Saturday, March 31, 2018
The concept of legitimation represents a widening chasm at the intersection of immigration and family law. The Board of Immigration Appeals (BIA) and courts’ persistent reliance on legitimation as a dispositive factor in determining who counts as a “real” family is increasingly at odds with family law’s complex, nuanced, and ever-more inclusive vision of family. The BIA and courts tend to significantly privilege parent-child relationships linked by biological or pseudo-biological connection, despite the Immigration and Nationality Act’s reliance on state family law frameworks that have evolved beyond that narrow idea. In the context of derivative citizenship, the exclusionary forces at the heart of immigration law override family law’s inherent drive to include children and protect families. Whether it is the intent or merely a byproduct of a pretext driven by the exclusionary imperative of immigration law, the result is the same: the BIA and courts cling to the otherwise obsolete notion of legitimation, which has its roots in an archaic social norm designed to control reproduction and with it, the female body. This paper argues that immigration law should cede to family law’s inclusionary concept of the family, pushing back against the inherent exclusionary interests at the heart of modern immigration law.