This article analyzes a serious conceptual flaw in immigration law related to its treatment of children. The extensive integration of immigrants into the broader population of families in the United States contrasts with several characteristics of the legal framework of immigration that create significant barriers to legal immigration for immigrant families. The article reveals how immigration law systemically devalues children and gives rise to a narrow, parent-centered conception of family. The article also uncovers the manner in which the excruciating complexity of immigration law can mask the ways in which seemingly innocuous immigration provisions work together to severely curtail immigration options for families in the United States. It examines the serious social consequences that result when families are unable to regularize the immigration status of all family members. Not only are immigrants and immigrant families marginalized, but citizen children in mixed status families are denied the full social benefits of citizenship as a variety of formal and informal barriers assimilate them to the status of noncitizen. Finally, the article discusses the underlying motivations for the current family immigration system and envisions a more child-centered approach.

Differences in opinion between the federal government and the state exist with regards to the federal government’s rule that undocumented children must pass a “mental health stability assessment” in order to obtain residency in the United States. Unfortunately, many children taken by CPS fail these assessments since they often suffer from emotional trauma due to abuse. Texas and the federal government also argue over the placement of undocumented immigrants in federal detention centers where the state lacks authority. The T. Don Hutto Residential Center in Texas became the focus of litigation last year regarding the poor living conditions there; children are treated like prisoners and forced to wear prison clothing.

If CPS decides that a juvenile should not be reunified with his or her family and should remain in the United States, CPS must apply to the federal government to designate the child as a Special Immigrant Juvenile. Unfortunately, states have little incentive to do this since they must cover all the costs of foster care for the child and for filing the paper work with the federal government.

“Children of the State: The feds and Texas quarrel over custody of undocumented kids” (May 16, 2008). Texas Observer. Available at: http://www.texasobserver.org/article.php?aid=2759

The Article’s Abstract:

Deeply ingrained ideas about children’s rights, often unacknowledged and unexamined, shape the way children are perceived and treated in immigration law. This article examines the development of competing conceptions of children’s rights in other areas of the law and demonstrates how critical frameworks of immigration law simultaneously reflect and reinforce discredited approaches to children’s rights. This article explores the manner in which immigration law’s adherence to discredited notions of children’s rights creates barriers to child-centered approaches in immigration law. This exploration then serves as a starting point to suggest an agenda for reform.

In the article, Thronson discusses the evolution of the understanding of children’s rights, noting that children were once considered to be nothing more than the property of their parents. He notes that these ideas still exist to some extent as seen in the “legal language used to define the custody making process. At the most basic level, the very idea of ‘custody’ implies control and possession.” At the other extreme, Thronson discusses that some have viewed children as having exactly the same rights and obligations as adults, ignoring their younger age and lack of maturity. Indeed, this debate over the rights and responsibilities of children is still alive and well today, and it directly affects the United States’ handling of and response to immigrant children.

Source: Thronson, David. Kids Will Be Kids? Reconsidering Conceptions of Children’s Rights Underlying Immigration Law. Ohio State Law Journal, 2002.

Source: Patricia Gray, J. D., LL. M. Unborn v. Undocumented: A Collision of Policy and Politics (.pdf), Health Law Perspectives, January 2008.

Woltjen remembers one boy from India who was picked up at the Canadian border. He couldn’t have been older than five or six. “He was a mystery,” she says. “There was almost zero information.” Carrying no identification, the boy couldn’t say exactly where he was from and didn’t know his parents’ full names. He stayed in government custody for eight months while Woltjen and Mary Meg McCarthy, director of the National Immigrant Justice Center (NIJC), a Chicago-based nonprofit that provides pro bono legal assistance to refugees and asylum seekers, scrambled to decipher the scant clues to his origin.

• University of Chicago Magazine: Nobody’s child