HILL, Circuit Judge.
This case arises out of a petition to review an order of the Board of Immigration Appeals (Board) dismissing an appeal from a Special Inquiry Officer's order.
Petitioner Ramon Cervantes entered this country on or about August 25, 1970, at El Paso, Texas. Ramon, entering as a visitor for pleasure, was authorized to remain in the United States for a period not exceeding six months. Ramon came to Manhattan, Kansas, and began working at a steel and pipe supply company, without permission of the Immigration and Naturalization Service (Service). Petitioner Luvia Ocana Ochoa (Cervantes after marriage) entered the United States near El Paso, on or about October 27, 1970, without presenting herself for inspection or being inspected by a United States Immigration Officer. Ramon's and Ocana's minor daughter,
On September 27, 1973, the Service agreed not to institute deportation proceedings against Ramon if he would voluntarily depart the United States on or before October 27, 1973. An extension was granted until December 1, 1973. Ramon did not leave by that date; on January 30, 1974, he and Ocana were served with Orders to Show Cause why they should not be deported and with Notices of Hearing.
On March 18, 1974, a hearing was held before a special inquiry officer to determine whether Ramon and Ocana should be deported. Petitioners' counsel conceded deportability but introduced affidavits "[f]or the purpose of establishing a record for a later appeal." The affidavits and a birth certificate establish the birth of Joe Alfred Cervantes. At the hearing's conclusion, the officer issued an order finding Ramon and Ocana deportable but granting them a voluntary departure on or before April 18, 1974. If they did not depart voluntarily, a deportation order would be effective immediately. Neither Alejandra nor Joe Alfred was ordered deported.
A Notice of Appeal to the Board was filed on March 18, 1974. The grounds of appeal were as follows:
On April 30, 1974, the Board, relying on Cabuco-Flores v. Immigration & Naturalization Serv., 477 F.2d 108 (9th Cir. 1973), cert. den'd, 414 U.S. 841, 94 S.Ct. 98, 38 L.Ed.2d 78; Monarrez-Monarrez v. Immigration & Naturalization Serv., 472 F.2d 119 (9th Cir.1972), dismissed the appeal.
Petitioners challenge the Board's determination on two grounds: (1) 8 U.S.C. § 1251(f) prevents Ramon's and Ocana's deportation, and (2) the deportation order contravenes Joe Alfred's rights under the Ninth Amendment to the United States Constitution.
On appeal to the Board, petitioners relied on Godoy v. Rosenberg, 415 F.2d 1266 (9th Cir.1969), to support the application of § 1251(f) to this case. In Godoy, the alien had stated in his application for a special immigrant visa that he was married to a United States citizen; the marriage had been entered into solely to acquire a benefit under the immigration laws. In those circumstances, the court said § 1251(f) would prevent deportation if petitioner could prove he was the parent of a legitimatized child who was a United States citizen. We are not faced with an identical situation.
Rather, the reasoning expressed in Preux v. Immigration & Naturalization Serv., 484 F.2d 396, 397 (10th Cir. 1973), cert. den'd, 415 U.S. 916, 94 S.Ct. 1413, 39 L.Ed.2d 470 (1974), applies to this case.
In Robles v. Immigration & Naturalization Serv., 485 F.2d 100 (10th Cir.1973), § 1251(f) was held not to prevent deportation of a person staying beyond the period of her one-month visitor's visa; the grounds for deportation were not related to any alleged antecedent fraud. Ramon is to be deported pursuant to 8 U.S.C. § 1251(a)(9) for failure to comply with the conditions of his nonimmigrant status. Ocana is to be deported pursuant to 8 U.S.C. § 1251(a)(2)
Petitioners devote their brief to the second argument; they contend the Ninth Amendment gives Joe Alfred, a United States citizen, a right to continue to have the love and affection of his parents in the United States. The Ninth Amendment provides: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Petitioners believe their interpretation of the Ninth Amendment is supported by the Supreme Court cases of Griswold v. Connecticut, 381 U.S. 479, 486, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) (Goldberg, J., concurring), and Roe v. Wade, 410 U.S. 113, 95 S.Ct. 705, 35 L.Ed.2d 147 (1973).
Although we have found no mention of this constitutional argument in the prior proceedings, we consider it because a constitutional issue is involved and because of the outcome we reach. Pilapil v. Immigration & Naturalization Serv., 424 F.2d 6 (10th Cir.1970), cert. den'd 400 U.S. 908, 91 S.Ct. 152, 27 L.Ed.2d 147.
The only novelty in petitioners' constitutional claim is its foundation, the Ninth Amendment. Courts have rejected similar claims based upon other constitutional provisions. Robles v. Immigration & Naturalization Serv., supra; Faustino v. Immigration & Naturalization Serv., 432 F.2d 429 (2d Cir.1970), cert. den'd, 401 U.S. 921, 91 S.Ct. 909, 27 L.Ed.2d 824 (1971); Perdido v. Immigration & Naturalization Serv., 420 F.2d 1179 (5th Cir.1969); Mendez v. Major, 340 F.2d 128 (8th Cir.1965). The petitioner in Robles relied on the Fifth Amendment claiming the deportation would be unconstitutional because a family would be divided and her children would be deprived of their constitutional right to the family unit's continuation. This Court rejected that argument and said:
The deportations involved herein cause only an "incidental impact" on the minor