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Legal Commentary

: Prawfs

Undocumented Immigrants and Loss of Parental Rights

By Dan Markel, Ethan Leib, Rick Garnett, Matt Bodie, Paul Horwitz , Steve Vladeck, and Orly Lobel

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The New York Times recently featured the stories of unauthorized immigrant mothers whose parental rights to their children have either been terminated or at risk of being terminated as a result of their incarceration in jail or detention centers. One mother, for instance, was apprehended two years during an immigration raid of her workplace and has since been serving time in prison for identity theft. While in jail, a couple petitioned to adopt her son (to which she did not give consent) and the court approved the petition several months later without her knowledge.

This news article highlights one of the troubling consequences of increased immigration law enforcement in the U.S. on immigrant families and the communities in which they reside. One part of the opinion is worth quoting. In terminating the woman's parental rights, the judge stated that, "[h]er lifestyle, that of smuggling herself into the country illegally and committing crimes in this country, is not a lifestyle that can provide stability for a child."

I was perturbed by this statement and chose to include it here because it points to an area that may be explored further: the intersections between family law, criminal law and immigration law. In recent years, a number of legal scholars have focused on exploring the relationship between family law and criminal law. Among them are Prawfsblawg's Dan Markel and Ethan Lieb, who, along with Jennifer Collins, have authored a book and several articles addressing the role of family ties in the criminal justice system. Jeannie Suk has examined the concept of the home and family privacy as it relates to domestic violence enforcement and the operation of the Fourth Amendment, while Melissa Murray has considered the way in which criminal law and family law work cooperatively to structure the normative contours of intimate life.

The work that is being done in this area is incredibly interesting and timely. As the NY Times story makes clear, the impact of regulatory systems -- whether through the criminal law, immigration law, or both -- on families will raise important questions about parental rights, privacy and our understanding of family life.

Full post as published by Prawfs on April 24, 2009 (boomark / email).