Flores-Nova v. Attorney General of the United States.
652 F.3d 488
| 3rd Cir. | 2011Background
- Flores-Nova and Castaño-Garduno, Mexican natives, entered the United States without valid visas/documents in 1992 and 1996 and have three U.S.-born children.
- In 1999 they traveled to Mexico for Flores-Nova's father’s funeral; Araceli was injured, pregnant, placed on bed rest and advised not to travel.
- They returned to the United States in February 2000 and subsequently faced removal proceedings for present without authorization or parole.
- In 2008 they sought cancellation of removal under INA § 240A(b)(1), asserting ten years’ continuous physical presence, no criminal bars, and extreme hardship to their children.
- Immigration Judge denied the applications, pretermitting them due to a 176-day absence; BIA affirmed; petition for review followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the stop-time rule allows humanitarian tolling for cancellation of removal. | Flores-Nova argues humanitarian circumstances toll the stop-time. | Government contends the statute plain language imposes a 90/180-day break with no tolling. | Statute unambiguous; no tolling. |
| Whether §1229b(d)(2) is rationally related to a government purpose under equal protection. | Petitioners claim the provision is unconstitutional as applied to non-permanent residents. | Statute facially rational; rational basis governs immigration classifications. | Section 1229b(d)(2) constitutional. |
| Whether IACHR decisions bind the United States domestically. | IACHR findings bind the U.S. and require hearings. | IACHR advisory opinions are non-binding domestically and the U.S. has not ratified the American Convention. | IACHR opinions not binding domestically. |
| Whether customary international law (CRC Article 3(1)) binds the United States over the statute. | CRC Article 3(1) should influence U.S. law. | Customary international law cannot override statutory provisions. | CRC Article 3(1) not binding against §1229b(b). |
| Whether pretermitting without a merits hearing violated due process regarding petitioners’ children. | Removal without merits hearing harms children’s rights. | Due process not violated; petitioners cannot meet continuous presence requirement. | No due process violation; no alteration of outcome. |
Key Cases Cited
- De Leon-Ochoa v. Att'y Gen., 622 F.3d 341 (3d Cir.2010) (Chevron analysis ends; plain language controls)
- Mendez-Reyes v. Att'y Gen., 428 F.3d 187 (3d Cir.2005) (§1229b(d)(2) break defined; no presence deemed continuous after 90-day threshold)
- Sukwanputra v. Gonzales, 434 F.3d 627 (3d Cir.2006) (jurisdiction; review standards for legal questions)
- Wang v. Ashcroft, 368 F.3d 347 (3d Cir.2004) (deference in BIA legal determinations; standard of review)
- Tapia v. Gonzales, 430 F.3d 997 (9th Cir.2005) (absence interruptions; discussion of 90/180-day rule)
- Garza v. Lappin, 253 F.3d 918 (7th Cir.2001) (IACHR advisory opinions not binding domestically)
- Flores v. S. Peru Copper Corp., 414 F.3d 233 (2d Cir.2003) (customary international law not controlling over U.S. statute)
- Payne-Barahona v. Gonzales, 474 F.3d 1 (1st Cir.2007) (customary international law versus statutory control)