United States District Court, S.D. Georgia, Brunswick Division
GODBEY WOOD, CHIEF JUDGE.
the International Covenant on Civil and Political Rights
("ICCPR") nor customary international law lets
Plaintiffs Colette Lee-Lewis and her husband, Selvin Charles
Lewis, challenge the denial of Lee-Lewis's J-l visa
waiver application. Thus, these claims will be DISMISSED.
case's background can be found in the Court's
previous order, Lee-Lewis v. Kerry, No. 2:13-CV-80,
2016 WL 6647937 (S.D. Ga. Nov. 8/ 2016}. The Court allowed
Defendants to respond to Plaintiffs' claims under the
ICCPR and customary international law. Id. at *4
n.3. The parties have now briefed these claims. Dkt. Nos.
complaint must be "a short and plain statement of the
claim showing that the pleader is entitled to relief."
Fed.R.Civ.P. 8(a)(2). It must "'contain inferential
allegations from which [the court] can identify each of the
material elements necessary to sustain a recovery under some
viable legal theory." Roe v. Aware Woman Ctr. for
Choice, Inc., 253 F.3d 678, 684 (11th Cir. 2001). These
"must be enough to raise a right to relief above the
speculative level." Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007); see also Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
ICCPR and customary international law claims must be
dismissed, as neither is based on a valid cause of action.
Plaintiffs claim Defendants violated ICCPR Articles 6 and 23
by "expos[ing] the Plaintiffs to a risk of having to
return to Montserrat." Dkt. No. 28 ¶¶ 167-72.
ICCPR Article 6.1 protects the right to life from arbitrary
deprivations, while Article 23.1 recognizes the family as
"the natural and fundamental group unit of
society." ICCPR arts. 6, 23, Dec. 16, 1966, S. Treaty
Doc. No. 95-20, 6 I.L.M. 368, 370, 375 (1967), 999 U.N.T.S.
171 (ratified June 8, 1992). But "[t]reaties affect
United States law only if they are self-executing or
otherwise given effect by congressional legislation."
United States v. Duarte-Acero, 296 F.3d
1277, 1283 (11th Cir. 2002). The ICCPR is neither. Sosa
v. Alvarez-Machain, 542 U.S. 692, 735 (2004);
Hurtado v. U.S. Att'y Gen., 401 F.App'x 453,
456 (11th Cir. 2010) (per curiam); Duarte-Acero, 296
F.3d at 1283; Ralk v. Lincoln County, 81 F.Supp.2d
1372, 1380 (S.D. Ga. 2000). "Therefore, the ICCPR is not
binding on federal courts, " it fails to give Plaintiffs
here any applicable, "judicially-enforceable individual
rights, " and Plaintiffs' claim under it must be
dismissed. Duarte-Acero, 296 F.3d at 1283.
claim under customary international law also fails.
Plaintiffs claim Defendants violated their rights to
"life, family life, and unity." Dkt. No. 28 ¶
175. Customary international law has long been part of
American common law, and courts have to construe American law
as compatibly with it as possible. Garcia-Mir v.
Meese, 788 F.2d 1446, 1453 (11th Cir. 1986). However, it
"is controlling only 'where there is no . .
controlling executive or legislative act or judicial
decision.'" Id. (quoting The Paquete
Habana, 175 U.S. 677, 700 (1900)). Here, there is a
controlling legislative act. As this Court has already found,
Congress granted Defendants broad discretion to deny J-l visa
waiver applications, and Defendants did not abuse it in
denying Lee-Lewis's. Contrast Lee-Lewis, 2016 WL
6647937, at *5-7; Al-Khayyal v. U.S. I.N.S., 818
F.2d 827, 831-32 (11th Cir. 1987) (describing very broad
discretion Congress granted to deny waiver applications)
with Garcia-Mir, 788 F.2d at 1454 ("[T]here has
been no affirmative legislative grant to the Justice
Department to detain the Second Group without hearings
because 8 U.S.C.A. § 1227(c) does not expressly
authorize indefinite detention."); cf. Galo-Garcia
v. I.N.S., 86 F.3d 916, 918 (9th Cir. 1996) (per curiam)
("Because Congress has enacted an extensive legislative
scheme for the admission of refugees, customary international
law is inapplicable . . . ."); Gisbert v. U.S.
Att'y Gen., 988 F.2d 1437, 1448 (5th Cir. 1993),
amended on other grounds, 997 F.2d 1122 (5th Cir.
1993) (per curiam) ("[I]n in the context of immigration
detention . . . international law is not controlling because
federal executive, legislative, and judicial actions
supersede [its] application . . . ."). Thus,
Plaintiffs' customary international law claim must be
reasons above, Defendants' Amended Motion to Dismiss
Addressing Counts Six and Seven of Plaintiffs' Second
Amended Complaint, dkt. no. 54, is hereby GRANTED.