Arizona State Law Journal Online
For over a century, state courts and other child welfare agencies in the United States have been applying the “best interests of the child standard” to all decision-making concerning children. The standard is also enshrined within the UN Convention on the Rights of the Child (CRC)—a treaty that every nation in the world has ratified except the United States. Notwithstanding its widespread adoption in family law, the standard is, with only a few exceptions, noticeably missing from American laws and policies pertaining to children in the immigration system.
There is a rich literature arguing that children should enjoy special protections within the immigration system and that the best interests standard should be adopted to accomplish this goal. During the Obama Administration, the federal immigration agencies recognized that applying the standard should and could be accomplished and even partnered with advocates to develop a comprehensive framework for adapting the standard to immigration law and practice. Those efforts, however, were never sufficiently codified into law, and, today, some argue that more widespread adoption of the best interests standard in immigration law would have prevented the Trump Administration from enacting the many anti-immigration policies that specifically targeted children and families.
With consensus at least among advocates that the best interests standard should apply to all decisions regarding children in the immigration system, it is time to analyze more deeply how to apply this standard to specific groups of children, such as those with disabilities. There is very little in the academic literature regarding how these principles should apply to children with disabilities in the immigration system. Moreover, some advocates may miss the disability rights angle in their critiques, even where laws or policies are particularly harmful to children with disabilities.