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10-3912 Marin-Garcia v. Holder

Removal; equal protection

The removal of an alien with citizen-children does not violate the constitutional rights of the children.

“The practice of removing aliens with citizen-children is constitutionally sound, and we also perceive no constitutional infirmity with the statute. Section 1229b(b)(1)(D) distinguishes between aliens who have close citizen-relatives in the United States and aliens who do not. Only if an alien has close citizen-relatives may the Attorney General cancel removal. Thus, Section 1229b(b) puts a thumb on the scale in favor of otherwise-removable aliens like Marin-Garcia. The provision reflects the legitimate and long-recognized Congressional policy of protecting the integrity of the family unit. See I.N.S. v. Errico, 385 U.S. 214, 220 (1966). But nothing in the constitution prohibits Congress from placing robust limits on that policy. Consistent with the expansive nature of Congress’s power over immigration matters, e.g., Diaz, 426 U.S. 67, 78 n.12 (noting the variety of statutory provisions that distinguish between aliens and non-aliens), ‘it is not for this Court to question the wisdom of [Congress’s] choice,’ Negusie v. Holder, 555 U.S. 511, ___, 129 S. Ct. 1159, 1180 n.2 (2009), to make it difficult to establish exceptional and extremely unusual hardship under Section 1229b(b)(1)(D). See also id. (‘“[O]ver no conceivable subject is the legislative power of Congress more complete than it is over” the decision of Congress to admit or exclude aliens.’) (quoting Oceanic Steam Nav. Co. v. Stranahan, 214 U.S. 320, 339 (1909)). Moreover, even if a more searching inquiry applied, Section 1229b(b)(1)(D) would survive. If an alien could avoid the consequences of unlawful entry into the United States by having a child, it would create perverse incentives and undermine Congress’s authority over immigration matters. See Ayala- Flores v. I.N.S., 662 F.2d 444, 446 (6th Cir. 1981) (a contrary rule ‘would create a substantial loophole in the immigration laws’). Of course, Marin-Garcia has not convinced us that a more searching standard should apply, and several other circuits have ruled that the removal of an illegal alien does not work a constitutional violation on the alien’s citizen-children. See Payne-Barahona, 474 F.3d at 2 & n.1 (collecting cases and noting that ‘[t]he 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 valid deportation does not violate a child’s constitutional right’). To the extent our own precedent was not clear, we make it explicit today.”

Petition Denied.

10-3912 Marin-Garcia v. Holder

Petition for Review of an Order of the Board of Immigration Appeals, Flaum, J.

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