By: Rena Watanabe
Volume X – Issue I – Fall 2024
I. INTRODUCTION AND BACKGROUND
The right to family integrity is a fundamental constitutional right under the Due Process clause that recognizes the ability for families to make their own decisions and live together without governmental interference. [1] Family integrity has become more visible in the immigration system, as increased border security coupled with a lack of pathways for lawful status has given rise to immigrant populations in the United States. Immigration courts handling child protection proceedings (including child asylum cases) grapple with life-altering decisions concerning children who are victims of domestic abuse, gender-based violence, child labor, and persecution in their home countries, sometimes perpetrated by their own family members. [2] The outcomes of these decisions can be life or death for children – they can either find safe shelter in the United States, or be deported and subjected to danger in their home countries. Yet, judges make such life-altering decisions that directly impact children’s safety, permanency, and connection to their family without considering their own voices and viewpoints.
Ultimately, children in the legal system find themselves pawns of the Court. For some children of immigrant families, familial structure provides stability and a sense of normalcy in their lives in a new environment. For other children, staying with their family members will only perpetuate unsafe and abusive situations that jeopardize their safety and wellbeing. It is evident that the current reality of our immigration law system fails to protect the United States’ most vulnerable populations: unaccompanied immigrant children. This paper aims to explore the complexities of child protection proceedings, examine the flaws of the best interests principle, and argue that child protection proceedings should adopt a child- centered approach which allows children to defend their independent constitutional rights to family integrity.
II. REPRESENTING CHILDREN IN IMMIGRATION MATTERS
i. Nature of Immigration Courts
The immigration law system is no friend to an unaccompanied immigrant child. An unaccompanied immigrant child is a minor who is under eighteen years of age and who has no parent or legal guardian in the United States who is available to provide care. [3] The current political climate, vocal in its anti-immigrant rhetoric, jeopardizes the very fundamental rights of children to family integrity, putting many immigrant children at great risk. The strength of the right to family integrity in the immigration context has ebbed and flowed with the “plenary power doctrine,” [4] which gives wide constitutional latitude to the executive branch in immigration matters. Because the immigration courts are not under the authority of the judicial branch, decisions of immigration courts remain vulnerable to the whims and opinions of the president. In a conservative supermajority, the administration has moved not only to limit the protections for immigrant children, but has made immigrant children a direct target of its anti-immigration agenda. Because of the adversarial nature of the immigration system, unaccompanied immigrant children bear a high burden of proof to defend themselves against the government. However, they cannot freely exercise their due process rights since the immigration law system does not provide them legal representation. They must navigate the legal system and jurisdictional barriers alone, which can be especially difficult if they are unfamiliar with the court proceedings in the United States.
Courts cannot reasonably expect children to articulate their experiences, psychological trauma, and emotional hardships to an adult, let alone in an immigration court. Children may have a difficult time trusting adults, because for many, adults are the ones who have exploited, abused, or mistreated them. Therefore, children grow to distrust adults, and it is difficult to dismantle the distrust and cynicism that have developed since their adolescent years. Further, for children who face language barriers and experience difficulty in articulating their testimonies in English, it is paramount that immigrant children have access to effective translation services and that they are understood in a culturally sensitive way. [5] In recognizing children’s inherent vulnerabilities, it is imperative that the legal system amplifies children’s voices so that children can actively participate in and influence family decisions that impact their lives. The following child asylum cases demonstrate how the Court’s flawed methodologies in assessing a child’s credibility in their testimonies can be detrimental to their case outcomes.
ii. Case Studies
In Liu v. Ashcroft, Mei Dan Liu, who was detained and placed in removal proceedings in front of the Immigration Judge, argued that the treatment she suffered qualifies to the level of persecution because she was a minor (age sixteen) when she fled from her home country. [6] However, the Board of Immigration Appeals (BIA) concluded that Mei Dan’s testimony regarding the mistreatment she endured was not “worthy of belief” and because she lied to the Judge about her age and the basis of her asylum claim, her statements “undercut her credibility.” While the BIA found that the treatment of Mei Dan in her home country was “undoubtedly deplorable,” the BIA concluded that she did present sufficient credible evidence to satisfy the meanings of “well founded fear of persecution” within the Immigration and Nationality Act, and thus denied her asylum claim.
In Kahssai v. I.N.S., Tsion Kahssai applied for asylum in the United States based upon the arrests and killings of her father and brother, and the detention of her mother by the Ethiopian government. [7] Her family suffered persecution including imprisonment and execution, but Kahssai herself had not been targeted. Kahssai was only three years old when the killings of her family members occurred, and thus her testimony regarding the series of events is partially based on what others later told them. The Immigration Judge cast doubt upon the credibility of the testimonies, claiming that the testimonies between her and her siblings “differed in their recollection of the death of their father,” and that her credibility in describing the events “cannot be determined” because of her young age at the time. [8] As a result, the Immigration Judge denied Kahssai’s application, and the Board of Immigration Appeals (BIA) affirmed the denial.
Mei Dan and Kahssai are a few of the many unaccompanied minor children in the United States who are disregarded for their inability to defend their case. Both cases underscore how there are stringent standards required for asylum eligibility, and the burden of proof for proving asylum without an adult representative or attorney is almost an insurmountable bar for unaccompanied children. In evaluating asylum cases, an asylum applicant must establish a “well founded fear of persecution” if they return to their home country. [9] Proving a well founded fear of persecution requires a subjective fear (their personal belief of persecution), and objective evidence supporting the likelihood of persecution. Eliciting fears and hardships relies heavily on subjective judgment by judges, as the psychological reactions to experiences may vary from individual to individual.
The child’s testimony is not the only type of evidence that the immigration court must rely on, as there can be sufficient evidence provided by other sources that will find a nexus in establishing a well founded fear of persecution. The subjective element of assessing credibility in child asylum cases is problematic in that courts fail to recognize their fears in a way that is sensitive to children’s unique experiences of facing persecution. Throughout the judicial proceedings, the legal system should work to maximize the child’s participation in their claims by taking into consideration the child’s best interests. The following section will discuss the best interests principle and how it continues to significantly influence realms of family and immigration law.
III. THE BEST INTEREST PRINCIPLE
The best interests principle is a court doctrine largely adopted in judicial proceedings to determine whether to remove a child from an abusive or neglectful environment. [10] The Court arrives at a decision by taking into consideration all relevant factors (ex. age, gender, mental and physical health of parents, etc.) to assess what will be the best for the child’s health and wellbeing and to prioritize the child's interests. The principle is applied to unaccompanied minors who have been abused or abandoned by their parents, or whom it would not be in the best interests to return to their home countries. [11]
The definition of a child’s “best interests” varies from case-to-case. There is no singular concept of “best interests,” but Courts evaluate by “incorporating the child’s voice, and prioritizing safety, permanency, and well-being of every individual child.” [12] The best interests standard is amorphous, as there is no consensus for what is “best” or even “good” for all children. Thus, it becomes difficult to ensure objectivity and fairness in these decisions when children’s experiences vary significantly.
The subjectivity of the best interests principle can cause inconsistent and biased outcomes for child asylum cases. Children of immigrants are substantially more likely than children with U.S. born parents to be poor, have food-related problems, live in crowded housing, lack health insurance, and be in fair or poor health. [13] Judges in immigration courts who do not come from a similar upbringing as the children can have different conceptual notions of what it means to live in a “clean” living space or have access to “nutritious” food. [14] While the law prescribes a judgment based on a child’s best interests, children from marginalized communities experience the legal system differently than an affluent white child. Therefore, minority children and children from low socioeconomic status suffer from the lack of certainty inherent in the best interests principle.
Overall, the courts’ consideration of the best interests principle can act blind to the unique needs, inherent vulnerabilities, and capacities of children, depriving immigrant children of minimal safeguards and due process protections. [15] While the application of the best interests principle can be flawed due to its subjective nature, it is nevertheless widely used as a legal compass to reflect the commitment to protect children from harm, recentering its focus on child agency, emphasizing the safety, permanency, and well being of children.
IV. COMPETING PARENTAL, GOVERNMENTAL, AND CHILD INTERESTS
The overarching question lies in whether our current immigration system values certain rights over others. Does the “best interests” principle presume that parents are free to determine what is “best” for their children? What is the government’s responsibility in protecting children from “abusive” or “neglectful adults?” On what grounds is state intrusion in private family matters justified? The immigration court handles such questions on a daily basis. Ultimately, under immigration and citizenship laws, parents have the responsibility of developing secure relationships with their children. Under the due process clause, parents have a well established fundamental right in the care, custody, and control of their children. [16] Whatever the Court decides, there will be hardship for involved parties. It may be immigrant parents, who face the possibility of losing their children through interaction with unfamiliar judicial and child welfare systems. It may be the psychological parents, who are torn away from their children for whom they have long and faithfully cared. The harsh reality for parents is that however secure their parental rights may be, as a practical matter, immigration and citizenship laws do not shield them from being safe and secure in their relationships with their children.
What should justify state intrusion on the privacy of family relationships? The notion of parens patriae, which is Latin for “parent of the country,” [17] delegates responsibility to the government to remove children from unsafe and neglectful homes. [18] Oftentimes, muddled issues and troubles within a household are not obvious or evident from an outside observer. Children may be suffering from hidden abuse behind closed doors. Further, children who are victims of domestic violence may not have the courage to speak up or ask for help. Therefore, state interference is necessary to uncover such abuse, as the family enclave may become a cover for exploiting the inherent inequality between a parent and child. Courts respect family privacy in cases that prioritize the right for parents to raise their children as they think best, but this can worsen those less observable abusive relationships. Therefore, proponents of increased state intervention claim that family privacy can put the child in more danger, providing justifications for greater government interference.
On the other hand, it is questionable whether government interference is an appropriate means of creating safer family environments and amending parent-child bonds. The legal system has neither the resources or capacity to manage the often complex and delicate nature of interpersonal bonds between a parent and child. Even under a professional facade, the government cannot be parents to someone else’s children. If the government makes an erroneous decision in removing the child from their parents, or fails to remove a child from an abusive home environment and provide a safer alternative, it could bring long- lasting consequences to the health and stability of the family unit. The most that the government can do is to place themselves in the position of children of different ages, backgrounds, and provide a pathway to establish or reestablish a family for the child as quickly as possible. Acknowledging the boundaries to which the state can interfere with a family unit helps us balance governmental interests with familial interests at stake.
V. CONCLUSION
Children’s silence should not be the norm in immigration courts handling child protection proceedings. As Jennifer Nagda, the Chief Program Officer of the Young Center for Immigrant Children’s Rights states, “the best interests of the child standard… requires that each child’s story be known and understood before immigration authorities make decisions that could put the child in harm’s way. Such individualized inquiries are the hallmark of fairness and due process, which are stated goals of our immigration courts.” [19] One of the greatest strengths of the best interests principle is its ability to make children visible, and to bring their voice and their interests to the forefront. Determining the credibility of childrens’ testimonies remains a hurdle for many unaccompanied immigrant children who are defending their case, so providing a child with legal representation should be the minimal standard to ensure that each child is receiving due process protection in their proceedings. A child-centered framework encourages the government to protect children from exploitation or neglect, and ensure that children have a voice, by creating the opportunity for a child to express their perspectives and participate in the decision-making process. The current state of immigration policy is endangering immigrant children's fundamental due process rights, eroding the integrity of the immigration system as a whole. To remedy the mistreatment of children in child asylum cases, it is integral that we implement the “best interests” standard to enable equitable child protection proceedings that allow the child’s voice to be heard.
Endnotes
[1] Rachel Kennedy, “A Child’s Constitutional Right to Family Integrity and Counsel in Dependency Proceedings,” Emory Law Journal 72, no. 4 (2023): https://scholarlycommons.law.emory.edu/elj/vol72/iss4/3.
[2] Erin B. Corcoran, “Getting Kids Out of Harm's Way: The United States’ Obligation to Operationalize the Best Interest of the Child Principle for Unaccompanied Minors,” Connecticut Law Review Online 47 (2014): https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2461759.
[3] Kids in Need of Defense, “Chapter 1: Representing Children In Immigration Matters,” in Representing Children In Immigration Matters, https://supportkind.org/wp-content/uploads/2015/04/Representing-Children-In-Immigration Matters-FULL-VERSION.pdf.
[4] Cornell Law School, Definition of "plenary power," Legal Information Institute, https://www.law.cornell.edu/wex/plenary_power.
[5] Jacqueline Bhabha, “Lone Travelers: Rights, Criminalization, and the Transnational Migration of Unaccompanied Children,” The University of Chicago Law School Roundtable 7, no. 1 (2000): http://chicagounbound.uchicago.edu/roundtable/vol7/iss1/11.
[6] Liu v. Ashcroft, 380 F. (7th Cir. Aug. 17, 2004). https://casetext.com/case/liu-v-ashcroft-2.
[7] Kahssai v. I.N.S., 16 F. (9th Cir. Feb. 4, 1994). https://casetext.com/case/kahssai-v-ins.
[8] Ibid.
[9] Immigration Equality, “3. Elements of Asylum Law,” in Asylum Manual, https://immigrationequality.org/asylum/asylum-manual/.
[10] Cornell Law School, Definition of “best interests of the child,” Legal Information Institute, https://www.law.cornell.edu/wex/best_interests_of_the_child.
[11] “In the Best Interests of the Child Asylum-Seeker: A Threat to Family Unity,” Harvard Law Review 134, no. 4 (2021): https://harvardlawreview.org/print/vol-134/in-the-best-interests-of-the-child-asylum-seeker/.
[12] Corcoran, “Getting Kids.”
[13] David B. Thronson, “Creating Crisis: Immigration Raids and the Destabilization of Immigrant Families,” Wake Forest Law Review 43 (June 2008) https://www.wakeforestlawreview.com/wp-content/uploads/2014/10/Thronson_LawReview_4.08.pdf.
[14] “In the Best.”
[15] Dennis Stinchcomb, “In Children's Best Interests: Charting a Child-Sensitive Approach to U.S. Immigration Policy,” CLALS Working Paper Series 28 (2020): https://doi.org/10.2139/ssrn.3644399.
[16] Shanta Trivedi, “My Family Belongs to Me: A Child's Constitutional Right to Family Integrity,” Harvard Civil Rights-Civil Liberties Law Review 56, no. 2 (2021): https://journals.law.harvard.edu/crcl/wp-content/uploads/sites/80/2021/10/Trivedi.pdf.
[17] Cornell University, Definition of “parens patriae,” Legal Information Institute, https://www.law.cornell.edu/wex/parens_patriae.
[18] Cornell University, Definition of "parens patriae," Legal Information Institute.
[19] Stinchcomb, “In Children's.”