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Article
Unintended and Unavoidable: The Failure to Protect Rule and Its Consequences for Undocumented Parents and their Children
Family Court Review (2012)
  • Sarah Rogerson, Albany Law School
Abstract

Parents without immigration status in the United States regularly face the threat of deportation and separation from their children. When an undocumented parent is brought to the attention of law enforcement through the child welfare system, they also face the potential of the loss of legal custodial rights to their children. The child welfare system and immigration enforcement mechanisms operate independent of one another with little regard to how actions in one can impact a parent’s legal rights in the other, often permanently separating children from their parents. This article examines the particular issue of undocumented parents who are charged with the failure to protect their children from witnessing or otherwise experiencing abuse committed by a third party. It explores how such a charge, whether founded or unfounded, can result in loss of eligibility for immigration relief to which the undocumented parent would otherwise be entitled, as well as deportation of the parent and permanent separation of parent and child. These issues are situated within the larger context of the normative guideposts of both family and immigration law, namely, the best interests of the child and family unity. It identifies issues for further academic inquiry as well as tips for practitioners who may represent undocumented parents in either the family or immigration systems.

Publication Date
Fall 2012
Publisher Statement
This is the accepted version of an article forthcoming in the Family Court Review, which will be published in final format and available in the Wiley Online Library.
Citation Information
Sarah Rogerson. "Unintended and Unavoidable: The Failure to Protect Rule and Its Consequences for Undocumented Parents and their Children" Family Court Review Vol. 50 Iss. 4 (2012)
Available at: http://works.bepress.com/sarah_rogerson/2/