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.

If those children were born in the United States, 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, though the DACA program has given some of them an opportunity to obtain a quasi-legal right to remain in the U.S., at least temporarily.

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. However, with few exceptions, such deportations will not happen without the child and/or other family members first having a chance to defend themselves in immigration court.

The odds of immigration enforcement authorities actively seeking to catch children who are unlawfully in the U.S. is low, however. Because of limited resources, Immigration and Customs Enforcement (ICE) follows a set of guidelines for what cases to prioritize. Criminals and threats to public security are at the top of the priority list. Established, law-abiding families with children are at the bottom. (These priorities are further laid out in a November, 2014 Department of Homeland Security memo.)

In exceptional and sympathetic cases, when someone is apprehended by U.S. immigration authorities, ICE will stop the proceedings as a matter of "prosecutorial discretion." That doesn't mean the foreign-born persons obtain legal status (though they may be able to successfully request a work permit); just that ICE will cease active efforts to deport them. (Also see "Deferred Action for Childhood Arrivals," below.)

Birthright Citizenship in the U.S.

The children of undocumented immigrants lucky enough to have been born in the U.S. will obtain what's often called "birthright citizenship." It is conferred automatically, solely 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. In 2010, for example, some senators publicly announced their opinions that the Fourteenth Amendment needs to be amended. They 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. Of course, they also mentioned the millions of immigrants who enter the U.S. without permission and have children, too.

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 since gone nowhere, however, and birthright citizenship being a fundamental element of U.S. law, it seems unlikely to undergo change anytime soon. (And 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.

Deferred Action for Childhood Arrivals

“Deferred Action for Childhood Arrivals,” or "DACA," is a program that President Obama created by executive order in 2012. It allows immigrants who were brought to the United States as children and who meet certain other requirements to apply for two years' protection from deportation (removal), as well a work permit.

President Obama later announced changes to the DACA program that were to go into effect in early 2015, eliminating the age limit and extending the protected period to three years. However, this has been held up by lawsuits and was awaiting a Supreme Court decision as of early 2016.

DACA is not an amnesty, and does not lead to a green card or U.S. citizenship. It's simply a way in which U.S. immigration authorities may exercise discretion and decline to deport an otherwise removable young person who meets the DACA criteria. Also, family members of the DACA recipient cannot claim any right to deferred action status.

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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