The Convention on the Rights of the Child (hereinafter “CRC”) recognizes “that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding”.[1] The CRC was entered into force on September 2, 1990, and 195 countries are currently party to the CRC, making it the most widely ratified human rights treaty.[2] In the more than three decades since its conception, the United States has failed to ratify the treaty. Although the Clinton Administration signed the CRC in February 1995, it did not submit it to the Senate because of strong opposition from several members of Congress.[3] Opponents contend that ratification of the CRC would undermine U.S. sovereignty by giving the United Nations authority to determine the best interests of U.S. children.[4] Proponents, on the other hand, emphasize that CRC’s strong support for the role of parents and family structure, and the strengthening of U.S. credibility when advocating for children’s rights abroad.[5] However, often overlooked are the implications that this prolonged failure to ratify has on U.S. immigration law and policy.
Immigration Courts will typically only grant cancellation of removal if an individual subject to removal can demonstrate “that removal would result in exceptional and extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.”[6] In Cabrera-Alvarez v. Gonzales, the Ninth Circuit ruled that removing an individual from the United States who had not been admitted or paroled, but had resided in the U.S. for over ten years and raised his two U.S. citizen children here, would not result in exceptional and extremely unusual hardship to the children who would stay in the U.S.[7] Article 9(1) of the CRC requires States to “ensure that a child shall not be separated from his or her parents against their will” unless such separation is determined the be in the child’s best interests.[8] Although the Ninth Circuit acknowledged the CRC in Cabrera-Alvarez, they rejected it because Congress had not ratified it and it is therefore not the “supreme Law of the Land”.[9] The difference, then, between the CRC and the majority U.S. approach to deportation when a child will be separated from their parent rests on a distinction between the vague standards of “exceptional and extremely unusual hardship” versus “the child’s best interests”.
In In re Monreal-Aguinaga, the Board of Immigration Appeals (“BIA”) ruled that to establish “exceptional and extremely unusual hardship,” an applicant for cancellation of removal “must demonstrate that his or her spouse, parent, or child would suffer hardship that is substantially beyond that which would ordinarily be expected to result from the alien’s deportation, but need not show that such hardship would be ‘unconscionable.’”.[10] This is an extremely difficult standard for individuals seeking cancellation of removal to overcome. Typically, courts will only grant cancellation of removal if such hardship to the qualifying U.S. citizen or lawfully admitted permanent resident is so extreme that it would exacerbate an already serious medical condition.[11] In light of such a high standard, it remains extraordinarily difficult for a non-citizen or non-lawful resident to remain in the U.S. based on the hardship that it would cause their U.S. citizen child.
On the other hand, Gibson v. Greene lays out the following factors that courts consider when determining the “best interests of the child” in child custody disputes:
(1) which alternative will best promote stability; (2) the available home environments; (3) the past performance of each parent; (4) each parent’s relative fitness, including his or her ability to guide the child, provide for the child’s overall well being, and foster the child’s relationship with the noncustodial parent; and (5) the child’s desires.[12]
If these factors were considered by immigration courts ruling on cancellation of removal applications, it would be far more likely than an applicant could succeed. In Cabrera-Alvarez, for example, the applicant had established a stable life for his children that included taking his children to school every day, helping them with their homework, discussing their day, taking the family out to eat and to the park, reading bedtime stories, and praying with the children.[13] On one occasion when the children were away from their father, they cried and told him on the telephone that they missed him.[14] Under the U.S. courts’ considerations for the child’s best interest (which is even more stringent than the CRC’s standard that ensures “a child should not be separated from his or her parents against their will”), the applicant would undoubtedly prove that his cancellation of removal would best promote stability, maintain a healthy home environment, provide for the child’s well being, and ensure fulfillment of the child’s desires.
Considering the conflicting international and U.S. court standards for separating children from their parents, we must ask ourselves why the U.S. maintains such a high bar that carries with it such devastating consequences. And if the justification for not ratifying the CRC is U.S. sovereignty over decisions concerning children’s best interests, why do courts uphold drastically different standards for domestic family separation versus immigrant family separation?
[1] U.N. Convention on the Rights of the Child, Nov. 20, 1989, 1577 U.N.T.S. ¶ 6 https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-rights-child [hereinafter Convention on the Rights of the Child].
[2] Luisa Blanchfield, The United Nations Convention on the Rights of the Child, Congressional Research Service p. 1 (July 27, 2015).
[3] Id. at ¶ 3.
[4] Id. at ¶ 4.
[5] Id.
[6] 8 U.S.C. § 1229b(b)(1)(D) (emphasis added).
[7] Cabrera-Alvarez v. Gonzales, 423 F.3d 1006, 1013 (9th Cir. 2005).
[8] Convention on the Rights of the Child, supra art. 9(1).
[9] Cabrera-Alvarez v. Gonzales, 423 F.3d 1006, 1013.
[10] In re Monreal-Aguinaga, 23 I. & N. Dec. 56, 56 (BIA 2001).
[11] See Matter of J-J-G, 27 I&N Dec. 808, 809 (BIA 2020) (ruling that even though the respondent’s 8-year-old daughter suffered from hypothyroidism, the hardship she would suffer upon her father’s removal was not sufficient to grant him cancellation of removal).
[12] Gibson v. Greene, 152 A.D.3d 592, 592 58 N.Y.S.3d 551, 552 (N.Y. App. Div. 2017).
[13] Cabrera-Alvarez at 1008.
[14] Id.
