Article On February 23, 2006, a
Texas court sided with an unaccompanied Chinese minor, Young
Zheng, who was seeking to avoid deportation to China1.
Though neither of his parents was in the US, and though the
child was in close touch with his father, the court accepted
that the child’s best interest may not be furthered by forcing
him to return home. The facts in that case were not atypical.
The boy’s father had arranged for smugglers (“snakeheads” as the
Chinese professional people-smugglers are called) to secure his
son’s entry into the US. In return for this service, the
snakeheads were demanding $50,000 over-and-above the deposit
already paid over to them. While he was detained in a juvenile
detention facility, pending a review of his immigration case,
the snakeheads started threatening Zheng’s family. “They will
kill me if I go back,” the child said in a press interview2. The
court agreed that the risks of maltreatment outweighed the
immigration authorities’ interests in removing the child from
the US and reunifying him with his family.
Many other cases of unaccompanied immigrant children suggest the
same answer. To be sure, as a matter of domestic and
international law, there is a presumption in favor of family
unity and family reunification when that unity has been
interrupted. The 1989 United Nations Convention on the Rights of
the Child—the most important and nearly universally ratified
international law treaty dealing with children—describes the
family “as the fundamental group of society and the natural
environment for the growth and well-being of all its members and
particularly children.”3 One of the convention’s central tenets,
that the “best interest” of the child should be a primary
consideration in all actions concerning children,4
is usually
taken to justify family unity unless there is strong
countervailing evidence, for example, of child abuse or neglect.
The fact that a child’s family is poor or disadvantaged in other
ways is not of itself acceptable as a reason for removing or
separating the child, even if more affluent or advantageous
child rearing settings are available. That is why routine
separations of indigenous children from their families and
transnational adoptions by Hollywood stars and wealthy American
families raise so much controversy.
However, family reunion is not always in the “best interest” of
a child, even absent evidence of abuse or neglect. Sometimes
immigration authorities adduce the argument of family
reunification to justify the removal or deportation of a child,
when it is clear that immigration control enforcement rather
than child welfare is the driving motivation. Take the typical
case of an independent child migrant, say from Guatemala or
Honduras or El Salvador, who decides to travel to the US to seek
work to support his indigent family. There is no coercion,
trafficking, or exploitation involved, it is the child’s own
decision to seek a better life—an education, a regular income, a
secure future. In this sort of case, it is not acceptable to
simply trot out the mantra of “best interest” as a justification
for removal of the child; one needs much more information about
what would await the child back home. Would living as a street
child, or as a destitute son of poverty stricken and unemployed
parents, or as the sole companion of a mother with AIDS, trump
the chance to learn and earn? Should the right to family life
eclipse all other child rights, such as the right shelter and
adequate health care?
The answer is neither self evident nor straightforward. It
depends on a careful analysis of the facts of the individual
case. In some cases to be sure, children should be returned to
their parents, particularly where there is evidence that deceit,
exploitation and coercion have played a part in the child’s
migration. The cases of children ostensibly brought to the US
for education who then end up in domestic servitude or
prostitution speak for themselves. But even in those cases, one
needs to ascertain what will await the child if he is sent home.
Will it be re-trafficking? Will it be punishment for not having
successfully accomplished the family’s migration goals? Will it
be—as it was in the infamous case of the Guatemalan street child
Edgar Chocoy—death at the hands of a gang?
While it may well be policy not to grant permanent or legal
residence to undocumented and unaccompanied children who arrive
without a regular immigration status, it should be clear that
the reasons for refusing such residence are truly in the child’s
best interest. |
