Beyond status: Seeing the whole child

Abstract

Competing values underlie U.S. immigration law and child welfare law. Immigration law often operates in ways that intentionally hinder family unity, which in the child welfare context enjoys tremendous constitutional protection. First, the operation of immigration law undermines family unity by failing to recognize the variety of family structures that exist, which has profound implications for millions of mixed status families, that is, families in which all family members do not hold the same immigration status. Second, immigration law hinders family unity because it does not recognize children's interests as a valid factor in immigration decisions, thereby failing to take into account the best interests of the child, a concept that otherwise is universally recognized in child welfare law. Despite the U.S. immigration system's exceptional disregard for family unity and the best interests of the child, immigration status can become an issue in many contexts outside of immigration proceedings, from state intervention through child protection agencies to state court decisions in parent custody disputes. Therefore, systems and policies that affect immigrant children and their families must recognize the competing values underlying immigration law and child welfare law or risk importing improperly the immigration systems’ values into other contexts in ways that discourage family unity and negatively impact children.