Family Courts and Immigration Status

• Published date: 01 January 2012
• Date: 01 January 2012
• Author: David B. Thronson,Judge Frank P. Sullivan
• DOI: http://doi.org/10.1111/j.1755-6988.2011.01068.x

Family Courts and Immigration Status

By David B. Thronson and Judge Frank P. Sullivan

ABSTRACT

Immigration issues can complicate the already difficult decisions that face family

courts, and immigration law is a real and substantial element in the lives of many persons

properly before family courts for protection and resolution of family issues. Yet there are not

established parameters for evaluating the appropriateness and scope of the consideration of

immigration issues in family court. This article explores principles and approaches regard-

ing immigration issues in family courts, developing rationales for engaging or not in

immigration issues, and providing a foundation for thoughtful consideration of the ways in

which immigration law interacts with core family law functions.jfcj_10681..18

INTRODUCTION

Families transcend borders and cross divides of immigration status. Immigration laws

which regulate the migration of people consider family connections in only a limited fashion,

and the ability to achieve lawful immigration status in the United States diverges greatly from

any notion that having close family connections provides a reliable path to lawful immigration

status. Given this chasm, when immigration law and family laws inevitably collide, children

routinely are caught in the middle. The interaction is not simply a clash of practical realities,

but often a clash of values. On the most fundamental levels, the motivating forces of immi-

gration law and family law differ. The vindication of immigration law goals often compromises

family integrity and the best interests of children, and achievement of family integrity often

can be accomplished only by violating immigration laws.

Given the prevalence of immigrant families in the United States, immigrants and issues of

immigration often cross the threshold of family court. Yetthe appropriateness of and parameters

forthe considerationof immigrationissues infamily courtdecision makingare notsimple matters.

Some courts seek to avoid immigration issues altogether, yet other “judges and advocates are all

too eager to attach exaggerated legal significance to immigration status with little explanation

David B. Thronson is a Professor of Law at the Michigan State University College of Law where he is

co-founder of the Immigration Law Clinic. His research and writing seeks to develop frameworks and critical

perspectives for analyzing the intersection of family and immigration, with a particular focus on children. Corre-

spondence: david.thronson@law.msu.edu

Judge Frank P.Sullivan is a Family Court Judge in Nevada’s 8th Judicial District Court where he oversees

the Child Abuse and Neglect Court Improvement Project. He previously served in Nevada as a Juvenile Hearing

Master, Domestic Violence Commissioner, and a Deputy Attorney General.

Juvenile and Family Court Journal 63, no. 1 (winter) 1

© 2012 National Council of Juvenile and Family Court Judges

andno analysis.”1Immigrationissues cancomplicate thealready difficultdecisions thatface family

courts, and immigration law is a real and substantial element in the lives of many persons properly

before family courts for protection and resolution of family issues. This article lays out some

principles and considerations related to immigration issues in family courts, articulating

rationales for engaging or not in immigration issues and identifying frameworks for thoughtful

consideration of how immigration matters interact with core family law principles and functions.

THE DEMOGRAPHICS OF IMMIGRANT FAMILIES

Demographic details of the U.S. population reflect our national inability to reach consensus

regardingenforcementand reformof ourimmigration laws. Theongoing stalemateleaves inplace

immigration laws that provide potential immigrants a strong disincentive to leave the United

States yet strand individuals and families in a limbo where family members cannot achieve a

common immigration or citizenship status.2The numbers are sufficiently large that even with

record immigration enforcement activities that impact thousands of families,3millions of

unauthorized migrants continue to live stable lives in the United States.4Yetdespite long periods

of residence and strong equities in the United States, including ties with close family members

in this country, they are unable to regularize their immigration status.5

As a result, the United States is home to a large and rising number of mixed status

families, that is families in which all members do not share the same immigration or citizen-

ship status.6A mixed family status can include families whose members have different forms

of lawful immigration status, but many include some family members who are not authorized

to remain in the United States.

Children in immigrant families now account for nearly one fourth of all children in the

United States.7The majority of children in immigrant families, 59%, have at least one parent

who is a U.S. citizen.8Still, more than five million children have at least one parent who lacks

1 David B. Thronson, Of Borders and Best Interests: Examining the Experiences of Undocumented Immigrants in

U.S. Family Courts,11Tex.Hisp.J.L.&Pol’y45, 45 (2005) (surveying family court decisions and developing a

classification of the approaches that family courts adopt when presented with immigration status issues).

2See 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, 72-76 (2006) (detailing barriers to obtaining legal immigration status for families living

in the United States).

3 Immigration Customs and Enforcement, FY 2011: ICE announces year-end removal numbers, highlights focus

on key priorities including threats to public safety and national security (Oct. 18, 2011) (reporting a record 396,906

removals in fiscal year 2011), available at http://www.ice.gov/news/releases/1110/111018washingtondc.htm.

4 See discussion below.

5See generally David B. Thronson, Entering the Mainstream: Making Children Matter in Immigration Law,37

Fordham Urb. L.J. 393 (2010) (debunking the myth “that parents are afforded easy and unwarranted pathways to

U.S. citizenship through their U.S. citizen children”).

6Michael E. Fix &Wendy Zimmermann,All Under One Roof:Mixed-Status Families in an

Era of Reform 2 (Urban Institute, 1999).

7Donald J. Hernandez &Wendy D. Cervantes,Children in Immigrant Families:Ensuring

Opportunity for Every Child in America at 6 (First Focus, 2011).

8Donald J. Hernandez,Generational Patterns in the U.S.: American Community Survey

and Other Sources (2009), available at http://www.brown.edu/Departments/Education/paradox/documents/

Hernandez.pdf.

2 | JUVENILE AND FAMILY COURT JOURNAL / Winter 2012