Ayala-Flores v. Immigration & Naturalization Service, AYALA-FLORES and O
| Decision Date | 23 October 1981 |
| Docket Number | AYALA-FLORES and O,No. 80-3080,80-3080 |
| Parties | Ramonfelia Ayala, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. |
| Court | U.S. Court of Appeals — Sixth Circuit |
M. Hector Cisneros, Detroit, Mich., for petitioners.
James C. Cissell, U. S. Atty., Patrick J. Hanley, Asst. U. S. Atty., Cincinnati, Ohio, James P. Morris, Robert Kendall, Criminal Division, Dept. of Justice, Washington, D. C., for Immigration and Naturalization Service.
Before KEITH and BOYCE F. MARTIN, Jr., Circuit Judges, and DUNCAN, * District Judge.
Petitioners seek review of a deportation order issued by the Immigration and Naturalization Service on August 28, 1979 and an order of the Board of Immigration Appeals dismissing their appeal. Petitioners, husband and wife, are Mexican citizens who illegally remained in the United States after expiration of their thirty-day visitor's visa in September, 1976. Petitioners have lived and worked in the United States since this time. In 1977, Mrs. Ayala gave birth to a daughter, who is, consequently, a United States citizen.
At a deportation hearing on August 28, 1979, petitioners appeared with counsel and admitted deportability under 8 U.S.C. § 1251(a)(2). The Immigration Judge granted them sixty days in which to leave the United States voluntarily. Petitioners then appealed to the Board of Immigration Appeals, alleging that deportation of illegal aliens who are the parents of a minor United States citizen, constitutes an unconstitutional de facto deportation of a citizen. The Board dismissed the appeal in a per curiam opinion, and granted petitioners thirty days to depart the country voluntarily.
On appeal to this court, petitioners reiterate their contention that their deportation would work a de facto deportation of their child, in violation of the child's constitutional rights of citizenship. While we recognize that the Ayalas' child enjoys all the rights of United States citizenship, including the right to live in the United States, we do not agree that deportation of her parents is an unconstitutional abridgement of those rights. The Third Circuit Court of Appeals rejected petitioners' precise argument in an opinion we find persuasive. In Acosta v. Gaffney, 558 F.2d 1153 (1977), Judge Maris accurately described the rights of a minor United States citizen who is the child of alien parents:
In the case of an infant below the age of discretion, the right (of citizenship) is purely theoretical ... since the infant is incapable of exercising it.... ...
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Ramos v. Nielsen
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Coleman v. U.S.
...... will merely postpone, but not bar, her residence in the United States if she should ultimately choose to live here."); Ayala-Flores, 662 F.2d at 446 (no violation of citizen child's constitutional rights because "once she reaches the age of discretion, will be able to decide for herself......
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Marin–garcia v. Holder
...having a child, it would create perverse incentives and undermine Congress's authority over immigration matters. See Ayala–Flores v. I.N.S., 662 F.2d 444, 446 (6th Cir.1981) (a contrary rule “would create a substantial loophole in the immigration laws”). Of course, Marin–Garcia has not conv......
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Butt v. Barr
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