Payne-Barahona v. Gonzales ( 2007 )

United States Court of Appeals
For the First Circuit
No. 06-1420
THOMAS PAYNE-BARAHONA,
Petitioner,
v.
ALBERTO R. GONZÁLES, ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Boudin, Chief Judge,
Torruella and Howard, Circuit Judges.
John H. Ruginski for petitioner.
Eric W. Marsteller, Office of Immigration Litigation, Civil
Division, Department of Justice, Peter D. Keisler, Assistant
Attorney General, Civil Division, and Carol Federighi, Senior
Litigation Counsel, on brief for respondent.
January 10, 2007
BOUDIN, Chief Judge. Thomas Payne-Barahona is a citizen
of Honduras and was a legal permanent resident of the United
States. In July 1997, Payne was convicted of felony domestic
assault in Rhode Island and received a sentence of three years,
which the court suspended. In July 2003, removal proceedings were
begun against Payne, 8 U.S.C. §§ 1227(a)(2)(A)(iii), (E)(i) (2000),
as one convicted of an aggravated felony and a crime of domestic
violence. Payne applied for cancellation of removal and voluntary
departure. Id. §§ 1229b(a)(3), 1229c(b)(1)(C).
The crime in question was indisputedly an aggravated
felony under 8 U.S.C. § 1101(a)(43)(F), making petitioner
statutorily ineligible for cancellation of removal or voluntary
departure. 8 U.S.C. §§ 1229b(a)(3), 1229c(b)(1)(C). Payne argued
to the Immigration Judge ("IJ") that the statutory provisions that
barred him from cancellation of removal were unconstitutional. The
IJ denied the petition on September 16, 2004, stating that he was
without jurisdiction to decide any constitutional claims. The
Board of Immigration Appeals ("BIA") affirmed on the same basis.
On appeal, Payne–-who has two children born in the United
States--argues that the Fifth Amendment of the Constitution
provides his children the right to have their father reside in the
United States. Payne goes on to cite numerous studies documenting
the harm suffered by children raised by only one parent. Payne
also appeals to international law and cites language from
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international treaties. Our jurisdiction to review the BIA's
decision is based on 8 U.S.C. § 1252(a).
The government objects that Payne lacks standing to
assert his children's rights. The restriction as to assertion of
third-party rights is merely prudential rather than based on
Article III, Benjamin v. Aroostook Med. Ctr., Inc., 57 F.3d 101,
104-06 (1st Cir. 1995); see also Powers v. Ohio, 499 U.S. 400, 410-
11 (1990); but, says the government, Payne has not troubled to
bring himself within the jus tertii exceptions which courts have
customarily recognized.
Nevertheless, the requirements in Powers, 499 U.S. at
410-11, appear easily met in this instance: potential injury in
fact to the children and to Payne; a close relationship (here,
parental); and "some hindrance to the third party's ability to
protect his or her own interest"–-rather obvious in the case of
minor children. And no conflict exists here between the interests
of parent and child. Cf. Elk Grove Unified Sch. Dist. v. Newdow,
542 U.S. 1, 15-16 (2004). We choose to follow the path of other
courts and address the issues on the merits. See, e.g., Robles v.
INS, 485 F.2d 100, 102 (10th Cir. 1973); Newton v. INS, 736 F.2d
336, 342 (6th Cir. 1984).
The circuits that have addressed the constitutional issue
(under varying incarnations of the immigration laws and in varying
procedural postures) have uniformly held that a parent's otherwise
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valid deportation does not violate a child's constitutional right.1
Nor does deportation necessarily mean separation since the children
could be relocated during their minority. See Ayala-Flores, 662
F.2d at 445-46.
Payne cites several Supreme Court cases recognizing in
various contexts some kind of protection-worthy interest in family
1
See, e.g., Gallanosa v. United States, 785 F.2d 116, 120 (4th
Cir. 1986) ("The courts of appeals that have addressed this issue
have uniformly held that deportation of the alien parents does not
violate any constitutional rights of the citizen children.");
Cortez-Flores v. INS, 500 F.2d 178, 180 (5th Cir. 1974)
("[D]eportation of a parent does not deprive the child of any
constitutional rights."); Gonzalez-Cuevas v. INS, 515 F.2d 1222,
1224 (5th Cir. 1975) ("Legal orders of deportation to their parents
do not violate any constitutional right of citizen children . . .
."); Ayala-Flores v. INS, 662 F.2d 444, 445 (6th Cir. 1981) (per
curiam) ("While we recognize that the Ayalas' child enjoys all the
rights of United States citizenship . . . we do not agree that
deportation of her parents is an unconstitutional abridgement of
those rights."); Newton, 736 F.2d at 342 (stating that circuit
courts have "uniformly" held that the deportation of parents does
not deprive their children of constitutional rights); Singh v.
Magee, 165 F.3d 917, 1998 WL 904715, at *3 (9th Cir. 1998)
(unpublished opinion) (in Bivens action, accepting a broad
rejection of any challenge "to a deportation based upon the rights
of affected family members"); Flores-Quezada v. Gonzales, No. 04-
72636, 2005 WL 1413864 (9th Cir. June 17, 2005) (unpublished
opinion) (holding that deportation does not result in deprivation
of due process where a child would be denied the Arizona
constitutional right to education); Robles, 485 F.2d at 102(rejecting the argument that it is unconstitutional to break up a
family and deprive children of "constitutional right to a
continuation of the family unit"); Cervantes v. INS, 510 F.2d 89,
92 (10th Cir. 1975) ("The incidental impact on aliens' minor
children caused by the enforcement of duly-enacted conditions on
aliens' entrance and residence does not create constitutional
problems."); Delgado v. INS, 637 F.2d 762, 764 (10th Cir. 1980)
("This Court has repeatedly held that the incidental impact visited
upon the children of deportable, illegal aliens does not raise
constitutional problems.").
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integrity and the right of parents to raise their children. Cited
cases include Troxel v. Granville, 530 U.S. 57, 65 (2000); Santosky
v. Kramer, 455 U.S. 745 (1982); Moore v. East Cleveland, 431 U.S.
494 (1977); Stanley v. Illinois, 405 U.S. 645, 651 (1972). The
familiar antecedent decisions include Meyer v. Nebraska, 262 U.S.
390 (1923); Pierce v. Society of the Sisters, 268 U.S. 510 (1925);
and Prince v. Massachusetts, 321 U.S. 158 (1944). But the cases
are widely diverse–-some involving procedural or equal protection
claims not pertinent here, e.g., Stanley, Santosky–-and are notable
for the division of views in most of the cases and for the
difficulty of fitting the analyses or results into a coherent
pattern.
Nothing in these Supreme Court cases points directly
toward the result Payne seeks nor does his brief try to build the
bridge. If what were happening here was conscience shocking by
contemporary American standards, the lack of precedent would not
bar a new departure by a lower court; but deportations of parents
are routine and do not of themselves dictate family separation. If
there were such a right, it is difficult to see why children would
not also have a constitutional right to object to a parent being
sent to prison or, during periods when the draft laws are in
effect, to the conscription of a parent for prolonged and dangerous
military service.
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The treaties cursorily relied on by petitioner either
have been held to be non-self executing (the International Covenant
on Civil and Political Rights) or are non-ratified (the Convention
on the Rights of the Child).2 They thus do not have the force of
domestic law. Guaylupo-Moya v. Gonzales, 423 F.3d 121, 133 (2d
Cir. 2005); see also Igartua-De La Rosa v. United States, 417 F.3d
145, 148-49 (1st Cir. 2005) (en banc), cert. denied, 126 S. Ct.
1569 (2006). And, even if (as Payne claims but we do not decide)
customary international law conflicted with the statutes, the clear
intent of Congress would control. Guaylupo-Moya, 423 F.3d at 135-
36.
Payne quotes heavily from Beharry v. Reno, 183 F. Supp.
2d 584, 604-05 (E.D.N.Y. 2002), which held that U.S. treaty
obligations required providing all aliens who met the other
requirements of the waiver provision at issue the opportunity to
apply for a waiver of removal where their crimes were committed
prior to being defined as aggravated felonies. The Second Circuit
reversed the decision on other grounds, Beharry v. Ashcroft, 329
F.3d 51 (2003), and the language of the district court on which
Payne relies was later disavowed. Guaylupo-Moya, 423 F.3d at 125.
Affirmed.
2
International Covenant on Civil and Political Rights art. 23,
opened for signature Dec. 19, 1966, 999 U.N.T.S 171, reprinted in
6 I.L.M. 360; Convention on the Rights of the Child, adopted Nov.
20, 1989, 1577 U.N.T.S. 3, reprinted in 28 I.L.M. 1448 (quoted
without full citation by petitioner).
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