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
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 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, 111 S.Ct. 1364, 113 L.Ed.2d 411 (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, 111 S.Ct. 1364, 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, 124 S.Ct. 2301, 159 L.Ed.2d 98 (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 valid deportation does not violate a child's constitutional right.
Payne cites several Supreme Court cases recognizing in various contexts some kind of protection-worthy interest in family integrity and the right of parents to raise their children. Cited cases include Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000); Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); Moore v. East Cleveland, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977); Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). The familiar antecedent decisions include Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923); Pierce v. Society of the Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925); and Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (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.
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).
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.