Excerpted From: Shani M. King, Contextualizing (Children's) Immigration in Law, History, Theory and Politics, 2022 Michigan State Law Review 187 (413 Footnotes) (Full Document)


ShaniMKingWe have people coming into the country or trying to come in--and we're stopping a lot of them--but we're taking people out of the country. You wouldn't believe how bad these people are. These aren't people. These are animals. --President Trump, During a Meeting with California Officials Regarding California's Sanctuary City Policies, May 2018

Few topics currently inspire more acrimony and reveal more division than what is often termed “the immigration debate.” Indeed, under the Trump Administration, the country has endured the longest government shutdown in American history largely owing to the inability of Congress to pass comprehensive and effective immigration reform. The problem is, in part, a result of how immigration has been framed by the Trump Administration. In a break from the recent past when Presidents since Kennedy characterized immigration as a net positive for the economy and an integral part of the nation's heritage, and immigrants themselves as actual people deserving of a chance to realize the American Dream, President Trump has framed immigration as a major threat to our shared national interests and identity, and immigrants as something other than human. He infamously launched his presidential campaign by calling Mexican immigrants, rapists and criminals, and repeatedly promised a “big, beautiful” wall along the southern border. President Trump also continuously linked immigration to terrorism and called for “a total and complete shutdown of Muslims entering the United States.”

While political correctness has, to some extent, obscured discriminatory and oftentimes racially-charged immigration policies in recent years, Trump's election as President--a success due in part to his nativist and xenophobic rhetoric demonizing immigrants as a crude reminder of the anti-immigrant sentiment still ingrained in American society today, and calls into question the very nature of our national identity: Are we a nation of immigrants founded upon the principles of freedom and liberty for all regardless of ethnicity or national origin? Or are we instead a gatekeeping nation predicated upon the existence and enforcement of discriminatory and exclusionary laws and policies that treat immigrants as “other” than human?

This Article suggests that, while a series of more recent presidents have characterized immigration differently, “othering” immigrants--identifying them as fundamentally different from and subordinate to the majority culture--has been a part of restrictive immigration policy since America's inception, and continues to inform immigration policy today. In this sense, President Trump's anti-immigrant rhetoric represents the reemergence of a strong historical trend in the American attitude toward immigration and immigrants. Therefore, we should not assume that the end of President Trump's time in office will necessarily herald a return to a more immigrant friendly agenda. Indeed, we might ask to what extent politics matters when there is such as powerful undercurrent of hostility and suspicion toward immigrants that has informed American legislation and policy for at least the past century and a half.

In this Article, in an ambitious project that delves deep into legal history, multiple substantive legal areas, theory, and politics, I consider how the “othering” of immigrants affects undocumented immigrant children, and the children of undocumented immigrants (including children who are citizens). I review their status as both “other as alien” and “other as sub-adult,” and I examine how these othering narratives--and their resultant status--influence their treatment in areas of law as diverse as immigration law and family law. Finally, I place this analysis in the context of the largely exclusionary history of U.S. immigration law over the past century and a half. While this piece is about children, it is also about immigrants more generally, and is both particularly timely and timeless.

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This Article turns its gaze back onto the law to uncover hidden othering narratives used in decision-making about immigrant children or children of immigrants. My aim is to show the influence of “othering” narratives on immigration and family law proceedings, and in education law and welfare law. “Othering” narratives about immigrant parents and their children result in misinformed legal outcomes, often to great injustice. Immigrants and their children suffer reduced constitutional rights to family and privacy.

In family courts, immigration status is often seen as a sign of instability, and stereotypes about an immigrant's low earning capacity, capacity to secure insurance, or an immigrant's incapacity to provide childcare, wrongfully influence decisions. In all these cases, the determination of the BIC is distorted by conceiving of the immigrant parent as a negative “other.” The “othering” of the parent further accentuates the vulnerability of a child (nonadult) as a result of having an immigrant parent. The court may then be misguided in deciding to withdraw custody of the child from the immigrant parent, or alternatively, seek to ease the parent's or the child's “otherness” (foreignness and perceived vulnerability) by manipulating or accommodating family law decisions so as to help the parent or the child gain legal immigration status. Thus, a better decision, which could simply be found through informed application of the BIC principle central to U.S. family law is ignored.

In immigration law, the children of immigrants--whether the children are immigrants or citizens themselves--are invisible or only secondarily visible to the immigration court. In immigration law, children are simply appendages to the fate of the “other” (i.e., their immigrant parent). Hence, immigration law sees the children of immigrants as children of “others.” This inherited “otherness” creates allowance for law enforcement to produce or impose hardships, which would otherwise be considered unconstitutional or unreasonable. To further aggravate the situation, another “othering” narrative arises whereby the undocumented immigrant parent is imagined primarily as a lawbreaker. As a result, the loci of responsibility for any harm done to immigrants and their children by way of bureaucratic enforcement of immigration laws always redoubles upon the immigrant other; thus, exalting an identity of self-righteousness of the American self at the center.

The migrant child or the child of a migrant is twice punished by immigration and other authorities as a nonadult (dependent of an adult); and as the child of an “other” (alienage) or as a second-class citizen (whose rights of privacy and citizenship can be violated because they are children of others). Furthermore, the Rule of Law is a value hung over the heads of undocumented migrants and their children. The narrative being that law-breaking is highly objectionable to a law-abiding society. The 'undocumented’ condition of the immigrant is used by the bureaucracies of immigration or family courts or welfare institutions to justify legal (and oftentimes extra-constitutional) decisions with inhumane consequences. Through these bureaucracies of “othering,” children of undocumented immigrants proceed to suffer a diminishment in rights vis-à-vis other children within American society. Undocumented immigrant children or children of undocumented immigrants grow up in a context of diminished rights, which maintains them as subalterns within American society.

The consequence of growing up as subalterns within the State was not the subject of this Article. However, it is worthwhile to consider that immigrants replenish an expendable social class to sustain an exploitative economic and democratic model. The ultimate question is whether U.S. immigration laws (accompanied by education, welfare, criminal, and family laws) assure that new immigrants--which include undocumented immigrant children and the children of undocumented immigrants--will occupy the place of previously discriminated against minorities within the boundaries of the nation.

Shani M. King, Professor, University of Florida Levin College of Law and Director, Center on Children and Families. J.D., Harvard Law School, B.A., Brown University, MSt, University of Oxford.