Family Unity Revisited: Divorce, Separation, and Death in Immigration Law

60 Pages Posted: 13 Dec 2014

See all articles by Albertina Antognini

Albertina Antognini

University of Arizona James E. Rogers College of Law

Date Written: December 12, 2014

Abstract

Families are integral to immigration law and policy, and family-based immigration accounts for the majority of legal entry into the United States. Legislative, judicial, and scholarly discussions that address immigration law’s family-based categories rely nearly exclusively on the principle of family unification, which has long been a cornerstone policy of immigration law. Yet the family-based provisions of immigration law do more than unify intact families; understanding families as dynamic entities that experience change reveals an immigration system that acknowledges a flexible family structure in determining status.

The principal aim of this Article is to present a more complete description of the families that immigration law admits. To do so, it identifies moments where family relationships break apart — in the form of divorce, separation, and death — and considers how the immigration system navigates each instance in granting status. Engaging in this analysis has a number of implications. As a general matter, it provides a more accurate and comprehensive picture of the families that immigration law acknowledges in the first instance. In particular, it reveals that immigration law grants status in the context of a wide range of family relationships, including divorced couples, separated couples, and non-marital couples. It also identifies where the immigration provisions are at odds with their own asserted goal of promoting family unity — specifically by burdening the marital relationship.

Even more fundamentally, identifying the actual families that immigration law admits raises a series of questions as to why immigration law relies on families at all. Articulating these questions is the necessary first step in establishing some much needed conceptual clarity to the role that American families play in determining admission into the United States.

Keywords: immigration law, family law, marriage, cohabitation, divorce, family unity

Suggested Citation

Antognini, Albertina, Family Unity Revisited: Divorce, Separation, and Death in Immigration Law (December 12, 2014). South Carolina Law Review, Vol. 66, No. 1, 2014, Available at SSRN: https://ssrn.com/abstract=2537342

Albertina Antognini (Contact Author)

University of Arizona James E. Rogers College of Law ( email )

P.O. Box 210176
Tucson, AZ 85721-0176
United States

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