Gender, Law and Detention Policy: Unexpected Effects on the Most Vulnerable Immigrants
25 Wis. J. Gender L. & Soc'y 301, 2010
26 Pages Posted: 25 Aug 2015
Date Written: 2010
The United States immigration system is especially difficult for children to navigate. Advocates commonly argue that this difficulty stems largely from the poor fit resulting from the application of a system designed for adults to the reality of the child immigrant experience. Advocacy efforts, including those that resulted in changes to detention policy and substantive immigration law regarding Unaccompanied Alien Children (UAC), therefore focus on modifying the system to recognize children as subjects, rather than objects, of immigration law. This article argues that the present efforts to streamline the immigration detention and relief experience for UACs by combating adult-centered bias are failing. Instead, the evidence suggests that this advocacy model has resulted in a system of immigration detention policy and access to legal relief that varies depending upon the construct of childhood assigned to each unaccompanied child in accordance with his or her gender and related backgrounds. In order to equalize implementation of detention policy and application of immigration law and tailor a UAC's immigration experience to the individual UAC, rather than to his or her gender and the construct attached to that gender, this article argues for the adoption of an individualized approach to each child's detention experience and opportunity for legal relief by interjecting best interest considerations at crucial points of the detention process and amending immigration law to further insulate UACs from the Department of Homeland Security's mandate to combat national security threats and to uphold UAC's economic rights.
Keywords: Unaccompanied Alien Child, Immigration, Detention, Removal Proceedings, Policy
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