Deporting America's Children: The Demise of Discretion and Family Values in Immigration Law

Abstract

This article focuses on the deeply problematic practice of de facto child separation or de facto deportation of U.S.-citizen children occurring with greater frequency throughout the interior of the nation. I argue that the absence of discretion in the context of deporting parents of citizen children is both economically and socially counter-productive and inhumane. A new approach to assessing the impact of deportation on U.S.-citizen children must take into account not only the children’s constitutional rights as U.S. citizens, but also the societal interest in avoiding the “creation of an underclass of future citizens,” which cannot be reconciled with basic principles of equality. After examining constitutional infirmities posed by a legal regime that allows for the deportation of parents without regard for the de facto deportation of American children, or the deprivation of family integrity that occurs when children are left behind, I propose legislative reform to safeguard the constitutional rights of American children and families.