Immigration Reform for Children Toward Family Restoration

While the United States Congress debates immigration reform, children who are born in the United States to immigrating families who have not properly used legal immigration procedures are placed in jeopardy.  When their parents are arrested, incarcerated, or deported, the children suffer grave potential for harm.
 
 'ARE WE THERE YET'? IMMIGRATION REFORM FOR CHILDREN LEFT BEHIND, which can be accessed and downloaded at SSRN, provides an overview of this problem, while also offering some solutions. 

The number of children placed in these circumstances is rising, as the total number of children on U.S. soil to illegal immigrants rose to 4 million in 2009, up from 2.7 million in 2003, according to one report' estimate. "Those children — who are automatically granted U.S. citizenship — represent 5.4% of all children under the age of 18 in the U.S. That compares to 3.7% six years earlier, according to data from the non-partisan Pew Hispanic Center. That percentage will continue rising, as an estimated 340,000 of the 4.3 million babies born in the U.S. in 2008 alone — about 8% — came from illegal immigrant parents, the report says.”  (See Alan Gomez, U.S. Sees Rise in Children Born to Illegal Immigrants, USA Today, Aug. 12, 2010 (noting that some argue the immigration debate is political “fear mongering”)).
 
Children in the United States need legal reform to accommodate their interests as U.S. Citizens.  Family Restoration is possible when municipalities work together to protect and provide for children throughout the nation, even those who are separated from their parents by immigration deportation.

Revoking Family's Asylum in the U.S. Does not Foster Family Restoration

Parents have the right to direct the upbringing of their children.  That right is constitutionally protected in the United States, but not in all nations.  When the Romeike family was being forced to stop homeschooling their children by government-ordered police action, they fled to the United States.  The Home School Legal Defense Association (HSLDA) successfully represented them in their immigration asylum claims, and they became the first family to obtain asylum for the protection of homeschooling rights. 

Now the U.S. Department of Justice is petitioning to revoke that asylum.  “The U.S. Department of Justice wants to revoke asylum granted to a German family that fled their country after facing persecution for homeschooling their five children. Germany has a broad ban on homeschooling with very few exceptions.  Music teachers Uwe and Hannelore Romeike were prohibited from homeschooling. The evangelical Christians withdrew their children from public school in 2006. They were concerned that the school’s values were in conflict with their values. Two years later — after facing police visits to their home to take their kids to public school — the family moved to the U.S.

In 2010, the Home School Legal Defense Association (HSLDA) took the Romeikes’ case, and helped them win a legal battle. They became the first family to obtain asylum for the protection of homeschooling rights. For a while, the Romeikes were able to homeschool their children in their small Tennessee town. But then Attorney General Eric Holder appealed the decision to the Board of Immigration. The Board sided with the government. HSLDA then appealed to the 6th U.S. Circuit Court of Appeals. The way the government argued the case undercut parents’ rights to raise and teach their children as they wish.

“(Holder’s office) argued that there was no violation of anyone’s protected rights in a law that entirely bans homeschooling ,” HSLDA Founder and Chairman Michael Farris writes on the organization’s website.  Holder’s second argument is revealing, he said. “The U.S. government contended that the Romeikes’ case failed to show that there was any discrimination based on religion because, among other reasons, the Romeikes did not prove that all homeschoolers were religious, and that not all Christians believed they had to homeschool.”  This argument reveals a dangerous form of “group think,” Farris added. “The central problem here is that the U.S. government does not understand that religious freedom is an individual right,” he explained. “One need not be part of any church or other religious group to be able to make a religious freedom claim. Specifically, one doesn’t have to follow the dictates of a church to claim religious freedom — one should be able to follow the dictates of God himself.”

Read the entire article by Bethany Monk of Citizen Link at “U.S. Wants to Send Christian Homeschool Family Back to Germany,” at

http://www.citizenlink.com/2013/02/18/u-s-wants-to-send-christian-homeschool-family-back-to-germany/ .  You can also read the Romeikes’ opening brief.  And here you can read the DOJ’s response to the Romeikes’ opening brief.  Finally, read the Romeikes’ reply brief.

Parents’ rights are fundamentally protected in the United States, and those rights inure to all immigrants who are granted asylum.  To revoke that asylum is extremely unusual.  The challenges families face in immigration policies are numerous and I have written about them before.  You can access those remarks, entitled “The Challenges of Family Law and Immigration Policy,” at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1962671.  The 6^th Circuit Court of Appeals will determine if police-forced public education that parents have deemed not in the best interests for their children is sufficient grounds for granting asylum.   To learn more about what rights parents have in protecting their children see the new book out by Congressman Steve Bloom and Kerriel Bailey, Esq. (Regent Law 2008), entitled They’ve Crossed the Line: A Patriot’s Guide to Religious Freedom, available at www.AMGPublishers.com.  

Revoking one family’s asylum could be a strong signal of harm to families and to the immigration process that might have otherwise worked toward family restoration.

Regent's Center for Global Justice, Human Rights and the Rule of Law sponsors Family Restoration presentation at Athens Institute for Educational Research

Stable nations and societies are largely based on stable family law and policy. Questions of family preservation in immigration policy present new dimensions of legal intervention. The Athens Institute of Educational Research Conference on Law this week welcomed the presentation of a manuscript considering the challenges of family law in immigration policy. Sponsored by Regent Law's Center for Global Justice, Human Rights and the Rule of Law, the presentation offered a review of the relevant literature, and focused on a policy discussion for immigration law that authentically works to preserve, reunify and restore families.

This discussion begins by considering the current dilemmas in United States immigration policy in light of challenges to families in legal immigration, national security concerns, and illegal immigration. Marriage definitions, the prohibitions on marriage fraud, and policies to protect the best interests of children are key in this discussion. Global challenges to immigration policy include combating human trafficking, building a nation's population with immigration in light of declining fertility rates, and multiculturalism that threatens national sovereignty.

The presentation offered policy principles that can work to build strong families and stable nations even in the midst of these challenges. A comprehensive approach to family law and immigration policy is possible - and necessary to restore families. These issues are really the beginning of building strong and stable nations through comprehensive family immigration policy.

Read the entire article here.

Urbanization, Fertility and Employment in the Intersection of Families and Immigration

People moving with their families from rural to urban areas for employment, both in and between nations, is a studied phenomenon, and was quite evident in immigration into England in a tour of the east end of London yesterday.  Bordered by a growing financial district, London's east end has been a temporary home to poor immigrants from the French Hugenots fleeing protestant religious persection in colonial era to displaced Jews throughout history, to Bangladeshis today into what the United Kingdom has set up as "Banglatown." 

Dr. Mary Manjikian offered a lecture this morning on Chinese immigration from rural farms to urban areas, which scholars suggest has led to destablization in social status (somewhat similar to that of the historical Soviet Union.)  Maslow's pyramid of autonomy and human flourishing illustrates the immigration paradigm of migration for basics of food and shelter on the most basic levels to that of human flourishing at its peak. 

This phenomenon raises issues of human rights, even life-chances for those enduring desperate survival circumstances.  Nationals may choose to emmigrate due to drought or war or any other extreme circumstance. The London Evening Standard on July 6, 2011 at p. 24 reported that a boat of about 200 Somali migrants fleeing the East Africa drought capsized in the Red Sea, leaving at lest 197 dead.  These people were desperate to suvive. fleeing one tragedy to only find another.

The United Kingdom has major internal concerns over immigration.  Students read local newspapers to discover that the BBC immigration dialogue dirth has "damaged the country," according to a July 9, 2011 article in the Telegraph.  The BBC News did report the bankruptcy of the only Immigration Advisory Service, leaving nearly 15,000 immigration cases without legal support in a July 11, 2011 article, and that immigrating students are vulnerable to exploitation in various university programs in a May 11, 2011 article on Glasgow Caledonian University.  

Concerns over fertility rates and unemployment figures also top the British news.  "Recent figures show that population increased by nearly half a million last year, driven by high levels of immigration and rising birth rates," according to the UK Daily Mail, July 14, 2011, at p. 4.  The Daily Telegraph reported on the same day that one in four babies is born to a foreign mother.  See "Foreigners and older mothers drive biggest baby boom since 1972," at 13.

The intersection between immigration and families has a very real, felt effect on any society.  Regent students at the Oxford program have learned and experienced that first hand.  They have been challenged toward how to build strong nations with strong families in framing immigration policy. 

It All Starts With the Children... like Caylee Anthony

This weeks events surrounding the Casey Anthony trial for the death of her daughter, Caylee, have astonished not only the public in Florida, but around the globe. After a six week trial a jury returned a verdict of not guilty for the mother of slain toddler, Caylee Marie Anthony. Read the New York Times summary of the case and the verdict here: http://www.nytimes.com/2011/07/06/us/06casey.html?_r=1&hp.

People are astonished, not because a parent was found innocent of killing her daughter, but most likely because of the implications for children everywhere from this case. When a child's life is taken and no one is to blame in a court of law, a sense of diminished value can be felt regarding that needless loss of innocent life.

The Regent in Oxford program also began this week, as a group of students have gathered at Oxford University, wonderfully hosted by Hertford College, to take a course called "Politics, Family Law and Immigration Policy," a cutting edge offering that considers the global conundrum of immigration in the context of family law and policy taught by Dr. Mary Manjikian and myself. Focusing on strengthening nations and societies by providing public policy that strengthens immigrating families, we gathered at the Greenwhich Maritime Museum to investigate the flow of immigration waves througout history.

The entrance to the museum began our study with the most vulnerable and important aspects of immigration - the children. "It All Starts Here...." How any society values its children will determine the strength of that nation in generations to come.

Look for future blog posts here on the interplay between immigration and families, and how that relates to current U.S. events... and even Caylee Anthony.

Restoring Abused Children to Protective Families Regardless of Immigration Status

            Imagine an adorable, twelve-month old little girl, barely a toddler, with delicate arms, legs, and innocent eyes.  Now picture that same little girl in a hospital with "three bone fractures and substantial bruising" as well as signs that "she had recently been suffocated."[3]  Should this little girl's immigration status determine if she deserves protection?  Or should the state intervene to protect this little girl from further abuse by her parents regardless of her ethnicity or her immigration status? Keila E. Molina,[2] Regent Law Juris Doctor Candidate 2012, has researched this dilemma.  Her article is entitled, "El Sueño de los Niños[1]: Safeguarding the Best Interests of Abused Mexican Children Regardless of Their Immigration Status," and reveals that state courts across the United States have responded affirmatively by protecting the best interests of children in desparate need of protection, intervening as "parens patriae"[4] regardless of their ethnicity or their immigration status.

            The importance of state intervention as a safeguard for abused children is unsurpassable, and is a matter of life and death for these children.[5]  Molina's focus is first and foremost placed on the importance of state intervention to protect children from abuse, [6] examining how state courts have responded to challenges concerning their jurisdiction or their right to intervene in order to protect and determine the best interests of abused Mexican children who are undocumented immigrants.[7]    Since her article concerns the protection of abused Mexican children who are not United States citizens and who lack a legal immigration status to reside in the United States, it is necessary to address how the pointed controversy regarding illegal immigration presents a challenge in promoting and assuring the protection of these children. In fact, some in the United States would argue that because these abused Mexican children are illegally residing in the United States along with their parents, the entire family should be immediately deported in situations of abuse and neglect.[8]  Indeed, some would probably even argue that the United States' courts should not be intervening at all to protect these Mexican children because they are a burden on tax payer resources.[9]  In response to these and other arguments, determining whether a child deserves protection from abuse must be based on the child's best interests, rather than on the child's immigration status.  Children need to be protected simply because they are children. 

Unquestionably, children who are abused or neglected feel the exact same pain both physically and emotionally regardless of the color of their immigration status. Molina writes, "When children are abused by their own mother, father, or any other person, those children need to be protected and provided safety for their future wellbeing.[10]  Children dream, and ought to be reassured, that they are loved and will always be protected, hopefully by those who love them.[11]  All children, regardless of their ethnicity, skin color, or immigration status, not only dream of love and safety, but for their actual survival need to be protected from abuse.[12]"

Addressing the reality and little-known adversity that occurs in state courts throughout the United States involving abused children, who regardless of their country of origin and their immigration status are in need of (and deserve) protection,[13] section I discusses the political and social context for this article as evidenced by the illegal immigration controversy, shedding light on how this context can impinge on the intervention (and protection) of undocumented children.  This section also addresses how the illegal immigration controversy can magnify the struggles of abused Mexican children who are undocumented immigrants and end up in the system.[14]  Section II examines and analyzes the approach taken by courts in California and Texas, as two leading states along the Mexican border, which have steadfastly provided continued protection for Mexican national children despite encountering jurisdictional challenges.  This section discusses how these courts have established custody of Mexican national children by asserting jurisdiction based on both United States and international law.  Section III then explains how courts in both California and Texas have made custody decisions for Mexican children who are undocumented immigrants by persistently looking to the best interest of the child standard when parental rights are terminated and when determining the best placement for these children.  Section IV subsequently presents a recommendation to continue protecting abused Mexican children regardless of their immigration status and to promote awareness of the Special Juvenile Immigrant Status in courts nationwide, proposing an evaluation of the totality of the circumstances to determine the child's best interests regarding placement options once parental rights are terminated.

Emphasizing that state courts in the United States are appropriately intervening as parens patriae to protect abused Mexican children regardless of their immigration status, Molina's article draws attention to the absolute fundamental need for consistent application of the best interests of the child standard in protecting abused children - regardless of immigration status.  This article takes on the immigration dilemma in the context of helpless children caught in the familial and political cross-hairs of trauma and uncertainty. 

---

[1] Translation from Spanish: "The Dream of the Children."

[2] J.D. Candidate 2012, Regent University School of Law; Biola University, B.A. 2005.  This article is dedicated with all my love to the countless children who have survived abuse, are surviving abuse, and for those who did not survive the abuse they encountered during their short lives.  May we, as adults, strive to always advocate for, protect, and respect the precious, yet vulnerable lives of niños (children) everywhere in our world who so desperately long for someone to show them that they are important and highly valued.     

[3] In re Stephanie M., 867 P.2d 706, 709 (Cal. 1994) (child was abused by her Mexican national parents and after reunification services failed due to the parent's consistent denial of any abuse, parental rights were terminated as discussed infra Section II), cert. denied sub nom. Mendez v. San Diego County, 513 U.S. 937 (1994) and cert. denied sub nom. Jose M. v. San Diego Cty. Soc. Serv. 513 U.S. 908 (1994).

[4] This legal term's literal meaning in Latin is "parent of his or her country" and it is defined as "the state in its capacity as provider of protection to those unable to care for themselves," thus as used here, it describes the duty the state has to protect children who are vulnerable to abuse by adults around them.  Black's Law Dictionary 1221 (9th ed. 2009).  See, e.g., Child Welfare Information Gateway, U.S. Dept. of Health & Human Servs., Child Abuse and Neglect Fatalities: Statistics and Interventions (April 2010), http://www.childwelfare.gov/pubs/factsheets/fatality.pdf [hereinafter Fatalities: Statistics and Interventions] ("Research indicates that very young children (ages 4 and younger) are the most frequent victims of child fatalities. . . .These children are the most vulnerable for many reasons, including their dependency, small size, and inability to defend themselves.").

[5]See e.g., People v. Salinas, 131 Cal. App. 3d 925 (Cal. Ct. App. 1982) (mother convicted for murder and inflicting cruel and corporal punishment with a belt which led to the death of her three year old daughter); Slater v. State, 880 So. 2d 802 (Fla. Dist. Ct. App.  2004) (father convicted for aggravated manslaughter and child abuse of one of his twin sons); In re G.W.S. 553 N.E.2d 85 (Ill. App. Ct. 1990) (mother convicted for manslaughter for killing her own daughter by violently shaking her); State v. Lacy, 983 S.W.2d 686 (Tenn. Crim. App. 1997) (live-in-boyfriend convicted of first degree murder by aggravated child abuse of the girlfriend's five year old son).

[6] Detailed statistics and information on state intervention to protect children from child abuse can be further explored at: Admin. for Children & Families, U.S. Dept. of Health & Human Servs., Statistics & Research: Child Maltreatment 2008,  http://www.acf.hhs.gov/programs/cb/pubs/cm08/cm08.pdf

Each State bases its own definitions of child abuse and neglect on the standards set by Federal and State laws. The child protective services (CPS) units within each State respond to the safety needs of children who are alleged to have been maltreated based on those State definitions. The Child Abuse Prevention and Treatment Act (CAPTA), (42 U.S.C.A. §5106g), as amended by the Keeping Children and Families Safe Act of 2003, defines child abuse and neglect as: [a]ny recent act or failure to act on the part of a parent or caretaker which results in death, serious physical or emotional harm, sexual abuse or exploitation; or [a]n act or failure to act, which presents an imminent risk of serious harm.   Id.

[7] Throughout this article, the word "illegal" will not be used to describe any human being.  The conduct, behavior, or actions of a human being can be "illegal" since these may be in violation of many areas of the law.  Similarly, the term "illegal immigration" is acceptable based on the fact that it describes the action or concept of immigrating.  However, using labels such as "illegal immigrant" or "illegal alien" can be derogatory and imply that those classified under these labels are a sub-category of human beings, even suggesting a categorically imposed inferiority in their humanity.  Thus, while acknowledging that for diverse reasons many individuals reside in the United States without legal immigration status and have breached immigration law, their actions are illegal, but not their humanity as immigrants.  This article will utilize the term "undocumented immigrant" for the simple reason that it is a more accurate and respectful manner to indicate that the immigrant lacks documentation to establish the requisite legal immigration status.  As such, the author of this article hopes that the reader is receptive regarding this distinction in properly referring to this group of immigrants, understanding the reason for its importance.  However, some do disagree (see Federation for American Immigration Reform, Immigration Issues: Illegal Alien or "Undocumented Immigrant?"  http://www.fairus.org/site/News2?page=NewsArticle&id=20887&security=1601&news_iv_ctrl=1007 (last visited Nov. 29, 2010)) with the author's approach, and deem it to be "politically correctness" instead of respect toward immigrants.  For the sake of not fostering any discord, again, the author purposely chooses to steer clear of using any disrespectful terminology towards any human being.     

[8] See generally, Federation for American Immigration Reform, Immigration Issues: How to Stop Illegal Immigration, http://www.fairus.org/site/News2?page=NewsArticle&id=16669&security=1601&news_iv_ctrl=1007 (last visited Nov. 29, 2010) (indicating among other restrictions that a solution to illegal immigration is to "deport immigrants who become public charges").

[9] See e.g., Steve King, U.S. Congressman for Iowa's 5th Congressional District, Immigration Issue Statement, http://steveking.house.gov/index.cfm?FuseAction=IssueStatements.View&Issue_id=63ed9657-7e9c-9af9-78b4-b101aff780a9 (last visited Nov. 29, 2010) ("[O]ur nation must eliminate needless incentives that encourage illegal immigration and cost taxpayers millions of dollars each year.").  This Congressman is also a staunch supporter of repealing birth-right citizenship for all babies of undocumented immigrants.  Id. 

[10] See National Council of Juvenile and Family Court Judges, Resource Guidelines – Improving Court Practice in Child Abuse and Neglect Cases 10 (1995) [hereinafter Resource Guidelines] ("Victims of child abuse and neglect come before juvenile and family court judges for protection from further harm and for timely decision-making for their future.").

[11] See, id. at 12-13. The best situation in a child abuse or neglect case allows the opportunity for families to work towards reunification for the child's wellbeing.  "[C]hildren need the security of having parents committed to their care.  The lack of parents who provide unconditional love and care can profoundly insult a child's self image."  Id. 

[12] See Fatalities: Statistics and Interventions, supra note 4, at 2.

The National Child Abuse and Neglect Data System (NCANDS) reported an estimated 1,740 child fatalities in 2008.  This translates to a rate of 2.33 children per 100,000 children in the general population.  NCANDS defines "child fatality" as the death of a child caused by an injury resulting from abuse or neglect, or where abuse or neglect was a contributing factor.  Id. 

[13] Although the focus of this article is on abused undocumented children from Mexico, the cases and proposals presented can be applied to abused undocumented children from any country who reside in the United States. 

[14] The "system" refers to the court dependency system involving children who require the protection of the court.

Immigrating Families Need Restoration

“The U.S. immigration system has always promoted family unity by awarding the majority of visas to the families of current U.S. residents, which ensures that close family members are not kept apart. The principle of family unity has long been a central tenet of our immigration laws and has contributed to the economic and social prosperity of our country and immigrant populations.

However, the benefits of family-based immigration are undermined by the well-documented backlogs—backlogs caused by quotas in family immigration categories which fall far short of the number of immigrant visa applications. Repeated shortfalls have resulted in increasingly unreasonable wait times. For instance, the average current wait time for spouses and minor children of legal permanent residents (green card holders) is five years, and the wait time for adult children of U.S. citizens is six years for those still single and eight years for those who have married. Siblings of U.S. citizens must wait between ten and eleven years.” These families could clearly benefit from more support in U.S. immigration law to allow them to be restored to one another as they move into the United States.

See more on this important subject from an Immigration Impact blog working toward Family Unity ...

http://immigrationimpact.com/2009/10/27/family-ties-a-closer-look-at-the-problem-with-our-family-based-immigration-system/