Document Type

Article

Publication Date

Fall 2011

Abstract

The massive influx of illegal immigrants over the preceding decades has combined with the United States’ jus soli citizenship regime to produce a growing class of removable aliens: non-citizen parents of United States citizen children. The removability of parents obviously places the citizen children in the unfortunate position of having to leave their country of citizenship behind to accompany the parents, or arrange for living situations within the United States, perhaps with a relative, but be separated from their parents. The compelling interests raised by the removability of parents in such circumstances have given rise to distinct forms of relief under domestic legal systems. The United Kingdom, in a recent decision by its Supreme Court, has held that the best interests of the child are a primary consideration in determining whether the removal of the parent would be proportionate. Likewise, the United States provides for certain types of relief from removal for the parents of United States citizen children. Yet neither regime is entirely satisfactory. The United Kingdom’s approach is unduly biased towards non-removability, whereas the standards for establishing relief from removal in the United States are onerous and will be rarely met in practice. The purpose of this article is to propose a balancing of the interests that takes a realistic look both at the compelling interest citizen children have to remain in their country as part of a family unit and the competing interests of the state in a fully and fairly functioning immigration system. Such balancing is liable to make all parties unhappy—not every non-citizen parent should be permitted to remain simply on the fact of that parentage, and, conversely, not every removable parent should be removed simply because they are present illegally—yet it is the only feasible option to a problem that is only likely to grow in the coming decades.

Publication Citation

30 Berkeley J. Int'l L. 1-34 (2012)