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5 Crit [ii] (2012)
Children's Rights Nationally and Internationally during the Deportation of Their Parents or Themselves: Does the Right to Sovereignty Trump the Best Interest of the Child

handle is hein.journals/tcrit5 and id is 189 raw text is: CHILDREN'S RIGHTS NATIONALLY AND INTERNATIONALLY DURING THE DEPORTATION OF THEIR PARENTS OR THEMSELVES DOES THE RIGHT TO SOVEREIGNTY TRUMP THE BEST INTEREST OF THE CHILD? NIKKI SMITH* This paper advances a controversial analysis of children's rights in immigration proceedings in the United States, explaining how current US immigration laws both deny children fundamental rights set out in the US Constitution and violate the US's international human rights obligations. My analysis explores the historical progression of children's rights, both nationally and internationally, in family law, juvenile law, and immigration law. I argue that children, under both the Constitution and international human rights law, have independent rights that are not derivative of their parents, such as the right to family, the right to equal protection, the right to freedom from cruel and unusual punishment, and the right to realization of their citizenship in a meaningful manner. My analysis of US obligations under international law will focus on the fundamental right to family, the right to be free from cruel and unusual punishment (treatment), and the international requirement of a best interest of the child analysis. This analysis is guided by the balancing framework recently set forth by the Inter-American Commission of Human Rights and the European Court of Human Rights, both of which outlined a variety of factors that must be analyzed during deportations impacting children, particularly US citizen children.' This paper will explain this balancing framework, as well as other relevant international documents. My analysis of domestic law will focus on case law, immigration statutes, and the internal policies of administrative agencies that handle immigration, with a particular focus on how children are being treated and affected by immigration laws in the US. I will explain the US law, how it is designed, how it became so destructive, and why it violates the US's international obligations. In this section I also argue that realization of children's independent fundamental rights requires, first, that they are heard and considered in immigration proceedings that directly impact them, and second, that they are permitted to independently petition for family members. But, acknowledging that children, in addition to having rights, still require special protection, I further argue that the best interest of the child must be a primary consideration in all immigration proceedings that directly impact children. My analysis will conclude by discussing specific legal frameworks utilized in family law and juvenile justice settings, which would be beneficial if applied in the immigration context, as well as suggesting other considerations that should be incorporated when refraining the law. * Nikki Smith has a bachelor's degree in social work and received her Juris Doctorate from the University of Idaho College of Law in 2012. 1 Amrollahi v. Denmark, (No. 56811/00), Eur. Court. H.R. (Oct. 11 2002), available at http://www.unhcr.org/refworld/docid/3ffae5fe4.html (last visited May 14, 2012). the crit, A Critical Legal Studies Journal

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