Philippine couple loses religious immigration appeal

A Bay Area Roman Catholic couple lost a bid to a federal appeals court in San Francisco today for the right to stay in the United States on the basis of their religious opposition to fertilization procedures.

The 9th U.S. Circuit Court of Appeals declined to overturn an order by the U.S. Board of Immigration Appeals requiring Peter Fernandez and Martha Katigbak of South San Francisco to return to their native Philippines.

The husband and wife said in the appeal that they were devout Catholics who tried for many years to conceive a child, but did not want to use the outside assistance of in-vitro fertilization because their religion disapproved of the procedure.

The couple said that because they had no child, they couldn't use an immigration law that allows non-residents to remain in the United States if leaving would be an “exceptional hardship” to a close family member.

They argued that being ordered to leave therefore violated their religious rights under the U.S. Religious Freedom Restoration Act and the Constitution.

But a three-judge panel of the appeals court said the couple failed to show that their situation created “a substantial burden on their religious exercise” for two reasons.

First, the court said, they could adopt a child.

In addition, the panel noted, the “exceptional hardship” rule allows non-resident parents to remain in the country only if their American citizen or legal resident child has very serious health or special education needs.

The panel said the husband and wife “have no reason to expect that a child born to them as a result of in-vitro fertilization would have the serious health or learning issues” required to allow the family to stay in the United States.

As a result, the court said, the couple hadn't proved they were under pressure to violate their religious beliefs by seeking in-vitro fertilization.

The panel 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.”

Martin Robles, a lawyer for the couple, said he hadn't yet discussed the case with his clients, but said they may be likely to ask the appeals court to reconsider the case.

Robles said the decision appeared to be “leaping too far ahead” in considering how likely or unlikely it would be to have a child with serious health needs. He said, “I don't think that takes away from the burden on religion.”

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