Thursday, July 17, 2014
Abstract: This Article offers a systematic examination of how determinations of parentage operate in immigration and citizenship law. As a descriptive matter, we argue that immigration and citizenship law generally use more stringent standards for determining parentage than state family law, despite their common origins. Rather than simply noting that the differences exist, we take an institutional approach to understanding why. 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 diverse contexts. State family law’s primary interests are in privatizing the dependency of children and, somewhat secondarily, in children’s physical and psychological well-being. 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. Because of these differences, variations in institutional actors’ attitudes toward various kinds of parentage may be inevitable, or, at the very least, understandable. Put differently, since the values at stake in immigration and citizenship law differ so greatly from the values of family law, it should be no surprise that the "family values" espoused by immigration and citizenship law are very different from those we are accustomed to seeing in family court.
We do not, however, believe that these institutional differences mean that current immigration and citizenship laws are optimal. We argue, rather, that a clear understanding of immigration and citizenship laws’ "family values" shows that these laws’ approaches to parentage fail to adequately account for the crucial federal interest of protecting its citizens’ and residents’ right to family reunification. Current federal policy privileges interests in limiting membership 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 argue that the interests of individual citizens are also national interests that the federal government should embrace as its own, and that recognition of intentional and functional parentage deserves a more prominent place in the nation’s definition of parentage in the immigration and citizenship context. The reason for this, however, is not that federal immigration and citizenship law should defer to state family law norms. Indeed, the difference in interests may result in different rules, which may be more stringent — but also might be more expansive — than current family law norms.