This Mother’s Day is a painful one for many immigrant mothers. It reminds them of the harsh separation from their children that they are forced to endure while their visa petitions languish at U.S. consulates.
Under U.S. law, people seeking asylum, refugees and victims of human trafficking and other crimes are entitled to file visa petitions for their children to immigrate to the United States.
Petitioners must provide proof of the biological relationship. A birth certificate is considered primary evidence of such a relationship; a church, school or hospital record, or any other document attesting to the birth, can also be submitted as secondary evidence.
If the consulate finds that the evidence provided is inconclusive or unavailable, it may suggest — but cannot require — that DNA testing results be submitted. This policy recognizes that DNA testing — typically $700 per application — is cost prohibitive for many immigrants.
This procedure sounds fair in principle. In practice, it is anything but.
In several countries, including Honduras and Cameroon, U.S. consulates routinely disregard primary and secondary evidence of the familial relationship. And in some cases, the consulates fail to process the petitions even after DNA evidence is provided.
These callous practices leave immigrant mothers with a Hobson’s choice: either to remain in safety in the United States and risk irreparable damage to the mother-child relationship or to place their own lives and legal status in jeopardy by returning home to be with their children.
One client of mine from Honduras came to work as a waitress in New Jersey, hoping to create a better life for her infant son she left behind. She was forced to work at a bar where she had to “entertain” patrons and allow them to sexually molest her on a daily basis. She was granted a T-visa, which allows victims of trafficking to remain here in exchange for assisting law enforcement in prosecuting the traffickers. She immediately petitioned for her son’s visa and provided the original government-issued birth certificate and a baptismal record for her son. Still her petition was denied.
Another client, a severely traumatized torture survivor from Cameroon, has been waiting for nearly six years to be reunited with her children. She was persecuted and tortured by the government for her AIDS advocacy work and was also violently abused by her husband, a policeman. As she fled for her life, she was forced to leave her seven children behind in Cameroon. After being granted asylum in 2003, she immediately applied for visas for them. She submitted original birth certificates, as well as DNA evidence to establish her biological relationship with four of her seven children since she could not afford the testing for all of her children. One of her sons was able to join her in 2006. But the applications for the remaining six remain in indefinite limbo. She is forced to rely on family friends to take care of her children, and sends back every cent she saves to Cameroon.
The right to family unity is deeply enshrined in American law and tradition. The U.S. Supreme Court has long protected the integrity of the family unit and the right of parents to raise their children. This principal has also been prioritized in U.S. immigration law, for good reason. According to the United Nations High Commissioner for Refugees, “The family unit has a better chance of successfully … integrating in a new country rather than individual refugees. Keeping the family together, therefore, is in the best interests of the refugees as well as the receiving country."
The State Department should not be tearing mothers apart from their children.
May next Mother’s Day be a happier one for immigrant moms separated from their children.
Leena Khandwala is a Clinical Teaching Fellow at the Center for Social Justice, at Seton Hall University School of Law. She can be reached at email@example.com.