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Immigration's Family Values

by Kerry Abrams and R. Kent Piacenti
100 Va. L. Rev. 629 (2014)
Article

This Article takes an institutional approach to analyzing how the law determines parentage in diverse doctrinal contexts. We argue that immigration and citizenship law use different parentage tests than family law not because lawmakers have failed to properly incorporate family law principles but because lawmakers’ interests are not the same in the immigration context. State family law’s primary interests are protecting children, preserving well-functioning parent-child relationships, and ensuring that each child has two parents who are designated as legally and financially responsible. Immigration and citizenship law, in contrast, implicate the federal government’s interest in achieving optimal numbers of immigrants and citizens. In addition, because the benefits of lawful immigrant status and U.S. citizenship are so extensive, an important state interest in determining parentage in the immigration and citizenship context is the ferreting out and prevention of fraud. As a general rule, the context in which parentage disputes arise in immigration and citizenship cases differs greatly from the circumstances that lead to custody or divorce proceedings. Thus, the “family values” espoused by immigration and citizenship law are very different from those we are accustomed to seeing in family court.

Where immigration and citizenship law fail, they fail on their own terms, and we must understand their core values in order to critique them and to offer workable solutions. For example, current federal policy privileges interests in optimal citizenship and immigration and in fraud prevention at the expense of allowing U.S. citizens and lawful permanent residents to exercise their own liberty interests in preserving parent-child relationships. We critique this policy, however, not because it deviates from state family law principles but because it fails to recognize the government’s interests in preserving the family relationships of its citizens.

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