Incorporating a "best interests of the child" approach into immigration law and procedure.

• Author: Carr, Bridgette A.

United States immigration law, and procedure frequently ignore the plight of children directly affected by immigration proceedings. This ignorance means decision-makers often lack the discretion to protect a child from persecution by halting the deportation of a parent, while parents must choose between abandoning their children in a foreign land and risking the torture of their children. United States immigration law systematically fails to consider the best interests of children directly affected by immigration proceedings. This failure has resulted in a split among the federal circuit courts of appeals regarding whether the persecution a child faces may be used to halt the deportation of a parent. The omission of a "best interests of the child" approach in immigration law and procedure for children who are accompanied by a parent fails to protect foreign national and United States citizen children. Models for eliminating these protection failures can be found in United States child welfare law and procedure, international law, and the immigration law of other nations, such as Canada. Building from these models, the United States must implement and give substantial weight to the best interests of directly affected children in its immigration law and procedure.

INTRODUCTION

Esther Olowo is a native and citizen of Nigeria, and the mother of minor twin daughters who are legal permanent residents of the United States. (1) When Esther was twelve years old, she was subjected to female genital mutilation. (2) During her removal proceedings, Esther told the immigration judge that she feared for the safety of her daughters. (3) Esther knew that, if the judge ordered her deported, her daughters would have to accompany her because her husband could not care for them on his own. (4) To protect her daughters from the horrors of female genital mutilation, Esther applied for asylum. (5) At the asylum hearing, Esther told the immigration judge that she would be powerless to prevent her daughters from being subjected to female genital mutilation if she were deported. (6)

The immigration judge denied Esther's claim on the basis that Esther had already been a victim of female genital mutilation and therefore did not have a well-founded fear of persecution. The immigration judge could not consider Esther's fear for her children because her children had the legal right to stay in the United States. (7) On appeal, the Seventh Circuit concurred with the immigration judge, but the Seventh Circuit did not stop there. Recognizing the danger to Esther's children, who were legally entitled to remain safely in the United States, the court made the unprecedented move of ordering that Esther be reported to state child welfare authorities to protect Esther's children from female genital mutilation. (8)

The Olowo case is a poignant example of the reality facing many families and children ensnared in the United States immigration system. Children like Esther's are often directly affected (9) by immigration law and procedure, yet have no voice and no access to the immigration system because of the failure of immigration law and procedure to consider their interests. (10) This lack of access, combined with gaps in protection, (11) makes accompanied children (12) who are directly affected by immigration decisions extremely vulnerable. Accompanied children may be members of families where all members of the family have the same status or they may be members of mixed-status families. (13) In contrast with unaccompanied (14) or separated (15) children, accompanied children face a bigger risk of being invisible in the United States immigration system and face the additional risk of having conflicting interests (16) with their parents. (17) The potential issues facing accompanied children vary based on their own citizenship and whether they have the same interests as their parents. (18)

Under current United States immigration law, accompanied children who are directly affected by immigration proceedings have no opportunity for their best interests to be considered. (19) The failure of immigration law and procedure to incorporate a "best interests of the child" approach ignores a successful means of protecting children that is common both internationally and domestically. (20) This Article argues for statutory reform incorporating a "best interests of the child" approach into immigration law and procedure. A "best interests of the child" determination is necessary to protect children like Esther's and, more importantly, to protect children whose parents fail to object to the harm they would face if they were ordered removed. Many children in danger of persecution have no one to speak for them.

Part I examines both domestic and international use and reliance on the "best interests of the child" approach as one way to provide effective protection to children. Part II uses hypothetical examples to describe the gaps in protection for children directly affected by immigration proceedings in the United States. Part III explores the current use of a "best interests of the child" standard in domestic immigration law. This Part also identifies a split among the federal circuits created by the varied approaches to incorporating the interests of children. Part IV highlights the use of the "best interests of the child" approach in Canadian immigration law. Part V discusses the changes that would be required to incorporate a "best interests of the child" approach into the substance and procedure of United States immigration law. Finally, this Article concludes with a call for reform of immigration law and procedure in order to effectively protect all children directly affected by immigration proceedings.

1. THE PREVALENCE OF THE "BEST INTERESTS OF THE CHILD" APPROACH IN DOMESTIC AND INTERNATIONAL LAW

   In both domestic and international law, a common legal standard for cases involving children is the "best interests of the child" standard. (21) The United States immigration system runs counter to this prevailing norm. Most United States immigration proceedings include no determination regarding the best interests of the child, (22) although such proceedings frequently result in decisions that directly affect the placement of children. (23) This failure to analyze the best interests of the child in immigration proceedings results in a failure to protect many children caught up in the United States immigration system. Addressing these issues will require changes in both immigration procedure and substantive law, since both currently devalue "children's interests and their roles in families." (24) Certain areas of United States domestic law, such as child welfare, have a history of focusing on the best interests of the child (25) and should serve as a guide for the treatment of children in immigration proceedings.

   1. The "Best Interests" Approach in Domestic Law Outside of the Immigration Context

      The "best interests of the child" approach has a long history in domestic law outside of the immigration context. The law and procedure of child custody and of child abuse and neglect reflect the importance of considering the directly affected child's best interests. (26)

      In the United States, the child custody law in every state "embraces the 'best interests' standard." (27) The emergence of a "best interests of the child" approach in the United States occurred during the period from 1790 to 1890. (28) In the context of child abuse and neglect, states have been required since the early 1970s to provide guardians ad litem for all children in child abuse and neglect proceedings. (29) The role of the guardian ad litem was not defined until 1996, in an amendment to the Child Abuse Prevention and Treatment Act providing that a guardian ad litem's role is to obtain "firsthand a clear understanding of the situation and needs of the child; and to make recommendations to the court concerning the best interests of the child." (30) Unlike a lawyer, who is retained by a client, a guardian ad litem is an officer of the court who is bound to protect the child's interests, which may not be the same as the child's expressed preferences. (31)

      Just as guardians ad litem must protect a child's interests, lawyers who represent children in child abuse and neglect cases must also address the "best interests of the child" standard. The use of a "best interests of the child" approach has been the focus of much debate within child advocacy communities. (32) The American Bar Association has promulgated standards for lawyers representing children in child abuse and neglect cases. (33) These standards include guidance regarding how a lawyer should determine a child's interests. (34)

      In light of the current scholarly debate, it is impossible to point to one legal standard defining the "best interests of the child" approach in domestic law. It is, however, possible to identify the priorities of the "best interests" approach. Procedurally, the "best interests" approach prioritizes allowing the child to have a voice. (35) Substantively, the "best interests" approach prioritizes the child's safety, permanency, and well-being. (36) It is these priorities--voice, safety, permanency, and well-being--that immigration law and procedure must incorporate.

   2. The "Best Interests" Approach in International Law: The Convention on the Rights of the Child

      In international law, one of the clearest statements regarding the "best interests of the child" standard can be found in the United Nations Convention on the Rights of the Child (CRC). (37) The CRC, however, did not originate the concept in international law; thirty years prior to the CRC, the United Nations Declaration on the Rights of the Child introduced the idea that "the best interests of the child shall be the paramount consideration." (38)

      The ideals of the Declaration on the Rights of the Child were formalized into obligations when the CRC was...