by Rees G. Atkins

U.S. immigration law disregards the best interests of children, which conflicts with Idaho’s (and other states’) centuries-old family law principles. Family law principles, such as frequent contact with both parents and stability, show long-valued benefits that are worth protecting for children.^[i] Immigration law gives jarringly little attention to those benefits, and could still achieve its immigration-related goals while protecting children’s needs. This article will review Idaho’s principles of family law, compare them with federal principles, and offer suggestions for reconciliation and coordination between the two legal regimes.

Idaho Family Law Principles

In Idaho, and every other state in the United States,^[ii] the guiding principle for custody determinations is to examine the “best interests” of the child.^[iii] Furthermore, in Idaho there is “a presumption that joint custody is in the best interests of a minor child or children.”^[iv] Joint custody is defined as “an order awarding custody of the minor child or children to both parents and providing that physical custody shall be shared by the parents in such a way as to assure the child or children of frequent and continuing contact with both parents.”^[v] The only way to trigger the opposite presumption is for one of the parents to be a habitual domestic violence perpetrator.^[vi]

As important as frequent and continuing contact with both parents is, perhaps even more important is stability.^[vii] Judges are unlikely to order a custody arrangement that requires frequent travel, separation of siblings, or uprooting the children to a new primary location. Statutory factors judges consider when determining a custody schedule include the “child’s adjustment to his or her home, school, and community” and the “need to promote continuity and stability in the life of the child.”^[viii]

The Idaho Supreme Court has found that “a presumption that it is in a child’s best interest to relocate with the custodial parent . . . is contrary to Idaho law, which requires the moving parent to prove that relocation is in the child’s best interest.”^[ix] In one case, it upheld a trial judge’s decision to give “primary physical custody” of a child to the mother “as long as she remains in Idaho.”^[x] The fact that the mother’s new husband, a U.S. Army officer, had been transferred to Hawaii was not sufficient to outweigh the child’s interest in staying in the geographical area where she had been growing up.^[xi]

While it is theoretically possible for parents to live a great distance apart and still accomplish frequent and continuing contact with the child, stability warrants courts favoring both parents living in the general area where the child has been growing up.

With these two basic and common-sense principles in mind, that children need 1) frequent and continuing contact with both parents and 2) stability, let’s examine immigration law.

Federal Deportation Proceedings

8 U.S.C. § 1227 provides dozens of grounds that make a noncitizen deportable, the most common being unlawful presence – living in the United States without permission from the United States government. Most in this situation have been here unlawfully for more than a year, which subjects them to needing to leave the United States for 10 years before obtaining a visa to come as a lawful permanent resident.^[xii] However, that eventual return is generally only possible for those who have a citizen or lawful permanent resident family member who can petition for a visa for them, and a child born here (and who is therefore a citizen) cannot petition for a parent until the child is 21 years old.^[xiii] The Pew Research Center found in 2018 that “[c]hildren of unauthorized immigrant parents constituted nearly 8% of students in kindergarten through 12th grade in 2016. Of those 4.1 million children, 3.5 million are U.S. citizens and the rest are unauthorized immigrants themselves.”^[xiv] Accordingly, there are millions of U.S. citizen children with parents who are deportable noncitizens and who, without exceptional circumstances, would have to wait in another country for at least 10 years prior to returning legally if they are deported or leave voluntarily. In simplest terms, potential deportation puts many families in precarious positions.

There is a defense to deportation called cancellation of removal, but it is almost impossible to prevail. A noncitizen is only eligible if he or she has been in the United States for 10 years, has had good moral character during those 10 years (which includes avoiding certain convictions), and deportation would cause “exceptional and extremely unusual hardship” on the noncitizen’s citizen or lawful permanent resident spouse, parent, or child.^[xv] Furthermore, hardship to the noncitizen facing deportation proceedings or any family members who are here unlawfully is not considered at all, no matter how extreme.^[xvi]

Interpreting this standard, the Board of Immigration Appeals (“BIA”) overturned an immigration judge’s grant of relief to a noncitizen mother who had been in the United States for more than 10 years with good moral character, finding that hardship to her six and 11-year-old U.S. citizen children did not meet the high statutory standard of being both “exceptional and extremely unusual.”^[xvii] It found there would be hardship, but only ordinary hardship involved in deportation proceedings.^[xviii] While I would not defend the BIA’s decision while advocating for a specific client, I can’t say I blame the BIA for finding that it is not “exceptional and extremely unusual” for children to be devastatingly harmed by either 1) separation from their mother; or 2) accompanying their banished mother to a country they have never been to and which is much more dangerous than the United States. In fact, I would say it would be only the exceptional and extremely unusual case where there is not immense hardship inflicted on the child.

As stated by the BIA in that case, “virtually all cases involving respondents from developing countries who have young United States citizen or lawful permanent resident children” involve importantly damaged futures for those children, and a standard requiring “exceptional and extremely unusual” circumstances is set up to give relief to only a small portion of them.^[xix] Essentially, it found that congressional intent was such that the courts’ standard must result in separation or relocation of U.S. citizen children in most of the proceedings with an unlawfully present or otherwise deportable parent, because the inherent nature of the words “exceptional and extremely unusual” implies application to a minority of cases.

Therefore, Idaho’s attempt to protect 1) frequent and continuing contact with both parents; and 2) stability, is derailed by our immigration law for most of the children of these immigrants. If parents are divorced, the children are likely to stay in the United States with the parent who is not deported and be deprived of frequent and continuing contact with the deported parent. If the parents are together, family unity can only be obtained if the entire family uproots to another country.^[xx]

The Peril of a Parent Undocumented in the United States

Of course, deportation proceedings are rarely initiated for noncitizens who do not have repeated or serious criminal violations, which is why there are millions of undocumented immigrants in the United States. But lack of deportation does not change undocumented immigrants’ status as less-than-second-class citizens. In most states, they cannot obtain a driver’s license.^[xxi] In all states, they cannot vote, serve on juries, visit their home country, or even work legally.

The inability to work legally presents an interesting question regarding child support. Child support is ordered in accordance with detailed child support guidelines, and the guidelines are usually followed meticulously.^[xxii] The amount ordered is based mostly on parents’ income and the number of children supported.^[xxiii] For a noncitizen here illegally, does the judge use the actual income (earned through unlawful employment) of the parent to calculate child support?^[xxiv] If so, the judge would be ordering an amount of child support that is illegal to earn in the United States and totally impossible for the parent to earn in their home country of, say, Nicaragua, where the average yearly income is $1,695, compared to $59,034 in the United States.^[xxv]

Child support obligations can be enforced through civil contempt proceedings under Idaho Rule of Civil Procedure 75, which requires that the contempt is willful. So, for example, child support obligations are routinely suspended while a parent is incarcerated, because the parent is incapable of earning income. A failure to pay an unachievable amount of child support would not be willful, and hence enforcement would not be allowed.

And what does a good parent do in this situation? Imagine a parent in divorce proceedings who says to the judge:

Your honor, although I am a very successful businessman here, I have actually been here illegally for twenty years. I wanted a better future than I thought would be possible in my home country where there is more poverty and violence. But I recognize now that I needed to pursue that goal through lawful means. So, to be an example of a law-abiding citizen (or law-abiding person anyway) for my children, I am going to leave my children here with their mother and return to my home country. I already have a job lined up with my uncle there that is better than most jobs there, but unfortunately, I will make about one thirtieth of what I make here, so under the child support guidelines, I will need the amount ordered to be reduced. But don’t worry, I have already begun helping the mother of my children prepare to apply for and move into federally subsidized housing, so they won’t be homeless.

Would a judge ever believe that parent was being sincere? Unlikely, but if so, that is horrible for those children (and our subsidized housing budget). If not, what does a sincerely repentant parent do and speak? If the answer is that he chooses to not abandon his children and remain in the United States unlawfully, then our immigration law is inequitable and immoral, forcing the undocumented person to remain illegal as a condition of staying with his family. If complying with the law is immoral, then the law loses respect and credibility. Federal enforcement of such immorality is costly and counterproductive to undocumented families, to the U.S. government, and to the American taxpayers.

Suggestions for Reconciling the State-Federal Familial Disconnect

For too long, basic family stability for children has been relegated far below other priorities, such as avoiding forgiveness of a past law violation. Set forth below are some ideas that could assist in carefully balancing our state’s preference for keeping families whole with the federal efforts addressing immigration enforcement.  Any solution, as offered thus far, appears imperfect—which serves to highlight the complexity of the contradiction between state and federal preferences.

If the idea of withholding legal status (and occasionally deporting) is to deter more people from coming illegally, such deterrence is likely ineffective. Customs and Border Protection reports hundreds of people dying each year as they attempt to cross the southern border (often due to desert conditions).^[xxvi] With that danger (plus the risk of civil and criminal fines and imprisonment for illegal entry under 8 U.S.C. § 1325), the fear of a distant future deportation and continually withheld legal status must be given relatively little weight in immigrants’ minds as they decide whether to come.

One solution could be to use some of the revenue of increased tax compliance that would result from legalization to fund surveillance and/or a barrier.^[xxvii] And rather than the unpredictability that would arise with occasional enforcement and occasional benefits based on a specific date, such as the legalization act in 1986, a US statutory provision or constitutional amendment preventing deportations for past and future immigrants who have been present for over a year would motivate enforcement at the border and prevent uprooting families. Where true wrongs have been done, traditional criminal penalties could be used.

Unfortunately, it seems both sides of the issue are adamantly opposed to giving any advances to the other side, with unthinking resistance to anything that can be compared to “amnesty” on one side or a “wall” on the other. But if enough people put their minds to it, new and less incendiary ideas may arise. The best ideas will come by viewing the situations of undocumented families compassionately and honestly, in conjunction with the analysis of what is happening at the border, the need for order, and international pressures. Until we help our representatives to act, the anxiety and risk faced by these millions of children will continue to be treated as a minor factor in our immigration policy.

The children we see in our state courts, schools, and neighborhoods are people, regardless of how their parents came here. We have a responsibility to do our best to protect them from life-altering harm, especially harm from our own laws. Idaho law has an overarching preference for the maintenance of families, but Congress thus far has not agreed. We can protect them through statutory amendments. Or, if for some reason Congress continues to talk about the need for reform but without reforming, through constitutional amendment by the states.^[xxviii]