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16 Protecting the Right to Family Life in U.S. Immigration Proceedings: a Fundamental Right with a Limited Remedy

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Chapter Summary

This chapter examines the ways in which the right to family life is protected by international law and considers its application in U.S. immigration proceedings. It reviews the right to family life under international law, examining three main sources of international law: treaty law, customary international law, and individual state practice. It then considers several ways in which these sources of international law can be applied in the United States, including the direct incorporation of international law, the Charming Betsy doctrine of statutory construction, the clear statement rule of statutory construction, and use of international law as persuasive authority in interpretation of federal statutes. Finally, it reviews the manner in which the right to family life under international law has been addressed in U.S. immigration proceedings. While several cases have addressed this right and considered several methods of application, most courts have chosen to disregard the role of international law.

Keywords: Charming Betsy doctrine; customary international law; federal statutes; individual state practice; right to family life; treaty law; U.S. immigration proceedings



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