Jesus Alberto Flores-Nova v. ATTORNEY GENERAL OF THE UNITED STATES On Petition for Review of an Order of the…

IMG-138 PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 10-2044
___________
JESUS ALBERTO FLORES-NOVA;
ARACELI CASTAÑO-GARDUNO,
a/k/a Ariceli Flores
JESUS ALBERTO FLORES-NOVA;
ARACELI CASTAÑO-GARDUNO,
Petitioners
v.
ATTORNEY GENERAL OF THE UNITED STATES
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency Nos. A099-690-362 and A094-941-559)
Immigration Judge: Honorable Charles Honeyman
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
May 18, 2011
Before: SCIRICA, FISHER and ALDISERT, Circuit Judges.
(Opinion Filed: July 25, 2011)

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Jacqueline B. Martinez, Esq.
JBM Immigration Group
428 Forbes Avenue, Suite 2510
Pittsburgh, PA 15219
Counsel for Petitioners
Nairi S. Gruzenski, Esq.
Andrew J. Oliveira, Esq.
Phillip M. Truman, Esq.
United States Department of Justice
Office of Immigration Litigation
Civil Division
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
___________
OPINION
___________
PER CURIAM
Jesus Alberto Flores-Nova and his wife, Araceli
Castaño-Garduno, 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-Garduno 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

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the funeral of Flores-Nova‟s father. While there, Araceli
Castaño-Garduno was injured in a serious fall. During the
course of her medical treatment, Castaño-Garduno 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 February 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)(1), 8 U.S.C.
§ 1229b(b)(1), 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 because they failed to maintain the
requisite continuous presence in the United States because of
their 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, their 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.
1 In 2004, Flores-Nova travelled to Mexico for six
days to interview for an H-2B visa.

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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 United 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., 467 U.S. 837 (1984);
second, the continuous presence provision violates the
Petitioners‟ rights under the Equal Protection Clause; third,
the United States is bound by international law to grant the
petitioners a full hearing on their applications for cancellation
of removal; and fourth, pretermitting the Petitioners‟
application for cancellation of removal without a hearing on
the merits violated the due process rights of their American
born children.
We have jurisdiction to review the constitutional
claims and questions of law raised in this petition for review

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pursuant to 8 U.S.C. § 1252(a)(2)(D).2 Sukwanputra v.
Gonzales, 434 F.3d 627, 634 (3d Cir. 2006). “We review the
BIA‟s legal determinations de novo, subject to established
principles of deference.” Wang v. Ashcroft, 368 F.3d 347,
349 (3d Cir. 2004).
We need not conduct a Chevron analysis regarding the
first claim because there is nothing impermissible about the
2 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, 558 F.2d 1153 (3d Cir. 1977).
Exhaustion is not required for substantive due process claims
like the petitioners‟ because “the BIA does not have
jurisdiction to adjudicate constitutional issues.” Khan v.
Att‟y Gen., 448 F.3d 226, 236 n.8 (3d Cir. 2006) (quoting
Bonhometre v. Gonzales, 414 F.3d 442, 447 n.7 (3d Cir.
2005)). On the merits, the Petitioners‟ arguments based on
their children‟s constitutional rights are unpersuasive. As we
previously held, the deportation of the alien parents of
children born in the United States does not violate the
constitutional rights of the children to choose their residence.
Acosta v. Gaffney, 558 F.2d at 1158 (parents‟ deportation
“will merely postpone, but not bar, [the United States citizen
child‟s] residence in the United States if [] he should
ultimately choose to live here”). Moreover, a hearing on the
merits as to the extreme hardship factor would not change the
result in this case because the Petitioners cannot satisfy the
statutory continuous physical presence requirement.

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BIA‟s application of the stop-time rule contained in §
1229b(d)(2). See De Leon-Ochoa v. Att‟y Gen., 622 F.3d
341, 353 (3d Cir. 2010) (holding that the Chevron inquiry
ends “if Congress has spoken directly to the question at issue,
in which case „both the agency and the court must give effect
to the plain language of the statute.‟”) (quoting Yusupov v.
Att‟y Gen., 518 F.3d 185, 197 (3d Cir. 2008)). The question
at issue here is whether § 1229b(d)(2) provides for an
exception to the 90/180-day stop-time rule for humanitarian
reasons. The Petitioners‟ argument that the provision is
ambiguous is meritless.3 A statute is not ambiguous “merely
because it does not expressly forbid every possible
mechanism for functional – but not actual – satisfaction of
statutory requirements.” De Leon-Ochoa v. Att‟y Gen., 622
F.3d at 353 (reviewing 8 U.S.C. § 1254a).
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 States . . . 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., 428 F.3d 187, 191-92 (3d Cir. 2005)
3 The Petitioners‟ reliance on Tapia v. Gonzales, 430
F.3d 997 (9th Cir. 2005), is misplaced. In Tapia, the Ninth
Circuit Court of Appeals merely held that the petitioner‟s
physical presence was not interrupted by the fact that he was
stopped at the border and turned away four times before he
was allowed to reenter after a 30-day trip to attend a family
member‟s funeral. Id. at 1002. Most important, the Court
noted that § 1229b(d)(2) “mandate[s] that absences beyond
the 90/180-day period would constitute a break.” Id. at 1001.

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(construing § 1229b(d)(2) as setting forth the circumstances
“under which continuous physical presence must be deemed
to have been broken” and that “Congress has declared that a
departure of more than 90 days shall constitute a break in
physical presence . . . .”) (emphasis in the original). Contrary
to the Petitioners‟ contention, their intent to return to the
United States is irrelevant because § 1229b(d)(2) has no
scienter requirement.
The Petitioners‟ equal protection claim is also without
merit because non-permanent resident 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 of citizenship . . . .” Mathews v. Diaz, 426
U.S. 67, 78 (1976). Nor does the Clause establish that “all
aliens must be placed in a single homogeneous legal
classification.” Id. In any event, the Petitioners failed to
meet their burden of establishing that § 1229b(d)(2) is
unconstitutional. The standard of review applied in equal
protection cases that do not involve suspect classes or the
exercise of a fundamental constitutional right requires a
“facially legitimate and bona fide” rationale supporting the
immigration statute in question. Fiallo v. Bell, 430 U.S. 787,
794-95 (1977); see also Breyer v. Meissner, 214 F.3d 416,
422 n.6 (3d Cir. 2000) (recognizing that the “facially
legitimate and bona fide reason” test in the immigration
context “has been found analytically equivalent to the rational
basis test normally applied in equal protection cases in which
no suspect class is involved”) (citing other cases). Here, the
Petitioners have offered no basis, and we find none, upon
which we could conclude that § 1229b(d)(2) is not rationally
related to a legitimate government purpose. See Heller v.

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Doe, 509 U.S. 312, 320-21 (1993) (holding that the burden is
on the petitioners to show that a statute is not rationally
related by “negat[ing] every conceivable basis which might
support it,” whether or not the basis has a foundation in the
record).
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, 2010 WL 6758869 (also available at
http://www.cidh.oas.org/casos/10.eng.htm.) They claim that
the United States is bound by the IACHR‟s finding that
removing lawful permanent residents without giving them an
opportunity for a meaningful hearing would violate numerous
articles of the “American Declaration of the Rights and
Duties of Man” (“American Declaration”), arts. 5, 6, 7, 16,
and 17, O.A.S. Res. XXX (1948), O.A.S. Off. Rec.
OEA/Ser.L/V/I.4 rev. (1965). The Petitioners also argue that
the United States must abide by a 2008 IACHR decision that
the United States is “bound to respect” the American
Declaration. See Mortlock v. United States, Case 12.534,
Inter-Am. Comm‟n H.R., Report No. 63/08 (July 25, 2008),
2008 IACHR 893, 2008 WL 6857315 (also available at
http://www.cidh.oas.org/casos/08.eng.htm.) In support of
their claim, the Petitioners cite the Charter of the
Organization of American States (OAS), which was
originally ratified by the United States in 1951, and ratified as
amended in 1968. The OAS Charter provided for the creation
of the IACHR and created the American Convention on
Human Rights (the “American Convention”) to establish the
Commission. OAS Charter (Amended) Article 112, 21
U.S.T. 607; see also Garza v. Lappin, 253 F.3d 918, 924-25
(7th Cir. 2001). The American Convention charged the

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IACHR with interpreting the American Declaration.
Organization of American States, American Convention on
Human Rights, Nov. 22, 1969, O.A.S.T.S. No. 36, 1144
U.N.T.S. 123, 9 I.L.M. 673.
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 into 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.

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Garza v. Lappin, 253 F.3d at 925. 4
As for the IACHR‟s governing statute, the Statute of
the Inter-American Commission 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-à-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 recognized 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
4 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.

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have the power to bind member states.5 “The Commission‟s
power is only to 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
5 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
commitments, 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 of] 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/3ae6b38e2b.html.
See also Garza, 253 F.3d at 925.

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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, 253 F.3d at 925; see also
Flores v. S. Peru Copper Corp., 414 F.3d 233, 258 (2d Cir.
2003).7 As for the American Declaration, unlike the
American Convention and the OAS Charter, the Declaration
6 A treaty (or international agreement) binds the United
States internationally upon its ratification by two-thirds of the
Senate. U.S. Const. art. II, § 2, cl. 2.; see also Auguste v.
Ridge, 395 F.3d 123, 141 n.18 (3d Cir. 2005) (describing the
treaty-making process of the executive branch and the
Senate). A ratified treaty “is the law of the land as an act of
Congress is, whenever its provisions prescribe a rule by
which the rights of the private citizen or subject may be
determined.” Mannington Mills, Inc. v. Congoleum Corp.,
595 F.2d 1287, 1298 (3d Cir. 1979) (quoting Head Money
Cases (Edye v. Robertson), 112 U.S. 580, 598-99 (1884)).
Unless a treaty is self-executing, it must be implemented by
legislation before it gives rise to a private cause of action.
Mannington Mills, Inc., 595 F.2d at 1298; see also Medillin v.
Texas, 552 U.S. 491, 505 & n.2 (2008). Unratified treaties
are not binding on the United States and do not have the force
of law. Garza v. Lappin, 253 F.3d at 925.
7 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; then under “American Convention on Human
Rights,” follow “Signatures and Current Status of
Ratification” hyperlink).

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is not a treaty. In the best sense, the American Declaration,
adopted by United States and twenty other original OAS
member states at the Ninth International Conference of
American States in Bogotá, Colombia in 1948, represents a
noble statement of the human rights aspirations of the
American States, but creates no binding set of obligations.
See Igartua v. United States, 626 F.3d 592, 603 n.11 (1st Cir.
2010) (holding that the American Declaration “is merely an
aspirational document”); Garza v. Lappin, 253 F.3d at 923
(same); Flores v. S. Peru Copper Corp., 414 F.3d at 263
(same). Accordingly, neither the unratified American
Convention nor the American Declaration is itself enforceable
domestically.
Next, the 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/law/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 countries 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
8 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.”

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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, 474 F.3d 1, 3-4 (1st Cir. 2007) (stating that
where customary international law conflicts with a federal
statute, “the clear intent of Congress would control”);
Martinez-Lopez v. Gonzales, 454 F.3d 500, 502-03 (5th Cir.
2006) (holding that customary international law “cannot
override congressional intent as expressed by statute”) (citing
other cases).
Accordingly, we will deny the petition for review.

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