Metropolitan News-Enterprise


Tuesday, January 8, 2008


Page 1


Court Rejects First Amendment Challenge to Alien Removal Statute


By STEVEN M. ELLIS, Staff Writer


The Ninth U.S. Circuit Court of Appeals ruled yesterday that a federal law establishing hardship to a relative as a ground for cancelling removal did not violate the constitutional rights of a couple who claimed that their religious beliefs barred them from their only means of conceiving a child.

In a per curiam opinion, the court ruled that the law’s requirement did not violate Peter Urrutia Fernandez and Martha Ampil Katigbak’s rights under the Free Exercise Clause of the First Amendment or the Religious Freedom Restoration Act because the pair failed to establish that the requirement placed a substantial burden on the exercise of their religion.

Fernandez and Katigbak sought review in the Ninth Circuit after the Board of Immigration Appeals upheld an order for their removal from the United States, arguing that they are devout Catholics who are unable to conceive a child without the use of in-vitro fertilization—a procedure they say is barred by their religious beliefs. 

‘Exceptional Hardship’

They argued that the law’s requirement that an applicant seeking cancellation of removal establish that it would result in “exceptional or extremely unusual hardship” to a relative who was a citizen or lawful resident of the United States put pressure on them to modify their behavior and violate their beliefs.

However, Senior judge Betty B. Fletcher and Judges Marsha S. Berzon and Johnnie B. Rawlinson rejected the couple’s argument because the couple failed to establish that their lack of a qualifying relative resulted from their religious views. 

The judges noted that the couple had not claimed that their beliefs prevented them from adopting a child—thus satisfying the requirement—and that the couple’s opposition to adoption due to the uncertainty of their immigration status was a factor that applied equally to birth children, and was not traceable to the couple’s religious beliefs.

Attenuated Connection

The judges also said that the connection between giving birth and having a child who would  experience “truly exceptional” hardship under the law was too attenuated to create a substantial burden on the couple’s religious exercise. 

Noting that petitioners seeking to demonstrate hardship to a child must generally show that their child suffers from serious health or learning issues, and the relative rarity of cases in which this standard had been met, the judges wrote that the couple had no reason to expect that a child born to them as the result of in vitro fertilization would have the serious disabilities generally required to merit cancellation of removal.

“No sensible person would abandon his religious precepts to have a child in the hope that the child would be so very ill or learning disabled as to come within the small number of children as to whom ‘exceptional and extremely unusual hardship’ can be shown,” the judges wrote.

The U.S. Department of Justice declined comment, and counsel for the petitioners could not be reached.

The case is Fernandez v. Mukasey, 06-74228.


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