Flores-Nova v. Att'y Gen. of U.S., No. 10-2044 (3d Cir. 2011)Annotate this Case
Husband and wife, citizens of Mexico, came to the U.S. without valid documents in 1992 and 1996. They have three American-born children (ages five, ten, and eleven). In 1999, they traveled to Mexico to attend the funeral of husband's father. While there, wife, injured and pregnant, was restricted to bed rest and directed not to travel. They returned to the U.S. after 176 days. Religious worker visa applications were denied and the government instituted removal proceedings. In 2008, the couple applied for cancellation of removal under 8 U.S.C. 1229b(b)(1), claiming continuous physical presence for 10 years, absence of any criminal statutory bars, and exceptional and extremely unusual hardship on their children. An immigration judge denied the applications and granted voluntary departure. The BIA affirmed. The Third Circuit denied review. The couple failed to maintain continuous presence; intent to return is irrelevant--there is no scienter requirement and non-permanent resident aliens and permanent resident aliens seeking naturalization are not similarly situated groups for equal protection purposes. Neither the unratified American Convention on Human Rights nor the American Declaration of the Rights and Duties of Man is enforceable domestically.