Human Rights Reporting
Spring 2002 Student Work
© 2002 by Kelli Edwards
For his child’s sake, court gives immigrant facing deportation a chance to stay in America
By Kelli Edwards
On an unseasonably warm Sunday afternoon, Sandra Beharry wears a simple outfit adorned with a gold cross as she sits in her small Scarsdale apartment at a large dining room table. She talks to her husband and granddaughter, but her mind seems to wander as she looks around at the empty chairs -- perhaps she’s thinking of the one chair, which will remain vacant tonight. She sips green tea as she casually glances at the words on her mug, which make a simple, yet somehow daunting statement: I love mom.
Beharry brought her only son to America 20 years ago, when he was six years old. Now Don Beharry, a legal-permanent resident, is being held at Brooks County Prison, an immigration facility in Pennsylvania. Beharry is being detained while the courts decide if he should be deported to Trinidad – he would be leaving his seven-year-old daughter, an American citizen, behind.
According to the Immigration and Naturalization Service (INS), it’s standard practice for convicted felons to be deported. In 1996, Beharry was convicted of robbery in the second degree for stealing $714 from a coffee shop in the affluent town of Scarsdale, N.Y. He has been held in detention since he completed his three-year sentence in 1999, spending as much time in INS detention as he did in prison for his crime.
Recently, a federal judge in Brooklyn ordered the INS to conduct a hearing to determine whether Behary may remain in the United States. Judge Jack B. Weinstein ruled that American officials could only deport an immigrant after they’ve considered how a deportation would affect a child left behind in this country. In his landmark decision, Weinstein cited the international Convention on the Rights of the Child (CRC), which has not been ratified by the United States, but is upheld by American courts.
But, the INS is planning an appeal, says Karen Kraushaar, a detention and deportation spokesman for the agency in Washington.
Weinstein’s ruling has sparked fierce debate among immigration experts. “I think this will be overturned,” says Steven Camarota, director of research for the Center for Immigration Studies, a group that advocates for stricter immigration and deportation policies. “We’re going to deport convicted felons and that cannot be debated. To allow felons to stay in the country is akin to saying we’re not going to incarcerate a felon because they have a child at home.”
Although Weinstein was unavailable for comment, Kaimi Wenger,
a clerk who works with him, says he wasn’t surprised by
the Judge’s ruling. “Weinstein is an outspoken supporter
of human rights and is known for issuing creative decisions and
going out of his way to defend the rights of people whose rights
haven’t been protected,” says Wenger.
In his decision, Judge Weinstein emphasized the importance of
the Convention on the Rights of the Child, noting that it has
been "adopted by every organized government in the world
except the United States." Weinstein points out that even
though the U.S. has not adopted the CRC, that does not diminish
the fact that "some CRC provisions have attained the status
of customary international law." Among these is the provision
that "in all actions concerning children, the best interests
of the child shall be a primary consideration." Weinstein
also said that it is critical the U.S. obeys international legal
principles while it is enforcing other principles of international
law, like those that bar terrorism. "This nation's credibility
would be weakened by non-compliance with treaty obligations or
with international norms. The United States seeks to impose international
law norms--including, notably, those on terrorism--upon other
nations. It would seem strange, then, if the government would
seek to avoid enforcement of such norms within its own borders."
Critics say the ruling would completely undermine immigration enforcement and set a dysfunctional precedent into motion.
But Sandra Beharry believes the courts should take into account how her son’s situation is going to affect his daughter’s life. Beharry was the last of his family to leave Trinidad, so he will have no support system in the foreign land that INS calls his home. Ashley’s mother has abandoned her, so the young girl would remain in the United States with her grandmother. “The deportation has not only disrupted my son’s life because he did the crime and he did his time and now he’s being deported for life,” says Sandra Beharry. “Don is facing deportation, I have custody of his child – everybody’s life is being disrupted.”
Jennifer M. Green is a lawyer at the Center for Constitutional Rights. Her office filed a "friend of the court" brief in support of Beharry. Green says that she plans to keep fighting until the courts realize the how powerful the effects of a deportation can be on a child.
Although Beharry has a reprieve from Weinstein, his mother is not optimistic about the final outcome. “My gut is telling me that INS will deport him because if Don wins this case, it will open a door,” says Beharry’s mother. “If he wins this case, a lot of other [immigrants] in his situation would not be deported and INS is not trying for that to happen. They are trying to eliminate as much immigrants; especially one they think is not fit for this country. I also know it’s a racism issue because if Europeans get in the same trouble as my son, somehow they don’t get the same jail sentence.”
But according to court documents, Beharry who had never been incarcerated before, had unrelated prior criminal violations, including two convictions for petty larceny, a conviction for criminal mischief, and a conviction for second-degree riot.
Don Beharry, who considers himself to be American, says he was shocked the day that INS put him in detention. “I didn’t even know what they were talking about,” says Don Beharry. Whenever I thought about illegal immigrants, I thought of people running over the Mexican border.” Beharry added that he couldn’t stay in detention much longer and would rather leave the country without his daughter.
For what it’s worth, Ashley Beharry wants her father to come and stay with her in America. “It would mean I would be happy because every time I wake up, he would be there,” says Ashley Beharry. “I want my dad to come and stay with me forever. I love him more than anything and nobody can ever take that from me.”