Entering the mainstream: making children matter in immigration law.

• Author: Thronson, David B.

ABSTRACT

Myths that parents are afforded easy and unwarranted pathways to U.S. citizenship through their U.S. citizen children and that children receive privileged treatment in U.S. immigration law stubbornly persist in public discussion surrounding possible immigration reform. Testing these myths, this essay examines immigration law's treatment of children in three contexts: (1) as lawfully immigrating dependents of adults; (2) as immigrants on their own or outside the structures of immigration law; and (3) as individuals empowered to generate immigration rights in others. In each of these contexts, analysis reveals that the failure of immigration law to advance, or in most instances even consider, the interests of children places it far from mainstream values and legal conceptions regarding children. In particular, immigration law fails to fully recognize children as individuals with independent rights and interests, attaches punishing and lasting legal consequences to children for choices of adults in their lives or for choices that children make prior to reaching the age of discretion, and effectively and pervasively precludes children from generating immigration rights in their parents or others.

At the least, this deeper understanding of the nature of immigration law's marginalization of children serves as a counterweight to calls for reform based on false characterizations of current law. Ironically, myths about the treatment of children in immigration law serve as an effective template for simple, yet fundamental reforms that would bring U.S. immigration law closer to mainstream values and approaches regarding children. The essay suggests three simple, yet fundamental reforms that would not only bring the law closer to mainstream values, but also closer to the place where many seem to think it is already. Any reform agenda that fails to address the role of children in immigration law will not prevent accepted societal and demographic pressures from replicating the current situation in which millions find themselves unable to reconcile their family relationships and responsibilities with the dictates of immigration law. Children matter, and it is time they mattered in U.S. immigration law.

TABLE OF CONTENTS Abstract Introduction I. Children in Immigration Law A. Children as Dependents and Derivatives B. Children as Immigrants C. Children as Generators of Immigration Rights in Others II. Entering the Mainstream A. Expanding Notions of Family B. Removing Punishment for the Acts of Parents C. Children as Generators of Immigration Rights Conclusion INTRODUCTION

Listening to the national discussion on immigration, it would be easy to conclude that children hold a privileged position in U.S. immigration and nationality laws. Children, we are warned, enable their parents to avoid deportation and obtain lawful immigration status in the country. Indeed, it is common to hear "frustration that pregnant women could cross the border from Mexico illegally, then rely on their American citizen newborns to put them immediately on a path to citizenship." (1) And, as some voices unease about children "anchoring" their parents to the United States, other voices express contrary concerns about parents who are not grounded in the United States and "drop and leave," raising their U.S. citizen children outside the United States where they may develop allegiances counter to U.S. interests. (2) Certainly such arguments regarding the citizenship and immigration rights of children have long been part of a loud political discourse and predictably serve as an effective wedge issue in the shifting winds of electoral politics. (3) Yet even setting aside the most extreme distortions, the discussion of children and immigration is characterized by persistent myths about the treatment of children and their parents in U.S. law. Whatever position is taken on policy issues, it is common to characterize the rights and role of children in matters of nationality and immigration as expansive. As the mainstream calls for examination of children's citizenship and immigration rights, the actual treatment of children in U.S. immigration law warrants deeper exploration.

This analysis reveals that the actual treatment of children under U.S. immigration law strays far from mainstream conceptions regarding children. Indeed, perhaps one reason for the persistence of myths related to children and immigration is that reality is so dissonant with accepted notions and values about the treatment of children in law. In many contexts, immigration law is notable for its exceptionalism. (4) Yet revealing the extent to which U.S. immigration law diverges from the mainstream in its approach to children provides striking evidence of the extreme level at which immigration law fails to synchronize with broadly held views of law and society. At least a deeper understanding of the nature of immigration law's marginalization of children serves as a counterweight to calls for reform based on false characterizations of current law. More importantly, the examination of the treatment of children in immigration law serves not only as a critique of current law, but also as a template for simple, yet fundamental reforms that would bring U.S. immigration law closer to mainstream values and approaches regarding children. (5)

1. CHILDREN IN IMMIGRATION LAW

   The parameters of immigration law are easily seen to encompass decisions about who may enter and remain in the United States. In thinking about these decisions, the focus generally and understandably turns to the immigrants themselves. This analysis will do the same, starting with an examination of children lawfully immigrating as dependents of adults, then turning to children immigrating on their own or outside the structures of immigration law. In both situations, examination reveals that U.S. immigration law fails to fully recognize children as individuals with independent rights and interests.

   Less obvious is that immigration law encompasses the empowerment of individuals to generate immigration rights in others. Much of U.S. immigration law details which individuals and entities are empowered to generate immigration rights in others through their relationships and actions. It is in this regard that children are most openly marginalized and devalued by U.S. immigration law.

   1. Children as Dependents and Derivatives

      Descriptions of U.S immigration law often note its purported goal of keeping families intact, and in a limited respect, such statements are entirely accurate. (6) Immigration law includes an elaborate system of family-sponsored immigration and provisions for derivative immigration of the family members of certain immigrants who qualify under family-sponsored, employment-based, or diversity visa lottery provisions] The application of these provisions in these three primary avenues to achieve lawful immigration status in the United States results in the issuance of immigration visas to many children, leaving a general impression that immigration law is favorably oriented towards children. (8)

      For example, in fiscal year 2009 children as beneficiaries of petitions by parents or as derivatives of parents granted immigration visas constituted about 26.6% of all family-sponsored immigration. (9) Similarly, 24.7% of employment-based visas and 26.2% of diversity visas were issued to children as derivatives. (10) Children are a significant portion of the flow of immigrants into the United States pursuant to immigration laws, and their numerical prominence could easily be interpreted as an indication that children's interests are an important focus in immigration law. Delving deeper than the numbers, however, reveals that immigration law is structured to advance the interests of adults, not children.

      As an initial matter, not all children are "children" for immigration purposes. Under immigration law, a child is recognized as a "child" only if she meets the criteria of a "particularly exhaustive" statutory definition. (11) With clear intent not to include all children, a "child" is defined as one who meets other qualifying conditions, such as being born in wedlock or having a father who has taken specified steps to "legitimate[]" his child. (12) By basing the qualifications of who becomes a "child" firmly on the actions and decisions of parents, this definition empowers parents as "rights holders who may take action to recognize a 'child' for immigration purposes. Children, in contrast, are by definition passive objects subject to parental control." (13)

      Moreover, relationships outside the formal confines of the statutory definition of child, even those that approximate or functionally match the statutory categories, do not create a parent-child relationship for immigration purposes. (14) Even when a woman's "relationship with her nieces closely resembles a parent-child relationship, [the courts] are constrained to hold that Congress, through the plain language of the statute, precluded this functional approach to defining the word 'child.'" (15) Although courts have noted that with regard to "the technical definition of 'child' contained within this statute ... it could be argued that the line should have been drawn at a different point ... these are policy questions entrusted exclusively to the political branches of our Government." (16) This formalistic approach fails to account for choices outside the child's control about who can and will provide care for her, and contrasts with the treatment of children in other areas of law. "To be sure, the [Immigration and Nationality Act's] definition of 'child' may be far out of step with the times, and may have particularly deleterious effects on aliens whose culture's definition of 'family' is legitimately broader than the traditional definition of those related by blood or adoption." (17)

      Even when adults have acted in such a way that children may be recognized...