Insult to Injury: US Citizen Children of Migrants Already Suffer Under Immigration Law, Even Without an Executive Birthright Order

One of President Trump’s stated reasons for the proposed elimination of birthright citizenship is: “a person comes in and has a baby, and the baby is essentially a citizen of the United States for 85 years, with all of those benefits.” Among the many problems with this statement is its disregard for the difficulties that current immigration law imposes on the US citizen children of migrants. One of the most wrenching examples plays itself out when migrants seek permanent resident status through applications for “cancellation of removal” under section 240(A)(b)(1) of the Immigration and Nationality Act.

This provision established a type of relief sought by certain migrants who are in removal proceedings before an immigration court. The elements necessary for a grant of relief include having been continuously present in the US for at least 10 years prior to the date of the application; being “a person of good moral character”; and the absence of certain disqualifying crimes. Also among the necessary elements is proving that removal would cause “exceptional and extremely unusual hardship” to the applicant’s US citizen or lawful permanent resident spouse, parents or children under 21 — the only qualifying relatives. Details from the family’s present life and extrapolation of the relatives’ lives after the applicant’s possible removal are necessary to satisfy the standard.

What comes to mind as “exceptional and extremely unusual hardship” for a US citizen child under the age of 21? If we’re serious, we think of an orphan-like existence of forlornness, with heightened vulnerability to violence, exploitation, and national or international displacement. All of these possibilities become far more likely if one or both parents are deported, regardless of whether the child remains with the parent.

In some ways, the cancellation of removal statute seems to buy into the idea that a US citizen child’s life is replete “with all of those benefits” — that life in the US is just too good for the average child to need much else aside from, well, life in the US — even if the parents aren’t around to walk them through that life.

Ninth Circuit Judge Harry Pregerson wrote in a 2005 dissenting opinion in Cabrera-Alvarez v. Gonzales, “Sadly, our cancellation of removal statute does not honor the concept of family values and the need to keep families together…. That onerous standard is so difficult to satisfy that there is only one published BIA decision that grants cancellation of removal after finding that the requisite ‘exceptional and extremely unusual hardship’ existed.” The BIA, or Board of Immigration Appeals, is a panel that reviews appeals of immigration judges’ decisions, including rulings involving cancellation of removal.

The published BIA decision that Judge Pregerson referenced was issued in the 2002 case Matter of Recinas, in which the BIA concluded that a grant of cancellation was warranted because a single mother of six children (four of whom were born in the US) was the sole source of financial support for the children; had no close family members, home or job in her native Mexico; and the children did not speak Spanish and had never traveled to Mexico.

But in its 2002 decision in Matter of Andazola-Rivas, the BIA held that while the removal of the single parent of two US citizen children, ages 11 and 6, would likely result in “extreme hardship” to the children, cancellation of removal was not warranted because their hardship would not be “exceptional and extremely unusual.” This dearth of favorable published decisions persists today, as shown in the Justice Department’s own BIA Precedent Chart regarding the “exceptional and extremely unusual hardship” standard.

After about eight years of representing parents applying for cancellation; reviewing children’s affidavits, essays, school records, medical records and psychological histories; as well as working with the children before, during and after merit hearings in their parents’ cases, I’ve seen recurring ways in which they suffer.

I’ve seen children who are knowledgeable about their parents’ humble beginnings abroad. These children are aware that their parents had no choice in being born into the circumstances of their native countries, and that they themselves did not choose to be born in the US. These children count their blessings.

And there’s another kind of conflicted awareness. These children are often also aware that the country credited with giving them their stability could also potentially tear their families apart because they’re just a little “too” stable to fulfill the government’s “exceptional and extremely unusual” standard. I’ve seen children grateful for their after-school swimming classes at the YMCA, but scared that their parents might not make it to pick them up because of an unwelcome visit from Immigration and Customs Enforcement (ICE) officials.

When parents face impossible circumstances abroad, the natural human need for self-preservation leads them to flee to a place where life could be eminently livable. The children born into this seemingly best of all possible worlds, however, have no escape from a daily fear that the government, assigned with the task of protecting their rights as citizens, threatens daily to take their parents from them.

I’ve also seen a pattern of childhood guilt for even contemplating their own fear and sadness toward the government they would otherwise revere. These children try to suppress these feelings and focus on making the best of their fortuitous circumstances: doing their best in school with gratitude for the opportunities of a US education, creating goals for themselves so that they have something to which they can look forward, and generally seeking to do justice to the diligence and sacrifices of their parents. They respect the struggles that came before them and hope to build on them.

Still, the very constancy of the droning dread in so many children — and their tenuous ability to get through their days, nonetheless — makes their current and prospective hardship seem, to some immigration judges, only average by the standard of “exceptional and extremely unusual hardship.” This becomes yet another test that a US child can fail for simply being less than “exceptional.” The stakes here, though, are obviously very different from those of a sixth-grade math test.

Since the Trump administration took power, however, children have become increasingly affected by its callousness toward family unity. Images of institutionalized familial ruptures have only heightened these children’s daily fears.

Further, I have seen parents criticized by some immigration judges, and in my view, even demonized by some ICE attorneys for simply allowing their children to know of the realities of deportation-related family separations.

In a 2007 dissenting opinion in Memije v. Gonzales, Judge Pregerson wrote that these separations violate the rights of children: “Our government’s refusal to grant the children’s undocumented parents cancellation of removal tramples on the children’s substantive due process rights — rights our government routinely ignores. By denying undocumented parents cancellation of removal, our government effectively deports their United States citizen children and denies those children their birthrights.”

He continued, “The government’s conduct violates due process by forcing the children to accept de facto expulsion from their native land or give up their constitutionally protected right to remain with their parents.”

Judge Pregerson goes on to quote the 1977 Supreme Court decision in Moore v. City of E. Cleveland: “The Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation’s history and tradition.” He also cites the Supreme Court decision in Stanley v. Illinois, which recognizes that, “The integrity of the family unit has found protection in the Due Process Clause of the Fourteenth Amendment.”

In recent days, US citizen children have additionally had to grapple with the possibility that their own rights are under further attack. The Trump administration’s plan to craft an executive order designed to undermine birthright citizenship rights can leave these children feeling that they do not even deserve to be US citizens in the first place, simply due to their parents’ origins. “Exceptional and extremely unusual” government cruelty compounds “exceptional and extremely unusual” childhood hardship, both present and future. Cancellation-of-removal grant rates should be higher for cases heard under the current administration. This could be an opportunity for those immigration judges who call for greater independence from inhumane leadership at the Justice Department, to assert such independence as adjudicators.

However, even in cases in which cancellation of removal is granted by an immigration court, the decision is not issued immediately at the final hearing or anytime soon after. The wait time can hover around a year-and-a-half to two years, due to an annual cap on the number of grants and the resulting backlog of decisions. If the court’s decision is a denial, however, the ruling can be conveniently delivered immediately — due to a December 2017 amendment to the Justice Department’s Operating Policies and Procedures for cancellation-of-removal cases.

This does not mean that all families who leave the courtroom without a decision in hand can expect an ultimate approval after their agonizing wait. Some judges refrain from issuing immediate rulings because they are undecided and want to review the record in further detail. Denials can be issued at any time afterward, ranging from days to months. In many cases, during the wait for a decision, the record is closed against any new evidence, including evidence of hardship. This goes on while US citizen children turn over the proceedings in their minds, hope that their letters to the judges were compelling enough, endure the onslaught of anti-migrant rhetoric from their federal government, and wonder what might come next.

In his 2005 dissenting opinion in Cabrera-Alvarez v. Gonzalez, Judge Pregerson wrote, “I pray that soon the good men and women in our Congress will ameliorate the plight of families […] and give us humane laws that will not cause the disintegration of such families.”

As we approach the one-year anniversary of Judge Pregerson’s passing, it is worthwhile to remember the humanitarian spirit of his opinions. It might be laughable to expect that the Senate, as it stands now, would take steps in the humane direction that he proposed. However, the children — future voters — whose experiences are being relegated as “unexceptional,” carry their awareness with them through each day, week, month and year.