Children of US citizens are defined as ‘immediate relatives’, under section 201(b) of the Immigration and Nationality Act (INA), and are exempt from worldwide levels or quotas set for the entry of family sponsored immigrants. Therefore the entry of those regarded as children, for the purposes of immigration law, is not limited on a numerical basis. The ‘child’ is defined extensively by the INA under section 101(b)(1) (A)-(G).

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Children of US citizens are defined as ‘immediate relatives’, under section 201(b) of the Immigration and Nationality Act (INA), and are exempt from worldwide levels or quotas set for the entry of family sponsored immigrants. Therefore the entry of those regarded as children, for the purposes of immigration law, is not limited on a numerical basis. The ‘child’ is defined extensively by the INA under section 101(b)(1) (A)-(G). The definition includes children under the age of 21; who were born in wedlock; or stepchildren if under the age of 18 at the time of the marriage creating their status; children legitimated by law; a child born out of wedlock if they have a bona fide parent-child relationship with one of their natural parents; or adopted children under the age of 16, who have been in the legal custody of their parents for at least two years. The definition in section 101 further includes: children who are classified as ‘immediate relatives’, of US citizens, under the age of 16, who have become orphans or are coming to the United States for the purposes of adoption by US citizens if the Attorney General is satisfied that ' proper care ' will be provided to the child in the US. Siblings of adopted children under the age of 18 May also be classified as immediate relatives under this provision. As stated in section 207(c)(1)(3) of the INA the above definition also applies to children of refugees if accompanying or following to join refugees. Children within the definition are entitled to the same status as the refugee.

Amendments were made to the INA by the Child Status Protection Act, (CSPA), of August 2002 which changed the manner in which immigrants are determined to be children for the purposes of immigration classification. Section 2 of the CSPA provides that the age for ascertaining whether children are ' immediate relatives ' for the purposes of immigration law should be the age when the petition for such status is made. This provision prevents children from “ageing out” or a going beyond the age of 21 whilst an application is being processed. This provision also allows children to continue to be classified as immediate relatives even if over the age of 21 if their parents naturalised while they were under 21, as the date used in the application will be the date of the parent’s naturalisation. Section 4 of the CSPA amends the INA in relation to children of refugees. Children, who are under 21 when an asylum application is ‘filed’, defined as when the Immigration and Nationality Service (INS now known as the Bureau for Citizenship and Immigration Services) receives the application, will be classified as ‘immediate relatives’ and be eligible for entry even if they are above the age of 21 when a final decision is made.

The Homeland Security Act of November 2002, section 462, transfers all the functions of Commissioner of Immigration and Naturalization to the Director of the Office of Refugee Resettlement of the Department of Health and Human Services for the care of unaccompanied immigrant children. These functions include: to coordinate and implement the care and placement of unaccompanied immigrant children, including developing a plan to provide qualified and independent legal counsel to unaccompanied children; ensuring that the interests of the child are considered in decisions and actions relating to the care and custody of an unaccompanied alien child; making placement determinations for all unaccompanied alien children who are in Federal custody by reason of their immigration status and implementing placement determination and policies with respect to the care and placement of unaccompanied alien children. Protection of child immigrants is therefore no longer the function of the immigration Body responsible for prosecuting irregular migrants, regarded by certain NGOs as a positive step.(1)

Children are detained in the US for immigration purposes, however under the Flores agreement (2), which was reached after a class action against the government on child detention (3), such detention must be in the “least restrictive setting appropriate to the minor’s age and special needs, provided that such setting is consistent with its interests to ensure the minor’s timely appearance before the INS and immigration courts and to protect the minor’s well-being and that of others”. Prompt release of children from immigration detention must also be ensured under the Agreement.

(1) Amnesty International, “Why am I here?" Children in Immigration Detention, Executive Summary.

(2) Amnesty International, for summary of the Flores Agreement see the above report which also provides further details on children in immigration detention in the US.

(3) Reno v Flores507 US 292 (1993)

Analysis provided by: Anisa Niaz LLM (Public Law), United Kingdom.

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