THE TRICKLE UP EFFECT: INCORPORATING AN UNDERSTANDING OF IMMIGRATION LAW AND POLICIES INTO BEST INTEREST ANALYSIS IN STATE CHILD WELFARE PROCEEDINGS. (response to article by Ann Laquer Estin in this issue, p. 589)

• Published date: 22 September 2018
• Author: Banks, Kathryn P.
• Date: 22 September 2018

Immigration law is an area of legal practice that requires an understanding of a complex, ever-changing landscape. With policies and laws widely changing, sometimes within the span of 280 characters, immigration attorneys have to be ready to address each crisis facing our nation's broken immigration system. (1) In the past eight weeks, the United States Supreme Court has decided that individuals being detained during deportation proceedings do not have the right to review of their detention status, and that parts of the Immigration and Nationality Act are unconstitutionally vague. (2) Additionally, in Arizona, those enrolled in the Deferred Action for Child Arrival Program, are no longer eligible for in-state tuition for state educational institutions. (3) Within this unworkable immigration system are undocumented children who face deportation proceedings, and a fight for their lives in a system that they do not know or understand. (4) These are the children of whom Professor Estin speaks in her piece, Child Migrants and Child Welfare: Toward a Best Interests Approach. They are the shadow children.

Professor Estin's presentation on March 22, 2018 at the Global Studies Law Review Symposium and subsequent paper call for inclusion of the best interests interest approach into representation for unaccompanied minors, borrowing and building on international treaties and state court law, suggesting that it will assist in the advocacy for children caught in this perilous position. I agree with Professor Estin that we need to borrow from other areas such as child welfare and family law to assist these youth. However, I wonder if an additional path to advocacy for these children could be pushing for a better understanding of immigration law and its impact on best interest in state child welfare proceedings. With greater exposure to the inner workings of the immigration system, attorneys, judges, case managers, and other court personnel involved in state child welfare proceedings, can become change agents, seeing how the system impacts the children and families that come before them. This new insight will educate state level stakeholders, further empowering them to push for change on the federal level, exponentially expanding the opportunities to make the changes suggested by Professor Estin.

This change in focus is something that may become a necessary reality as we face the unresolved matter of those enrolled in the Deferred Action for Child Arrivals Program (DACA). State benches and bars must be prepared to face the impact changes in policy will have on state child welfare courts if participants are deported. DACA is estimated to impact about 690,000 immigrants in the United States. (5) With the future of the program unknown, there is the potential for mass deportations. As these families face an uncertain future, parents are being forced to prepare for separation from their children, and despite best made plans, inevitably some of their children will come into care because of a parent's detention by ICE. (6) Our courts will be forced to better address the complexities of working with families and children who are involved in the immigration system.

In this paper I will briefly frame the argument by first identifying the children and families in the state court systems that create the opportunity for state court actors to learn more about the federal immigration system. I will then look at one specific area where best interest analysis requires an...