the State contends that such violations cannot be
said to provide an alien with a liberty interest that outweighs a
state’s legitimate responsibility to provide for the welfare and
security of its citizens. Rather,
the State argues that the nature of the offenses committed by the
alleged victims in the present matter justified their removal on these
grounds notwithstanding their family situations. Indeed,
the State contends that the alleged victims claim to enjoy legal
protection for familial consideration “would be tantamount to a
‘blank check’ in terms of a purported substantive right to be at
liberty in a country not their own without regard to that State’s
immigration or other legislation.” The State also objects to the
Petitioners’ reliance on case law under Article 8 of the European
Convention for the Protection of Human Rights and Fundamental Freedoms,
on the ground that the US is not a party to that instrument and that
interpreting the terms of the American Declaration in an expansive
manner by analogy to the European Convention would require the
Commission to go far beyond its actual power and would create rights and
duties of familial association that do not exist in the Declaration.
With regard to the retroactive application of the legislative
amendments under consideration, the State argues that there is no
evidence that Article 25 of the American Declaration, which provides
that “no person may be deprived of his liberty except in the cases and
according to the procedures established by pre-existing law,” was
intended to apply to immigration detention and deportation, which are
not of a criminal nature and which ordinarily do not turn on an
alien’s failure to perform a civil obligation. Accordingly, in the
civil context, the State argues that it is open to the US to apply
immigration legislation to conduct that occurred prior to that
The State asserts in this regard that according to the US Supreme Court,
deportation in an immigration context is not a punishment for past
crimes but rather is a civil consequence of an alien’s lack of right
to be in the US and his or her failure to abide by the domestic laws
therein. In part for this
reason, the US Supreme Court has repeatedly upheld the constitutionality
of deportation proceedings that apply new law to past criminal conduct.
With regard to the Petitioners’ submission concerning access to
court and access to counsel, the State argues that the administrative
review procedures before the immigration judges, the Board of
Immigration Appeals and the judicial review procedures before federal
courts are sufficient to satisfy the requirements of Articles XVIII and
XXV of the American Declaration in respect of deportation proceedings.
The State alleges, for example, that at the administrative level,
an immigration judge presides in immigration court over a removal
hearing, which all of the alleged victims received. In
these proceedings, an alien is afforded substantial rights, such as the
privilege of being represented by counsel at no expense to the
government, the opportunity to examine the evidence against him or her
and to cross-examine the witnesses presented by the government, and the
right to have a complete record of the proceedings for appellate review,
including all testimony and evidence presented at the hearing.
During these proceedings, aliens may present applications for
relief and protection from removal.
The State also contends that these procedural requirements do not
extend to requiring states to provide free legal counsel to all
removable aliens, although the legislation guarantees an alien’s right
to be represented by counsel at no expense to the government.
In any event, the State indicates that all three alleged victims
in the present petition had legal representation during their
proceedings before the immigration court and the Board of Immigration
Appeals and therefore do not have standing to allege violations of their
right to counsel.
Respecting the Petitioners’ allegations that Mr. Lares-Reyes
and Mr. Segura have been the victims of violations of the right not to
be arbitrarily detained, the State contends that the American
Declaration does not limit the length, purpose or modalities of
immigration detention, and that in the United States immigrants have
full ability to challenge their detentions in administrative and
judicial proceedings. These include the
administrative procedures that govern the jurisdiction of the INS and
immigration judges to make bond determinations and that permit an alien
to challenge whether he or she is appropriately subject to detention
pending removal proceedings. These
processes also include judicial review through a writ of habeas corpus
of the constitutionality of the Government’s decision to detain an
alien pending his or her deportation.
On this latter remedy, the State refers to the US Supreme
Court’s June 2001 decision in the Zadvydas
v. Davis case as acknowledging that the Attorney General’s
authority to detain an alien with a final order for removal beyond the
90-day statutory removal period must be construed not to authorize
indefinite detention, but instead to be limited to detention for a
period reasonably necessary to remove the alien.
Competence of the Commission
In its observations on the Petitioners’ petition, the United
States specifically contests the authority of the Commission to
determine as against the State violations of the American Declaration.
In the State’s view, the Declaration is “no more than a
recommendation to the American states that does not create
legally-binding obligations and therefore cannot be ‘violated’.”
The State’s position fails to consider, however, the
long-standing practice and jurisprudence of the inter-American human
rights system, according to which the American Declaration of the Rights
and Duties of Man is a source of international obligation for the United
States and other OAS member states that are not parties to the American
Convention on Human Rights.
These obligations are considered to flow both from the human rights
obligations of member states under the OAS Charter,
which member states have agreed are contained in and defined by the
American Declaration, as well as from the
customary legal status of the rights protected under many of the
Declaration’s core provisions.
As sources of legal obligation, it is appropriate for the Commission to
speak of violations of the rights under the American Declaration when
discharging the mandate given to it by the United States and other OAS
member states under Articles 18 and 20 of the Commission’s Statute
to ensure observance by member states of those rights. Accordingly, the
Commission rejects the State’s contention that the American
Declaration cannot be the subject of violations, and reaffirms the
well-established principle that the Declaration constitutes a source of
international obligations for member states of the OAS.
In the petition presently under consideration, the Petitioners
have alleged that the United States is responsible for violations of
each of the alleged victim’s rights under some or all of the Articles
V, VI, VII, XVIII and XXV of the American Declaration.
The United States is a member State of the OAS, having deposited
its instrument of ratification of the OAS Charter on June 19, 1951, and
the events described in the petition occurred subsequent to the
State’s ratification of the OAS Charter.
The alleged victims are natural persons, and the petition was
lodged by the Center for Justice and International Law, Gibbs, Houston,
Pauw, and the Center for Human Rights and Justice, who are authorized to
lodge petitions with the Commission under Article 23 of the Commission's
Rules of Procedure. The
Commission is therefore competent to examine this petition.
Admissibility of Petition
Before proceeding with its analysis of the admissibility of the
present petition, the Commission considers it instructive to summarize
the claims raised by the Petitioners and the alleged victims in respect
of whom those claims are raised. A
review of the petition and supporting documents indicates that the
Petitioners have raised the following four claims in respect of some or
all of the alleged victims:
Violations of the rights of the three alleged victims to family
life and to special protections for minor children under Articles V, VI
and VII of the American Declaration, because they were the subject of
mandatory deportation without any consideration of mitigating factors
such as family unity;
Violations of the rights of Mario Alfredo Lares-Reyes and Samuel
Segura to protection from arbitrary arrest under Article XXV of the
American Declaration due to the retroactive application of the expanded
definition of “aggravated felony” to their circumstances;
Violations of the rights of the three alleged victims to a fair
trial and to due process under Articles XVIII and XXV of the American
Declaration due to their denial of access to a court of law and to
access to counsel in the context of their removal proceedings;
Violations of the rights of Mario Alfredo Lares-Reyes and Samuel
Segura not to be arbitrarily detained under Articles I and XXV of the
American Declaration by reason of their detention for prolonged periods
prior to their removal from the United States.
Exhaustion of Domestic
Article 31 of the Commission's Rules of Procedure specifies that,
in order for a case to be admitted, “the Commission shall verify
whether the remedies of the domestic legal system have been pursued and
exhausted in accordance with generally recognized principles of
international law.” When domestic remedies are unavailable as a matter
of fact or law, however, the requirement that they be exhausted may be
excused. Article 31(2) of
the Commission's Rules specifies that this exception applies if the
domestic legislation of the state concerned does not afford due process
of law for protection of the right or rights allegedly violated, if the
party alleging the violation has been denied access to domestic remedies
or prevented from exhausting them, or if there has been an unwarranted
delay in reaching a final judgment under the domestic remedies.
Further, when a petitioner alleges that he or she is unable to
prove compliance with the exhaustion of domestic remedies requirement,
Article 31(3) of the Commission’s Rules provides that the burden then
shifts to the State to demonstrate that the remedies under domestic law
have not previously been exhausted, unless that is “clearly evident
from the record.”
As a preliminary objection, the Petitioners contended during the
hearing before the Commission that in light of the fact that the State
failed to respond to the petition within the 90 day period prescribed
under the Commission’s former Regulations, it should be considered to
have waived its right to object to the admissibility of the petition, on
the basis of exhaustion of domestic remedies or otherwise.
In this connection, it is well-established in the jurisprudence
of the inter-American system that the exhaustion of domestic remedies
requirement is considered a means of defense and, as such, waivable by
a state, even tacitly. Moreover, the Commission
wishes to emphasize the obligation of OAS member states, as reflected in
Articles 18, 19 and 20 of the Commission’s Statute, to respond in a
timely manner to the Commission’s requests for information.
The Commission has previously confirmed that in the absence of
such a timely response by a state to a petition, the Commission is not
obliged to consider any potential bars to the admissibility of a
petitioner’s claims that might have properly been raised relating to
the exhaustion of domestic remedies.
Upon considering the circumstances of the present case, including
the fact that the State delivered a detailed response to the petition
prior to the hearing before the Commission and that the Petitioners
requested the hearing in part as an opportunity to hear the
government’s position on the issues raised in the petition, the
Commission declines to find that the State waived its right to object to
the admissibility of the Petitioners’ petition and will proceed to
consider the parties’ submissions on this issue.
The State in the present matter has objected to the admissibility
of the Petitioners' complaints on the ground that the alleged victims
have failed to exhaust domestic remedies.
More particularly, the State argues that each of the three
alleged victims failed to pursue all of the administrative and judicial
mechanisms available to them in the immigration process context,
including seeking review of decisions of the US Court of Appeal in the
US Supreme Court. The State
also objects on the basis that the alleged victims are able to raise
other substantial statutory or constitutional challenges relating to
their removal orders, such as those pursued by the respondent in INS
v. St. Cyr, which the alleged victims have also failed to exhaust.
With regard to the State’s former contention, after considering
the information before it, the Commission agrees with the Petitioners’
allegations that the administrative appeal mechanism provided for under
the INS legislation does not constitute an effective remedy to address
in substance the claims raised in the petition before this Commission.
It is clear from the record that in administrative appeals to
both the Board of Immigration Appeals and the US federal courts, the
tribunal concerned limits its review of an applicant’s case to
determining whether the crime or crimes for which the applicant has been
convicted constitute “aggravated felonies” within the meaning of the
INS Act. Should the
tribunal find the definition to have been satisfied in the circumstances
of the applicant’s case, the tribunal simply dismisses the
applicant’s appeal or, in the case of the federal courts, declares
that it has no jurisdiction to entertain the applicant’s appeal.
There is no opportunity for the applicant to present or for the tribunal
to consider substantive allegations of the nature raised before the
Commission, such as the contention that the applicant’s continued
detention is unduly prolonged contrary to his or her human rights under
domestic or international law. In
these circumstances, the Commission cannot consider the administrative
appeal mechanisms under the INA and other applicable legislation to
constitute effective remedies within the meaning of Article 31 of the
Commission’s Rules of Procedure for the violations of the American
Declaration alleged in the present petition.
With respect to the State’s latter contention above, the
Commission considers that the recent decisions by the US Supreme Court
in the cases of INS v. St. Cyr
and Zadvydas v. Davis are relevant to the analysis of the present
petition, dealing as they do with issues similar to those now before the
Commission, and therefore require further consideration in the context
of the Petitioners’ complaint.
In particular, as noted above, the Commission understands the US
Supreme Court to have made three pertinent determinations in these two
cases. First, in both cases
the Supreme Court confirmed that, while the IIRIRA removed the appellate
jurisdiction of the US federal courts under the INA to review criminal
aliens’ statutory challenges to their removal orders, it did not take
away the district courts’ habeas corpus jurisdiction under 28 U.S.C.
2241 to review administrative actions.
This was held to include habeas corpus review as a forum for questions
of law relating to the retroactive application of immigration
legislation and for statutory and constitutional challenges to
post-removal-period immigration detention.
In addition, in the case INS
v. St. Cyr,
the Court concluded that the IIRIRA's elimination of any possibility of
212(c) relief should not be interpreted so as to apply retroactively to
criminal convictions entered prior to the September 30, 1996 effective
date of the statute, with the effect that
212(c) relief remains available for aliens whose convictions were
obtained through plea agreements and who, notwithstanding those
convictions, would have been eligible for 212(c) relief at the time of
their plea under the law then in effect.
Third, in the Zadvydas v.
the Supreme Court concluded that the IIRIRA should not be
interpreted to authorize indefinite detention, but rather should be
interpreted to authorize post-removal-period detention only for the
period reasonably necessary to secure removal which in the court’s
view was normally a period of 6 months. After this 6-month period, once
the alien provides good reason to believe that there is no significant
likelihood of removal in the reasonably foreseeable future, the
Government must respond with evidence sufficient to rebut that showing.
It is also apparent from the judicial history of these cases that
these findings by the US Supreme Court were preceded by extensive
litigation in federal courts across the United States, where several of
those courts reached the same conclusions as those ultimately adopted by
the country’s highest court. Prior to the Supreme Court’s decision in INS v. St. Cyr, for example, five circuit appeals courts, including
the second circuit decision which was the subject of the certiorari
petition to the Supreme Court, had reached similar conclusions regarding
the availability of habeas corpus relief and the non-retroactive effect
of the IIRIRA on the availability of “212(c) waivers.”
Similarly, prior to the Supreme Court’s decision in Zadvydas v. Davis, numerous courts at the federal level had
concluded that the prolonged or indefinite post-review-period detention
of aliens to be unconstitutional as a violation of substantive or
procedural due process. It is therefore clear
that issues similar to those raised before this Commission were the
subject of active, and in some cases successful, litigation in domestic
courts following the effective date of the IIRIRA amendments.
The Commission has previously shared the view of the European
Court of Human Rights that in accordance with general principles of
international law, a petitioner need not exhaust domestic remedies if on
the evidence such proceedings would be
Applying these principles in the context of the present case the
Commission cannot find on the record before it grounds that would
justify or excuse the failure of the alleged victims to pursue habeas
corpus relief before the domestic courts in respect of the claims that
they have raised before this Commission.
More particularly, the evidence before the Commission, including
in particular the Supreme Court’s determinations discussed above,
suggest that it was reasonably open to each of the alleged victims to
pursue habeas corpus proceedings before the US federal courts, in a
manner similar to that of Enrico St. Cyr, Kustutis Zadvydas and Kim Ho
Ma. Moreover, it is
apparent that arguments could be made in the course of these proceedings
that the provisions of the IIRIRA were applied retroactively so as to
deny the alleged victims the benefit of a “212(c) waiver” in respect
of pre-1996 convictions, and that the alleged victims were arbitrarily
detained contrary to Articles I and XXV of the American Declaration by
reason of their prolonged periods of detention.
While the Commission appreciates that the decision of the US
Supreme Court in the Zadvydas v.
Davis case dealt specifically with post-removal-period detention, it
is not apparent that this fact alone would exempt the alleged victims
from pursuing constitutional relief for prolonged detention at other
stages of the immigration process.
To the contrary, in its decision in Zavdydas
v. Davis, the Supreme Court based its findings upon the
well-established and broadly-applicable principle that the US
Constitution’s Fifth Amendment due process clause forbids the
government to deprive any person of liberty without due process of law
and that freedom from imprisonment from government custody, detention,
or other forms of physical constraint lies at the heart of the liberty
protected by the due process clause.
The Court also relied upon its own previous jurisprudence
prohibiting the non-punitive detention of individuals, including aliens
who have entered the United States, except in certain narrow
circumstances where a specific justification outweighs the
individual’s constitutionally-protected interest in avoiding physical
In this context, it cannot be said based upon the information available
that settled legal opinion prior to the Supreme Court’s decisions
would likely have precluded any effective relief for the alleged
victims. Rather, as noted
above, the state of the jurisprudence was at best uncertain with
numerous courts across the United States ultimately deciding favorably
on the same or similar issues to those raised by the Petitioners, while
others decided unfavorably.
The Commission has reached similar conclusions concerning the
claims presented on behalf of Ms. Frost, Mr. Lares-Reyes and Mr. Segura
that they have been the subject of mandatory deportation without any
consideration of mitigating circumstances such as family unity, in
violation of his rights to family life and to special protections for
minor children under Articles V, VI and VII of the American Declaration.
The Commission first notes in this regard that, according to the
Petitioners, the deportations of Mr. Segura and Mr. Lares-Reyes were
based in part upon their guilty pleas to offenses that were entered
prior to the September 30, 1996 effective date of the IIRIRA.
In light of the Supreme Court’s finding that the INA may not be
applied in such circumstances to deprive an alien of the benefit of a
“212(c) waiver,” the Commission considers that a habeas corpus
petition before the federal courts might also have provided Mr. Lares-Reyes
and Mr. Segura, like Mr. St. Cyr, with a forum within which to raise the
mitigating circumstances of these cases, including those pertaining to
Articles V, VI and VII of the Declaration.
The Petitioners themselves have indicated that adjudication of a
request for a waiver of this nature involves a consideration of the
seriousness and recency of the offense, the danger the applicant poses
to the community, family ties, length of residence in the United States,
evidence of rehabilitation, and other equitable factors.
Moreover, it is not apparent from the record in this matter that
relief for the Petitioners’ alleged violations of Articles V, VI and
VII of the Declaration could not have been pursued directly through
habeas corpus proceedings in the US federal courts.
The Petitioners have contended that the sole remedy provided
under United States law for a finding of deportation based upon an
“aggravated felony” is an appeal to the Board of Immigration
Appeals. The Supreme
Court’s decisions in INS v. St.
Cyr and Zadvydas v. Davis illustrate this not to be the case.
Rather, numerous lower courts found, and the Supreme Court
confirmed, that the remedy of habeas corpus under 28 U.S.C. 2241 was not
repealed by the IIRIRA.
The Commission has considered in this regard the State’s
contention that, as federal courts have continued to retain their
general habeas corpus jurisdiction, as affirmed by the Supreme Court’s
decision in INS v. St Cyr, it
would have been open to the alleged victims to raise their claims
through habeas corpus proceedings before the US federal courts. During the hearing in this matter the State specifically
confirmed that this would include the Petitioners’ allegation that the
expanded definition of “aggravated felonies” under the IIRIRA is
over broad and fails to take into account mitigating circumstances.
Indeed, the State’s representative did not foreclose the possibility
that the broad definition of aggravated felony under the legislation
might not withstand constitutional scrutiny.
It is not otherwise evident from the record that such proceedings
would have been obviously futile or would have had no reasonable
prospect of success. Accordingly,
the Commission is unable to find that the alleged victims exhausted
domestic remedies in respect of the claimed violations of Articles V, VI
and VII of the Declaration or that proper justification exists to excuse
them from doing so.
Finally, in light of the continued availability of habeas corpus
relief for constitutional and other challenges that aliens in the
position of the alleged victims could reasonably have pursued, and given
the fact that the alleged victims were legally represented throughout
their removal proceedings, the Commission does not consider that the
facts on the record before it tend to establish violations of the
alleged victims rights to a fair trial and to due process under Articles
XVIII and XXV of the American Declaration based upon a denial of access
to a court of law and to access to counsel in the context of their
removal proceedings. In
this connection, Article 34 of the Commission’s Rules of Procedure
requires the Commission to declare any petition or case inadmissible
when it does not state facts that tend to establish a violation of the
rights referred to in Article 27 of the Rules, including those under the
Based upon the foregoing analysis, the Commission concludes that
the Petitioners claims of violations of the right to family and to
special protection for children under Articles V, VI and VII of the
Declaration, violations of Article XXV of the Declaration based upon the
retroactive application of the IIRIRA to Mario Alfredo Lares-Reyes and
Samuel Segura, violations of the right to a fair trial and to due
process under Articles XVIII and XXV of the Declaration based upon the
denial to the alleged victims of access to court to ensure respect for
their fundamental human rights, and violations of Articles I and XXV of
the Declaration based upon the prolonged detention of Mario Alfredo
Lares-Reyes and Samuel Segura prior to their removal from the United
States, to be inadmissible under Articles 31(1) and 34 of the
Commission’s Rules of Procedure.
The Commission concludes that it has the competence to examine
the claims raised in the Petitioners’ petition, which includes the
competence to determine whether the State has violated rights enshrined
in the American Declaration of the Rights and Duties of Man.
The Commission also concludes that the claims raised in the
petition are inadmissible, on the basis that the alleged victims have
failed to pursue and exhaust domestic remedies in accordance with the
generally recognized principles of international law as required under
Article 31 of the Commission’s Rules of Procedure, or because the
petition fails to state facts that tend to establish violations of the
American Declaration as required under Article 34(a) of the
Commission’s Rules of Procedure.
On the basis of the findings of fact and law set forth above,
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
To declare the claims in the petition inadmissible.
To transmit this Report to the Parties.
To publish this Report and include it in its Annual Report to the
General Assembly of the Organization of American States.
and signed at the headquarters of the Inter-American Commission on Human
Rights in the city of Washington, D.C., on the twenty-seventh day of the
month of February, 2002. (Signed): Juan E. Méndez, President; Marta
Altolaguirre, First Vice-President; José Zalaquett, Second
Vice-President; Julio Prado Vallejo and Clare K. Roberts, Commissioners.
Commission Member Professor Robert K. Goldman did not take part in
the discussion and voting on this case, pursuant to Article 17(2) of
the Commission's Rules of Procedure.
Illegal Immigration Reform and Immigrant Responsibility Act, Pub. L.
No. 104-208, 110 Stat. 3009 (1996).
its 109th special session in December 2000, the
Commission approved the Rules of Procedure of the Inter-American
Commission on Human Rights, which replaced the Commission’s prior
Regulations of April 8, 1980. Pursuant to Article 78 of the
Commission’s Rules of Procedure, the Rules entered into force on
May 1, 2001.
Immigration and Naturalization Act, 8 U.S.C. §1101 et seq.
8 U.S.C. §1227(a)(2)(A)(iii).
8 U.S.C. § 1101(a)(43).
8 U.S.C. §
8 U.S.C. § 1229b(a)(3).
8 U.S.C. §1252(a)(2)(C) (providing “[n]otwithstanding any other
provision of law, no court shall have jurisdiction to review any
final order of removal against an alien who is removable by reason
of having committed a criminal offense … [including those
classified as aggravated felonies]”).
In support of their arguments on several issues raised in their
petition, the Petitioners have provided examples of individuals who
they claim have been the subjects of decisions under the IIRIRA but
who are not among the alleged victims represented in this process
before the Commission. Accordingly, the Commission will limit its
consideration of the facts in this matter to the three individuals
represented by the Petitioners in this proceeding.
Authorities cited by the Petitioners include Mehemi v. France, 6
E.H.R.R. (1997), Beljoudi v. France, 14 E.H.R.R. 801 (1992) and
Bouchelkia v. France, 25 E.H.R.R. 686 (1998).
See e.g. Mario Alfredo Lares-Reyes v. Reno, Decision dated May 22,
2000, Case Nos. 99-11504 & 99-12956 (US Court of Appeals for the
11th Circuit) (determining that Mr. Lares-Reyes was
deportable because he had been convicted of an offense related to
controlled substances, and therefore that the Court lacked
jurisdiction over the petition for review).
INS v. St. Cyr, 121 S. Ct. 2271 (2001).
Zadvydas v. Davis et al.; Attorney General v. Ma, 121 S. Ct. 2491
(2001) (hereinafter “Zadvydas v. Davis”).
According to the State, on October 10, 1998, an immigration judge
found Mario Alfredo Lares-Reyes to be removable to Mexico on three
grounds under the IIRIRA and that he was barred from seeking
cancellation of his removal based upon his admitted criminal
convictions for two “aggravated felonies”: an assault conviction
in 1991; and a conviction on June 29, 1998 for knowingly maintaining
a dwelling for the purpose of using, keeping or selling marijuana,
for which he was given a suspended sentence of 45-days incarceration
and a term of two-years’ probation. The Immigration judge found
Lares-Reyes to be removable as an alien convicted of a “crime of
violence,” a “controlled substance offense” and an “offense
involving domestic violence” for the purposes of the IIRIRA
amendments. Lares-Reyes appealed to the Board of Immigration
Appeals, which confirmed the immigration judge’s determinations
and dismissed his appeal on May 17, 1999. Lares-Reyes then filed an
application for review with the US Court of Appeals for the 11th
Circuit as well as an application for review of a decision by the
Board of Immigration Appeals not to re-open and/or reconsider its
decision. The 11th Circuit Court of Appeals dismissed his
petition on May 22, 2000 for lack of jurisdiction.
According to the State, Samuel Segura was convicted of a felony
charge of petty theft with prior offenses on October 8, 1997. On
October 15, 1998 Mr. Segura was placed in removal proceedings under
the INA for having been convicted of an aggravated felony, and on
December 7, 1998 an immigration judge found Mr. Segura’s
conviction to constitute an “aggravated felony” and therefore
that he was removable. On May 26, 1999 the Board of Immigration
appeals affirmed the Immigration judge’s decision. Mr. Segura then
sought an emergency stay of deportation and judicial review in the
US Court of Appeals for the 9th Circuit, which issued a
stay and then subsequently dismissed his petition on June 28, 2000.
Further, on October 22, 1999 Mr. Segura filed a petition for a writ
of habeas corpus in the US District Court challenging his removal
order and his conditions of confinement, which dismissed his
petition on December 7, 2000. At the hearing before the Commission
in this matter, the Petitioners and the State confirmed that Mr.
Segura was removed from the United States to Mexico in August 2001.
According to the State, on April 23, 1998 Ms. Frost was convicted of
criminal possession of a controlled substance, namely marijuana, and
that on July 23, 1998 she was convicted of the same offense. On July
24, 1998 the INS initiated removal proceedings against Ms. Frost
under the INA by virtue of having been convicted of an “aggravated
felony.” An immigration judge subsequently found that her second
drug conviction constituted an aggravated felony in light of her
prior drug conviction and ordered her removed from the United
States. Ms. Frost subsequently appealed to the Board of Immigration
Appeals, which summarily affirmed the Immigration Judge’s
decision. Ms. Frost had 30 days to seek judicial review of the
Board’s decision, but did not file for a stay of deportation or
otherwise seek judicial review with the US Court of Appeals for the
9th Circuit and was deported to Canada on October 11,
In this regard, the State asserts that under US constitutional law,
four types of laws may not be the subject of ex post facto laws: 1.
Every law that makes an action done before the passing of the law,
and which was innocent when done, criminal, and punishes such
action; 2. Every law that aggravates a crime, or makes it greater
than it was, when committed, 3. Every law that changes the
punishment, and inflicts a greater punishment, than the law annexed
to the crime, when committed; and 4. Every law that alters the legal
rules of evidence, and received less, or different testimony, than
the law required at the tie of the commission of the offense, in
order to convict the offender. State’s observations dated November
9, 2001, at 18-19, relying upon Calder v. Bull, 3 Dallas 386, 390
(1798), cited in Rogers v., Tennessee, 121 S. Ct. 1693, 1697 (2001).
State’s observations dated November 9, 2001, at 19, citing, inter
alia, Reno v. American Arab Anti-Discrimination Comm., 525 U.S.
471, 491 (1999); Lehmann v. US, 353 U.S. 685, 690 (1957).
State’s observations dated November 9, 2001, p. 24, citing
administrative proceedings available for the INS and immigration
judges to make bond determinations under 8 CFR §§ 3.19 and 239.1
See I/A Court H.R., Advisory Opinion OC-10/89 "Interpretation
of the Declaration of the Rights and Duties of Man Within the
Framework of Article 64 of the American Convention on Human
Rights", July 14, 1989, Ser. A
Nº 10 (1989), paras. 35-45; James Terry Roach and Jay
Pinkerton v. United States, Case 9647, Res. 3/87, 22 September 1987,
Annual Report of the IACHR 1986-87, paras. 46-49. For examples of
decisions in which the Commission has found violations of the
American Declaration in respect of OAS member states that are not
parties to the American Convention on Human Rights, see Case 1742
(Cuba), May 1975, Annual Report of the IACHR 1975; Maclean v.
Suriname, Case 10.116, Resolution Nº 18/89, Annual Report of the
IACHR 1988-1989; Michael Edwards et al. v. The Bahamas, Case 12.067,
Report Nº 48/01, Annual Report of the IACHR 2000; Garza v. United
States, Case 12.243, Report Nº 52/01, Annual Report of the IACHR
Charter of the Organization of American States, Arts. 3, 16, 51,
See Advisory Opinion OC-10/89, paras. 42, 43 (citing numerous
resolutions in which the General Assembly of the OAS has recognized
the American Declaration as a source of international obligation for
the member states of the OAS, and concluding that “it may be said
that by means of an authoritative interpretation, the member states
of the Organization have signaled their agreement that the
Declaration contains and defines the fundamental rights referred to
in the Charter.”).
It is beyond question that the core rights protected under the
American Declaration, including the right to life, the right to
liberty and the right to due process and to a fair trial, have
attained the status of customary, and indeed peremptory, norms of
international law. Parallel provisions of the Universal Declaration
of Human Rights, adopted by the United Nations several months after
the American Declaration, have likewise been recognized as binding
states as a matter of custom. See e.g. Louis B. Sohn, The New
International Law: Protection of the Rights of Individuals Rather
than States, 32 Am.
U. L. Rev. 1 (1982); Louis
Henkin, The Age of Rights 19 (1990); Ian
Brownlie, Principles of Public International Law 574-5 (5th
ed. 1998); Vratislav Pechota, Development of the Covenant on Civil
and Political Rights, in The
International Bill of Rights–The Covenant on Civil and Political
Rights 32, 38-39 (Louis Henkin ed., 1981); Restatement of
Foreign Relations Law of the United States (Third) (1987) § 702 and
comment n); See also Basic Documents Pertaining to Human Rights in
the Inter-American System, OAS Doc. OEA/Ser.L/V/I.4 rev. 8 22 May
2001, pp. 4-6 (providing an overview of the adoption of the American
Declaration by during the Ninth International Conference of American
States in 1948).
The Commission’s current Statute was approved by Resolution Nº
447 taken by the General Assembly of the OAS at its Ninth Regular
Session, held in La Paz, Bolivia in October 1979. Basic Documents
Pertaining to Human Rights in the Inter-American System, Doc. OEA/Ser.L/V/I.4
rev. 8 (22 May 2001), pp. 119-126.
See I/A Court H.R., Loayza Tamayo Case, Preliminary Objections,
Judgment of January 31, 1996, Series C Nº 25, para. 40.
See e.g. Balkissoon Roodal v. Trinidad and Tobago, Case 12.342,
Report Nº 89/01 (10 October 2001), para. 29.
See e.g. In re: Mario Alfredo Lares-Reyes a.k.a. Mario Lares-Reyes,
File Nº A39 091 919, Appeal Decision dated May 17, 1999 (Board of
Immigration Appeals); Mario Alfredo Lares-Reyes v. Reno, Decision
dated May 22, 2000, Case Nos. 99-11504 & 99-12956 (US Court of
Appeals for the 11th Circuit).
28 U.S.C. 2241 (a) provides that “[w]rits of habeas corpus may be
granted by the Supreme Court, any justices thereof, the district
courts and any circuit judge within their respective jurisdictions.
The order of a circuit judge shall be entered in the records of the
district court of the district wherein the restraint complained of
See INS v. St. Cyr, 121 S. Ct. 2271 (2001); Zadvydas v. Davis, 121
S. Ct. 2491, 2497 (2001).
The respondent in the St. Cyr case was a lawful permanent resident
in the United States who had pleaded guilty to a criminal charge
that made him deportable under US immigration law. He would have
been eligible for a waiver of deportation under the immigration law
in effect at the time when he was convicted, but his removal
proceedings were commenced after the effective dates of the AEDPA
and IIRIRA, which the Attorney General claimed withdrew his
authority to grant a waiver. The respondent brought a habeas corpus
application in the US District Court challenging the circumstances
of his deportation based upon the alleged retroactive application of
the deprivation of consideration for a humanitarian waiver. St. Cyr
succeeded before the District Court and the US Court of Appeals and
the matter was ultimately appealed to the US Supreme Court. The
Supreme Court held in its June 25, 2001 decision that the IIRIRA did
not remove the federal court’s jurisdiction to review
administrative actions by way of habeas corpus under 28 U.S.C. 2241.
The Court also held that the legislative provisions in issue could
not be interpreted so as to give retroactive effect to the waiver
revocation under the new legislation. This conclusion was based
principally upon the Court’s finding of lack of clear language in
the legislation to this effect, together with the unfairness that
would result if people like the respondent entered into plea
agreements with prosecutors without possibly being aware of the
future immigration consequences, namely the revocation of the
authority to waive deportation in respect of such crimes.
8 U.S.C. §1101(a)(43).
INS v. St. Cyr, 121 S. Ct. 2271, 2289 (2001).
In the Zadvydas and Ma cases, the aliens concerned were the subject
of removal orders and, pursuant to the post-removal-period detention
amendments to the US immigration legislation, were held beyond the
normal 90-day removal period for removable aliens because no other
country would accept them. Zadvydas and Ma brought habeas corpus
application in the US District Court challenging their detentions
under the US Constitution, and the matters were ultimately appealed
to the US Supreme Court. The Supreme Court, in its June 28, 2001
decision, held that the post-removal-period detention legislation,
when read in light of the US Constitution’s due process and other
demands, should be read to implicitly limit an alien’s detention
to a period reasonably necessary to bring about the alien’s
removal from the United States and not to permit indefinite
detention. The Court therefore found that post-review-period
detention cannot exceed a period reasonably necessary to secure
removal. For the sake of uniform administration in the federal
courts, the Court also held that 6 months is a “presumptively
reasonable period of detention.” After this period, once an alien
provides good reason to believe that there is no significant
likelihood of removal in the reasonably foreseeable future, the
government must furnish evidence sufficient to rebut that showing.
Zadvydas v. Davis, supra, at 2497.
See INS v. St. Cyr, supra, n. 1, citing Mahadeo v. Reno, 226 F.3d 3
(CA1 2000), Liang v. INS, 206 F.3d 308 (CA3 2000); Fasios v. Reno,
204 F.3d 544 (CA4 2000); Flores-Miramontes v. INS, 212 F.3d 1133
(CA9 2000). But see Max-George
205 F.3d 194 (CA5 2000); Morales-Ramirez
209 F.3d 977 (CA7 2000);
Richardson v. Reno,
180 F.3d 1311 (CA11 1999).
See e.g. Kim Ho Ma v. Reno, 208 F.3d
815 (CA9, 2000); Attorney General,
F. Hermanowski v. Farquharson, 39 F.Supp.2d 148 (D.R.I.,
1999); Vo. V. Greene, 68 F. Supp.2d 1278 (D. Colo., 1999);
Huynh v. Reno, 56 F.Supp.2d 1160 (W.D. Wash., 1999).
See e.g. Martinez-Villareal v. US, Case 11.753, Report No. 108/00,
Annual Report of the IACHR 2000, para. 70, citing Eur. Court H.R.,
De Wilde, Oomas and Versyp Cases, June 10, 1971, Publ. E.C.H.R. Ser.
A, Vol. 12, p. 34, paras. 37, 62 (finding that at the times
pertinent to the complaint, recourse to the appellate courts for the
matter raised by the applicants would be inadmissible according to
“settled legal opinion”); Eur. Court H.R., Van Oosterwijck v.
Belgium, Judgment (Preliminary Objections), November 6, 1980, Case Nº
7654/76, para. 32, 37 (finding the applicant’s case to be
inadmissible for failure to exhaust domestic remedies, due in part
to the absence of any decision on the issue from the Court of
Cassation in Belgium that “could be regarded as likely to render
obviously futile an appeal based upon the Convention or on arguments
to the same or like effect”).
See e.g. Gary Graham, now known as Shaka Sankofa, Case 11.193,
Report Nº 51/00, Annual Report of the IACHR 2000, para. 60
(referring to prevailing US Supreme Court jurisprudence in finding
that a challenge before US domestic courts to the execution of
individuals who were 16 years of age or older when they committed
their offenses would have no reasonable prospect of success). See
similarly UNHRC, Hervé Barzhig v. France, Communication Nº
327/1988, UN GAOR (Supp. 40), A/46/40 (11 April 1991), para. 5.1
Zadvydas v. Davis, supra, citing, inter alia, Fouche v. Louisiana,
504 U.S. 71 (1992); U.S. v. Salrno, 481 U.S. 739 (1987).
INS v. St. Cyr, 121 S. Ct. 2275, 2289 (2001).