Academic journal article Houston Journal of International Law

The International Custody Battle: Conflict of Law between the Hague Abduction Convention and U.S. Asylum Law

Academic journal article Houston Journal of International Law

The International Custody Battle: Conflict of Law between the Hague Abduction Convention and U.S. Asylum Law

Article excerpt

  I. INTRODUCTION  II. INCORPORATION OF FOREIGN RELATIONS LAW      A. The Domestic Side: Constitutional Framework. 436      B. The International Side: Implementing Legislation         of the Hague Abduction Convention      C. General Conflict of Laws III. INTERNATIONAL PROTECTION OF CHILDREN      A. The Purpose of the Hague Abduction Convention         on the Civil Aspects of International Child         Abduction      B. The Purpose of U.S. Asylum Law  IV. THE CONFLICT OF INTERNATIONAL AND DOMESTIC         LAW      A. Fifth Circuit Approach to the "Conflict of Law" 450      B. Foreign Examples of the Resolution of "Conflict of         Law"      C. Shifting the U.S. Approach in the International         "Custody Battle"   V. Conclusion 

I. INTRODUCTION

In 1809, Chief Justice Marshall extended judicial enforcement of international treaties in the United States when he declared:

   Each treaty stipulates something respecting the citizens    of the two nations, and gives them rights. Whenever a    right grows out of, or is protected by, a treaty, it is    sanctioned against all the laws and judicial decisions of    the states; and whoever may have this right, it is to be    protected. (1) 

Over time, the Supreme Court has continued to evaluate the degree of enforcement of international agreements in domestic courts. (2) Justice Breyer has noted the increasingly international scope of the Supreme Court since he first joined the court in 1994. (3) Today, foreign laws and international agreements influence the daily lives of individual citizens of the United States, and Justice Breyer estimates that one-fifth of the current Supreme Court docket involves foreign law. (4) Therefore, it is inevitable that conflicts of law between international agreements and domestic law will arise, especially when federal district courts exercise their own discretion. (5) Courts accord additional weight to matters involving the well-being of children and the responsibility and burden of seeking the best interest of the child. (6)

In the case of international child abduction, close to 100 countries are signatories to the Hague Convention on the Civil Aspects of International Child Abduction (Hague Abduction Convention). (7) The United States is a signatory to the Hague Abduction Convention, which has been codified through the International Child Abduction Remedies Act (ICARA). (8) Concurrently, the United States has its own laws and policies regarding asylum law. Refugees may apply for asylum in the United States when they are seeking protection because of the persecution or fear of persecution they have suffered in their home country. (9) In addition to codifying the Hague Abduction Convention, Congress has also delegated authority to U.S. Citizenship and Immigration Services (USCIS) to review a refugee's claim for asylum. (10)

In certain cases, a conflict of law may arise between the Hague Abduction Convention and U.S. asylum law when a parent may have one goal (to bring her child back to her home country) while the child may want to pursue another goal (to remain in the United States as a refugee). Although the topic has been broached in the Fifth Circuit, United States courts have not yet resolved this conflict of law.

A recent Fifth Circuit case touched on the subject of children seeking asylum in the United States while their mother sought their return through a Hague petition. (11) While the District Court for the Western District of Texas suggested that the children's asylum proceedings would be relevant, it did not indicate the extent of that relevance when it decided that the children should be returned to Mexico under the Hague Abduction Convention. (12) The Fifth Circuit overruled the District Court and found the court should have taken the children's pending application for asylum into account. (13) However, the Fifth Circuit failed to confront the larger issue of the conflict of law: whether the court should uphold U. …

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