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Document Type

Article

Publication Date

Spring 2014

Publication Citation

89 Indiana Law Journal 643 (2014)

Abstract

This Article explores how current terminations of undocumented immigrants’ parental rights are reminiscent of historical practices that removed early immigrant and Native American children from their parents in an attempt to cultivate an Anglo-American national identity. Today, children are separated from their families when courts terminate the rights of parents who have been, or who face, deportation. Often, biases toward undocumented parents affect determinations concerning parental fitness in a manner that, while different, reaps the same results as the removal of children from their families over a century ago. This Article examines cases in which courts terminated the parental rights of undocumented parents because of biases about the parents’ immigration status, language, race, culture, and the belief that life in the United States is better for children than returning with a parent to a poorer country, such as Mexico or Guatemala. This Article suggests that these termination decisions are reflective of tensions around identity and how to cultivate a preferred American identity. Further, this Article explores how using the law to cultivate a preferred identity can subvert the constitutional rights of undocumented parents and undermine their family relationships.

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