OPINION
Jеsus Alberto Flores-Nova and his wife, Araceli Castaño-Garduño, both natives and citizens of Mexico, petition for review of the order of the Board of Immigration Appeals (“BIA”) denying their application for cancellation of removal. For the reasons that follow, we will deny the petition on the merits.
Flores-Nova and Castaño-Garduño came to the United States without a valid visa or other travel documents in June 1992 and August 1996, respectively. They have three American born children (ages five, ten, and eleven). In September 1999, the Petitioners travelled to Mexico to attend the funeral of Flores-Nova’s father. While there, Araceli Castañо-Garduño was injured in a serious fall. During the course of her medical treatment, Castaño-Garduño learned that she was pregnant. She was placed in the care of a midwife, who restricted her to bed rest and directed her not to travel until the threat of miscarriage had abated. The Petitioners returned to the United States in Fеbruary 2000. 1 When their religious worker visa applications were denied, the Department of Homeland Security placed the couple in consolidated removal proceedings for being present without authorization or parole. In 2008, the Petitioners applied for cancellation of removal under INA § 240A(b)(l), 8 U.S.C. § 1229b(b)(l), *491 claiming their continuous physical presence in the United States for ten years, the absence of any criminal statutory bars, and exceptional and extremely unusual hardship on their children if the Petitioners were removed to Mexico.
The Government filed a motion to pretermit the Petitioners’ applications becаuse they failed to maintain the requisite continuous presence in the United States because of them 176-day absence. The Petitioners conceded that they left the country for 176 days, but argued that special circumstances occasioned by Castaño-Garduno’s medical needs warranted excusing, or equitably tolling, thеir absence of physical presence in the United States for humanitarian reasons.
The Immigration Judge (“IJ”) denied the Petitioners’ applications for cancellation of removal, ordered them removed to Mexico, and granted voluntary departure. Although sympathetic to the Petitioners’ plight, the IJ found nothing in the “unambiguous language” of the statute or in caselaw that provided the kind of excuse or equitable tolling that the Petitioners requested. Pet’rs’ App. Vol. I at 50-51. The IJ pretermitted the Petitioners’ applications because their prolonged stay in Mexico created a break in their continuous physical presence in the Unitеd States in excess of ninety days, and thus their continuous presence was deemed to have ended under 8 U.S.C. § 1229b(d)(2). The BIA affirmed and summarily dismissed the Petitioners’ appeal. The Petitioners filed this timely petition for review.
The Petitioners raise four arguments in their petition for review: first, the BIA’s strict construction of the continuous presence provision is impermissible and is not entitled to deference under
Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.,
We have jurisdiction to review the constitutional claims and questions of law raised in this petition for review pursuant to 8 U.S.C. § 1252(a)(2)(D).
2
Sukwanputra v. Gonzales,
We need not conduct a
Chevron
analysis regarding the first claim because there is nothing impermissible about the BIA’s application of the stop-time rule contained in § 1229b(d)(2).
See De Leon-Ochoa v. Att’y Gen.,
We conclude that Congress has directly spoken to the issue through the plain language of the statute. Section § 1229b(d)(2) provides that “[a]n alien shall be considered to have failed to maintain continuous physical presence in the United Statеs ... if the alien has departed from the United States for any period in excess of 90 days or for any periods in the aggregate exceeding 180 days.”
See also Mendez-Reyes v. Att’y Gen.,
The Petitioners’ equal protection claim is also without merit because non-permanent rеsident aliens and permanent resident aliens seeking naturalization are not similarly situated groups for equal protection purposes. “The fact that all persons, aliens and citizens alike, are protected by the Due Process Clause does not [mean] that all aliens are entitled to all the advantages оf citizenship.... ”
Mathews v. Diaz,
Turning to the international law claims, the Petitioners first rely on a decision of the Inter-American Commission on Human Rights (“IACHR”),
Smith v. United States,
Case 12.562, Inter-Am. Comm’n H.R., Report No. 81/10 (2010), 2010 IACHR 100,
We conclude that the IACHR’s decision does not create an obligation binding on the United States for the following reasons. First, the language of the OAS Charter and of the IACHR’s governing statute indicates that IACHR’s decisions are not binding on the United States. In Garza, the Seventh Circuit Court of Appeals examined whether the United States was obligated to follow the IACHR’s report recommending that Garza’s execution under a federal death sentence would violate international human rights standards set forth in the American Declaration. In holding that the United States was not so bound, the Court of Appeals reasoned that
[n]othing in the OAS Charter suggests an intention that member states [including the United States] will be bound by the Commission’s decisions before the American Convention goes intо effect. To the contrary, the OAS Charter’s reference to the Convention shows that the signatories to the Charter intended to leave for another day any agreement to create an international human rights organization with the power to bind members.
Garza v. Lappin,
As for the IACHR’s governing statute, the Statute of the Inter-American Com *494 mission on Human Rights (the “Commission’s Statute”), the Garza Court noted that the law set forth two separate procedures for the IACHR based on the OAS member nation’s status vis-a-vis ratification of the American Convention. Id. By setting forth two different procedures for OAS members states that have ratified the American Convention and for those that have not ratified it, the governing statute implicitly recognizеd the distinction between the obligations created under the OAS Charter and those created (or not created) by the American Convention. Id. Moreover, the Court of Appeals reasoned, the language of the Commission’s statute indicated that the IACHR did not have the power to bind member states. 5 “The Commission’s power is only tо make ‘recommendations,’ which, according to the plain language of the term, are not binding.” Id We agree with the reasoning and conclusions of the Seventh Circuit in Garza. We hold that the IACHR’s advisory opinions are not binding on the United States and, therefore, they are not enforceable domestically.
Second, to the extent that the IACHR operates under the authority given to it by the American Convention, its decisions are not enforceable domestically.
6
Although the United States is a signatory to the American Convention, it has not ratified the Convention to date, and thus, the American Convention does not have the force of law in the United States.
Garza v. Lappin,
Next, thе Petitioners argue that the current statutory construction of 8 U.S.C. § 1229b(b) does not comply with customary international law as expressed in Article 3(1) of the United Nations Convention on the Rights of the Child (“CRC”), Nov. 20, 1989, 1577 U.N.T.S. 3,
available at http://www2. ohchr. org/english/laiv/crc. htm.
8
The Petitioners concede that the United States has not ratified the CRC. The Petitioners broadly assert that CRC has been ratified by a host of cоuntries and that the United States is essentially alone in removing aliens without a hearing to determine the equities pertaining to their removal, but they offer no evidence that the States Parties have taken significant steps to put Article 3(1) into practice. In any event, even if we assume, arguendo, that Article 3(1) of the CRC constitutes customary international law, we conclude that Article 3(1) is not binding on the United States or this Court to the extent that it conflicts with 8 U.S.C. § 1229b(b), in which Congress set forth the extent to which a child’s hardship may be considered in determining eligibility for cancellation of removal.
See Payne-Barahona v. Gonzales,
Accordingly, we will deny the petition for review.
Notes
. In 2004, Flores-Nova travelled to Mexico for six days to interview for an H-2B visa.
. We disagree with the Government’s contention that we lack jurisdiction to consider the Petitioners’ fourth claim because it is not exhausted. The Petitioners allege that their minor children’s right to reside in the United States was violated because the Petitioners were denied the opportunity to present evidence of the extreme hardship their removal would impose on their citizen children. Pet’rs’ Br. at 24-25 (citing
Acosta v. Gaffney,
. The Petitioners’ reliance on
Tapia v. Gonzales,
. The OAS Charter expressly provides for the IACHR “to serve as a consultative organ of the Organization in these [human rights] matters.” OAS Charter (amended) Article 112, 21 U.S.T. 607.
. Articles 18 and 20 of the Commission’s Statute empower the IACHR "to make recommendations to the governments of the states on the adoption of progressive measures in favor of human rights in the framework of their legislation, constitutional provisions and international commitmеnts, as well as appropriate measures to further observance of those rights; ... to pay particular attention to the observance of the human rights referred to in [certain provisions ofl the American Declaration of the Rights and Duties of Man; ... [and] to examine communications submitted to it, ... and to make recommendations to [the government of any member state not a Party to the Convention], when it finds this appropriate....” Organization of American States,
Statute of the Inter-American Commission on Human Rights,
1 October 1979, O.A.S. Off. Rec. OEA/Ser.P/IX.0.2/80, Vol. 1 at 88,
available at http://www.unhcr.org/refworld/ docid/3ae6b38eZb.html. See also Garza,
. A treaty (or international agreement) binds the United States internationally uрon its ratification by two-thirds of the Senate. U.S. Const, art. II, § 2, cl. 2.;
see also Auguste v. Ridge,
.As of June 30, 2010, the United States has not ratified the American Convention. See http://www.cidh.oas.org (follow "Basic Documents Pertaining to Human Rights in the Inter-American System” hyperlink; thеn under "American Convention on Human Rights,” follow "Signatures and Current Status of Ratification” hyperlink).
. Article 3(1) provides that “[i]n all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”