Defining the Immigrant Family: Legal Reform and Common Sense

A legal analysis of the key problem that current immigration policy cannot answer: who do we call mom and dad?

By Michelle Chen Aug 12, 2010

There’s one question that reflects the convergence between the immigration debate and the marriage-equality debate: what is a family? The definition of parent, child and spouse is a legal arena where both LGBT couples and immigrant households upset the norm. And possibly in a good way, according to a Yale Law Journal article by Victoria Degtyareva (h/t Immigration Law Prof). Family reunification is one of the most complicated issues in immigration reform. The agonizing legal quandaries facing parents and children force an untold number to endure endless queues just to see their loved ones again. At the other extreme, deportations have wrenched apart thousands of families and mercilessly banished undocumented parents. The dilemma has also churned up vile stereotypes of "anchor babies" straining the social service system. Underlying this chaos is the problem that current immigration policy cannot answer: who do we call mom and dad? As we’ve seen with the struggle of LGBT binational families to navigate the system, immigration authorities aren’t exactly enlightened when it comes to respecting the rights of "non-traditional families." But Degtyareva notes that the legal definition of family is tone-deaf on an even more basic level:

The [Immigration and Nationality Act] assumes a traditional "two parent" view of the family. In non-traditional families, however, parental roles may be split between three or more parties, creating the possibility of a biological mother and father, an intended mother and father, and a gestational mother. By failing to address this possibility, the INA creates substantive ambiguities in several of its provisions and risks denying family unity to those who are deserving.

This ambiguity entangles immigration law in the vagaries of a moldy ideal of the two-parent heterosexual domestic unit. The article focuses on non-biological custodial parents, but it also raises questions about how the law ignores the complex family structures in immigrant communities: mixed-status marriages, extended families under one roof, children of migrants under the care of aunts and uncles, or siblings caring for each other… you get the picture. Unfortunately, Congress doesn’t. While the stagnant immigration reform discussion remains deadlocked on the issue, legal scholars have argued that some kind of redefinition is necessary to make the system more equitable, whether its setting up new categories for non-traditional families, or deferring to the state or foreign laws to define families for immigration purposes. But Degtyareva argues that we should shift our whole approach to defining parental and child roles, and that "family should be defined by interpersonal relationships, not by biology." International adoption law is one possible model, because it allows children to derive based on their non-biological but nonetheless very real relationship to the adopted parent. The process gets messier for other types of immigration. For example, birthright citizenship, despite rabid attacks from the far-right, may seem (for now) like a constitutionally enshrined right. But legal disputes have arisen in cases when the child claims a US citizen father but was born out of wedlock, or whose immigrant mother is married to a US citizen who is not the biological father. Reforms to the legal definition of family, Degtyareva argues, should consider alternative configurations of family in a transnational context, and more importantly, be conscious of human relationships. That aspect doesn’t get much coverage these days as right-wingers plot ways to turn the law into a tool for destroying families rather than dignifying them under the aegis of the Constitution. On that point, the article quotes the poignant words of a 2002 California district court ruling:

[a]s adults we must not forget what every child knows–the parent-child relationship is not spun from DNA. Rather, it stems from the emotional attachments which derive from the intimacy of contact between the parent and child.

So as lawmakers grapple for the right words to define the immigrant family–or any family, for that matter–all those politicians who love to hear themselves talk might want to start listening to the wisdom of an immigrant child.