Broken Families: A Call for Consideration of the Family of Illegal Immigrants in U.S. Immigration Enforcement Efforts

Author:Marie Weisenberger
Position::Capital University Law School, J.D. Candidate, May 2011
Pages:495-533
 
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BROKEN FAMILIES: A CALL FOR CONSIDERATION OF THE FAMILY OF ILLEGAL IMMIGRANTS IN U.S.

IMMIGRATION ENFORCEMENT EFFORTS

MARIE WEISENBERGER*

I. INTRODUCTION

Edwin Valeriano was born in the United States.1Edwin Valeriano has lived in the United States his entire life.2Edwin Valeriano is a United States citizen.3Nevertheless, at the age of sixteen, Edwin faced the possibility of being removed from the United States to a foreign country or being separated from his sole caregiver—his father.4Edwin‘s father, Ismael Valeriano, lived in the United States for the past twenty years as an undocumented immigrant from Mexico City.5Ismael is a single parent and the sole caregiver for his three boys: Edwin, age sixteen; Luis, age fifteen; and Ismael Jr., age twelve.6

Edwin Valeriano recalled being in his ―seventh–period algebra class at Camel [B]ack High School when his cell phone rang‖ with the news that the police arrested his father.7Edwin stated, ―I was shocked. I freaked out. I didn‘t know what to do.‖8After school, Edwin went home to tell his brothers the news.9Edwin added, ―I just told them straight out. ‗Dad‘s in jail. He‘s not coming home‘ . . . I felt like crying. But I didn‘t want my brothers to get upset, so I tried to stay calm.‖10The boys went to bed

Copyright © 2011, Marie Weisenberger.

* Capital University Law School, J.D. Candidate, May 2011. I would like to thank all the families I encountered during my work as a child welfare caseworker who inspired me to write this article. Further, I would like to thank my daughter for providing me with a daily dose of support and motivation.

1See Daniel Gonzalez, Migrant Arrests Severing Parents from Kids, ARIZ. REPUBLIC, July 6, 2008, at A1.

2See id.

3Id.

4See id.

5Id.

6Id.

7Id.

8Id.

9Id.

10Id.

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without eating that night.11The next morning they searched for quarters in their father‘s dresser to pay for a bus ride to school because their dad usually drove them to school before going to his landscaping job.12

For the next eight days, the three boys lived alone.13Finally, the boys‘ grandmother came to care for them from Washington, but she had diabetes and the family struggled to survive.14At one point, the boys sold their two puppies to help buy food.15Community activists stepped in helping the family by providing donations to pay for rent, bills, and food.16Child

Protective Services became involved and requested the court place the children in foster care, which would possibly separate the children.17

Fortunately, community activists convinced the judge to allow the children to remain with their grandmother.18As of July 6, 2008, the children were awaiting their father‘s removal hearing; a hearing that will determine the fate of these three U.S. citizen children, Edwin, Luis, and Ismael, Jr.19

However, at no point during the hearing will the court consider the children‘s best interests.20

With an increase in removal of illegal immigrants, the Valeriano brothers are one case among thousands where the U.S. government separated U.S. citizen children from their immigrant parents.21Removal of noncitizens separated at least 1.6 million family members, husbands, wives, sons, and daughters in the ten-year period between 1997 and 2007.22

An estimated 4.9 million children living in the United States in 2009 have at least one undocumented immigrant parent.23Daily, these 4.9 million


11Id.

12Id.

13Id.

14Id.

15Id.

16Id.

17Id.

18Id.

19See id.

20See id.

21See id.; HUMAN RIGHTS WATCH, FORCED APART: FAMILIES SEPARATED AND

IMMIGRANTS HARMED BY UNITED STATES DEPORTATION POLICY 44 (2007), available at

http://www.hrw.org/en/reports/2007/07/16/forced-apart-0.
22HUMAN RIGHTS WATCH, supra note 21, at 44.

23JAMES D. KREMER ET AL., URBAN INST., SEVERING A LIFELINE: THE NEGLECT OF

CITIZEN CHILDREN IN AMERICA‘S IMMIGRATION ENFORCEMENT POLICY 19 (Katherine (continued)

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children face the possibility of family separation or family removal.24Of

those 4.9 million children, about 3.1 million (sixty-four percent) are U.S. citizens.25

Immigration law as of 2011 makes the entire family of an undocumented immigrant, including families comprised of U.S. citizen children and spouses, as vulnerable to immigration enforcement as the illegal immigrant.26The government cannot deport, arrest, or detain a U.S. citizen child of an undocumented immigrant.27Nevertheless, if the government forces parents of U.S. citizen children to return to their country of origin, the child may face removal from the country with their parents or separation from their parents.28Although immigration law provides the illegal immigrant parent with limited due process during immigration enforcement efforts,29the law fails to provide the U.S. citizen child of the undocumented parent with this same limited due process during those same enforcement efforts.30For example, in removal cases, only the illegal immigrant is a party to the case.31The child is never a party to the case, even though the case ultimately decides the child‘s fate.32

Immigration law must change to consider these mixed-status families as a central focus rather than a mere afterthought. Immigration reform needs to provide U.S. citizen family members, especially minor children, a legally enforceable means to resist the unthinkable choice between family separation and family removal. Congress must reform present immigration law to allow U.S. citizen children of undocumented immigrants to be a

Fennelly et al. eds., 2009), http://www.dorsey.com/files/upload/DorseyProBono_Severing Lifeline_web.pdf.

24See id.

25Id.

26RANDY CAPPS ET AL., URBAN INST., PAYING THE PRICE: THE IMPACT OF IMMIGRATION

RAIDS ON AMERICA‘S CHILDREN 9 (2007), http://www.urban.org/UploadedPDF/411566_

immigration_raids.pdf.
27Id.

28Id.

29Immigration and Nationality Act (INA), 8 U.S.C. § 1229(b) (2006) (providing immigrants with a possible defense to removal).

30See David B. Thronson, You Can’t Get Here from Here: Toward a More Child Centered Immigration Law, 14 VA. J. SOC. POL‘Y & L. 58, 84 (2006) [hereinafter Thronson, You Can’t Get Here].

31See id.

32See id. at 76.

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party to their parent‘s removal proceeding. Such reform will restore consideration of the family to immigration removal proceedings. An immigration judge could consider the child‘s best interest as one of the many factors in determining whether to order removal of the undocumented immigrant—the parent of a U.S. citizen. This article sets forth not only reasons why this reform must occur but also possible ways to achieve this reform.

Part II of this article presents the historical and current treatment of families in immigration law. The section highlights the important role families have played in immigration procedures throughout history and the role families should continue to play in the creation and application of future immigration law.

Part III of the article discusses the emergence of the mixed-status family and the current dilemmas facing mixed-status families confronted with the immigration system. The immediate and long-term effect on the children, when federal officials arrest, detain, and remove undocumented parents from the United States, best emphasizes these family dilemmas.

Part IV of the article offers constitutional and international arguments for immigration reform. Ultimately, this section argues constitutional and international norms favoring consideration of the entire immigrant family, especially in relation to U.S. citizen children‘s best interest, should compel Congress to reform current immigration law.

Finally, Part V of the article offers possible immigration reforms. The section considers possible amendments to current immigration law to provide a more family-focused process.

II. INFLUENCE OF FAMILY ON THE CREATION AND APPLICATION OF IMMIGRATION LAW

In a general sense, immigration law seeks to permit the most desirable people to legally inhabit a specific territory.33To obtain this goal, U.S. immigration laws, codified in the Immigration and Nationality Act (INA), divide all individuals within the United States into two classifications: citizens and noncitizens.34The INA defines an alien as ―any person not a

33Adam B. Cox, The Second-Order Structure of Immigration Law, 59 STAN. L. REV.

809, 814 (2007).

34See Christian Joppke, The Evolution of Alien Rights in the United States, Germany, and the European Union, in CITIZENSHIP TODAY GLOBAL PERSPECTIVES AND PRACTICES 36,

38 (T. Alexander Aleinikoff & Douglas Klusmeyer eds., 2001).

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citizen or national of the United States.‖35It further divides noncitizens into three classifications: resident aliens, non-immigrant aliens, and illegal immigrants. Resident aliens are individuals permitted to reside in the United States as permanent residents with the expectation of obtaining citizenship status.36Non-immigrant aliens are individuals ―admitted only for temporary periods,‖ with the expectation of returning to ―their countries of origin.‖37Illegal immigrants include aliens who do not fall into one of the above categories.38

For most, ―[t]he idea of citizenship is . . . invoked to convey a state of democratic belonging or inclusion . . . . Citizenship as an ideal is understood to...

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