Immigration

What Rights Children of Illegal Immigrant Parents Have in the U.S.

Updated by Ilona Bray, J.D., University of Washington Law School
The children of undocumented (often called "illegal") immigrants in the U.S. typically had no say in their parents' decision to move to the U.S., but must contend with the consequences nonetheless.

The children of undocumented (often called "illegal") immigrants in the U.S. typically had no say in their parents' decision to move to the U.S., but must contend with the consequences nonetheless. Some may have crossed the border unlawfully, others arrived on a visa or other form of documentation than overstayed the allowed time period.

If children are born in the United States to undocumented parents, they are automatically U.S. citizens, and have all the rights that come with that.

If foreign-born children in the U.S. are themselves undocumented, then obtaining immigration status may depend on their parents' ability to obtain lawful status. Even if they grow up and create connections to the U.S., through job offers, marriage, children, and so on, their history of unlawful stay in the U.S. will create significant procedural impediments to becoming legal.

The DACA program, instituted by President Obama, gave some undocumented children an opportunity to obtain a quasi-legal right to remain in the U.S., at least temporarily. President Trump, however, ordered a phaseout of that program. This was followed by various lawsuits. As of June 2018, courts ordered the U.S. government to continue accepting DACA renewal applications and to explain why it should not accept new applications as well. (If the government doesn't come up with an explanation that satisfies the court, initial DACA applications may once again be accepted, though counter-lawsuits may have the opposite effect.) This is a moving target, so anyone seeking DACA should consult an experienced immigration attorney.

Immigration Enforcement Against Children

Immigrants who are in the U.S. unlawfully are subject to deportation or removal from the U.S. if they're caught by immigration authorities or, in some states, by other law enforcement agents.

Such deportations should not, in most cases, happen without the child and/or other family members first having a chance to defend themselves in immigration court. In court, they could assert defenses, such as a claim for asylum, or a right to green card eligibility through a close family member who already has U.S. immigration status or as "special immigrant juveniles."

The most important exception is called "expedited removal," in which a non-citizen who is apprehended attempting to enter the United States can be sent back without seeing an immigration judge.

Although expedited removal was once used only against “arriving aliens” who were found less than 100 miles from the border from either Mexico or Canada and who had illegally entered within 14 days or less, the Trump Administration vastly expanded the concept.

In early 2017, President Trump signed an Executive Order called Border Security and Immigration Enforcement Improvements,” saying expedited removal should be expanded to the maximum extent allowed by law. In response, DHS Security John Kelly published a memo stating that any apprehended immigrant who was not officially inspected at the U.S. border and who cannot prove that he or she has been continuously present in the U.S. for more than two years would be subject to expedited removal.

Birthright Citizenship in the U.S.

Children of undocumented immigrants who are born in the U.S. will obtain what's often called "birthright citizenship." It is conferred automatically, by virtue of being born on U.S. soil. This right comes from the Fourteenth Amendment to the U.S. Constitution.

During various Congressional debates about immigration reform, there has been talk about eliminating or changing this right. Some have argued that the amendment is being abused, citing instances where wealthy foreign nationals have come to the U.S. for a brief "vacation" and stayed just long enough to give birth to a child. They also mentioned the millions of immigrants who enter the U.S. without permission and have children.

The amendment, the senators claim, is intended to guarantee equal treatment and citizenship to post-civil war slaves. It was never meant to guarantee citizenship to anyone and everyone born on U.S. soil.

With efforts at immigration reform having so far gone nowhere, however, and birthright citizenship being a fundamental element of U.S. law, it seems unlikely to undergo change anytime soon. (Even if Congress did change the Constitution, it's highly unlikely it would strip current U.S.-born citizens of their citizenship.)

Undocumented Children's Right to Attend U.S. Public Schools

Under a U.S. Supreme Court case called Plyler vs. Doe (457 U.S. 202 (1982)), undocumented children have the same right to attend U.S. public primary and secondary schools as do U.S. citizens and lawful permanent residents. In fact, they (along with all children) may be obligated by the law of the state in which they live to attend school.

U.S. public schools are not supposed to create barriers to undocumented students enrolling, inquire about or require students or parents to disclose or document their immigration status, attempt to enforce U.S. immigration laws, or require Security numbers (but should instead assign separate numbers to students). Undocumented children in financial need can also join free lunch and breakfast programs.

When and Whether Children Born in the U.S. Can Petition for Undocumented Parents

Although many people assume that having a child in the U.S. (who is automatically a U.S. citizen) allows that parents to obtain lawful immigration status here, that is not the case. U.S. immigration law allows a U.S. citizen to petition for parents only upon turning 21. And in order to get through the financial-sponsorship aspects of the petition process, that child will need to be living in the U.S. and earning a high enough income to support his or her parents as well as any other household members.

An additional barrier arises in cases where the parents have been living unlawfully in the U.S. while waiting for their child to turn 21. They are "inadmissible" based on the length of their unlawful presence, and will likely have to remain outside the U.S. for ten years before applying for a green card with which to return. A waiver of unlawful presence is available in some cases, but will likely require a lawyer's help to obtain.

Questions for Your Attorney

  • When can a police officer or law enforcement officer ask for identification or immigration papers?
  • How do we prove our child was born in the U.S. when we gave birth outside a hospital and did not obtain a birth certificate?
  • We have a U.S. citizen child: What are our U.S. immigration prospects?
  • Our school asked our child for a Social Security Number, but she is undocumented. What do we do?
  • Do we qualify for a waiver of our unlawful presence in the U.S. so that we can apply to adjust status through our U.S. citizen child?

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