Yesterday, in Fernandez v. Mukasey, (9th Cir., Jan. 7, 2008), the U.S. 9th Circuit Court of Appeals rejected a convoluted Free Exercise and RFRA claim. It affirmed a deportation order requiring removal from the U.S. of a Catholic husband and wife from the Philippines, rejecting their claims of religious discrimination. U.S. immigration law provides for the cancellation of a deportation order where removal would create exceptional hardship to the deportee's child who is a U.S. citizen. (8 USC 1229b(b)(1)(D).) Generally this exception is applied only when a child has serious health or learning issues. Here petitioners argued that they have attempted to conceive a child for many years, that their Catholic faith precludes their using in vitro fertilization to conceive, and that the refusal to cancel their deportation order therefore places a substantial burden on their free exercise of religion.
The court held first that no religious belief precluded petitioners from adopting a child, so their religious views did not create their ineligibility to have their removal order cancelled. Second, the court said, petitioners did not show that they were pressured to violate their beliefs. It said: "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." Yesterday's San Francisco Examiner reported on the decision.
