Page 33 - Impact: Collected Essays on Expanding Access to Justice

Caught in the Web:
Immigrant Children in removal Proceedings
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Claire r.Thomas and Lenni B. Benson1
I. Introduction: Caught in the Web
The day of his hearing arrives . It is 8:30 a .m . He wears his best shirt and his jeans are clean and pressed . He grips the arms of the courtroom chair so hard that his knuckles are white . He is so small that his feet do not touch the floor . The Immigration Judge is speaking to him slowly and kindly, but he turns his small face up to look only at the court’s Spanish-speaking interpreter . He does not understand English . The government prosecutor, an attorney for Immigration and Customs Enforcement (ICE), holds a document listing the charges against him; she is ready to proceed with his deportation case . He is eight years old .
In the United States, the individual state governments are primarily responsible for protecting children . Today, the basic normative principle governing domestic children’s law is found in the legal standard known as the “best interests of the child .” While this standard is not succinctly defined in the U .S . legal system,2 scholars have noted that the “best interests of the child” generally “prioritizes the child’s safety, permanency, and well-being .”3 This flexible criterion guides agencies and judges through many critical legal decisions affecting the daily life of a child, such as guardianship, custody and visitation, economic support, abuse and neglect proceedings, and determinations relating to mental health and incarceration for juvenile infractions, while allowing the child to have a voice in the proceedings affecting his or her life .4
When the child is born abroad, but is now physically residing in the United States, the state’s primary obligation to promote the child’s welfare can also be woven into the complex web of federal immigration, education, and benefits law .5 Navigating through this intersecting web of competing or overlapping jurisdictions is extremely difficult even for the experienced pro bono attorney or professional social worker . The people least able to navigate these bureaucratic
1 Claire R. Thomas is an adjunct professor at New York Law School (“NYLS”) and Director of Training at the Safe Passage Project. Lenni B. Benson is a professor of law at NYLS and the founder and Executive Director of the Safe Passage Project, a program that mentors and trains pro bono counsel representing children in immigration removal proceedings. The authors work together to train attorneys, law students, interpreters, and medical and social services professionals on the need for legal representation of immigrant youth. The authors would like to thank Timothy Greenberg, NYLS ’16, for his invaluable research assistance in preparing this essay.
2 The united Nations Convention on the Rights of the Child (CRC) clearly defines the standard of “best interests of the child.” While the united States had an active role in drafting the CRC and signed the CRC on February 16, 1995, it has not yet ratified the Convention. The united States has, however, signed and ratified both optional protocols to the CRC. See Convention on the Rights of the Child, Sept. 2, 1990, 1577 u.N.T.S. 3; see also Convention on the Rights of the Child, uniTed naTions TreaTy collecTion, https://treaties.un.org/Pages/ViewDetails. aspx?src=IND&mtdsg_no=IV-11&chapter=4&lang=en.
3 Bridgett A. Carr, Incorporating a “Best Interests of the Child” Approach Into Immigration Law and Procedure, 12 yale h.r. & deV. l. J. 120, 127 (2009).
4 Id. at 127.
5 Children born outside the territorial united States may have a claim to citizenship if one or both of their parents were u.S. citizens at the child’s birth. The rules can be complex and have changed over time. Today the relevant statutory provision is found in Immigration and Nationality Act, 8 u.S.C. § 1401. This article is primarily focused on non-citizen children. As volunteers at the Immigration Court we have met young children who were born abroad to u.S. citizen fathers and who did not realize they had the ability to claim u.S. citizenship.
Specific Areas for Reform: Immigration