Edmer Rogelio Cabrera-Alvarez v. Alberto R. Gonzales, Attorney General

423 F.3d 1006 Edmer Rogelio CABRERA-ALVAREZ, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent. No. 04-72487. United States Court of Appeals, Ninth Circuit. Argued and Submitted June 17, 2005. Filed September 8, 2005. Russell W. Pritchett, Pritchett & Jacobson, P.S., Bellingham, WA, for the petitioner. Aviva L. Poczter, Office of Immigration Litigation, U.S. Department of Justice, Washington, D.C., for the respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. Ahq-ovb-avd. Before PREGERSON, GRABER, and GOULD, Circuit Judges. Opinion by Judge GRABER; Dissent by Judge PREGERSON GRABER, Circuit Judge. 1 Petitioner Edmer Rogelio Cabrera-Alvarez seeks cancellation of removal in order to prevent hardship to his two young children, who are United States citizens. He argues that the immigration judge ("IJ"), in denying him cancellation of removal, interpreted the "exceptional and extremely unusual hardship" standard, 8 U.S.C. § 1229b(b)(1)(D), in a manner inconsistent with international law and, therefore, in violation of the presumption that Congress intends to legislate in a manner consistent with international law.…

Opinion by Judge GRABER; Dissent by Judge PREGERSON

Petitioner Edmer Rogelio Cabrera-Alvarez seeks cancellation of removal in order to prevent hardship to his two young children, who are United States citizens. He argues that the immigration judge (“IJ”), in denying him cancellation of removal, interpreted the “exceptional and extremely unusual hardship” standard, 8 U.S.C. § 1229b(b)(l)(D), in a manner inconsistent with international law and, therefore, in violation of the presumption that Congress intends to legislate in a manner consistent with international law. Specifically, Petitioner argues that the cancellation-of-removal statute must be interpreted consistently with Article 3(1) of the United Nations: Convention on the Rights of the Child (“Convention”), Nov. 20, 1989, 28 I.L.M. 1448,1459, which states that “[i]n all actions concerning children ... the best interests of the child shall be a primary consideration.”

We deny the petition. Even assuming that the unratified Convention has attained the status of customary international law, Petitioner fails to demonstrate that the agency’s interpretation or application of the statute is inconsistent with the…

dissenting:

The United Nations: Convention on the Rights of the Child, Nov. 20, 1989, 28 I.L.M. 1448, embodies the humane principle that “[i]n all actions concerning children ... undertaken by ... courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” Art. 3(1), Id. at 1459. The Convention recognizes that the family is “the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children.... ” Convention Preamble, 28 I.L.M. at 1457. In *1014 short, the Convention espouses our democracy’s abiding belief in the overarching importance of the family, particularly its children, and of “family values.”

Sadly, our cancellation of removal statute does not honor the concept of family values and the need to keep families together. Under the removal statute, the Board of Immigration Appeals (“BIA”) may grant an application for cancellation of removal only where removal would cause “exceptional and extremely unusual hardship” to the petitioner’s citizen or lawful permanent resident family members— here, Cabrera-Alvarez’s two young United States…