Incorporating a "Best Interests of the Child" Approach into Immigration Law and Procedure
Carr, Bridgette A., Yale Human Rights and Development Law Journal
United States immigration law, and procedure frequently ignore the plight of children directly affected by immigration proceedings. This ignorance means decision-makers often lack the discretion to protect a child from persecution by halting the deportation of a parent, while parents must choose between abandoning their children in a foreign land and risking the torture of their children. United States immigration law systematically fails to consider the best interests of children directly affected by immigration proceedings. This failure has resulted in a split among the federal circuit courts of appeals regarding whether the persecution a child faces may be used to halt the deportation of a parent. The omission of a "best interests of the child" approach in immigration law and procedure for children who are accompanied by a parent fails to protect foreign national and United States citizen children. Models for eliminating these protection failures can be found in United States child welfare law and procedure, international law, and the immigration law of other nations, such as Canada. Building from these models, the United States must implement and give substantial weight to the best interests of directly affected children in its immigration law and procedure.
Esther Olowo is a native and citizen of Nigeria, and the mother of minor twin daughters who are legal permanent residents of the United States. (1) When Esther was twelve years old, she was subjected to female genital mutilation. (2) During her removal proceedings, Esther told the immigration judge that she feared for the safety of her daughters. (3) Esther knew that, if the judge ordered her deported, her daughters would have to accompany her because her husband could not care for them on his own. (4) To protect her daughters from the horrors of female genital mutilation, Esther applied for asylum. (5) At the asylum hearing, Esther told the immigration judge that she would be powerless to prevent her daughters from being subjected to female genital mutilation if she were deported. (6)
The immigration judge denied Esther's claim on the basis that Esther had already been a victim of female genital mutilation and therefore did not have a well-founded fear of persecution. The immigration judge could not consider Esther's fear for her children because her children had the legal right to stay in the United States. (7) On appeal, the Seventh Circuit concurred with the immigration judge, but the Seventh Circuit did not stop there. Recognizing the danger to Esther's children, who were legally entitled to remain safely in the United States, the court made the unprecedented move of ordering that Esther be reported to state child welfare authorities to protect Esther's children from female genital mutilation. (8)
The Olowo case is a poignant example of the reality facing many families and children ensnared in the United States immigration system. Children like Esther's are often directly affected (9) by immigration law and procedure, yet have no voice and no access to the immigration system because of the failure of immigration law and procedure to consider their interests. (10) This lack of access, combined with gaps in protection, (11) makes accompanied children (12) who are directly affected by immigration decisions extremely vulnerable. Accompanied children may be members of families where all members of the family have the same status or they may be members of mixed-status families. (13) In contrast with unaccompanied (14) or separated (15) children, accompanied children face a bigger risk of being invisible in the United States immigration system and face the additional risk of having conflicting interests (16) with their parents. (17) The potential issues facing accompanied children vary based on their own citizenship and whether they have the same interests as their parents. (18)
Under current United States immigration law, accompanied children who are directly affected by immigration proceedings have no opportunity for their best interests to be considered. …