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
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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
See, e.g., Gallanosa v. United States, 785 F.2d 116, 120 (4th 1

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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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
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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.
International Covenant on Civil and Political Rights art. 23, 2

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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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). They thus do not have the force of 2

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.