NYU Law professor Lenni Benson explains how U.S. immigration law uniquely imperils children, and suggests what the country can do to help.

Question: How does U.S. immigration affect children?

Lenni Benson: I think the most common question I was ever asked in the years that I practiced, and I practiced immigration law for 12 years, would be someone saying, “I've met this wonderful child. I was on vacation in Barbados or I was a Peace Corp volunteer in Africa or my husband's company has a plant in Costa Rica and we would like to give this child an opportunity in America for our educational system—they just don't have those opportunities in the home country. Can we adopt the child?”

It's an instinct people have. Sometimes you're a distant cousin and you want to bring your niece or nephew to the United States. Well, first of all, one should know that the statute only recognizes children as children for the purposes of sponsorship: if the child is an orphan, if the child's parental rights have been terminated in the home country and a legal adoption has been completed—and that adoption has to be completed before the age of 16. So, unfortunately, because of the legal costs, both in the home country and the bureaucratic process of going through everything here in the United States, there is a lot of people who, when they're immigrating to the United States lawfully, they've been sponsored, they've waited in the queue, they're finally coming, they'll say to their brothers and sisters, "Let me take my niece, Sally. Let me take my nephew, Jose. Let me bring them as my child."

So our State Department finds a lot of what they call "child fraud," or "child smuggling." That's the benevolent aspect of it. There is also a negative aspect, because it is so difficult to bring a child to the United States. Even to a relative, because there is no visa category to sponsor your second cousin or to sponsor your nephew, even if your cultural patterns and your nation would embrace and educate all those children if you had the economic ability.

Because there is no visa pass for that, people sometimes resort to smugglers. In the southern border we call them coyotes, and from the China we call them snakeheads. There have been really well reported books, documentaries, New York Times in-depth stories about children one day being told by their parents, "I love you," kissing them on both cheeks, putting a handkerchief in their pocket, and they're handed over to a smuggler.

The smuggler may charge $30,000 to $40,000 to bring that child to the United States. The children face great danger. Some die in the deserts in the south. Some are raped. Some are physically abused. But at a minimum, they are traumatized bringing to the United States. Where do these parents send them? Sometimes they send them into the labor force. So you find teenagers in New York and Pittsburgh and Phoenix that have been—their parents have, with all good intentions perhaps, paid a smuggler or told them go because if you can find work in the United States you're going to have a better life.

Also, those children are expected to pay off the smuggler. If they don't, the smuggler says, "Well, we know where your mother is. We know where your little sister is, in the home country. We have a network—it’s organized crime—and we'll hurt someone in your home country." So you have perhaps some well-meaning parents victimized by smugglers, but their desperate to give their children opportunity.

Question: Does the U.S. protect rights of illegal immigrant children in any way?

Lenni Benson: Happily, U.S. law is unique—it's only been a few years that we've had this provision. Congress really generously created a provision called the Special Immigrant Juvenile Provision. That if a child is found by the State a Juvenile—the Court competent to make juvenile determinations: in New York we call it the Family Court and in other jurisdictions maybe the Supreme Court or the Superior Court, depending on the name of the tribunal in the State—if a State finds a child to be a ward of the State because they were abused, neglected, or abandoned by their parents, or they're orphaned, that child doesn't have to stand documented. They can go through that family court process and then apply for immigration status. That's a really generous provision. It really allows some children to come out of the shadows, out of exploitative work environments, out of smuggling situations, and acquire status.

Now they have to do that before the age of 21, because in US immigration law, 21 is the cut-off to when you become an adult. And that doesn't apply to children who were brought by their parents. There are perhaps millions of people who live in the United States who don't have status, who were brought as infants, six month old, six years old, by their parents, maybe across the southern border, across the northern border. Actually, a huge percentage of the people unlawfully present in the United States entered with visas and overstayed. So the family may have come from France on the visa waiver program we have for French nationals, lived as middle-class people in our society, and they're completely out of status—they are as "illegal" as somebody who crossed the southern border without documents.

Those young people are trapped, yet reform in Congress has been stymied and it's really a problem because those people may not speak the language of the home country, they have no family in the home country, and if they try to leave the country and then come in again legally, even if they could be sponsored—once they have entered illegally and acquired more than one year unlawful presence, the law says they must depart the United States for ten years.

Question: Should America forgive the status of children of illegal immigrants?

Lenni Benson: The issue of whether we should have a forgiveness provision for children who were brought before, without any volition of their own—the parents brought them, they took no act to further their own illegal entry into the United States or overstay of a visa—I think the debate goes something like this: on one side, people say if we do that, if we have a provision or a law that says, not withstanding the facts that you're out of status or you entered illegally or you overstayed a visa, we forgive you because—let's say you came before the age of 16 so you're innocent. You're innocent of culpability. You didn't have the mental intention to violate the law. Some people will argue [that] that will create a huge incentive for other people to come illegally to the United States with young children, that we would see immediate exodus of people with very small children hoping that their children, at least, will be forgiven and they would have better lives.

Other people will say that may be the case, but we have to deal with that by education in the sending countries, by talking about the difficulty of the passage, the dangerousness of the passage, by having more generous family reunification provisions in general. Remember, I mentioned that if your husband is a permanent resident and you want to be sponsored by him from Mexico, you and the children are waiting in Mexico, it may be a 12 year wait. Maybe if we had a better path to reunite the family, we wouldn't have so many children in illegal status.

But, in my mind, the issue of the forgiveness is essential because we have a generation of young people in the United States who are trapped between a rock and hard place. They, through no fault of their own, want to be contributing members of society, they lack documents. I see it as both a humanitarian issue and a national security issue. Why wouldn't we want these people who are loyal to this country, [who have] been raised in this country, speak our languages, have skills and education in the Unites States; why wouldn't we want them to be part of us? Why would we want to make them live in the shadows without documents not knowing who they are? Afraid to go to the police? Afraid to use our courts? Afraid to become part our tax paying system completely? It is almost impossible to do so without the right documents. Why would we want that instability in our economy?

I don't know why immigration law is a civil law system. Why, in this system, if you break the law, there is no fine that you can [pay to] remedy your breach? If you're a corporation that doesn't pay your taxes, we say pay your taxes and pay a fine. If you're a father who doesn't pay his child support or a mother who doesn't pay her child support, we say pay this or we're going to garnish your wages. Why can't we have a recognition that immigration law is a similar issue?

Recorded on: August 31, 2009