Curtailing the Deportation of Undocumented Parents in the Best Interest of the Child

CURTAILING THE DEPORTATION OF
UNDOCUMENTED PARENTS IN THE BEST
INTEREST OF THE CHILD
BILL ONG HING* AND LIZZIE BIRD
ABSTRACT
Undocumented noncitizens facing deportation who have resided in the
United States for at least ten years often seek cancellation of removal—a
form of relief that requires evidence that removal would result in “excep-
tional and extremely unusual hardship” to a citizen or lawful permanent resi-
dent spouse, parent, or child. This article examines cancellation of removal
for noncitizens whose children are U.S. citizens. Along with strict border
enforcement, the Trump administration has increased interior arrests at
workplaces and homes. Often, victims of interior arrests have children who
are U.S. citizens. If the Administration is successful in terminating the
Deferred Action for Childhood Arrivals program (DACA) and Temporary
Protected Status (TPS), more individuals will apply for cancellation relief.
For example, the estimated 200,000 TPS holders from El Salvador
are parents to an estimated 192,000 U.S. citizens. Additionally, about
250,000 U.S. citizens are children of DACA recipients.
The application for cancellation of removal is critical for these individuals
who face deportation, and thus, it is imperative that parents in these situa-
tions satisfy the “exceptional and extremely unusual hardship” requirement
as it pertains to their children. However, the Board of Immigration Appeals’
approach to the hardship requirement makes cancellation relief difficult to
attain for the vast majority of applicants.
This article argues that the BIA approach to assessing the hardship require-
ment is ripe for reconsideration based on two related new arguments. First, neu-
rologic/toxic stress factors faced by U.S. citizen children—particularly those
who will be separated from a deported parent—should be sufficient to sat-
isfy the exceptional and extremely unusual hardship requirement. Children
exposed to repeated adverse childhood events (ACEs), including deporta-
tion of a parent, experience an escalation in levels of stress hormones that
have devastating long-term health, educational, and economic effects.
* Professor of Law and Migration Studies, University of San Francisco; Professor of Law Emeritus,
University of California, Davis, School of Law. © 2021, Bill Ong Hing and Lizzie Bird.
M.A. International Studies, University of San Francisco.
113
Second, the rights of children should be given particular consideration in
the adjudication of cancellation of removal claims. To be consistent with
international legal norms, in particular Article 3 of the United Nations
Convention on the Rights of the Child (CRC), the duty to consider the “best
interests” of the child in every decision that affects children must be ful-
filled. Because the CRC is customary international law, and ambiguous
statutes like the cancellation provision must be interpreted in a way that
complies with international law, the hardship standard must be re-inter-
preted so that it incorporates a “best interests” assessment in parental de-
portation cases involving citizen children.
TABLE OF CONTENTS
I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115
II. “EXCEPTIONAL AND EXTREMELY UNUSUAL HARDSHIP” BACKGROUND 116
III. RESEARCH ON THE CUMULATIVE BIOCHEMICAL CONSEQUENCES OF
ADVERSE CHILDHOOD EVENTS SHOULD INFORM THE BIA’S ANALYSIS
OF HARDSHIP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121
A. Adverse Childhood Events Research................ 121
B. Applying the ACEs Research to a Fact Pattern . . . . . . . . . 124
1. Adrian’s Age.............................. 133
2. Adrian’s Health. . . . . . . . . . . . . . . . . . . . . . . . . . . . 134
3. Adrian’s Other Circumstances .................. 136
4. Adrian Would Experience Extreme and Unusual
Hardship ................................. 138
IV. THE CONVENTION ON THE RIGHTS OF THE CHILD PROVIDES AN
IMPORTANT PERSPECTIVE ON THE HARDSHIP REQUIREMENT . . . . . . . . 141
A. Is the United States Bound by the CRC? . . . . . . . . . . . . . . 143
1. The CRC and the Best Interests Standard: Background 144
2. U.S. Obligations as Signatory to the CRC. . . . . . . . . . 146
3. The CRC as Customary International Law . . . . . . . . . 147
4. The Best Interests Standard as Customary International
Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148
5. Authority of Customary International Law in the U.S. . 150
6. The CRC and “Best Interests” in Cancellation of
Removal Caselaw . . . . . . . . . . . . . . . . . . . . . . . . . . 151
B. Ambiguity and Statutory Interpretation . . . . . . . . . . . . . . 153
114 GEORGETOWN IMMIGRATION LAW JOURNAL [Vol. 35:113
1. The Charming Betsy Case and Rules of Statutory
Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154
2. What is Ambiguity? . . . . . . . . . . . . . . . . . . . . . . . . . 156
3. Ambiguity Under INA § 240A(a): Beharry and
Guaylupo-Moya ............................ 157
4. Ambiguity under INA § 240A(b): Oliva, Flores-Nova,
Bamaca-Perez ............................. 159
5. The Ambiguity of the Hardship Standard: INA § 240A
(b)(1)(D) ................................. 161
C. Hardship v. Best Interests: What’s the Difference?. . . . . . 165
1. Best Interests as the Converse of Hardship: Existing
Caselaw ................................. 165
2. International Caselaw: Canada ................. 166
3. Procedural Differences....................... 167
a. Order of Analysis ....................... 168
b. Weight of Child’s Interests . . . . . . . . . . . . . . . . 170
c. Method of Analysis ...................... 171
d. Views of the Child . . . . . . . . . . . . . . . . . . . . . . 173
4. Substantive Differences...................... 174
D. Possibilities for Re-interpretation . . . . . . . . . . . . . . . . . . 176
V. CONCLUSION ...................................... 179
I. INTRODUCTION
Undocumented noncitizens who are facing deportation, but have resided in
the United States for at least ten years, often seek cancellation of removal—a
form of relief under section 240A(b) of the Immigration and Nationality Act
(INA). Under that provision, an applicant must provide evidence regarding
four requirements: (A) a ten-year period of continuous physical presence,
(B) good moral character during that period, (C) no convictions of certain
specified criminal offenses, and (D) removal would result in “exceptional
and extremely unusual hardship” to a citizen or lawful permanent resident
(LPR) spouse, parent or child.
1
Thus, a relationship with a citizen or LPR
spouse, parent, or child is a prerequisite to relief.
This article examines cancellation of removal for noncitizens who have
U.S. citizen children. Many victims of interior arrests are parents of U.S. citi-
zen children. With immigration enforcement being a hallmark of the Trump
1. See Immigration and Nationality Act § 240A(b), 8 U.S.C. § 1229b (2018) (cancellation of removal
for non-permanent residents).
2020] CANCELING REMOVAL IN THE BEST INTEREST OF THE CHILD 115

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