Mixed-Status Families and Broken Homes: The Clash Between the U.S. Hardship Standard in Cancellation of Removal Proceedings and International Law

• Author: Molly Hazel Sutter
• Position: J.D. anticipated May 2006, The University of Iowa College of Law.
• Pages: 784-814

Page 784

The author would like to thank the 2004-2005 and 2005-2006 TLCP staff members and student writers for all of their hard work and friendship, as well as her other friends and family who put up with her writer's block and stress-filled rants! The author dedicates this Note to her father, Gary Sutter, who always believed in her writing abilities and encouraged her to follow her own path.

I Introduction: Two Families, Same Story

In 1989, Miguel Gomez and Guadalupe Venavides left Mexico to build a life in the United States.¹ For the past fifteen years they worked steadily, paid taxes, and raised a family. Their two gifted children have enjoyed great success in American schools; their son Michael has scored in the top 1 percent on a standardized intelligence test and is currently taking gifted classes.² However, it is likely that the Gomez children, U.S. citizens by birthright, will soon have to face a new life in Mexico because their parents face removal under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA).³

The situation is strikingly similar for the Aguilar family, who left Mexico for the United States in 1993. They have two children who are U.S. citizens, including one who is autistic and participates in special school programs.⁴ The Aguilars also face removal under the IIRIRA. Both families argue that not only will their children have difficulties adjusting to Mexico, but also that they will not enjoy the same quality of life that living in the United States provides in the areas of education and health care.⁵ The Gomez and Aguilar families' concern lies with their children's lessened ability to lead productive lives in Mexico.⁶ Yet, under the IIRIRA, Page 785 it is likely that neither family's hardship arguments will succeed because the Act strengthened the provisions and policies dealing with undocumented immigrants, and raised the bar on cancellation of removal proceedings.⁷ Attorneys and community members fighting for the families' right to stay will probably not tip the scales in favor of these families.⁸ Even though the children may remain in the United States, the removal will be "a family affair," because neither the Gomezes nor the Aguilars wish to split up.⁹ In addition, questions as to whom the children would live with and where they would reside remain unanswered.¹⁰

These children are only part of the "legion of American children whose present is precarious and future uncertain" because of their parents' undocumented status.¹¹ These families are examples of the "blended family" or "mixed-status family" phenomenon, in which "one or more parents are . . . noncitizen[s] and one or more children [are] . . . citizen[s]."¹² Nearly one out of every ten families with children is a mixed- status family.¹³ Researchers at the Urban Institute estimate that there are about three million children with U.S. citizenship who are also the children of undocumented parents.¹⁴ Also, statistics from 2002 estimate that approximately nine million undocumented immigrants live in the United States.¹⁵

Fortunately, the two families profiled differ from the norm in blended families because both parents work and the children are successful in school.¹⁶ In reality, the picture for most mixed-status families is much bleaker because they are "more likely to be poor than other families,"¹⁷and "two-thirds of undocumented workers [tend] to earn less than" $10.30 per hour, or "twice the current minimum wage, compared with Page 786 only one-third of workers overall."¹⁸ Still, most families manage to maintain a better standard of living in the United States than in their home country.¹⁹ Many U.S. citizen children must leave with their parents upon removal,²⁰ and Immigration and Customs Enforcement "removed a record 157,281 foreign people from the country" between October 2003 and September 2004.²¹

In many countries around the world, "[c]ases relating to the removal of non-citizen parents of citizen children have been deemed to be 'actions concerning children' by some courts."²² Results in removal cases have been mixed,²³ but in certain cases courts and international bodies have reacted favorably toward undocumented parents of citizen children. For example, the European Court of Human Rights, in the case of Uppal v. United Kingdom,²⁴ and the former European Commission on Human Rights in Fadele Family v. United Kingdom,²⁵ allowed the non-citizen parents of children who were U.K. citizens to remain in the country.²⁶ In Uppal, the undocumented parents overstayed their visa, and their removal proceedings led to a "friendly settlement."²⁷ The U.K.-citizen children in Fadele Family were facing removal to Nigeria, their father's country of origin.²⁸ Instead of such a drastic result, another "friendly settlement" resulted, and it "included payment of the entire family's airfares back to the United Kingdom."²⁹ Due to the requirements under the IIRIRA, such beneficial results rarely happen in the United States. Page 787

The "exceptional and extremely unusual hardship" requirement³⁰necessary to cancel removal under the IIRIRA creates a nearly impossible hurdle for undocumented parents of U.S. citizen children to overcome during cancellation of removal proceedings. The hardship requirement violates the Convention on the Rights of the Child (CRC),³¹ as well as common international conceptions of the best interests of the child standard.³²

Part I of this Note introduces the mixed-status family concept, as well as the conflict between the U.S. hardship standard and international law. In Part II, this Note focuses on the development of children's rights and the present working definition of the best interests of the child standard, as well as its eventual codification in the 1989 CRC. Part III discusses Canada's approach to implement the CRC within their domestic law. Part IV analyzes the "exceptional and extremely unusual hardship" standard under the IIRIRA and its failure to comport with international law. Finally, in Part V, this Note suggests changes to reform U.S. law and policy.

II Development Of The Issue: The Existence Of A Present Working Definition of the Best Interests of the Child Standard

A Pre-Convention Standards on the Rights of the Child

The world's interest in the welfare and rights³³ of the child is not a new phenomenon. Society recognizes children as one of its most vulnerable groups, as they depend on adults for life's essentials and usually are legally unable to provide for themselves.³⁴ Children may also lack other necessary skills, such as the ability to voice their needs and protest injustice or a lack of fulfillment.³⁵

Due to various social and economic trends in the late Nineteenth Century, such as industrialization and urbanization, governmental Page 788 entities noticed the need for statutorily codified protections of children.³⁶The history of the three international documents on the rights of children, which followed in the footsteps of the original national laws enacted for the protection of children, can be seen as a trajectory where the rights of children become both broader and more specific.³⁷ In 1924, The League of Nations adopted the Declaration of the Rights of the Child, also known as the Declaration of Geneva. (1924 Declaration)³⁸ The 1924 Declaration sets out five principles,³⁹ and it is "principally concerned with the provision of children's economic, psychological, and social needs" and the language is that of "child welfare."⁴⁰ Although an important step in the recognition of children's rights, no party intended the 1924 Declaration to be a binding legal document.⁴¹

The United Nations officially recognized children's rights in the 1959 U.N. Declaration of the Rights of the Child.⁴² While the 1924 Declaration "still regards children merely as objects of the law," the 1959 Declaration's text "shift[s] [in] emphasis from welfare and protection of the child to the protection of the rights of the child."⁴³ The current Convention was adopted in 1989 in part to celebrate the forty-year Page 789 anniversary of the recognition of children's rights.⁴⁴ This Declaration is characterized as a "soft law" instrument because it is "not binding on states."⁴⁵ It embodies ten principles that, according to the Declaration's preamble, "enunciat[e] rights and freedoms."⁴⁶

B The 1989 U.N. Convention on the Rights of the Child: Cornerstone and Turning Point

In 1976, the U.N. adopted a resolution proclaiming 1979 as the "International Year of the Child."⁴⁷ Determined to commemorate this...