Entering the Mainstream: Making Children Matter in Immigration Law

ABSTRACT Myths that parents are afforded easy and unwarranted pathways to U.S. citizenship through their U.S. citizen children and that children receive privileged treatment in U.S. immigration law stubbornly persist in public discussion surrounding possible immigration reform. Testing these myths, this essay examines immigration law's treatment of children in three contexts: (1) as lawfully immigrating dependents of adults; (2) as immigrants on their own or outside the structures of immigration law; and (3) as individuals empowered to generate immigration rights in others. In each of these contexts, analysis reveals that the failure of immigration law to advance, or in most instances even consider, the interests of children places it far from mainstream values and legal conceptions regarding children. In particular, immigration law fails to fully recognize children as individuals with independent rights and interests, attaches punishing and lasting legal consequences to children for choices of adults in their lives or for choices that children make prior to reaching the age of discretion, and effectively and pervasively precludes children from generating immigration rights in their parents or others. At the least, this deeper understanding of the nature of immigration law's marginalization of children serves as a counterweight to calls for reform based on false characterizations of current law. Ironically, myths about the treatment of children in immigration law serve as an effective template for simple, yet fundamental reforms that would bring U.S. immigration law closer to mainstream values and approaches regarding children. The essay suggests three simple, yet fundamental reforms that would not only bring the law closer to mainstream values, but also closer to the place where many seem to think it is already. Any reform agenda that fails to address the role of children in immigration law will not prevent accepted societal and demographic pressures from replicating the current situation in which millions find themselves unable to reconcile their family relationships and responsibilities with the dictates of immigration law. Children matter, and it is time they mattered in U.S. immigration law. TABLE OF CONTENTS Abstract Introduction I. Children in Immigration Law A. Children as Dependents and Derivatives B. Children as Immigrants C. Children as Generators of Immigration Rights in Others II. Entering the Mainstream A. Expanding Notions of Family B. Removing Punishment for the Acts of Parents C. Children as Generators of Immigration Rights Conclusion INTRODUCTION Listening to the national discussion on immigration, it would be easy to conclude that children hold a privileged position in U.S. immigration and nationality laws. Children, we are warned, enable their parents to avoid deportation and obtain lawful immigration status in the country. Indeed, it is common to hear "frustration that pregnant women could cross the border from Mexico illegally, then rely on their American citizen newborns to put them immediately on a path to citizenship." (1) And, as some voices unease about children "anchoring" their parents to the United States, other voices express contrary concerns about parents who are not grounded in the United States and "drop and leave," raising their U.S. citizen children outside the United States where they may develop allegiances counter to U.S. interests. (2) Certainly such arguments regarding the citizenship and immigration rights of children have long been part of a loud political discourse and predictably serve as an effective wedge issue in the shifting winds of electoral politics. (3) Yet even setting aside the most extreme distortions, the discussion of children and immigration is characterized by persistent myths about the treatment of children and their parents in U.S. law. Whatever position is taken on policy issues, it is common to characterize the rights and role of children in matters of nationality and immigration as expansive. …