A suit seeking to establish that foreign human rights violators who come to the United States risk being sued in U.S. courts was taken to the 2nd Circuit Court of Appeals today after a lower court ruled that it does not have jurisdiction.

The suit, brought by the father and sister of a youth allegedly tortured to death in Paraguay by policeman Americo Pena-Irala, was filed here after Pena was discovered by immigration authorities living in Brooklyn.

It was brought under a section of the U.S. Code that gives U.S. courts jurisdictions over violations of the international law of nations. However, the section has been used in the past only for commercial claims, not for human rights violations.

In arguing against the suit, Pena's attorney, Murry D. Brochin, said it would open the door "for any alien who chances to catch an official of a foreign government in the United States against whom he thinks he has a claim."

Brochin said, "This is a case entirely concerning Paraguay and Paraguayans."

Peter Weiss argued for the plaintiffs, Dolly Filartiga and Dr. Joel Filartiga, that "in the last 30 years human rights has emerged as a central concern of international law."

He said the Filartigas have no legal remedy in Paraguay because the courts there are controlled by a dictator, Gen. Alfredo Stroessner, and Pena has special protection as a former police chief inspector.

U.S. District Court Judge Eugene H. Nickerson said it was cogent to argue that an emerging standard of international law condemns torture. But he dismissed the Filartigas' $10 million damage suit on the ground that earlier decisions by the 2nd Circuit Court of Appeals deny him jurisdiction over a suit arising from a crime in a foreign country unless the crime affected the U.S. relationship with that country.

Pena was seized April 4 and ordered deported for being in the United States illegally. His tourist visa had expired.

Pena, who resigned from the police after the death of 17-year-old Joelito Filartiga became controversial in Paraguay, has made no move to resist deportation. An order keeping him here until Nickerson reached his decision expires tomorrow.