The Importance of Being Boring: Special Immigrant Juvenile Status and ALI's Restatement of the Law, Children and the Law

• Pages: 159-175
• Date: 01 July 2024
• Published date: 01 July 2024
• Author: David B. Thronson

159

The Importance of Being Boring: Special

Immigrant Juvenile Status and ALI’s

Restatement of the Law, Children and

the Law

DAVID B. THRONSON*

Introduction

Family law and immigration law interact constantly, sometimes in

ways that are obvious but frequently in ways that are more subtle and

less transparent. At the most basic level, both immigration and family law

regulate decisions about who lives together and how families structure

their lives. Family law empowers state interventions into families in

ways that disrupt family decisions regarding child custody and care.1 The

legal recognition, or not, of marriages has implications for how families

organize their lives together.2 Family law’s reach extends to immigration

1. See Clare Huntington, Constraining the Family Regulation System: The Contribution

of the Restatement of the Law, Children and the Law, 58 Fam. l.Q. 133 (2024–25); Solangel

Maldonado, Respecting Family Integrity While Protecting Children: The Restatement of the

Law, Children and the Law, 58 Fam. l.Q.147 (2024–25).

2. See, e.g., Obergefell v. Hodges, 576 U.S. 644, 670 (2015) (noting that states “have

throughout our history made marriage the basis for an expanding list of governmental rights,

benets, and responsibilities. These aspects of marital status include: taxation; inheritance and

property rights; rules of intestate succession; spousal privilege in the law of evidence; hospital

access; medical decision-making authority; adoption rights; the rights and benets of survivors;

birth and death certicates; professional ethics rules; campaign nance restrictions; workers’

compensation benets; health insurance; and child custody, support, and visitation rules.”).

* Professor of Law, Michigan State University. Thronson has represented migrant children in

immigration and family law matters since 1995 when he led his rst special immigrant juvenile

petition while working as a Skadden Fellow at the immigration project he founded at The Door

in New York City.

Published in Family Law Quarterly, Volume 58, Numbers 2 & 3, 2025. © 2025 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof

may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

160 Family Law Quarterly, Volume 58, Numbers 2&3, 2024–2025

matters where, given the centrality of family to pathways and options

for attaining immigration status, family law is routinely determinative of

immigration outcomes.3

Like family law, immigration law is highly consequential in

establishing the conditions of family life. Most prominently, immigration

law authorizes or sanctions decisions of individuals to live within national

boundaries. It sets parameters not only on baseline decisions about who

can lawfully remain in the country but also who is afforded opportunities

to work and support families, which in turn affects power and relationships

within families.4 Immigration status affects the eligibility and willingness

of individuals to access public benets, directly affecting the well-being

of families, including “mixed-status” families that include members of

varying immigration and citizenship statuses.5

In regulating the ways in which families make decisions about living

together, the values underlying immigration law and family law often are

not aligned such that outcomes can be strikingly discordant. For example,

in its most recent foray into this intersection of family law and immigration

law, the U.S. Supreme Court ruled that U.S. citizen Sandra Muñoz was not

entitled to even a hearing at which her husband might explain that the

government was wrong to believe his tattoos indicated gang afliations,

making him inadmissible.6 In the majority’s view, “a citizen does not have a

fundamental liberty interest in her noncitizen spouse being admitted to the

country.”7 The majority noted that, “[t]o be sure, Congress can use its authority

over immigration to prioritize the unity of the immigrant family . . . . But

the Constitution does not require this result . . . . ”8 When Congress in the

immigration context does “show special solicitude to noncitizen spouses,

such solicitude is ‘a matter of legislative grace rather than fundamental

3. See Alexa R. Stechschulte, Note, The Crucial but Overlooked Role of State Decision-

Making in Family-Based Immigration Matters, 109 iowa l. Rev. 2321 (2024).

4. See Veronica Tobar Thronson, The Derivative Dilemma: The Gendered Role of Dependency

in Immigration Law, 28 U. pa. J.l. & soC. Change 147 (2025).

5. “Overall, 11.7 percent of adults in immigrant families reported avoiding participation

in noncash safety net programs because of green card concerns in 2023. . . . Lack of access

to programs for which they may be eligible places children in immigrant families at risk of

hardship and related adverse health and economic outcomes during the critical period of

childhood development.” dUlCe gonzalez et al., URBan inst., mixed-statUs Families and

immigRant Families with ChildRen ContinUed avoiding saFety net pRogRams in 2023,

at 2–3 (2024), https://www.urban.org/sites/default/les/2024-08/Mixed-Status-Families-and-

Immigrant-Families-with-Children-Continued-Avoiding-Safety-Net-Programs-in-2023.pdf

(citations omitted).

6. Dep’t of State v. Muñoz, 602 U.S. 899, 914 (2024).

7. Id. at 909.

8. Id. at 916.

Published in Family Law Quarterly, Volume 58, Numbers 2 & 3, 2025. © 2025 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof

may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.