Payne-Barahona v. Gonzales, No. 06-1420, affirms the removal of a legal alien that was a legal permanent resident of the United States. He was convicted of felony domestic assault and given a sentence of three years. He argued that 8 U.S.C. §§ 1229b(a)(3), 1229c(b)(1)(C), barring cancellation of his removal were unconstitutional. He makes an argument that deporting him would violate the 5th amendment because his children would be left without a father in the United States. He cites “international law” (which the court doesn’t describe), and since everyone hates international law, that is rejected. The government makes a nicer argument: that he doesn’t have standing to assert the rights of his children. The court, actually analyzes this issue, and notes that 3d-party standing issues are prudential, Article III issues, and address the issue on the merits. Then, relying on what other circuits did, the court finds that no constitutional rights are violated. And, to make it very clear:
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.
I blame the kids. They should have chosen their parents better. Same deal for children of our soldiers. If they had chosen other parents, daddy wouldn’t have to go off to fight in the civil war in Iraq. Moreover, the federal government 1) has a bona fide interest in staffing the military; and 2) would pay the kids if their father was killed in a the Iraqi civil war.
Seriously, I think the First is missing the point. The petitioner was convicted of a crime, but a crime that was considered not major enough to warrant actual jail time under state law. If it had warranted jail time, then we could say that society has determined that his crimes were of such a nature that his kind should be in jail. Instead, the states determined that “rehabilitation” and keeping the family together are more important. Congress, on the other hand, doesn’t really have an interest in splitting apart, or putting together families. (You here that: you have to stay out of the family law business.) Instead, their interest is in keeping our borders safe from dangerous foreigners. So, at some level , I think children can assert the societal judgments of a state in allowing certain people that commit acts of domestic violence to remain free (subject to rehabilitation and supervision) to be with the family. In essence, in deporting this guy, our immigration policies have interfered with state domestic policies, and the First didn’t even address the issue.
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