The Removability of Non-Citizen Parents and the Best Interests of Citizen Children: How to Balance Competing Imperatives in the Context of Removal Proceedings?

35 Pages Posted: 22 Feb 2011 Last revised: 18 Mar 2013

See all articles by Patrick J. Glen

Patrick J. Glen

Government of the United States of America - Department of Justice

Date Written: February 22, 2011

Abstract

The massive influx of illegal immigrants over the preceding decades has combined with the United States’ jus soli citizenship regime to produce a growing class of removable aliens: non-citizen parents of United States citizen children. The removability of parents obviously places the citizen children in the unfortunate position of having to leave their country of citizenship behind to accompany the parents, or arrange for living situations within the United States, perhaps with a relative, but be separated from their parents. The compelling interests raised by the removability of parents in such circumstances have given rise to distinct forms of relief under domestic legal systems. The United Kingdom, in a recent decision by its Supreme Court, has held that the best interests of the child are a primary consideration in determining whether the removal of the parent would be proportionate. Likewise, the United States provides for certain types of relief from removal for the parents of United States citizen children. Yet neither regime is entirely satisfactory. The United Kingdom’s approach is unduly biased towards non-removability, whereas the standards for establishing relief from removal in the United States are onerous and will be rarely met in practice. The purpose of this article is to propose a balancing of the interests that takes a realistic look both at the compelling interest citizen children have to remain in their country as part of a family unit and the competing interests of the state in a fully and fairly functioning immigration system. Such balancing is liable to make all parties unhappy - not every non-citizen parent should be permitted to remain simply on the fact of that parentage, and, conversely, not every removable parent should be removed simply because they are present illegally - yet it is the only feasible option to a problem that is only likely to grow in the coming decades.

Keywords: Immigration Law, Removability, Relief from Removal, Citizenship, Convention on the Rights of the Child

JEL Classification: K00, K10, K19

Suggested Citation

Glen, Patrick James, The Removability of Non-Citizen Parents and the Best Interests of Citizen Children: How to Balance Competing Imperatives in the Context of Removal Proceedings? (February 22, 2011). Georgetown Public Law Research Paper No. 11-21; Berkeley Journal of International Law, Vol. 30, pp. 1-34, 2012. Available at SSRN: https://ssrn.com/abstract=1767086 or http://dx.doi.org/10.2139/ssrn.1767086

Patrick James Glen (Contact Author)

Government of the United States of America - Department of Justice ( email )

950 Pennsylvania Avenue, NW
Washington, DC 20530-0001
United States
202-305-7232 (Phone)

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