THE BEST INTEREST OF THE CHILD

BEST INTEREST OF THE CHILD IN COMPREHENSIVE IMMIGRATION REFORM

By: Unisa Kamara, Offices of Norka M. Schell, LLC

Posted by Norka M. Schell

The debate over an overhaul of our immigration system continues to top the priority of the present administration especially after the recent immigration enforcement law passed in Arizona. Opponents of an overhaul of our immigration system refer to the current economic problems of the country, call for tougher border enforcement, deportation of illegal/undocumented aliens and stricter enforcement of immigration laws with less or no emphasis on the best interest of U.S. citizen children whose parents may be subjected to deportation or removal.

Proponents of Comprehensive Immigration Reform often refer to the best interests of the U.S. citizen children of undocumented aliens, who are among the most vulnerable members of society. Reform of the nation’s immigration system is urgently needed. Thousands of U.S. citizen children have been adversely affected by harsh immigration policies of the United States. Reforming the nation’s immigration laws to take into consideration the best interests of the U.S. citizen children will positively impact our social welfare system. Congress, in considering a comprehensive overhaul of the U.S. immigration laws, must focus on its historic commitment to the principle of family unity.

We,as a society, have a moral obligation to respect children as persons and acknowledge that they are most vulnerable after their parents are deported or removed from the United States. The best interests of the U.S. citizen children must be the central concern of Congress in its consideration of immigration reform. International human rights law and domestic family law recognize children as among the most vulnerable members of our society. International human rights treaties recognize the family as the natural and fundamental unit of society. The unity and reunification of families should be ensured by any laws. (See International Convention on the Elimination of All Forms Of Racial Discrimination, Dec. 21, 1965, S. Exe. Dec. C, 95-2 (1978). Primarily, immigration in the U.S. is governed by federal law and presently, immigration laws undermine these fundamental principles.

The current harsh immigration law was enacted in 1996 when Congress passed the Antiterrorism and Effective Death Penalty Act (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (1996), and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), Pub. L. No. 104-208, 110 Stat. 3009 (1996). Together, these laws added immigration restrictions on Lawful Permanent Residents (LPR) convicted of nonviolent and minor crimes designated as aggravated felonies. Currently, a conviction may fall into the aggravated felony category without being a felony and without involving any aggravated circumstances.

Some research documents the adverse health impacts on children living in the United States when their parents are deported (See Marcelo & Carola Suarez-Orozco, Making Up For Lost Time: The Experience of Separation and Reunification among Immigrant Families, in The New Immigration: An Interdisciplinary Reader, 179, 185 (Marcelo and Carola Suarez-Orozco ed., 2005) (hereinafter Suarez-Orozco). Studies indicate that children who witness a parent’s arrest often suffer psychological harm, including persistent nightmares and flashbacks. (See Ajay Chaudry Et Al., Urban Inst., Facing Our Future Children In The Aftermath of Immigration Enforcement 27 (2010) (hereinafter Urban Inst.)).

Removal and deportation do have negative impacts on the physical and mental health, education and social development of U.S. citizen children. Children of deported parents are much likely to experience psychological disorders and to exhibit behavioral problems (Suarez-Orozco supra). Children’s academic performances and grades are significantly impacted after the deportation or removal of their parents. (Urban Inst. supra). Therefore, in reforming the U.S. immigration laws the best interests and well being of the U.S.

citizen children of a legal permanent resident and undocumented

aliens, in particular the seriousness of the difficulties which

these children are likely to face in countries to which their

parents would be not welcome should be taken into consideration.

Also, to be considered is the length of the marriage of their

parents, the unit of the family,and family ties with the United

States and with the country of destination.