Amicus Curiae Brief — INS v. National Center for Immigrants' Rights, Inc.

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TABLE OF CONTENTS

Page

BAe OP AUTTROIEEED occ cc ccc cccncccccccs iii

INTEREST OF AMICUS CURIAE ...........0200:: ]

SUMMARY OF ARGUMENT ................... 2

EE Sb 6bGSGUdED Dehn Sent becbsdecendas 3

I. CUSTOMARY INTERNATIONAL LAW IS PART OF

THE LAW OF THE UNITED STATES, AND

WHERE POSSIBLE, STATUTES MUST BE

CONSTRUED CONSISTENTLY WITH IT ....... 3

A. International Agreements Constitute and

Contribute to Customary International

PT TTT CTT eee eer TTC rTeTTTe 4

B. Where Possible, Statutes Must be

Construed Consistently With Customary

| 6

Il. THE RIGHT TO WORK IS A HUMAN RIGHTS

NORM OF CUSTOMARY INTERNATIONAL LAW 6

A. What the Right to Work Means in This

TTT Tre Cree TET CT TEEPE TTTTe 7

B. The Right to Work is Protected Through

the United Nations Charter and Embodied

in Numerous International Agreements ...... 8

C. The Right to Work in Not Merely an

Aspirational Principle, But a Human

Rights Norm Capable of Immediate

ReaBantios ...ccccccccccscscccesccsses 12

D. The Right to Work is Not Foreign to

American Law, But is Closely Related to

the Constitutional Principle of Liberty to

Choose an Occupation .......-...0000e- 13

Ill. THE IMMIGRATION STATUTES MUST BE

CONSTRUED TO PROHIBIT ALIEN BOND "NO-

WORK" CONDITIONS WHERE THOSE

CONDITIONS ARE INCONSISTENT WITH THE

RIGHT TO WORK ....... cece cccecees 14

CONCLIUIBION .ncccccccccccssccccsesessssees 17

TABLE OF Al “HORITIES

CASES

Amenican Federation of Labor v. American Sash &

Door Co., 335 U.S. 538 (1949) ...... cece

Board of Regents v. Roth, 408 U.S. 564 (1972) ....

Butcher's Union Co. v. Crescent City Co., 111 US.

a

Coriolan v. I.N.S., 559 F.2d 993 (Sth

EE EES IPT TT TT TTT

Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir.

Nn cweccncecce

Hampton v. Mow Sun Wong, 426 U.S. 88 (1976) ..

Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963)

Long Grove Country Club Estates v. Village of Long

Grove, 693 F. Supp. 640 (N.D. Ill. 1988) ......

MacLeod v. United States, 229 U.S. 416 (1913) ...

McCulloch v. Sociedad Nacional de Marineros de

Honduras, 372 U.S. 10 (1963) ..............

Meyer v. Nebraska, 262 U.S. 390 (1923) ........

Murray v. The Schooner Charming Betsy, 6 U.S. (2

DGGE hreccsccccccecsccces

Page(s)

Page(s)

Oyama v. California, 332 U.S. 633 (1948) ............ 4

Rodriguez-Fernandez v. Wilkinson,

654 F.2d 1382 (10th Cir. 1981) ................. 16

Talbot v. Seeman, 5 U.S. (1 Cranch) 1 (1801) ......... 6

Tel-Oren v. Libyan Arab Republic, 726 F.2d 774

(D.C. Cir. 1984), cert. denied, 470 U.S. 1003

SEY 900k bn 4k0-ucabe aeeelibsGdescucss 3, 6

- The Nereide, 13 U.S. (9 Cranch) 388 (1815) .......... 3

The Paquete Habana, 175 U.S. 677 (1900) ..... 3, 4, 5,9

Thompson v. Oklahoma, 487 U.S. 815 (1989) ........ 13

Truax v. Raich, 239 U.S. 33 (1915) ............. 8, 13

United States v. Smith, 18 U.S. (S Wheat.) 153 (1820) ... 4

Weinberger v. Rossi, 456 U.S. 25 (1982) ..........4.. 6

Yick Wo v. Hopkins, 118 U.S. 356 (1886) ........... 14

Zemel v. Rusk, 381 U.S. 1 (1965) ...........20000e 4

INTERNATIONAL AGREEMENTS

Additional Protocol to the American Convention on

Human Rights in the Area of Economic, Social and

Cultural Rights (Protocol of San Salvador),

opened for signature Nov. 17, 1988, O.A.S.T.S. No. 69,

reprinted in 28 I.L.M. 161 (1989) ............. 11

v

Page(s)

African [Banjul] Charter on Human and People’s

Rights, adopted June 27, 1981, entered into

force Oct. 21, 1986, O.A.U. Doc.

CAB/LEG/67/3/Rev. 5 (1981), reprinted in

BD Blas SCE cece scoveccceccccccces 11

American Declaration of the Rights and Duties of

Man, signed May 2, 1948, O.A.S. Off.

Rec. OEA/Ser.L/V/II. 23/Doc. 21/Rev. 6 (English

1979), reprinted in 43 Am. J. Int'l. L. Supp. 133

(| PPPPPPTTTTITITTTT LITT 2, 10

Convention on the Elimination of All Forms of

Discrimination Against Women,

adopted Dec. 18, 1979, entered into force

Sept. 3, 1981, G.A. Res. 34/180, 34 U.N.

GAOR Supp. (No. 46) at 193, U.N. Doc. A/34/36

(1980), reprinted in 19 1.L.M. 33 (1980) ....... 10

European Social Charter, opened for signature Oct. 18,

1961, entered into force Feb. 26, 1965,

529 U.N.T.S. 89, Europ. T.S. No. 35 ....... 2, 11

International Covenant on Economic, Social and

Cultural Rights, adopted Dec. 16, 1966, entered

into force Jan. 3, 1976, 993 U.N.T.S.3 ...... 9, 12

International Convention on the ion of All

Forms of Racial Di

adopted Dec. 21, 1965, force Jan. 4,

OGD, GOD UNG. TOPO teas ot cd ccc ccccse i)

Page(s)

Protocol of Amendment to the Charter of the O.AS.

(Protocol of Buenos Aires), opened for signature

Feb. 27, 1967, entered into force Feb. 27, 1970,

21 U.S.T. 607, T.LAS. No. 6847, O.AS.T.S.

err Sr ore Peet Tee 10

Se TE. ccccnececececoucceses 7, 8,9

Universal Declaration of Human Rights,

adopted Dec. 10, 1948, G.A. Res. 217A(III), 3 U.N.

GAOR (Resolutions Part 1) at 71, U.N. Doc. A/810

(1948), reprinied in 43 Am. J. Int'l. L. Supp. 127

TE. n60rend dtetennieceesé cece 2, 4, 7, 8,9

Vienna Convention on the Law of Treaties,

concluded May 23, 1969, entered into force Jan. 27,

§ J iks | PRPYPTTITITT TTT Te 10

STATUTES

Immigration and Nationality Act, 8 U.S.C.§ 1252 ..... 2

Immigration Reform and Control Act ...........55.: 2

OTHER AUTHORITIES

Henkin, The Constitution and United States Sovereignty:

A Century of Chinese Exclusion and its Progeny,

100 HARV. L. REV. 853 (1987) .............- 3

RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW

OF THE UNITED STATES ............ 3, 5, 6, 8

Schliter, The Domestic Status of the Human Rights

Clauses of the United Nations Charter, 61

CALIF. L. REV. 110 (1973) .........00ueeeeee

Wright, National Courts and Human Rights -- The

Fujii Case, 45 AM. J. INT'L. L. 62 (1951)

IN THE

Supreme Court of the United States

OCTOBER TERM, 1990

No. 90-1090

IMMIGRATION AND NATURALIZATION SERVICE, ef ail.,

Petitioners,

Vv.

NATIONAL CENTER FOR IMMIGRANTS’ RIGHTS, et al.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

BRIEF OF THE INTERNATIONAL HUMAN

RIGHTS LAW GROUP AS AMICUS CURIAE

IN SUPPORT OF RESPONDENTS

INTEREST OF AMICUS CURIAE

The International Human Rights Law Group ("IHRLG") is

a non-profit organization that seeks to promote the observance

of international human rights. Founded in 1978, and incor-

porated in the District of Columbia, the IHRLG provides legal

assistance and information in the field of international human

rights law and has consultative status with the Economic and

Social Council of the United Nations. In lawsuits raising

questions of international human rights, the IHRLG provides

legal assistance largely through attorneys working on a pro bono

basis.

2

In this brief, the IHRLG addresses the issue of whether the

right to be free of governmental prohibition against employment

— a right violated by the “no-work" condition imposed by the

INS regulations at issue — is a principle of customary inter-

nationa! law incorporated into the federal law of the United

States.

SUMMARY OF ARGUMENT

The right to work is a recognized norm of customary

international law. It is embodied in the Universal Declaration of

Human Rights, the American Declaration of the Rights and

Duties of Man, the European Social Chanter, and several other

international agreements, conventions, and declarations. Over

150 nations have become parties to instruments that recognize

the right to work.

Customary international law is part of the law of the United

States. The Court is obligated to adjudicate questions of

international law when they are duly presented to it.

The INS relies upon the Immigration and Nationality Act

(INA) and the Immigration Reform and Control Act (IRCA)

for the authority underlying its regulation imposing "no-work"

conditions on alien appearance and delivery bonds. The INA

and the IRCA, however, do not explicitly authorize :0-work

conditions. In keeping with traditional tenets of statutory

construction, the Court must make every effort to interpret the

INA and the IRCA so as not to conflict with norms of inter-

national law. The INS no-work condition violates the inter-

nationally recognized right to work by preventing detained

aliens from seeking employment after they have been released

on bond, leaving them in the dilemma of living without a job or

returning to detention.

Therefore, to construe the statutes consistently with inter-

national law, the Court must affirm the court of appeals’

3

decision that the statutes do not authorize the Attorney General

to impose no-work conditions on alien appearance and delivery

bonds.

ARGUMENT

I. CUSTOMARY INTERNATIONAL LAW IS PART OF THE

LAW OF THE UNITED STATES, AND, WHERE POS-

SIBLE, STATUTES MUST BE CONSTRUED CONSIS-

TENTLY WITH IT.

International law is part of the law of the United States.

The Paquete Habana, 175 U.S. 677, 700 (1900).' It has the

Status of federal common law.’ Customary international law, or

the "law of nations," was historically part of the law of England

and thus part of the law of the American colonies.’ Today,

with United States independence, "[c]ustomary international law,

like other federal law, is part of the ‘law... of the United

States.”

' "International law is part of our law, and must be ascertained and

administered by the courts of justice of appropriate jurisdiction, as often as

questions of right depending upon it are duly presented for their deter-

mination.” Jd. at 700. See also The Nereide, 13 U.S. (9 Cranch) 388, 423

(1815) (“the Court is bound by the law of nations which is a part of the law

of the land”).

* Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 810-11 (D.C. Cir. 1984)

(Bork, J., concurring), cert. denied, 470 U.S. 1003 (1985). But see Henkin,

The Constitution and United States Sovereignty: A Century of Chinese

Exclusion and its Progeny, 100 HARV. L. REV. 853, 870-78 (1987) (arguing

that customary international law is superior to federal common law in that

it is not superseded by subsequent legislation).

* RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE

na STATES (hereinafter "RESTATEMENT*), Chapter Two Introductory

ote, p. 40.

* RESTATEMENT § 111 and Comment e.

4

The Court has used principles of conventional and cus-

tomary international law to inform American legal standards in

a variety of situations. In striking down California’s Alien Land

Law, as applied, on constitutional grounds in Oyama v. Califor-

nia, 332 U.S. 633 (1948), four Justices joined opinions which

cited the statute’s inconsistency with the United Nations Charter

as among the reasons for its invalidation. Justice Murphy noted

that the law’s "inconsistency with [Article 55 of] the Charter,

which has been duly ratified and adopted by the United States,

is but one more reason why the statute must be condemned.”

Similarly, the Court has used the Universal Declaration of

Human Rights to give content to the due process clause, Zemel

v. Rusk, 381 U.S. 1, 14 n.13 (1965) (upholding restrictions on

travel to Cuba); to demonstrate the "drastic consequences of

statelessness," Kennedy v. Mendoza-Martinez, 372 U.S. 144, 161

n.16 (1963) (holding unconstitutional statutes stripping citizen-

ship of Americans remaining outside the country during time of

war); and to support the upholding of a state "right-to-work"

amendment, American Federation of Labor v. American Sash &

Door Co., 335 U.S. 538, 549 n.5 (1949) (Frankfurter, J., concur-

ring) (citing principle that "[nJo one may be compelled to

belong to an association").

A. International Agreements Constitute And Contribute

to Customary International Law.

Customary international law is ascertained from the "general

usage and practice of nations.” United States v. Smith, 18 U.S.

(5 Wheat.) 153, 160 (1820). One source of that usage and

practice is nations’ own stated commitments, as embodied in

international accords. International agreements constitute the

* Id. at 673 (Murphy, J. concurring). The statute forbade aliens ineligible

for citizenship from acquiring, owning, occupying, leasing or transferring

agricultural land.

* See also The Paquete Habana, 175 U.S. at 700 (international law found

in “the customs and usages of civilized nations”).

5

"practice of states" and contribute to customary international

law.’ For example, a multilateral agreement may become part

of customary international jaw where it "is designed for ad-

herence by states generally, is widely accepted, and is not

rejected by a significant number of important states."*

As ‘shown in Section II of this brief, the right to work is

embodied in at least nine international accords. Each of these

instruments was designed for adherence by states generally (or

for states generally within a specific geographic region); each

has been widely accepted; and, of the many reservations and

exceptions registered by parties to these agreements, none has

dealt with the right to work.

It is the role of courts to “ascertain{] and administer[]}"

international law "as often as questions of right depending upon

it are duly presented for their determination." The Paquete

Habana, 175 U.S. at 700. Therefore, it lies within the Court's

duty to determine those relevant principles that have achieved

sufficient consensus among nations to be part of. customary

international law. The Paquete Habana illustrates the process.

Searching legal history and the writings of jurists and commen-

tators, the Court determined that a principle of common usage

and practice among nations — the neutrality of coastal fishing

vessels during war — had achieved the status of international

law. More recently, the Second Circuit conducted a similar

review in determining that the international consensus against

the practice of torture has developed to the point that freedom

from torture is now a right, the violation of which may be

” RESTATEMENT § 102, Comment i.

* Id.

6

remedied under the Alien Tort Statute. Filartiga v. Pena-Irala,

630 F.2d 876 (2d Cir. 1980).’

B. Where Possible, Statutes Must be Construed Consis-

tently With Customary International Law.

It is a basic principle of statutory construction that "an act

of congress ought never to be construed to violate the law of

nations, if any other possible construction remains." Murray v.

The Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804)

(Marshall, C.J.).° Recently the Court has reaffirmed the

continuing validity of the rule in The Charming Betsy as a strong

presumption against construing statutes in a way that would

violate principles of international law. Weinberger v. Rossi, 456

U.S. 25 (1982) (stating it would require an "affirmative expres-

sion of congressional intent to abrogate the United States’

international obligations”).

ll. THE RIGHT TO WORK IS A HUMAN RIGHTS NORM

OF CUSTOMARY INTERNATIONAL LAW.

The right to work is recognized as a basic human right in

international law. It is embodied in numerous international

agreements and declarations, representing a consensus among

* The court in Filartiga found that the international prohibition against

torture sustained a cause of action under the Alien Tort Statute for a

foreign national living in the United States against an alleged tortfeasor. See

also Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 777 (D.C. Cir. 1984)

(Edwards, J., concurring) (norms of international law develop over time),

cert. denied, 470 U.S. 1003 (1985).

See also Talbot v. Seeman, 5 U.S. (1 Cranch) 1, 43 (1801) (“the laws

of the United Siates ought not, if it be avoidable, so to be construed as to

infract the common principles and usages of nations . . ..”); accord, MacLeod

v. United States, 229 U.S. 416, 434 (1913). This rule of construction is

embodied in RESTATEMENT § 114: “Where fairly possible, a United States

Statute is to be construed so as not to conflict with international law or with

an international agreement of the United States."

7

the world’s nations. The internationally recognized "right to

work" necessarily includes, at a minimum, the right of freedom

to work — that is, the right to be free to seek and accept

employment.

A. What the Right to Work Means in This Case

The right to work at issue in this case is not the right to a

job, but rather the right to be free to seek and accept a job. It

includes the right not to be prohibited by the government from

obtaining employment. The INS regulation would violate that

right by prohibiting aliens released on bond from working,

absent special authorization. Article 23(1) of the Universal

Declaration of Human Rights states: "Everyone has the right to

work, to free choice of employment .. .."" The United States,

which took a leading role in the promulgation of the human

rights provisions under the United Nations Charter, explained

its understanding of the right to work in a 1948 address to the

United Nations Commission on Human Rights:

In the opinion of the United States delegation, the right to

work, in this Declaration, meant the right of the individual

to benefit from conditions under which those who were able

and willing to work should have the possibility of doing

useful work . . .. The realization of those objectives meant

more to individuals in the United States than any guarantee

of full employment.”

" Adopted Dec. 10, 1948, G.A Res. 217A(II]), 3 U.N. GAOR

(Resolutions Part 1) at 71, U.N. Doc. A/810 (1948), reprinted in 43 Am. J.

INT'L. L. Supp. 127 (1949). Forty-eight nations Signed the Declaration.

? Remarks of Mrs. Eleanor Roosevelt, addressing the United Nations

Commission on Human Rights, Commission on Human Rights, 3rd Session,

U.N. Doc. E/CN.4/SR 64, p. 6.

8

The freedom to work represents a basic economic right. For

the individual, it serves as the foundation for the exercise of

other political and civil liberties in a modern society.”

B. The Right to Work is Protected Through the United

Nations Charter and Embodied in Numerous Inter-

national Agreements.

Articles 55 and 56 of the Charter of the United Nations, to

which the United States is a party, state that "Members pledge

themselves to take joint and separate action... for the

achievement of the purposes set forth in Article 55," and that

among these are "universal respect for, and observance of,

human rights and fundamental freedoms."“ The Universal

Declaration of Human Rights, which the United States and 47

other nations joined in proclaiming in 1948, gives definition to

Articles 55 and 56 of the Charter by identifying more precisely

what the members of the United Nations consider those "human

rights and fundamental freedoms" to be.” The Universal

® The right of freedom to work is a right “of the very essence... of —

personal freedom and opportunity.” Truar v. Raich, 239 U.S. 33, 41 (1915).

Justice Bradley referred to an analogous right as the “liberty of pursuit -- the

right to follow any of the ordinary callings of life,” a right he deemed

“inalienable.” Butcher's Union Co. v. Crescent City Co., 111 U.S. 746, 762,

764 (1884) (Bradley, J., concurring).

“ Although the commitment embodied in Article 55 of the Charter is

phrased in the nature of a pledge, it has been pointed out that “the

obligatory nature of the human rights clauses is today outside the realm of

serious controversy.” Schidter, The Domestic Status of the Human Rights

Clauses of the United Nations Charter, 61 CALIF. L. REV. 110, 126 (1973).

* The Universal Declaration is now considered by many as holding the

authority of customary international law. "U.N. declarations are significant

because they specify with great precision the obligations of member nations

under the Charter.” Filartiga v. Pena-Irala, 630 F.2d 876, 883 (2d Cir. 1980).

See also RESTATEMENT § 103, Comment e (stating that a declaration of an

international organization provides evidence of what states voting for it

regard the law to be; such resolutions "if not contradicted and if adopted by

9

Declaration identifies the "right to work, to free choice of

employment" as among those rights and freeJonss.

The mandates of Articles 55 and 56 of the Charter were

further clarified in 1966 with the adoption of the Jnternational

Covenant on Economic, Social and Cultural Rights." Article Six

of the Covenant states that the parties "recognize the right to

work, which includes the right of everyone to the opportunity to

gain his living by work which he freely chooses or accepts," and

that the parties "will take the appropriate steps to safeguard this

right." As a member of the United Nations and a signatory to

the Covenant, the United States should take the appropriate

steps to safeguard the right to work. The Court, as a co-equal

branch of government, has as great an obligation to "take the

a steps" as does either the executive or the legislative

ranch.”

Further evidence of the international consensus on the right

to work as a fundamental norm of international law is found in

Several other agreements and declarations that have been

entered into since the signing of the United Nations Charter.

The /nternational Convention on the Elimination of All Forms of

Racial Discrimination, Article 5(e)(i), states that “[{p]arties

undertake to guarantee the right of everyone . . . to equality of

consensus Or virtual unanimity, are given substantial weight” as evidence of

international law). The Universal Declaranon of Human Rights was adopted

by a 48-0 vote in the General Assembly, with eight members abstaining.

* Adopted Dec. 16, 1966, entered into force Jan. 3, 1976, 993 U.N.T-S. 3.

93 nations have adopted the Covenant. The United States is a Signatory,

but has not yet ratified the Covenant.

" See The Paquete Habana, 175 U.S. 677, 700 (1900) (stating that courts

must ascertain and administer international law). See also SchiQter, supra

note 14, at 134: “Nothing in the nature of the international human rights

obligations requires their execution exclusively by political organs .... On

the contrary, the effective protection of human rights may be regarded as

one of the traditional prerogatives of the national judiciary.”

10

law in the enjoyment of . . . the right to work, to free choice of

employment." Likewise, the Convention on the Elimination of

All Forms of Discrimination Against Women, Article 11(a),

provides that "States Parties shall take all appropriate measures

to eliminate discrimination against women in the field of

employment in order to ensure, on the basis of equality of men

and women .. . the right to work as an inalienable right of all

human beings."” The United States has signed, although not

ratified, these two conventions.”

Regional international pacts also evince the universal

recognition of the right to work. The American Declaration of

the Rights and Duties of Man, Article 14, declares that “[e}very

person has the right to work."” Similarly, the Protocol of

Amendment to the Charter of the O.A.S. (Protocol of Buenos

Aires), to which the United States is a party, states in Article 43

* Adopted Dec. 21, 1965, entered into force Jan. 4, 1969, 660 U.N.T.S.

195. To date, 129 nations have become parties.

Adopted Dec. 18, 1979, entered into force Sept. 3, 1981, G.A. Res.

34/180, 34 U.N. GAOR Supp. (No. 46) at 193, U.N. Doc. A/34/36 (1980),

reprinted in 19 1.L.M. 33 (1980). To date, 95 nations have become parties.

* Under the terms of the widely-accepted Vienna Convention on the

Law of Treaties (to which, however, the United States is not a signatory),

these facts alone would oblige the United States to recognize the right to

work pending its possible ratification of the Conventions. The Vienna

Convention provides that, after a state signs a treaty, but before it ratifies

the treaty (or makes Clear its intention not to do so), the "State is objiged

to refrain from acts which would defeat the object and purpose of [the]

treaty.” Article 18, Vienna Convention on the Law of Treaties, concluded

May 23, 1969, entered into force Jan. 27, 1980, 1155 U.N.T.S. 331.

*' Signed May 2, 1948, O.AS. Off. Rec. OEA/Ser.L/V/II. 23/Doc. 21/Rev.

6 (English 1979), reprinted in 43 Am. J. INTL L. Supp. 133 (1949). 21

nations, including the United States, joined in adopting the Declaranon.

1]

that "[wjork is a right and a social duty." The Additional

Protocol to the American Convention on Human Rights in the

Area of Economic, Social and Cultural Rights (Protocol of San

Salvador), Article 6(1), declares that "[e]veryone has the right to

work, which includes the Opportunity to secure the means for

living a dignified and decent existence by performing a freely

elected or accepted lawful activity."” Likewise, the European

Social Charter, Part Il, Article 1(2), states: "With a view to

ensuring the effective exercise of the right to work, the Contrac-

ting Parties undertake . . . to protect effectively the right of the

worker to earn his living in an occupation \freely entered

upon.’ Similar expression of the right is found in the African

[Banjul] Charter on Human and People’s Rights, Article 15,

which states: "Every individual shall have the right to work

under equitable and satisfactory conditions . . ."”

Through these instruments, protecting the right to work has

become the stated commitment of more than 150 nations. Such

protection is now part of the "general usage and practice of

nations,” from which customary international law is ascertained.

As an element of customary international law, it has become

part of the law of the United States. Recognition of the right

to work in this case requires the Court to interpret the statutes

at issue consistently with the international consensus recognizing

” Opened for signature Feb. 27, 1967, entered into force Feb. 27, 1970, 21

U.S.T. 607, T.LA.S. No. 6847, O.A.S.T.S. No. 1-A. To date, 31 nations have

become parties.

® Opened for signature Nov. 17, 1988, O.AS.T.S. No. 69, reprinted in 28

LL.M. 161 (1989). To date, 14 nations have become parties.

* Opened for signature Oct. 18, 1961, entered into force Feb. 26, 1965, 529

U.N.T.S. 89, Europ. T.S. No. 35. To date, 16 nations have become parties.

® Adopted June 27, 1981, entered into force Oct. 21, 1986, O.A.U. Doc.

CAB/LEG/67/3/Rev. 5, (1981) reprinted in 21 LL.M. $8 (1982). To date, 38,

nations have becor:: partes

12

the right to work and thereby to uphold the court of appeals’

decision.

Cc, The Right of Freedom to Work is Not Merely an

Aspirational Principle, But a Human Rights Norm

Capable of Lmmediate Realization.

Not all rights enumerated in international instruments are

intended to create immediately enforceable norms of inter-

national law. Some declared "rights" are aspirational in tone:

nations pledge to honor these rights to the best of their abilities,

or to foster conditions that will make the exercise of the rights

a practical reality. Examples of these rights are the right to an

adequate standard of living and the right to social security.”

Gradual implementation of these rights is the crux of the

international obligation undertaken by states party to the

relevant instruments. Accordingly, these rights may fall short of

being considered binding norms of customary international law.

By contrast, the right of freedom to work does not represent

a mere aspiration on the part of the world’s nations; it can be

achieved immediately. Protecting the right to work in this case

* See, for example, International Covenant on Economic, Social and

Cultural Rights, supra note 8, Article 9 (right to social security), Article 11

(right to adequate standard of living).

” See Wright, National Courts and Human Rights -- The Fujii Case, 45

Am. J. INT'L. L. 62, 72 (1951) (Article 56 of the United Nations Charter

requires at a minimum that signatories abstain from action that would

13

D. The Right to Work is Not Foreign to American Law,

But is Closely Related to the Constitutional Principle

of Liberty to Choose an Occupation.

Although the right to work may be found in international

accords, the concept of the right freely to choose and accept

employment is also embedded in the constitutional fabric of

American law, as a liberty interest protected by the Fifth and

Fourteenth Amendments. The Court declared early this

century that "the right to work for a living in the common

occupations of the community is of the very essence of the

personal freedom and opportunity that it was the purpose of the

[Fourteenth] Amendment to secure." Truax v. Raich, 239 US.

33, 41 (1915) (striking down Arizona statute requiring all

enterprises with more than five employees to hire 80 percent

non-aliens).” Similarly, in overturning a schoolteacher’s

conviction for teaching the German language in violation of

state law, the Court declared that "[w]ithout doubt, [the

Fourteenth Amendment] denotes... the right of the in-

dividual . . . to engage in any of the common occupations of

life." Meyer v. Nebraska, 262 U.S. 390, 399 (1923).” Even

earlier, the Court recognized the deprivation of liberty that

violate human rights and fundamental freedoms.)

* Consequently, recognition of that right does not impose "the views of

other nations” on Americans. See Thompson v. Oklahoma, 487 U.S. 815, 868

n.4 (1989) (Scalia, J., dissenting).

® Indeed, by barring aliens from working at all, the INS no-work

condition is even more restrictive of an alien's right to seek employment

than the Arizona statute declared unconstitutional in Truax v. Raich.

” See also Board of Regents v. Roth, 408 U.S. 564, 572 (1972) (quoting

Meyer v. Nebraska), Hampton v. Mow Sun Wong, 426 U.S. 88, 102 (1976)

(stating that civil service regulation which resulted in “ineligibility for

employment in a major sector of the economy” for noncitizens was “of

sufficient significance to be characterized as a deprivation of an interest in

liberty”).

14

occurs when a person is barred from access to his livelihood.

Yick Wo v. Hopkins, 118 U.S. 356 (1886) (overturning conviction

under discriminatory scheme for regulating laundries).

So, while United States law has never recognized a general

constitutional right to a particular job,” it has strongly sup-

ported the idea that denial of the right to work at all, or

restriction of that right to so narrow a sphere that it has no

practical meaning, is a serious infringement of an important

fundamental freedom. Thus, the United States has

demonstrated in its own constitutional law a "practice" of

protecting the right to work that contributes to the universal

practice supporting protection of that right in international law.

Viewed in this context, freedom to work, as embodied in

customary international law, is familiar to, and entirely com-

patible with, United States law. The nations of the world,

through multilateral international agreements, have recognized

and codified this freedom and established it as a standard of

international law.

III. THE IMMIGRATION STATUTES MUST BE

CONSTRUED TO PROHIBIT ALIEN BOND "NO-

WORK" CONDITIONS WHERE THOSE CON.

DITIONS ARE INCONSISTENT WITH THE

RIGHT TO WORK.

The INS “no-work" condition on alien appearance and

delivery bonds would deny the right to work to persons who are

awaiting adjudication of their residence status by barring them

frc n any form of employment. After release on bond, the alien

awaiting deportation hearings would face the stark dilemma of

trying to live during the interim without an income, or returning

to detention. The coercive nature of this choice perverts the

” Long Grove Country Club Estates v. Village of Long Grove, 693 F.

Supp. 640, 662 (N.D. Ill. 1988).

{

15

very purpose of a bond — which is premised on the idea that the

person released is legally entitled to remain in the country until

adjudicated otherwise — by tying the bond to the denial of a

basic freedom.

Neither the Immigration and Nationality Act nor the

Immigration Reform and Control Act conflicts on its face with

the right to work. The conflict arises only with the interpretation

given the Acts by the INS. The INS relies on these two statutes

to support its authority to impose "no-work" conditions on alien

bonds. Petitioner’s Brief at 13, 19. However, neither statute

offers such support. Of the two statutes, only the Immigration

and Nationality Act discusses the Attorney General's discretion

in issuing alien bonds. The Act does not affirmatively express

a Congressional intent to authorize the Attorney General to

deny a person’s right to seek employment. The relevant section

States only that a bond may contain "such conditions as the

Attorney General may prescribe.” 8 U.S.C. § 1252(a)(1). The

language of the Act certainly does not evince a clear statement

that Congress intended the Attorney General's authority to

supersede existing standards of international law. In the

absence of such manifest intent, therefore, the Court must

conclude that Congress intended the exercise of the Attorney

General's authority to be consistent with international law,

including the internationally recognized right to work. Accor-

dingly, under the principle established in The Charming Betsy,

the Court must construe the Act as not authorizing the Attorney

General to include "no-work" conditions in alien appearance

and delivery bords.

Nor can it be maintained that the INS "no-work" regulation

itself represents a controlling executive act that supersedes the

right to work as a statement of United States law. In a similar

situation, the Court has invoked the rule of The Charming Betsy

to overrule an executive decision by the National Labor

Relations Board where that decision was inconsistent with

international law. McCulloch v. Sociedad Nacional de Marineros

16

de Honduras, 372 U.S. 10 (1963) (overruling NLRB decision

that it could regulate foreign flag ships). Likewise, in Rodriguez-

Fernandez v. Wilkinson, 654 F.2d 1382 (10th Cir. 1981), the

court referred to international law principles in holding that,

despite the Attorney General’s broad discretion in the area of

immigration, the INS could not hold a refugee in indefinite

detention. The court noted that "[i]t seems proper then to

consider international law principles for notions of fairness as to

[the] propriety of holding aliens in detention." Jd. at 1388.

Again, in Coriolan v. I.N.S., 559 F.2d 993 (Sth Cir. 1977), the

court ordered reconsideration of an INS deportation order,

noting that "[t]he sweep of [the Attorney General’s] discretion,

however, must now be measured in light of the United Nations

Protocol Relating to the Status of Refugees." Jd. at 996.

Similarly, in this case, the sweep of the Attorney General’s

discretion in issuing conditions on alien appearance and delivery

bonds must be measured in light of the international

agreements embodying the right to work. In that light, the no-

work condition cannot stand.

17

CONCLUSION

For the foregoing reasons, the International Human Rights

Law Group respectfully urges the Court to affirm the decision

of the court of appeals.

Respectfully submitted,

STEVEN M. SCHNEEBAUM NICHOLAS W. FELS*

PATTON, BOGGS & BLOW MICHAEL J. CICERO

2550 M Street, N.W.

Washington, D.C. 20037 COVINGTON & BURLING

1201 Pennsylvania Ave., N.W.

JANELLE DILLER P.O. Box 7566

INTERNATIONAL HUMAN Washington, D.C. 20044

RIGHTS LAW GROUP (202) 662-6000

1601 Connecticut Ave., N.W.

Washington, D.C. 20009 * Counsel of Record

July 12, 1991 Counsel for Amicus Curiae