Court:/ Judicial body United States Court of Appeals, Ninth Circuit
Date: September 8, 2005
CRC Provisions: Article 3: Best interests of the child, Article 9: Separation from parents, Article 10: Family reunification
Background: A Mexican national entered the U.S. illegally and lived in the country illegally for a period of ten years, over the course of which he fathered two children. After the U.S. government initiated proceedings to remove him to Mexico, he fought deportation on the grounds that sending him to Mexico would cause great economic and emotional hardship for his children, both of whom were U.S. citizens and would remain behind with their mother.
Issue and resolution: Separation from parents; removal of alien parents to a foreign jurisdiction. The Court found that the alien parent of U.S. citizen children could be lawfully removed to Mexico, and that his deportation would neither cause extraordinary hardship for his children nor contravene the CRC.
Court reasoning: Removing alien parents with U.S. citizen children does not always breach the CRC. It is not clear that the best interests of the child under Article 3 of the CRC, although relevant to the removal proceedings of parents with citizen children, should be the primary consideration of parents’ removal proceedings. Articles 9 and 10 of the CRC do not prohibit states parties from removing parents; they only require that the government make efforts to help children remaining in the country to have contact with their parents abroad. The government and immigration courts should consider the interests of citizen children in deciding whether or not to remove their parents, but these interests are not determinative. U.S. immigration legislation, although it need not comply with the CRC in any event, provides for parents to remain in the country where removal would cause exceptional and unusual hardship to their children. In this case, there was no such hardship and other factors weighed more heavily towards removal; thus, their father could be lawfully deported.
Dissent: The CRC embodies the idea that the best interests of the child must be paramount, and emphasises the importance of keeping families together. U.S. immigration law does not respect these principles because it only allows alien parents to stay in the country with their citizen children in truly rare and exceptional circumstances. In this case, the children would suffer great hardship if their father were deported, and thus he should be allowed to remain. Moreover, the U.S. government should reform its immigration laws to make them more humane and provide for families of all nationalities to remain together.
Excerpts citing CRC and other relevant human rights instruments:
12.  The statute at issue here limits cancellation of removal to those who can demonstrate that removal would result in exceptional and extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence. 8 U.S.C. § 1229b(b)(1)(D) (emphasis added). Petitioner argues that the statute can, and must, be interpreted in a manner consistent with the Convention.
 Article 3 of the Convention requires consideration of the “best interests of the child” in all “actions concerning children.” The latter phrase, which is not defined in the Convention, is most readily understood to apply to actions that concern children directly, such as proceedings involving child custody or the termination of parental rights. In those proceedings, of course, many States explicitly apply the “best interests of the child” standard. See, e.g., Wash. Rev. Code § 26.10.100 (stating that custody shall be determined according to the “best interests of the child”). By contrast, a removal proceeding like the instant one directly “concerns” only the alien parent; it affects his or her children indirectly. Nonetheless, we recognize that the high courts of at least two other nations have held the Convention’s “best interests of the child” standard to be relevant to proceedings involving the deportation of a parent. See Minister of State for Immigration & Ethnic Affairs v. Teoh (1995), 183 C.L.R. 273, 289 (Austl.) (holding that the phrase “actions concerning children” encompasses a parent’s immigration proceeding, particularly where the parent’s primary argument involves the hardship to his or her children); Baker v. Canada , 2 S.C.R. 817 (holding that the Convention’s “best interests of the child” principle was relevant to interpreting the deportation statute, despite the lower court’s holding that “deportation of a parent was not a decision ‘concerning’ children within the meaning of [A]rticle 3” of the Convention).
 At most, then, the Convention demands that the “best interests of the child” be “a primary consideration” in considering a parent’s application for cancellation of removal, not that the child’s interests will always prevail. Indeed, at oral argument Petitioner’s counsel clarified that he does not ask us to interpret the hardship standard to prevent removal of a parent whenever removal is not in the child’s best interests. He argues only that, in balancing the relevant factors, “extra weight” must be given to the best interests of the child. Article 3 requires only that the child’s best interests be “a primary consideration,” without specifying the precise weight to be given to that consideration relative to others. And, because the child’s interests are already a primary consideration in the agency’s decision whether to grant cancellation of removal, we do not see how the terms of the Convention dictate the amorphous “extra weight” that Petitioner contends is required.
 Indeed, if the Convention required that the child’s best interests be “the primary consideration” (as Petitioner sometimes argues) the agency would have to reduce reliance on the comparative assessment. Yet, the agency’s rigorous comparative standard—“exceptional and extremely unusual”—is demanded by the statute’s text. Any interpretation that required a child’s best interests to be weighted more heavily than the comparative assessment would be at odds with the text of the statute. The Charming Betsy rule does not require us, nor does it require the agency, to presume that Congress intended a result contrary to the result flowing from clear statutory text. See Munoz, 339 F.3d at 958 (holding that, to interpret the statute consistently with international law in the manner that the petitioner proposed, would be “squarely at odds with the plain language of the statute”). In short, no rule of statutory construction required the agency to elevate the qualifying child’s best interests to a level that would effectively eliminate or alter the express comparative standard set forth in the statutory text.
13. In sum, we hold that the agency’s interpretation of the hardship standard, and its application of the standard in this case, are consistent with the “best interests of the child” principle articulated in the Convention on the Rights of the Child, even assuming that the Convention is “customary international law” and that its dictates are relevant to a proceeding involving deportation of a parent.
Pregerson, Circuit Judge, dissenting: 1. The United Nations: Convention on the Rights of the Child, Nov. 20, 1989, 28 I.L.M. 1448, embodies the humane principle that “[i]n all actions concerning children … undertaken by … courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” Art. 3(1), Id. at 1459. The Convention recognizes that the family is “the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children … .” Convention Preamble, 28 I.L.M. at 1457. In short, the Convention espouses our democracy’s abiding belief in the overarching importance of the family, particularly its children, and of “family values.”
Notes: Although the U.S. has signed the CRC, it has not yet ratified the Convention. Therefore, the Convention does not have legal effect in the U.S. The Court in this case was looking at the CRC hypothetically as customary international law, which would treat the Convention as binding on the U.S. because it had been universally accepted everywhere outside the country.
CRIN Comments: CRIN does not believe that this interpretation is consistent with the CRC. The CRC demands that the best interests of children be a primary consideration in all proceedings concerning them, whether directly or indirectly. Removing a child’s parent to a foreign country is a matter of extreme importance to the child’s life and should not be taken lightly. The CRC dictates that states should seek to keep families together wherever possible, and current U.S. immigration laws and policies do not meet this standard.
Citation: 423 F3d 1006 (9th Cir 2005)
Link to Full Judgment: http://openjurist.org/423/f3d/1006/cabrera-alvarez-v-r-gonzales