Document Type


Publication Date

Fall 2009


Although the paramount purpose of United States immigration law is not to protect the integrity of family, U.S.immigration law does explicitly aim to do so in certain circumstances. The Immigration and Nationality Act (INA) includes family reunification provisions, for example, which allow United States citizens and lawful permanent residents to petition for family members who live in other countries to join them in the United States. Even the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), often described as a draconian statute, technically allows otherwise removable "aliens" to remain in the United States if removal would result in "exceptional and extremely unusual hardship to the alien's [U.S. citizen or resident] spouse, parent, or child."

But even where the United States aims to further family unity, it fails to do so because U.S. immigration law reflects a legal construction of the "family" concept that is largely premised on biology, is grounded in the traditional conception of a nuclear family, and excludes what this Article calls "functional" families: formations which may not satisfy this narrow conception of family, but satisfy the care-taking needs of children. By excluding functional families, the United States ignores the reality of millions of families who are affected by its immigration laws, separates children from their families, and fails to honor a child's right to family as defined by the United Nations Convention on the Rights of the Child (CRC) and international law as it has developed in Europe and the Americas.

This Article suggests that the notion of parenthood that is reflected in U.S. immigration law should be reconsidered and modified to reflect a definition grounded in relationships and care, or what has been described by Professor Nancy Dowd in a slightly different context as "nurture."' This would likely include, for example, "the psychological, physical, intellectual, and spiritual care" of children. In this Article, the primary focus, therefore, is on what has been described as in loco parentis relationships between children and relatives who are not their biological parents. In other words, relationships in which an adult is operating as a parental figure for a child in a way that results in the child seeing the adult as a parental figure.