Lee-Lewis et al v. Kerry et al

Filing 56

ORDER granting Defendants' 54 Amended Motion to Dismiss Addressing Counts Six and Seven of Plaintiffs' Second Amended Complaint. Signed by Chief Judge Lisa G. Wood on 2/6/2017. (ca)

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COLETTE LEE-LEWIS, M.D., et

al.,
Plaintiffs,
2:13-CV-80
V.

JOHN KERRY, United States
Secretary of State, et al..
Defendants.

ORDER

Neither

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-1 visa waiver application.
Thus, these claims will be DISMISSED.
BACKGROUND

This 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.

Dkt. Nos. 54-55.

A0 72A

(Rev. 8/82)

The parties have now briefed these claims.

LEGAL STANDARD

A complaint must be ''a short and plain statement of the
claim showing that the pleader is entitled to relief."
Civ. P. 8(a)(2).

which

Fed. R.

It must ''contain inferential allegations from

[the court] can identify each

of the material elements

necessary to sustain a recovery under some viable legal theory."
Roe

V.

Aware

Woman

(11th Cir. 2001).

relief

above

Ctr. for

Choice,

Inc., 253

F.Sd

678,

684

These "must be enough to raise a right to

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).
DISCUSSION

Plaintiffs' ICCPR and customary international law
must

be

dismissed,

action.

as

neither

Plaintiffs claim

is

based

Defendants

on

a

valid

claims

cause

of

violated ICCPR Articles 6

and 23 by "expos[ing] the Plaintiffs to a risk of having to
return to Montserrat."

Dkt.

6.1

to

protects

the

right

No. 28

life

SISI

ICCPR Article

arbitrary

from

167-72.

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.

affect

United

otherwise

171

(ratified

States

law

June

only if

8,

1992).

they

are

But

"[tjreaties

self-executing

given effect by congressional legislation."

or

United

States V. Duarte-Acero, 296 F.3d 1211, 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.

2000).

Lincoln

County, 81

F.

Supp.

2d

1372,

1380 (S.D. Ga.

'''Therefore, the ICCPR is not binding on federal courts,"

it fails to give Plaintiffs here any applicable, "judiciallyenforceable individual rights," and Plaintiffs' claim under it
must be dismissed.

Plaintiffs'
fails.

Duarte-Acero, 296 F.3d at 1283.

claim

Plaintiffs

under

claim

customary international

Defendants

"life, family life, and unity."

violated

their

law

also

rights

Dkt. No. 28 f 175.

to

Customary

international law has long been part of American common law, and
courts have to construe American law as compatibly with it as

possible.
1986).

Garcia-Mir v. Meese, 788 F.2d 1446, 1453 (11th Cir.

However, it "is controlling only 'where there is no . .

controlling
decision.'"
(1900)).
Court

has

executive

or

legislative

act

or

judicial

Id. (quoting The Paquete Habana, 175 U.S. 677, 700

Here, there is a controlling legislative act.
already

found.

Congress

granted

As this

Defendants

broad

discretion to deny J-1 visa waiver applications, and Defendants
did not abuse it in denying Lee-Lewis's.
2016 WL 6647937, at *5-7; Al-Khayyal v.

Contrast Lee-Lewis,
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
curiam)

(^'[I]n

in

the

context

F.2d 1122 (5th Cir. 1993) (per
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 dismissed.^
CONCLUSION

For the reasons above. Defendants' Amended Motion to

Dismiss Addressing Counts Six and Seven of Plaintiffs' Second
Amended Complaint, dkt. no. 54, is hereby GRANTED.

^ It does not matter that they only seek a declaratory judgment.

See Dkt. No.

55 at 9.
The Federal Declaratory Judgment Act does not override Garcia-Mir
limits. Cf_^ I.N.S. v. Chadha, 462 U.S. 919, 957 n.22 (1983) ("Federal courts
do not enjoy a roving mandate to correct alleged [abuses] of administrative
agencies . . . .").

so ORDERED, this 6th day of February, 2017.

LISA GODBEY WOOD, CHIEF JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN

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(Rev. 8/82)

DISTRICT OF GEORGIA