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 and risking
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 split
among the federal circuit courts of appeals regarding whether the
persecution a child faces may 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 parent fails to
protect foreign national and United States citizen children. Models for
eliminating these protection failures can be found in United States child
welfare law and procedure, international law, and the 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.
Carr, Bridgette A.
"Incorporating a "Best Interests of the Child" Approach Into Immigration Law and Procedure,"
Yale Human Rights and Development Journal:
1, Article 3.
Available at: http://digitalcommons.law.yale.edu/yhrdlj/vol12/iss1/3