Recognizing the Right to Family Unity in Immigration Law.

• Author: Lee, Eugene

The Trump Administration's travel ban and separation of families at the U.S. Mexico border drew newfound attention to the constitutional due process right to family unity. But even before then, the right to family unity has had a substantial history. Rooted in the Supreme Court's line of privacy rights cases, the right to family unity is amorphous. This ambiguity has given rise to disagreement regarding not only legal doctrine surrounding the right but also whether the right even exists. This Note clarifies this disagreement by offering a historical account of the right to family unity and an overview of three categories of immigration cases in which litigants assert this right. Acknowledging that a substantive resolution of the problem of family separation in immigration will require legislative and executive intervention, this Note argues instead that courts should adopt two recommendations that would, as a matter of judicial process, more fully recognize the right. These measures would validate the dignitary interests of immigrant families and signal to the legislative and executive branches the constitutional implications of their longstanding inaction.

TABLE OF CONTENTS INTRODUCTION I. THE RIGHT TO FAMILY UNITY A. The Constitutional Origins of the Right to Family Unity B. The History of the Right to Family Unity in Immigration Law 1. The Era of Chinese Exclusion: 1890-1924 2. The Height and Decline of the Plenary Power Doctrine: 1950-1970 3. Current Problems Facing the Right to Family Unity II. ASSESSING THE DOCTRINAL LANDSCAPE OF THE RIGHT TO FAMILY UNITY IN IMMIGRATION CASES A. The Scope of "Family" B. "Exceptional Hardship" upon a Family Member 1. Cancellation of Removal 2. Waiving the J-l Visa's Two-Year Foreign Residency Requirement C. Petitioning for Family Member Admissions into the United States D. Placing Family Members in Immigration Detention III. JUDICIAL RECOMMENDATIONS FOR RECOGNIZING THE RIGHT TO FAMILY UNITY A. Separating Procedural and Substantive Due Process Analyses B. An "Undue Burden" Standard for the Substantive Right to Family Unity CONCLUSION INTRODUCTION

The constitutional due process right to family unity (1) is intuitively recognizable yet legally indistinct. The term itself is indeterminate, having gone by other names such as the right to "family integrity" or "familial association." (2) One Second Circuit judge described the constitutional right of "intimate association" as being " [1] ike the wind that blows where it wills and can be heard, yet no one knows 'from where it cometh and whither it goeth,' " concluding, "this constitutional right is real despite the lack of exact knowledge regarding its derivation and contours." (3) The right gained renewed attention following the Trump Administration's separation of families at the U.S.-Mexico border, (4) leading President Biden to condemn the actions of his predecessor and declare that his administration would "protect family unity." (5)

Recently, some legal scholars have traced the roots of family separation in practices against enslaved, indigenous, and immigrant populations throughout U.S. history, while others have argued that separating families under a "zero-tolerance" policy violates the Eighth and Thirteenth Amendments. (6) Such broad recognition of family separation as a violation of human decency and civil rights has led some legal advocates to assert a right to family unity even in nonimmigration cases. (7)

The ambiguity of the right to family unity yields advantages and drawbacks. On the one hand, the ubiquity of family makes the importance of the right immediately recognizable. The right to family unity also serves as a conduit through which advocates can draw parallels to other historical injustices (8) and organize against a wide range of policies. For example, many Americans viewed the Trump Administration's "zero-tolerance" policy to deter migrants at the U.S.-Mexico border and President Trump's executive orders banning immigrants from several predominately Muslim countries as a single "family separation policy" despite the differences in type of governmental action and scope. (9)

On the other hand, when legal advocates draw parallels between these types of policies, it can obscure the differences in how governmental action separates families. Worse, such rhetorical flourish can undermine those advocates' credibility. (10) The ubiquity of family can make it difficult to determine what constitutes a family and to develop principles that circumscribe the contexts in which the right to family unity is implicated. Counterintuitively, the fact that most people have families makes some degree of family separation inevitable and, therefore, more easily taken for granted. Professor Stephen Lee aptly describes the separation of families by immigration laws as a "slow death" that "captures the kinds of harms that happen slowly and over time, which can often go overlooked or unnoticed." (11) The Southern District of California recognized a likely violation of the substantive due process right to family unity when it enjoined the Trump Administration's "zero tolerance" policy, but this is by far the exception and not the rule. (12) Instead, families are routinely separated by immigration laws despite the right to family unity and the principle of family reunification that is supposedly central to our immigration system. (13)

This Note aims to clarify confusion over the right to family unity by providing an overview of immigration cases in which litigants assert this right. It also argues that courts should adopt two recommendations to validate the dignitary interests of immigrant families. Part I offers a history of the right to family unity broadly and specifically within the immigration context. Part II begins by briefly outlining the scope of "family." It then untangles disagreement surrounding the right to family unity by examining three categories of cases in which the right is often raised: (1) cases considering "exceptional hardship" upon family members, (2) cases involving petitions for a family member's admission into the United States, and (3) cases involving family members in immigration detention. Part III argues that the judiciary should adopt two recommendations for examining the right to family unity in immigration cases. First, courts should separate procedural from substantive due process inquiries in analyzing this right. Second, courts should adopt the "undue burden" standard applied in access to abortion and other family privacy cases. These recommendations will enable courts to safeguard the right to family unity and signal to the legislative and executive branches the constitutional implications of their actions.

1. THE RIGHT TO FAMILY UNITY

   The right to family unity in the immigration context lies at the intersection of family and immigration law. Section I.A lays out an overview of the broader constitutional origins of the right to family unity. Section I.B traces the evolution of the right in immigration law.

   1. The Constitutional Origins of the Right to Family Unity

      The Constitution does not mention "family," much less a specific right to family unity. Unenumerated family rights instead originate from a long line of Supreme Court decisions interpreting the Fourteenth Amendment to protect family privacy. Starting in the 1920s, the Court recognized parents' rights over rearing and educating their children in Meyer v. Nebraska (14) and Pierce v. Society of Sisters, (15) respectively. Meyer and Pierce "mark[ed] off a 'private realm of family life which the state cannot enter.'" (16) Subsequent decisions recognized the right to marry, (17) to use contraception, (18) and to choose whether to carry a pregnancy to term. (19) Prior to uncertainty in the wake of the Supreme Court's ruling in Dobbs v. Jackson Women's Health Organization, (20) these cases have been understood to recognize subcategories of a broader right to privacy. (21) While Meyer and Pierce laid the groundwork, it was these later decisions that "ushered in a dramatically different understanding of the relationship between family law and the Constitution." (22)

      By emphasizing equality and autonomy, these cases struck down laws that governed, for example, who could marry or assert parental rights. (23) Privacy was reconceived as an individual right, breaking from a former emphasis on familial relationships or the family as a single unit. (24) More recently, the Supreme Court has recognized family relationships beyond the traditional nuclear family. (25) The Court then extended this line of reasoning when it prevented states from enforcing statutes banning same-sex marriage, which signified a complete departure from the Court's traditional understanding of family. (26)

      Although rights involving marriage and parent-child relationships safeguard specific forms of family unity, the Court has recognized a general right to family unity as well. (27) A series of decisions in the 1970s involved assertions not only of the right to enter into a marital relationship and to educate one's child but also to associate with one's family. (28) Whereas this emerging, broader right to family unity could be read as a mere gloss on the right to childrearing recognized in Meyer and Pierce, the Court's 1977 decision in Moore v. City of East Cleveland more clearly established the right. (29) Moore involved an East Cleveland zoning provision that restricted the occupancy of a single-family dwelling unit to members of a nuclear family, prohibiting Ms. Moore from living with her two grandsons. (30) In striking down the ordinance, the Court explicitly rejected the city's argument that the line of cases originating from Meyer and Pierce should be distinguished because Ms. Moore was one generation removed from her grandchildren. (31) The Court held this distinction could not overcome the "basic reasons why certain rights associated with the family have been...