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2 12 Victimizing the Victims: The Effects of U.S. Immigration Laws on the Children of Illegal Immigrants By Peggy J. Hirschey Williams* "The ultimate test of a moral society is the kind of world that it leaves to its children." -Dietrich Bonheoffer' I. Introduction It is estimated that there are currently more than eleven million undocumented immigrants residing in the United States.' Of these, approximately one and a half million are children under the age of eighteen.' Over the past half century, the rate at which immigrants gain illegal entry into this country has surged, and current studies estimate that there are now approximately one and a half million new immigrants entering this country illegally each year.s As the number of undocumented aliens in this country has multiplied, the public sentiment towards such individuals has "shifted from tolerance [to] ambivalence [to] outright rejection." 6 This shift has led to the passage of a number of laws designed to remove the incentive to immigrate illegally by prohibiting the receipt of most taxpayer-funded services by undocumented workers, and providing for the arrest, detention and deportation of undocumented aliens upon their apprehension by federal authorities.' Sadly, while this legislation was passed with a focus on adult illegal immigrants, its effects have been felt most severely by immigrant children.' The net result of such legislation is that immigrant children often suffer debilitating effects from the lack of public services provided to them. In some cases, these children manifest severe emotional and psychological problems, and in some cases, even death, as a result of such draconian policies governing the treatment of illegal immigrants while in this country as well as the laws governing deportation proceedings.' Of the more than one million undocumented children currently living in the U.S., most come to this country in the company of their parents.o Seven to eight thousand of these undocumented children are here alone, having either been brought into the country by an adult and later abandoned or having endured a perilous journey into this country by themselves." These children, labeled "unaccompanied alien children," come to this country in order to escape crushing poverty and severe abuse experienced in their native countries. 2 Individuals operating child trafficking rings bring children to the U.S. for the purposes of sexual exploitation and abusive labor practices.' After the children cease to Children's Legal Rights Journal "If our American way of life fails the child, it fails us all." -Pearl S. Buck 2 HeinOnline Child. Legal Rts. J make a profit, traffickers may abandon them to fend for themselves.1 4 Because of their illegal status, these children are prohibited from accessing basic public welfare services, and if apprehended, face the same arrest, detention and deportation proceedings as adults.'" Moreover, in addition to the more than one million undocumented children in this country,' 6 as of 2009, there were some four million U.S. born children of illegal immigrants residing in this country with their undocumented parents." Because they are born in America, these children are U.S. citizens and are, thus, entitled to the full range of benefits associated with that status. However, because of their parents' illegal status, these children are often prevented from receiving the benefits of citizenship and many times are deported along with their undocumented parents, despite being U.S. citizens.'" Under current U.S. immigration statutes, these children are typically regarded and treated in one of two ways. First, in the family setting, they are regarded as "objects" rather than actors, something akin to the "property" of their parents.1 9 In this context, a child's treatment under the law is determined primarily by their parents' immigration status, which does not entitle them to any legal recognition as individuals. 20 On the other hand, if the children are in this country alone, they may also be treated as "quasi-adults" subject to the same harsh laws and procedural complexities as adults and are consequently afforded little, if any, legal recognition of their special status and needs as a child. 2 ' Unless current U.S. laws governing illegal immigration are amended to acknowledge and account for undocumented children brought to the U.S. by their parents, unaccompanied undocumented alien children and U.S. citizen children of undocumented parents, it is almost certain that millions of children will continue to be victimized. In order to properly address such reform, however, it is necessary to focus on the particular areas of the law that have the greatest impact upon these children. Within the body of U.S. immigration law, there are three majorareas that primarily affect the lives ofchildren: 1) the provision of public benefits, particularly health

3 Victimizing the Victims care services; 2) immigration status determinations; and 3) provision of kindergarten to twelfth grade education. Two of these areas, the provision of health care services and immigration status determinations, are governed by statute. 2 2 The third area, the provision of kindergarten to twelfth grade education, is governed by the landmark Supreme Court decision of Plyler v. Doe. 23 After Plyer, a different standard is applied in assessing the provision of public primary education to undocumented children than in the areas governed by statute. Section II of this Article will offer a brief overview of the current U.S. statutory law governing illegal immigration and contrast the standards governing the treatment of children under those statutes with that applied by the Court in Plyler. Section III addresses the policy concerns, raised by Plyler, that require an amendment of the current statutory laws to better reflect the special needs and circumstances of these children. Section IV offers suggestions for more appropriate standards that could be incorporated into immigration laws that affect children and analyzes the potential effect of such amendments on both the children and the country. II. A Brief Overview of Current U.S. Immigration Laws U.S. statutory law provides for the issuance of visas for immigrants wishing to obtain permanent legal residence status. 24 Obtaining such a visa can be extremely difficult, and many applicants are forced to wait years for approval before being allowed to come to this country. 25 As a result, many immigrants, desperate to escape poverty or persecution in their native countries and to create a better life for their children, choose to bypass these requirements and enter the country illegally. 26 Often, these immigrants bring their children with them; however, some are children themselves, enduring an often extremely dangerous journey to the U.S. alone. 27 Other immigrants enter this country legally through temporary resident visas, but choose to remain in the country with their children illegally after the visas expire. 28 Thus, the children associated with illegal immigration in the U.S. generally fall within one of three categories: (1) unaccompanied alien children who come to this country alone; (2) children of undocumented aliens who come into the U.S. with their parents; and (3) U.S.-bom children of undocumented aliens who are citizens of this country. 29 Public frustration with the surge of illegal immigrants came to the forefront of national debate in the mid- 1990s, and led to the passage of two bills in Congress that dramatically altered U.S. immigration policy as it deals with undocumented immigrants. 30 The Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA") and the Personal Responsibility and Work Opportunity Reconciliation Act ("PRWORA") were passed by Congress in 1996 as an attempt to curtail the influx of undocumented immigrants and to "seek a fundamental re-orientation of immigration policy in the direction of the national interest."' The stated purpose of these acts was to discourage illegal immigration by addressing two primary areas of national policy concerns: encouraging the self-reliance of immigrants and removing all incentives for illegal immigration. 32 The PRWORA created the Temporary Assistance to Needy Families program ("TANF"), replacing the prior "welfare" type programs, such as Aid to Families with Dependent Children and the Emergency Assistance program, which were previously available to most immigrants regardless of status. TANF provides federal funding to states for the development of programs that provide assistance, services and work opportunities to certain low-income immigrant families. 34 In addition to the creation of TANF, the PRWORA also created two broad classifications for all immigrants: "qualified aliens" and "unqualified aliens."" "Qualified aliens" include legal permanent residents, refugees, persons granted asylum, those granted a cancellation of deportation and certain battered spouses and children.3 "Unqualified aliens" include undocumented immigrants and those "permanently residing under color of law."" Under the PRWORA, unqualified aliens, including children, are explicitly excluded from the receipt of most TANF services, including welfare, health, housing and food services." The PRWORA allows states to pass affirmative legislation to extend state-funded public benefits for unqualified aliens further than the limitations of the federal statute if they so choose. 39 Thus, under the PRWORA, a state may choose to extend certain public benefits, such as Medicaid, to "unqualified aliens," including such as undocumented immigrant children, by passing legislation specifically authorizing such extension. 40 However, if states do choose to extend such benefits to those not contemplated under the federal statute, the entire cost of funding the expanded services is placed upon the state. 41 Because of the exorbitant expense involved, very few states have opted to offer such expanded services to unqualified aliens. 42 In addition, there is clear evidence within the language ofthe PRWORA indicating Congress intended to discourage states from passing such laws. 43 For example, federal law provides that states that choose not to pass such law, but instead adhere to the federal model, are considered to have "chosen the least restrictive means available for achieving the compelling governmental interest of assuring that aliens be self-reliant in accordance with national immigration policy."" 13 HeinOnline Child. 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4 14 The PRWORA does provide some exceptions to its absolute restriction ofpublic benefits, allowing treatment for emergency medical conditions, immunizations and treatment of communicable diseases. In reality, these exceptions have been construed very narrowly and have proved to offer children in need of services little help, as will be discussed in greater depth below. 45 In addition to the PRWORA's dramatic restriction in the availability of public services to undocumented immigrant children, with the passage of the IIRIRA, Congress aimed to curtail illegal immigration by providing for expedited deportation proceedings for undocumented immigrants, including children apprehended in this country. 46 With only narrow exceptions, the IIRIRA prescribes immediate deportation of undocumented aliens, without hearing or review. 47 This expedited removal may be avoided only if the immigrant expresses a desire to apply for asylum or expresses a fear of persecution if he or she is returned to his or her native country. 48 In order to avoid deportation, the alien's claim for asylum must be heard before an immigration judge, who then determines whether the individual's case warrants a stay of deportation. 49 Nevertheless, the Act still requires mandatory detention at federal holding facilities of all undocumented aliens, including children, while they are awaiting a determination of their claims."o Further, the IIRIRA requires all applications for asylum be submitted within one year of arriving in the U.S., unless the applicant can prove that "extraordinary circumstances" delayed his or her filing." As a rule, children are normally not exempt from the one-year filing requirement, although legal disabilities, including minority, do qualify as circumstances sufficient to warrant delayed filing. 5 2 However, in order for a child to qualify for such an exemption, he or she must first be adjudicated an "unaccompanied alien child." This is itself an arduous process, which will be discussed in greater detail below, and thereby limits the effectiveness of the exception. 54 In the case of children present in this country with their parents, application of the expedited deportation provisions of the IIRIRA to undocumented parents has resulted either in children's separation from their parents (when the parents have been deported), or more often in the deportation of children with their parents-including U.S. citizen children-with absolutely no consideration given to the interests of the child. 5 While Congress intended both the PRWORA and the IlRIRA to curb the influx of adult undocumented immigrants, because of poor drafting and failure to make adequate provisions for the protection of immigrant children, these acts have had a devastating impact upon the lives of millions of children. The following sections Williams will provide a detailed look at the precise effects of these statutes upon both immigrant and U.S. citizen children. 1. The Effects of the PRWORA and the IIRIRA upon the Provision of Health Care for Children With the passage of the PRWORA, Congress restricted the availability of public services and benefits to immigrants categorized as "unqualified" under this Act. 6 Undocumented immigrants, both adults and children, fall into this category." Of these denied benefits, perhaps none has had such a dramatic impact upon the lives of children as the loss of health care services and federally funded health insurance. Prior to the passage of the PRWORA, Medicaid coverage was available to most low-income families regardless of immigration status. 58 Since most undocumented immigrants typically work in low-wage jobs, often employed as manual or domestic labor, they generally do not receive health benefits with their employment. Families of undocumented aliens relied on Medicaid to provide for routine health care, preventive care, treatment of common and chronic illnesses and prenatal care." Now, however, undocumented immigrants no longer have access to Medicaid coverage for their undocumented children. 60 The PRWORA does contain some narrow exceptions to the general prohibition of public services. One such exception is the provision of free care for emergency medical conditions, immunizations and treatment for communicable diseases to all individuals regardless of immigration status. 6 ' This exception is very limited. The PRWORA specifically notes that Congress intended its provisions to be narrowly construed in order to fulfill its purpose of restricting the access of undocumented aliens to all public benefits. 62 Based upon this caveat, courts have narrowly defined the circumstances that might constitute an "emergency medical condition." For an undocumented child to qualify for treatment under this exception, he or she must be exhibiting "acute symptoms of sufficient severity... such that the absence of immediate medical attention could reasonably be expected to result in: (A) placing the patient's health in serious jeopardy, (B) serious impairment to bodily functions or (C) serious dysfunction of any bodily organs or part."' Such a restrictive definition of an "emergency medical condition" ensures this exception can only rarely be accessed by undocumented parents seeking treatment for their undocumented children. Another exception provided in the PRWORA is the allowance of medical benefits for certain "battered aliens." To qualify as a "battered alien," an individual must have been battered or subjected to extreme cruelty in the U.S. by a spouse, parent or other family member Children's Legal Rights Journal HeinOnline Child. Legal Rts. J

5 Victimizing the Victims who resides in the same household. 66 However, in order to qualify for benefits under the statute, the battered alien must no longer be residing with the batterers. 67 There must also be a substantial connection between the battery and the need for the medical benefits sought. 68 Before qualifying to receive the benefits, the applicant must already have filed a pending petition to be adjudicated a "battered alien." 69 These requirements make it tremendously difficult for immigrant children, even those involved in dependency and neglect proceedings, to actually qualify as "battered aliens." 0 Most battered children have no ability to choose to leave their batterer, and it is highly unlikely that a child could file a qualification petition." Thus, as most of the other exceptions provided in this statute, the exception for battered aliens is actually of little benefit to immigrant children. Ofcourse, the U.S. born children of illegal immigrants are entitled to federal health care services by virtue of their citizenship. 72 Even these children may not always be able to take advantage of these services because their undocumented parents are often too afraid to bring them to health care facilities lest the medical personnel discover the parents' illegal status." This fear has been fueled by a provision of the IIRIRA which banned states from allowing doctors and other medical personnel to provide undocumented immigrant patients (or parents of patients) with security against having their status reported to the Department of Homeland Security. 74 Under this statute, medical officials may even be fined if they are discovered providing health care services to undocumented aliens." Fear of discovery and deportation keeps undocumented parents from bringing their children-both undocumented and citizens-to the hospital for medical treatment, even for services to which they may be legitimately entitled. 76 In addition to the restrictions on benefits to children, the PRWORA also denies prenatal care to undocumented immigrant women. Proper prenatal care is critically important to the health of the child, and a number of studies have linked inadequate prenatal care to such health risks as low birth weight, premature delivery, birth defects and HIV infection. These problems plague children throughout their lives, often leaving them with disabilities that can require a lifetime of costly care. 79 Thus, the relatively small savings gained from the denial of prenatal services pale in comparison to the expense of caring for a handicapped child for life. In fact, a study conducted by the Children's Defense Fund found that the average cost of intensive care for each low birth weight baby is $10,000 to $15,000, while the average cost of comprehensive prenatal care is approximately $600." These children are born in the U.S., and as citizens are eligible for Medicaid benefits, which means that the cost of their long-term care will likely be borne by the taxpayers."' Not only are these restrictions causing severe physical and emotional impacts upon children denied prenatal care, they are also having an adverse economic impact upon the country. In addition to the adverse economic effect, the restrictions placed upon access to health care have the potential to create a massive public health crisis. 82 Many undocumented immigrants in the U.S. come from regions of the world where communicable diseases are still prevalent. Even though vaccinations and treatment for these diseases are still available under the PRWORA and IIRIRA, fear of deportation keeps many undocumented immigrants from seeking treatment for their children. 84 Because many of these children live in "high risk communities where poverty [and] poor housing conditions... are prevalent," their interaction with other children creates a potential "breeding ground for contracting and spreading" communicable diseases that could affect not only the immigrant community, but the general population as well. Statutes such as the PRWORA and the IIRIRA reflect an ideology that the incentive for immigrants to come to this country illegally is, at least in part, free health care." By restricting federal benefits from illegal immigrants, it is believed that the government removes a strong incentive for immigrants to enter the country illegally." The facts simply do not support this ideology. Rather, undocumented immigrants are far more likely to come to the U.S. in search of jobs, to join family or to take advantage of educational opportunities." Thus, these laws do little or nothing to further the claimed purposes of fostering independence or reducing illegal immigration. 89 It is also important to note the prevailing view of children reflected by these statutes' denial of health care benefits. Under these laws, children are treated as passive objects associated with their parents. 90 The laws are designed to address adult undocumented immigrants by denying them public health benefits as punishment for their illegal entry into the U.S. The effects of this blanket denial of benefits on the children of illegal immigrants, if they are even considered, are merely seen as necessarily incidental to the functioning of the laws. 9 ' Under these statutes, children are given little independent consideration, afforded no independent voice, their interests are not represented and they simply suffer for the actions of their parents. This view is reflective of the inherent flaws in U.S. immigration law as it relates to children, namely, the failure to see them as individuals and to take into account their special status and needs. Such a view has led, sadly, to children being victimized by the very laws designed to protect them. 15 HeinOnline Child. Legal Rts. 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6 16 2. The Effects of the PWRORA and IIRIRA upon Immigrant Children's Status Determinations In addition to the lack of available health services for prenatal care and health care, immigrant children and the U.S. citizen children of undocumented parents face the risk of deportation. 9 2 The 1lRIRA contains provisions outlining an expedited process of removal for any alien found to be in this country illegally. 93 The process outlined in the statute is identical for all immigrants apprehended, regardless of age. 94 This process has been the cause of tremendous suffering, particularly for "unaccompanied alien children"-those children who are present in this country alone and without any adult guardian. 95 Over the past several years, more than 8,000 unaccompanied illegal alien children have come to the U.S. 6 Often, these children are victims of poverty, abusive child labor practices, human trafficking, rape, forced prostitution or armed conflict in their native countries; and most endure a long, perilous journey to this country in the hope of escaping that suffering. 97 Sadly, upon arrival, these children are faced with additional suffering rather than the assistance they so desperately need. If they are discovered in this country, unaccompanied children face a process of arrest, detention and status determination nearly identical to that faced by adults. 98 Upon apprehension by federal immigration agents, these children are taken into the custody of the Department of Homeland Security ("DHS"). 9 " Custody is then transferred to the Office of Refugee Resettlement ("ORR"), which was created by the Homeland Security Act of Prior to the creation of the ORR, unaccompanied children were held in detention facilities administered by the Immigration and Naturalization Service ("INS").'o' The conditions of the INS facilities were abhorrent: children were held in jail-like cells for long periods, not allowed contact with any family members, prevented from attempting to obtain legal counsel and remained uninformed of their legal rights When the ORR inherited this dysfunctional system of detention, it undertook steps to reform these conditions by developing a "continuum of care" for children awaiting a court determination of their immigration status. 0 3 Rather than simply holding children in detention facilities, the ORR added a variety of housing options for these children, including shelter care, foster care and residential treatment centers.'" In addition, the ORR administers the Division of Unaccompanied Children's Services ("DUCS"), the goal of which is to provide a safe and appropriate environment for children pending a determination of their status. 0 Through the Williams DUCS, the ORR also created the Shelter Care Program, a process intended to provide temporary services for the child, such as routine and emergency medical and dental care, counseling, education, recreation and visitation with family during the period in which he or she is held in custody.' 06 The creation of the ORR and the changes in the manner of detention for unaccompanied immigrant children that it implemented have wrought some improvements in the lives of these immigrant children apprehended in this country. Despite these improvements, the ORR is stymied in its ability to make truly significant changes in the manner of detention of these children for a number of reasons. 0 7 First, control over the treatment of unaccompanied alien children remains primarily a power of the law enforcement agencies of DHS. It is DHS, not ORR, who first takes custody of the children. 108 DHS must then turn over custody to ORR so that temporary residential placement proceedings can begin.' Yet, because "the HSA failed to specify a time frame for the transfer of custody, these children could remain in [DHS] custody indefinitely."" 0 Second, implementing changes in the manner in which these undocumented children are treated has proven to be somewhat difficult logistically because the ORR simply inherited the same large network of facilities that had been in use by INS. This network "reflects the law enforcement culture of the [former] INS," rather than the more appropriate social service culture that the ORR is struggling to implement."' Finally, inadequate funding is further slowing the ORR's progress at improving the conditions of detention for these children.11 2 Thus, despite a wealth of good intentions, when unaccompanied illegal alien children enter this country they are treated more like criminals-held for long periods in harsh, prisonlike environments-than victims." 3 The specter of deportation still looms over them. While in detention, unaccompanied children face removal proceedings before the Executive Office for Immigration Review, an agency of the Department of Justice. 114 During these hearings, children may apply for asylum; however, no special provisions are made for their status as children, and they are required to meet the same standard of proof as an adult asylum seeker. In order to qualify for asylum, children must be able to show that deportation to their native country would result in "exceptional and extremely unusual hardship" for the child."' This standard, created by the IIRIRA in order to restrict the number of aliens who could qualify for asylum, is an extremely difficult standard to meet, and few children are able to do so. Further, in asylum proceedings, the "applicant bears the burden of proof for establishing eligibility for asylum.""' 6 Such a standard is difficult enough for adults to meet, Children's Legal Rights Journal HeinOnline Child. Legal Rts. J

7 Victimizing the Victims particularly considering that most of the witnesses and evidence supporting the claim of hardship is likely in the immigrant's home country. However, the standard becomes nearly impossible to meet for a child, who typically lacks the maturity to understand his or her role in the process and who may have great difficulty in presenting evidence clearly and precisely." 7 DHS guidelines direct asylum officers to "take into account such factors as 'the age, relative maturity, ability to recall events, and psychological make-up of the child... when assessing the credibility of a claim.""' The agency also insists these guidelines "[do] not create new law or alter existing law," which removes much of the judge's discretion in modifying the statutory standards that a child is required to meet in order to show asylum." 9 In addition, DHS often uses confidential information contained in the child's ORR files and gathered during the course of care and custody of the child against that child in these proceedings.' 20 These children are rarely afforded any form of legal representation during these hearings; instead, they must face these adversarial administrative proceedings alone, a daunting prospect for an adult, much less for a child.' 2 ' This lack of representation is a major omission on the part of the U.S. and one that must be remedied if these children are ever to be afforded a truly fair hearing. 122 There is one other avenue provided by law that may be used to assist these children in remaining in the country. The ORR may petition DHS to consent to a child's placement in state juvenile dependency proceedings.' 23 This allows the immigrant child to be adjudicated as "dependent" upon the state and to be accorded Special Immigrant Juvenile Status ("SIJS").' 24 This status makes the child eligible for permanent legal residency in the U.S. and for placement in long-term foster care.' 25 To establish eligibility for this status, the child must be: (1) in the U.S. unaccompanied by a parent or legal guardian; (2) under twenty-one years of age; (3) unmarried; (4) have been declared dependent on the juvenile court and continue to be dependent due to abuse, neglect or abandonment; (5) have been deemed eligible by the juvenile court and continue to be eligible for long-term foster care due to abuse, neglect or abandonment; and (6) have had it determined by a court that return to the country of origin would be adverse to the child's best interests.' 26 SIJS is unique in that it is the only provision in immigration law that expressly incorporates a best interest of the child standard into its eligibility requirements.1 27 SIJS status represents the most progressive thinking about children's status within the framework of statutory immigration law.1 28 However, this standard remains woefully under-utilized, perhaps because of the lack of legal representation afforded to children, and so, many children who might qualify are given no opportunity to take advantage of this exception.1 29 While the plight of unaccompanied alien children is compelling, a child caught in the throes of deportation proceedings with their parents is far more common. 3 0 In families in which both the parents and children are undocumented, there is usually little doubt as to the outcome of the proceedings, with the whole family generally being subject to deportation. However, the situation for "mixed status" families, those comprised of undocumented parents and their U.S. born citizen children, is much more complicated."' Unfortunately, with adoption of the new immigration laws, there has developed an inherent conflict between the goals of immigration law and those of family law The vindication of immigration law goals often results in the compromise of family integrity, as families may be torn apart as parents are deported while their citizen children are left behind."' The achievement of family integrity and the preservation ofthe family unit must often be sacrificed to fulfill the requirements of immigration laws.' 34 When family law and immigration law collide, the children are routinely caught in the middle."' As the group Human Rights Watch has noted, every day "deportations... separate U.S. citizen children from their parents... and... disrupt the fabric of American communities.""' So prevalent is this situation that studies estimate that nearly one in every ten families with children is a mixed-status family.' 7 In fact, researchers at the Urban Institute estimate that there are approximately three million U.S. citizen children in this country whose parents are undocumented immigrants."' When undocumented immigrant parents face deportation proceedings, they are also faced with an agonizing choice: whether to take their citizen children with them to a country that the children have never known or to leave the children in this country either with a guardian or as a ward of the state. 39 There are no firm statistics on the number of children left behind when a parent is deported, but experts estimate the number to be in the tens of thousands." These children often suffer tremendous lifelong emotional and psychological consequences from their separation. 4 ' Under the IIRIRA's mandatory deportation scheme, a child's U.S. citizenship alone is not sufficient to avoid their parent's deportation.' 42 There is an exception to the mandatory deportation under the IIRIRA of parents of U.S. citizen children that allows them to petition the court for a "cancellation of removal."' 43 In order to qualify for such an exception, the IIRIRA requires a parent to show that deportation would result in "exceptional and extremely unusual hardship to the alien's spouse, parent or child, who is a citizen of the U.S." '" Parents may argue hardship in two ways: (1) that leaving the child 17 HeinOnline Child. Legal Rts. J Vol No. 2 + Summer 2011

8 18 behind will result in hardship, or (2) that the children, if they are deported with the parent, will face hardship in their destination country.1 45 This new standard created by the statute, however, makes cancellations of deportation proceedings nearly impossible to maintain as it is an incredibly difficult standard to meet. 4 6 For instance, the courts do not consider lower levels of health care, education and economic opportunities in the immigrant's home countryto be sufficientto meetthe required standard of "exceptional and extremely unusual" hardship on citizen children to warrant cancellation of their parents' deportation.1 47 Further, separation from parents is in itself not considered "extremely unusual" hardship, and is, thus, insufficient to warrant a cancellation of deportation.1 48 In fact, immigration courts have proven to be highly skeptical of any parental claims that they would be willing to separate from a child.1 49 Courts tend to view these claims as a mere ruse to win a cancellation of the proceedings against them, not an action that would ever be followed through.'so For this reason, the courts typically require a parent arguing potential hardship based upon separation to submit written proof of their actual intention to separate. When separation of a child does result from deportation, the courts tend to consider the subsequent hardship to the child to be a result of the parent's decision to leave the child, rather than the mandate of immigration law.' 5 ' Under the current U.S. law, the decision about the fate of a child who is a U.S. citizen rests, in the court's eyes, entirely with the parent.' 2 In some cases, removal proceedings have taken place without the child's knowledge. Courts commonly order children's removal when the children themselves are not present in the courtroom.' Thus, the children's deportation is treated merely as a consequence of their parents' deportation, and these young citizens are afforded no individual consideration and may even be completely unaware of the deportation proceedings Just as the citizenship of the children is not deemed sufficient to avoid the (automatic) deportation of their parents, citizenship status is also insufficient to guarantee that the children may remain in their home country.' This is based upon the fundamental constitutional right of the parent, seen as inherent within the parent-child relationship, to exercise control over the child.' 5 6 Typically, barring an adjudication of unfitness, the courts will not contravene the wishes of a parent regarding her child.' In the case of U.S. citizens who are minors, the right to remain in the U.S.-an inherent right of every citizen-is often subordinated to the right of their parents to determine where their children will reside.' Such actions on the part of the courts, once again, reflect the strong view inherent in much of U.S. Williams immigration law that sees children primarily as the "property" of their parents. The law views the harms inflicted upon these child citizens as merely incidents of the parent-child relationship. Because it is designed to deal only with adults and views children merely as passive "objects," the law accords children no voice and provides no consideration for their rights or interests, even when those children are citizens of the U.S.' The Different Standard Governing the Provision of Primary Education Besides the provision of health care and the determination of immigration status, the other area of the law having the most direct impact upon children is the provision of public education benefits. Unlike the other areas of the law previously discussed, the provision of kindergarten to twelfth grade education to the children of undocumented immigrants is not governed by statute, but by the landmark Supreme Court decision Plyler v. Doe.' 60 The issue in Plyler was the constitutionality of Section of the Texas Education Code ("Texas Code"), enacted by the state legislature in 1975 as a reaction against the large population of undocumented immigrants in the state.' 6 ' The provision authorized individual school districts around the state either to charge undocumented children tuition to attend public schools or to prohibit them from attending that public school. Further, the Texas Code withheld state funding to any school districts that continued to provide free education to children of undocumented immigrants When this statute was enacted, many school districts issued outright bans on undocumented children attending the public schools.' Other districts, such as Houston and Tyler, allowed undocumented children to attend the schools, but charged them an annual tuition of $1,000 or more.'1" Since the annual income of the average family of undocumented immigrants in Texas in 1975 was $4,000, this tuition requirement had the same effect as an outright ban.' The statute was initially challenged in the District Court for the Eastern District of Texas, 66 which found the provision to be unconstitutional.' The suit made its way through the appeals process, eventually reaching the Texas Supreme Court, who upheld the trial court's original ruling that the provision was unconstitutional.1 67 The case was eventually appealed to the United Supreme Court, who agreed with the Texas Supreme Court that the provision was unconstitutional.' 6 1 In its decision, the Court made several important points. First, the Court held that undocumented immigrants constitute "persons" under the language of the Fourteenth Amendment, entitling them to due process and equal protection under the law.1 69 However, after making this Children's Legal Rights Journal HeinOnline Child. Legal Rts. J

9 Victimizing the Victims initial determination, the Court then had to determine what level of protection these children should be provided and what standard of review should be applied to violations of their rights. 7 0 Justice Brennan, writing for the majority, rejected the idea that illegal immigrants constitute a suspect class and that violations of their rights should be subject to strict scrutiny."' However, he did suggest that undocumented immigrants may constitute a "sensitive class," since they lack the ability to participate in the political process and thus, are unable 2 to protect themselves from invidious discrimination. In the case of undocumented alien children, they are even more vulnerable and their political powerlessness even more severe, since they cannot rely on their parents to protect their interests as citizen children."' When judging the effects of a law upon the rights of undocumented children, the Court adopted a standard of "heightened" scrutiny, requiring that the statute at issue promote some "important governmental interest" in order to withstand a constitutional challenge In determining whether the Texas statute met this standard of review, the Court discussed a number of policy issues raised by the case. Justice Brennan noted that a state is free to "withhold its beneficence from those whose very presence within the United States is the product of their own unlawful conduct;" however, he added that such reasoning is unpersuasive when the individuals being denied aid are the minor children of such immigrants."' Justice Brennan compared the situation of these children to that of illegitimate children and noted that to punish the children of undocumented immigrants, who are in this country not of their own choosing but because of their parents' actions, violates the "basic concept ofour system that legal burdens should bear some relationship to individual responsibility for 6 wrongdoing."' Moreover, Justice Brennan observed that by denying undocumented children a basic education, the state penalized them in an incredibly harsh and lasting manner, saddling these children with illiteracy. Justice Brennan labeled this hardship as "an enduring disability."' 77 While the Court stopped short of recognizing education as a "fundamental right," it was careful to distinguish the importance of education from other public benefits, noting the "lasting impact of its deprivation on the life of a child," as well as the importance of education in maintaining the country's basic social institutions Texas argued the passage of the statute served a number of important government interests. First, Texas argued the law operated to preserve "limited resources for the education of [the state's] lawful residents.""' 7 The Court rejected this as a sufficiently important interest, noting that a concern for the preservation of resources and the provision of cost savings were not sufficient alone to justify a policy that singled out a discrete class of children for discrimination.s 0 Texas then asserted the statute served as a disincentive to illegal immigration.' 8 ' The Court rejected this argument also pointing to the dominant draw for illegal immigration to this country was far more likely the availability ofemployment, rather than free educational services for children.' 82 Thus, the Court indicated, creating a statute that punishes children by withholding education is a "ludicrously ineffectual attempt to stem the tide of illegal immigration.""' Justice Brennan noted, "[i]t is difficult to understand precisely what the State hopes to achieve by promoting the creation and perpetuation of a subclass of illiterates within our boundaries... one that will surely add to the problems and costs of unemployment, welfare, and crime."' 84 As Justice Brennan opined, any savings that "might be achieved by denying undocumented children a free public education... are trifling compared to the costs involved to these children, the State, and the Nation."' Thus, since 1982, undocumented children have been afforded protection and benefits under the law in the area of public primary education.'"' 4. A Contrast of Plyler v. Doe and the PRWORA and IIRIRA The Court's decision in Plyler serves as an excellent contrast to the ideology that informs the statutory laws governing the other areas of immigration law most directly impacting the lives of children. As has been discussed, under both the PRWORA and the IIRIRA, children are viewed from one of two extreme conceptions. Those children who are in the company of their parents are typically viewed as "objects" rather than independent beings, and are subject to the effects of their parent's immigration status.' They are accorded no independent voice or consideration of their interests. Conversely, unaccompanied alien children are effectively viewed under the statutory regime as "adults."" They are subject in immigration status determination proceedings, to the same substantive rules, evidentiary requirements and procedural complexities as adultsprocedures that are not tailored at all to reflect their status as children. Legal representation is not afforded, and no provisions are made to distinguish them from adults.' 89 The only provision under this statutory regime that is truly tailored to the needs and special status of children is the provision for being adjudicated with "Special Immigrant Juvenile Status," but despite the progressiveness of the SIJS, it remains of relatively little value because it is under-utilized. 90 In Plyler, the Court rejected a law as unconstitutional that was drafted from a perspective that viewed 19 HeinOnline Child. Legal Rts. J Vol No. 2 + Summer 2011

10 20 children more as the possessions of their parents than as individuals.1' 9 Instead, the Court modeled a viewpoint that reflects a more appropriate understanding of children's place within the law, thereby striking a balance between the two extreme views of children's status reflected in the current immigration statutes. The Plyler Court expressly recognized the children of undocumented immigrants as separate individuals, refusing to allow them to passively suffer the effects of their parents' illegal actions.' 92 III. The Need for an Amendment of the Current Statutory Regime Governing Illegal Immigration While the statutory regime of the PRWORA and LIRIRA that currently governs other areas of immigration policy has not been subject to constitutional challenge, the policy considerations that informed the decision in Plyler are just as compelling when considering the effects of these statutes upon undocumented children and the citizen children of undocumented immigrants. Additionally, these policy concerns point strongly toward the need to amend these statutory laws governing immigration to better reflect the special needs and status of undocumented children and U.S. citizen children of undocumented immigrants. 1' For instance, under the current statutory regime, undocumented children are denied public health care benefits based upon their illegal status-the same rationale that prompted the denial of public education benefits in Plyler As the Plyler Court noted, though, children have little or no control over their parents' actions or their own immigration status.1 94 Thus, to deny public health benefits to children who are present in this country through no fault of their own, just as denying educational benefits, unfairly punishes children for their parents' actions and violates fundamental notions of justice.' 95 Further, just as the Court noted a denial of education would have a lasting debilitating impact upon these children, a denial of health care benefits has a similar, if not even more debilitating, effect.1 96 In a concurring opinion in Plyler, Justice Blackmun commented, "[c]hildren denied an education are placed at a permanent and insurmountable competitive disadvantage, for an uneducated child is denied even the opportunity to achieve." 97 It is even more disadvantageous to them to be denied the most basic health care services. Just as a lack of education denies a child the opportunity to achieve, a lack of adequate health care and the disabilities that can flow from that deny a child even the opportunity to survive, much less achieve and thrive.1 98 In addition, similar to the Plyler Court's rejection of the notion that preservation of financial resources Williams was sufficient justification to deprive children of such an important right as education, cost savings alone cannot be a sufficient argument to deny something as necessary as basic health care to undocumented children. This is especially true when considering the consequences of a potential national health crisis that could arise from the spread of diseases carried by these children.' 9 9 Finally, just as the Court noted that in Plyler economic motivations are the chief incentive for illegal immigration, and therefore, the denial of basic provisions such as health care and education have done little, and likely will do little in the future to stem the tide of illegal immigrants Instead, it will only cause pain and suffering to vulnerable children, while doing little to deter their parents from entering this country in search of employment and better economic opportunities. 20 ' It should be noted that PRWORA and IIRIRA, unlike the provision at issue inplyler, were not aimed specifically at children Rather, under these statutes, children are treated with a general degree of ambivalence. Certainly the stated purposes of those statutes-encouraging the self-reliance of immigrants and removing all incentives for illegal immigration-were not aimed at children. 203 However, the effects that these statutory provisions have on both undocumented children and the citizen children of undocumented immigrants are as pronounced as if the children had been targeted directly. As a discussion of the policy considerations that underlay the Court's decision in Plyler demonstrate, there is a need for amendment of these laws to alter the ambivalent conception of children as "objects," subject to the necessary repercussions of their parents' actions, and instead to view them as individuals, particularly vulnerable individuals, whose interests and rights must be protected. In addition, these policy considerations, when applied to the treatment of unaccompanied alien children, show the need to alter those aspects of the statutes that fail to take into account immigrant children's status as "special members of an underclass," subject to inherent political powerlessness and extreme vulnerability, and instead treat them as quasi-adults. 2 0 Most of these children enter this country, not with a conscious notion that they are breaking the law, but simply to escape poverty, and often abuse and exploitation. 205 To then treat these children as adult lawbreakers is to ignore the reality the Court recognized in Plyler-that children by virtue of their minority, are an inherently vulnerable group and deserving of some heightened standard of protection under the law. 206 For unaccompanied alien children, it is precisely that inherent vulnerability which brought them to this country. To ignore the very trait that brought them to this country results not only in injustice but outright exploitation of these children. Children's Legal Rights Journal HeinOnline Child. Legal Rts. J

11 Victimizing the Victims IV. Alternative Standards That May Be Applied in Laws Affecting Immigrant Children After determining that the current statutory laws governing illegal immigration need to be amended to better protect both undocumented children and citizen children of undocumented immigrants, the question becomes, what standard ofreview should be incorporated into these statutes by which to judge their effects upon these children? One possible standard that has been suggested is that adopted by the United Nations Convention on the Rights of the Child, ("Convention") which mandates that international policies affecting children must consider the "best interests of the child," the same standard commonly used in U.S. family law. 207 The express idea of the Convention in adopting this standard is the conception of children's rights as focusing on the personhood of the child. 208 Under this standard, children are viewed as independent human beings, deserving of dignity, respect and an independent voice. 209 Parents, communities, agencies and the court system are then viewed as trustees, charged with assisting children in the assertion of their rights This approach also expressly rejects the pretext that children are just like adults, and recognizes that, because of their minority, these children may require special protection in order to assure that their rights are properly recognized. 21 ' The aim of the Convention, then, is to provide children with recognition under the law that is appropriate for their status as both individuals and minors, avoiding the injustices created by the two dominant views exemplified in current U.S. immigration policy. Under this standard, a court considering the possible deportation of a parent with a U.S. citizen child would be required to consider the best interests of the child in determining the outcome of the parent's deportation hearing. 212 No longer would courts be allowed to deport children in absentia, reducing them to the status of "possessions" of their parents. 213 Instead, the Convention assures to any child "who is capable of forming his or her own views the right to express those views freely in all matters affecting the child," and further, the child's views will be given "due weight in accordance with the age and maturity of the child." 2 14 This standard is the basis for H.R. 250, a bill first introduced in the U.S. House of Representatives by Representative Jose Serrano (D-NY) in 2006, which has recently been reintroduced in January This bill, entitled "The Child Citizen Protection Act," would amend the Immigration and Nationality Act to allow that, in cases involving the potential deportation of an illegal immigrant who has a child who is a U.S. citizen, the judge hearing the case would have the discretion to refuse to deport the immigrant if he or she "determines that such removal, deportation or exclusion is clearly against the best interests of the [citizen] child." 215 Alternately, for an unaccompanied child, incorporating such a "best interest of the child" model as outlined by the United Nations Convention on the Rights of the Child, could translate into the application of a separate legal standard to these children's asylum claims, different from the "exceptional and extremely unusual hardship" standard that is applied now to both children and adults In place of the current standard, when dealing with unaccompanied alien children, the United Nations High Commissioner for Refugees has proposed that courts afford the applicant the "benefit of the doubt" when assessing their claim of persecution. 217 This standard would ease the burden on the child applicant to produce large amounts of evidence corroborating his or her story-evidence that is often nearly impossible to obtain. 218 Further, imposing such a standard may lead to the adoption of a differing standard of "hardship" for children-one better suited to their status as minors. 219 "For many child asylum seekers, the fact that they are children is central to their claim." 20 Additionally, behavior "that might not rise to the level of persecution when targeted [against] adults, may constitute persecution when children are the targets." 22 1 Thus, the interest of justice would be far better served by amending the current standard to better reflect the special needs and status of minors. Under a "best interests of the child" standard, the laws as they pertain to adults would remain unaffected, but lawmakers might be required to create special provisions in these laws that specifically consider their effects on children. By specifically charging lawmakers with the responsibility to assure that the rights and needs of children are recognized and protected, such a standard would help to insure that children do not simply become the unwitting victims of laws designed to punish adults, but that, in reality, have far more detrimental effects on children. V. Conclusion Currently, the United States is experiencing a plethora of issues associated with the ever-expanding tide of illegal immigration. Most certainly, this is an issue that needs to be addressed. However, in doing so, lawmakers must be mindful of the fact many of the individuals affected by laws aimed at stemming the influx of illegal immigrants are children. These children form a special underclass, inherently politically powerless and especially vulnerable to violations of their rights. The PRWORA and IIRIRA statutory regime that currently governs immigration 21 HeinOnline Child. Legal Rts. J Vol. 31+ No. 2 + Summer 2011

12 22 in the U.S. ignores these realities-treating children either with a complete ambivalence that views them as merely the property of their parents or treating them as adults, with no acknowledgement of their vulnerable status as minors. As a result, these laws are producing devastating effects upon the lives of tens of thousands of children every year. Until these policies are amended to reflect a more progressive view of the rights and needs of these children, more will continue to be victimized every day. Author Pearl S. Buck once stated, "if our American way of life fails the child, it fails us all." 222 These children, both undocumented aliens and U.S. citizens, are all members of our American society. As citizens and policymakers we must ask ourselves what testament the U.S. will speak to the rest of the world and to future generations if the current U.S. laws governing immigration are not amended to prevent the continuing victimization of individuals who are already the victims of tremendous poverty and suffering. Endnotes * Author's Note: Recently, U.S. Senators David Vitter, R-La, and Rand Paul-R, Ky, have presented on the Senate floor a proposed amendment to the U.S. Constitution which would eliminate the historic practice of jus soli citizenship, which grants an individual automatic U.S. citizenship based upon his or her birth on U.S. soil, regardless of the citizenship status of his or her parents. Such an amendment comes in the wake of years of debate over the current immigration policies of this country, and is a reaction to the host of problems-from economic woes to health concerns-for which illegal immigration into the U.S. is often blamed. However, in the midst of this hotly debated issue exists a group of innocents whose lives are and forever will be altered by the current and future laws dealing with immigration adopted by this countryand these are the children of illegal immigrants. This article discusses the current U.S. laws dealing with illegal immigration and the effects of those laws and polices on the most vulnerable in our society. It then contrasts the statutory scheme governing U.S. immigration policies with legal precedents established by the United States Supreme Court in the landmark case of Plyler vs. Doe, governing the provision of education to the children of illegal immigrants, and discusses the potential application of the High Court's analysis in Plyler, as well as other theories, as possible frameworks for reform of federal immigration statutes to address some of the weaknesses in current immigration law while still offering protections to the children affected by those policies. Peggy J. Hirschey Williams, J.D., University of Arkansas, 2008; B.A. University of Arkansas, 2005, is a family law practitioner with G Gerald Cruthird, P.A., in Picayune, Mississippi. I would like to thank my husband, Williams Jeremy, without whose love and support this Article would not have been possible. I Dietrich Bonhoeffer, "After Ten Years." Letters and Papers from Prison (Eberhard Bethge ed. Touchstone 1997). 2 Pearl S. Buck, "My Several Worlds." (John Day Publishing 1954). David Seminara, No Coyote Needed: U.S. Visas Still an Easy Ticket in Developing Countries. CTR FOR IMMIGRATION STUDIES, (Mar. 2008), articles/2007/backl007.html. 4 Vicky J. Salinas, You Can Be Whatever You Want To Be When You Grow Up, Unless Your Parents Brought You To This Country Illegally: The Struggle to Grant In State Tuition to Undocumented Students, 43 Hous. L. REV. 847, 848 (2006). s Jonathan Zitney, The State of Illegal Immigration in California and the Potential Effects of HR 4437: An Analysis of Human Rights Repercussions and Economic Consequences, 34 W. ST. L. REV. 207,209 (2007). It should be noted approximated rates of illegal immigration at 1.5 million per year are only rough estimates, since census data on undocumented immigrants is often difficult to obtain. T.J. Bonner, President of the National Border Patrol Council puts the rate of immigration much higher, noting that immigration agents currently apprehend approximately 1.2 million immigrants each year attempting to enter the country illegally and that, "for every person we catch, two or three get by us." Id. at 210. However, the Pew Hispanic Center places the rate lower than current estimates. Id. at 211. Regardless, there is at least consensus among all groups that the rate of illegal immigration in the country is increasing, and at a rate that demands measures are taken to control it. 6 Neda Mahmoudzadeh, Love Them, Love Them Not: TheReflectionofAnti-ImmigrantAttitudes in Undocumented Immigrant Health Care Law, 9 SCHOLAR 465, 466 (2007) (quoting Gregory A Huber & Thomas J. Espenshade, Neo- Isolationism, Balanced-Budget Conservatism, and that Fiscal Impacts of Immigrants, 31 INT'L MIGRATION REV. 1031, 1036 (1997)). 1 Christine M. Gordon, Are Unaccompanied Alien Children Really Getting A Fair Trial? An Overview of Asylum Law and Children, 33 DENV. J. INT'L POL'Y 641, 654 (2005). 8 Mahmoudzadeh, supra note 6, at Id. 1o Christopher Nugent, Whose Children Are These? Towards Ensuring the Best Interests and Empowerment of Unaccompanied Alien Children, 15 B.U. Pun. L.J. 219, 221 (2006). " Id. 12 Areti Georgopoulos, Beyond the Read of Juvenile Justice: The Crisis of Unaccompanied Immigrant Children Children's Legal Rights Journal HeinOnline Child. Legal Rts. J

13 Victimizing the Victims 23 Detained by the United States, 23 L. & INEQUALITY 117, 118 (2005). I Id. at Id. 15 Id 6 David B. Thronson, Custody and Contradictions: Exploring Immigration Law as Federal Family Law in the Context of Child Custody, 59 HASTINGS L.J. 453, (2008) [hereinafter Thronson 1]. " Jeffrey S. Passell & Paul Taylor, Unauthorized Immigrants and their U.S. born Children, Pew Hispanic Center, Aug. 11, 2010, at 1. According to this same report, there were approximately 340,000 births to undocumented aliens in the U.S. in 2008, accounting for approximately 8% of total births in this country for that calendar year. Id. * Thronson I, supra note 16, at David B. Thronson,Kids WillBeKids?Reconsidering Conceptions of Children's Rights Underlying Immigration Law, 63 OHIO ST. L.J. 979, (2002) [hereinafter Thronson II]. 20 Id at Id 22 These statutes are known as the Illegal Immigration Reform and Immigrant Responsibility Act, Pub. L , Div. C, 110 Stat (1996) and the Personal Responsibility and Work Opportunity Reconciliation Act, 8 U.S.C (1996). 23 See Plyler v. Doe, 457 U.S. 202 (1982) U.S.C (amended in 2008). 25 See id. at 1225(a), (delineating the requirements for application for a legal permanent residence visa, including the requirements that the applicant be sponsored by a family member or have some employment-based qualifications. In addition, the statute specifically limits the number of visas that may be granted in any fiscal year, making visas, and thus, legal immigration status is very difficult to obtain). See also Salinas, supra note 4, at Zitney, supra note 5, at Nugent, supra note 10, at 219, See Seminara, supra note 3 (noting that, according to a 2006 Pew Hispanic Center study, "nearly half of the [twelve] million-plus illegal aliens in America arrived legally with temporary, non-immigrant visas. The Department of Homeland Security (DHS) estimates that a "substantial" percentage of America's illegal population is made up of visa overstays-their estimates range from 27 to 57%"). 29 Seminara, supra note 3. In the mid-i 990s there were major efforts in Congress to eliminatejus soli citizenship in this country in order to prevent the children of illegal aliens from gaining automatic citizenship upon birth in the U.S. There was much debate in Congress over this issue, and eventually a bill was presented proposing the passage of a constitutional amendment repealing birthright citizenship. The arguments leveled in support of such an amendment were that the prospect of U.S. citizenship for their children born in this country acts as a strong incentive for illegal immigration. Certainly, as U.S. citizens, these children are eligible for federal services and benefits not available to their parents, but from which their parents can indirectly benefit. Further, proponents of the amendment pointed out that the U.S. is one of the few countries that still practice pure birthright citizenship; most European countries have modified their application ofjus soli citizenship to provide that children born to illegal immigrants are not granted automatic full citizenship. See Christine Hsieh, American Born Legal Permanent Residents? A Constitutional Amendment Proposal, 12 GEO. IMMIGR. L.J. 511, (1997). Opponents of the amendment argued that it would create an even larger population of illegal immigrants in this country and would form a "shadow population"-a subclass subject to discrimination. See Brooke Kirkland, Limiting the Application of Jus Soli: The Resulting Status of Undocumented Children in the United States, 12 BUFF. Hum. RTs. L. REV. 197, (2006). Although these efforts eventually failed, the heated debate that these proposals fostered (as well as the ardent support that they garnished) serve as a prominent example of the major political issue that illegal immigration has become-such that it is considered potentially politically expedient to allow children born in the country to suffer the effects of denial of citizenship in order to effect a crackdown on illegal immigration. 30 Jennifer Maki, The Three R s: Reading, 'Riting, and Rewarding Illegal Immigrants: How Higher Education Has Acquiesced in the Illegal Presence of Undocumented Aliens in the United States, 13 WM. & MARY BILL RTS. J. 1341, (2005). 31 Zoe Lofgren, A Decade of Radical Change in Immigration Law: An Inside Perspective, 16 STAN. L. & POL'Y REV. 349, 356 (2005) (quoting a House Judiciary Committee report detailing the purposes of the proposed legislation prior to its passage). See H.R. Rep. No (I), at (1996). 32 Lofgren, supra, note 31, at Barbara J. Shakelee, Undocumented Immigrant Children: Legal Considerations Regarding Human Services Needs, 34 CoLo. LAW. 93, 93 (2005). 34 Id 6 Stacey Schwartz, Beaten Before They Are Born: Immigrants, Their Children, and a Right to Prenatal Care, 3 ANN. SURv. AM. L. 695, 705 (1997). 36 Id. For the purposes of clarification it should be noted that the "certain" battered aliens who meet the definition of a "qualified alien" under the PRWORA, are those who fulfill the qualifications set forth in 8 U.S.C. 1641(c), which, in summary, requires that that alien have been "battered or subjected to extreme cruelty in the United HeinOnline Child. Legal Rts. J Vol. 31 * No. 2 * Summer 2011

14 24 Williams States by a spouse or a parent, or by a member of the spouse or parent's family residing in the same household as the alien and the spouse or parent consented to, or acquiesced in, such battery or cruelty, but only if (in the opinion of the agency providing such benefits) there is a substantial connection between such battery or cruelty and the need for the benefits to be provided," or be a battered alien child in similar circumstances. In addition, to qualify, the battered alien (or child) must have filed a petition establishing that he or she meets the requirements of status set forth in that subsection. See 8 U.S.C. 1641(c). * Id. Prior to the enactment of the PRWORA, an alien considered to be "permanently residing under color of law" or "PRUCOL," was eligible for state and federal public benefits, such as Medicaid. This term was expounded upon by the United States Court of Appeals for the Second Circuit. See Holley v. Lavine, 553 F.2d 845 (1977) (applying the terms to those immigrants "who, although unlawfully residing in the United States, are each individually covered by a letter from the Department of Justice stating that the Immigration and Naturalization Service 'does not contemplate enforcing... (the alien's)... departure from the United States at this time."' Holley, 553 F.2d at 846. The passage of the PRWORA essentially replaced this unofficial classification created by courts, with the term "qualified alien," to refer to those eligible for state and federal aid; however, the criteria imposed by the PRWORA is more restrictive compared to what is needed for one to qualify as PRUCOL. See Personal Responsibility and Work Opportunity Reconciliation Act, supra note Shaklee, supra note 33, at Id 40 Id 41 Id 42 Id. Further, some scholars have noted that the provision of the bill requiring the passage of a new act in order to expand benefits to unqualified aliens will lessen the chance that states will actually undertake to pass such legislation, since it places a significant bureaucratic hurdle in the states' path in attempting to draft and pass a piece of legislation likely to be highly unpopular with the electorate. See Seam Park, Substantial Barriers in Illegal Immigrant Access to Publicly Funded Health Care: Reasons and Recommendations for Change, 12 GEO. IMMIGR. L.J. 567, 576 (2004). 43 Schwartz, supra note 35, at 707. ' See 8 U.S.C Shaklee, supra note 33, at Gordon, supra note 7, at See 8 U.S.C. 1225(b)(1)(B)(iii). 48 Gordon, supra note 7, at Id. 50 Id. at ' 8 U.S.C (2009). 52 See Pub. L , Div. C, 110 Stat (1996). Id. 54 Gordon, supra note 7, at David B. Thronson, Choiceless Choices: Deportation and the Parent-Child Relationship, 6 NEV. L.J. 1165, (2006) [hereinafter Thronson Ill]. 56 Schwartz, supra note 35, at Id. 58 Id. 5 Id. 60 Id. 61 Mahmoudzadeh, supra note 6, at Shakelee, supra note 33, at Id. at U.S.C. 1396(b)(v)(3) (2010); 42 C.F.R (b) (2009). In Greenery Rehabilitation Group, Inc. v. Hammon, the court interpreted the meaning of these statutory qualifications, finding that they did not authorize treatment for chronic conditions. Greenery Rehabilitation Group, Inc. v. Hammon, 150 F.3d 226, (2d Cir. 1998). In doing so, the Second Circuit Court of Appeals held that an emergency condition is one that involves a "sudden bodily alteration such as is likely to require immediate medical attention." Id. Thus, the Court found maladies covered by this exception are those manifesting "acute" rather than "chronic" symptoms, such as those "characterized by sharpness or severity... having a sudden onset, sharp rise, and short course." Id. 65 Shaklee, supra note 33, at Id. 67 Id 60 Id. 69 Id. 70 Id. 71 Id. 72 Mahmoudzadeh, supra note 6, at Id. 74 Id. at 470. Note that after the events of September 11, 2001, the Department of Homeland Security has been charged with the oversight of immigration issues, replacing the Immigration and Naturalization Service. * Park, supra note 42, at 576. The requirement that medical personnel become "enforcers of federal immigration law" has caused great concern among those in the medical community, who worry that it could lead to widespread avoidance of needed medical treatment by poor immigrant populations. 76 Mahmoudzadeh, supra note 6, at n Schwartz, supra note 35, at Id. 7 Id. 80 Id. These statistics are very compelling. The New York State Department of Health has reached similar findings, estimating that the costs of providing prenatal care for the more than 13,000 births to undocumented aliens in New York each year would be almost entirely Children's Legal Rights Journal HeinOnline Child. Legal Rts. J

15 Victimizing the Victims 25 recouped by the savings from the decrease initial postnatal hospitalizations alone, without even taking into account the costs of lifetime care for the disabilities that result from a lack of prenatal care. Park, supra note 42, at Mahmoudzadeh, supra note 6, at Id. at Id. 84 Id. at 468. * Id. at Id. at Id. at Id. at Id. In fact, it could reasonably be argued that, contrary to fostering independence, the net effect of these laws is likely to be the creation of an unhealthy subset of the population, and, further, may thereby contribute to the spread of communicable diseases throughout the general population. 9o Thronson I, supra note 16, at ' Id 92 8 U.S.C. 1225(b)(1)(B)(iii) (2009). 9 Id 94 Id 9s Gordon, supra note 7, at Nugent, supra note 10, at 219. In 2001 alone, authorities detained 5,385 unaccompanied immigrant children. Georgopoulos, supra note 12, at Gordon, supra note 7, at Id. at Nugent, supra note 10, at " Id. at 229. "The Homeland Security Act vests the ORR with the responsibility of guardian acting in loco parentis of these children to act in the child's best interests." Id. at 233. "oi Id at Gordon, supra note 7, at Such were the deplorable and cruel conditions in INS detention centers where children were being held that a 1998 study conducted by Human Rights Watch reported instances of children being detained with individuals accused of rape, murder and drug trafficking; kept under constant supervision; not allowed to speak their own language and told not to laugh and forced to ask permission to do such mundane actions as scratch their nose. Id 103 Id. at Nugent, supra note 10, at 225. Compared to the INS, the ORR has increased its use of foster care by 100%, placing children whose cases will likely remain pending for a long period in foster care, rather than holding them in detention. Id. 10o Gordon, supra note 7, at 664. "86 Id. at Georgopoulos, supra note 12, at Id at Id 11o Id at Id at Id at 138. " Id. at Nugent, supra note 10, at Molly Hazel Sutter, Mixed-Status Families and Broken Homes: The Clash Between the U.S. Hardship Standard in Cancellation of Removal Proceedings and International Law, 15 TRANSAT'L L. & CONTEMP. PROBS. 783, (2006). 116 Rachel Bien, Nothing to Declare but Their Childhood: Reforming U.S. Asylum Law to Protect the Rights of Children, 12 J.L. & POL'Y 797, 827 (2004). "' Id. at 828. "1 Id. at Id. at Nugent, supra note 10, at 232. Realizing the problem, Congress directed the ORR to take steps to maintain the confidentiality of information in these children's files; however, it is reported that DHS continues to access and utilize this information, which includes reports from psychologists and counselors working to assist these children with their social and psychological needs. Id. 121 Gordon, supra note 7, at Id. at 658. It should also be noted that the U.S. provides aliens with the guarantees of the Constitution, including the right to equal protection and due process. Adequate legal representation is a necessary component of due process in deportation proceedings; therefore, by denying these children legal counsel, the laws are denying them the very rights that asylum law exists to protect. Id. 123 Nugent, supra note 10, at Id. at Id. It should also be noted that without being adjudicated SIJS, placement in foster care does not alter the child's immigration status-so at twenty-one he can be released, apprehended as an illegal, and potentially deported. See Thronson II, supra note 19, at Shaklee, supra note 33, at The "best interest of the child" standard is commonly applied in most U.S. child custody disputes in determining the proper custodian for a minor. Factors that are common in most states in making a "best interest" determination include: "[t]he age and sex of the child; the mental and physical health of the child as well as his/her parent[s]; the lifestyle and social factors of the parents; the emotional ties between the parents and the child; the ability ofithe] parents to provide the child with food, shelter, clothing, and medical care; the child's established ties to [the] school, home, community, and religious institutions; and the child's preference." JULIANNE DUNCAN & SASHA BENNETT, BEST INTEREST DETERMINATION FOR REFUGEE CHILDREN: AN ANNOTATED BIBLIOGRAPHY OF LAW AND PRACTICE, United States Conference of Catholic Bishops, Office of Refugee Programs (2008). Translating this HeinOnline Child. Legal Rts. J Vol. 31 * No. 2 + Summer 2011

16 26 Williams standard into one applicable in making decisions relating to asylum or deportation of immigrant children is proving to be an ongoing process. The U.S. Department of Justice has released a memorandum providing guidelines for handling cases involving unaccompanied immigrant children, which states, in part, "[t]he concept of "best interest of the child" does not negate the statute or the regulatory delegation of the Attorney General's authority, and cannot provide a basis for providing relief not sanctioned by law. Rather, this concept is a factor that relates to the immigration judge's discretion in taking steps to ensure that a "childappropriate" hearing environment is established, allowing a child to discuss freely the elements and details of his or her claim. See Guidelines for Immigration Court Cases Involving Unaccompanied Alien Children, FIM-OPPM (2010). 128 Shaklee, supra note 33, at Id 'o Thronson 111, supra note 55, at Id. at See also Thronson I, supra note 16, at 454 (noting that today one of every ten children lives in a "mixed status" family). 132 Daniel Kanstroom, Post Deportation Human Rights Law: Aspiration, Oxymoron, or Necessity?, 3 STAN. J. Civ. RTs. & Civ. LIBERTIEs 195, 217 (2007). '3 Id. I34 Id. 135 Thronson III, supra note 55, at Kanstroom, supra note 129, at Sutter, supra note 115, at Id. 139 Thronson III, supra note 55, at Nina Bernstein, A Mother Deported and A Child Left Behind, N.Y. TIMES, Nov. 24, Bryan Lonegan, American Diaspora: The Deportation of Lawful Residents From the United States and the Destruction of Their Families, 32 N.Y.U. REv. L. & Soc. CHANGE 55, 71 (2007) U.S.C a(c)(7)(c)(iv) (2006) U.S.C b(1)(d) (2009). '" Id. " Thronson 111, supra note 55, at Sutter, supra note 115, at Thronson III, supra note 55, at Id. at I49 Id. 1so Id. ' Id. at Id. at Thronson II, supra note 19, at Id. at "I Id. at Id. at Id. "' Thronson III, supra note 55, at In fact, the courts in the U.S. have noted a distinction between "holding" a right and having the ability to "exercise" it. As long as children lack the capacity to exercise their citizenship rights and remain in the U.S. on their own will in spite of their parents' deportation, those rights cannot override the parental decision to take the children out of the country. 159 Thronson II, supra note 19, at Plyler, 457 U.S. at Elizabeth Hull, Undocumented Alien Children and Free Public Education: An Analysis ofplyler v. Doe, 44 U. PITT. L. REV. 409, (1983). 162 Id. 163 Id. 164 Id. 165 Id. at Id. While finding the provision unconstitutional, the court refused to issue state-wide relief because the evidence at trial was limited to the impact of the statute on children in the Tyler Independent School District only. After this ruling, other districts commenced actions challenging the statute. Eventually, these suits were consolidated into a single action. This action made its way through the appeals process, eventually reaching the Texas Supreme Court, who affirmed the original trial court decision declaring the statute unconstitutional. From this ruling, the State appealed to the U.S. Supreme Court. Plyler, 457 U.S. at Id 168 Plyler, 457 U.S. at Hull, supra note 158, at In a famous quote, Justice Brennan concluded that the "protection of the Fourteenth Amendment extends to anyone, citizen or stranger, who is subject to the laws of a State, and reaches into every corner of the State's territory." Plyler, 457 U.S. at Halle Butler, Educated in the Classroom or on the Streets: The Fate of Illegal Immigrant Children in the United States, 58 OHIO ST. L.J. 1473, 1483 (1997). 17 Id. at Hull, supra note 158, at 420. Brennan observed that undocumented aliens comprise a "shadow population" numbering in the millions; to deny them all constitutional protections, he noted, "raises the specter of a permanent caste of undocumented resident aliens, encouraged by some to remain here as a source of cheap labor, but nevertheless denied the benefits that our society makes available to citizens and lawful residents." Plyler, 457 U.S. at Hull, supra note 161, at 416. I74 Id. at 419 "' Id. at Id. " See also Plyler, 457 U.S. at " Hull, supra note 161, at 421. "' Id. at Id. 181 Id. Children's Legal Rights Journal HeinOnline Child. Legal Rts. J