Incorporating a 'Best Interests of the Child' Approach into Immigration Law and Procedure
57 Pages Posted: 15 Oct 2008 Last revised: 8 Feb 2009
Date Written: February 6, 2009
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 or risk 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 federal circuit split regarding whether the persecution a child faces can 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 legal guardian results in a failure to protect foreign national and United States citizen children and must be remedied. Models for eliminating these protection failures exist in United States child welfare law and procedure, international law, and 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.
Keywords: immigration law, juvenile law, comparative law
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