Notre Dame Law Review
Courts must guarantee that native-born citizens of undocumented parents are not second class citizens. Historically, courts intervened to prevent administrative officials from making the educational or economic circumstances of citizen children more difficult because of their parents' undocumented status, as in Plyer v. Doe. However, courts generally show greater reluctance in preventing officials from making the circumstances of children of undocumented parents more difficult when their parents are removed from this country by deportation.
As a result of the holdings in Kleindienst, Fiallo, and Wang, it is not likely that courts will scrutinize the congressional policy choice of allowing imposition of all but "extreme hardship" upon citizen children to discourage the illegal immigration of their parents. Courts should recognize this fact and consider giving greater scrutiny to the "extreme hardship" interpretation by the INS. Courts should utilize the Wang approach of requiring a liberal construction of "extreme hardship" to effectuate the ameliorative purpose of the statute. Similarly, courts should reexamine the constitutional issues involved in the dilemma that requires citizen children to be deprived of either their right to remain in the United States or remain as a family unit. Eventually, courts should conclude that the deprivation of either right constitutes "extreme hardship" to the child as a matter of law.
Bill Piatt, Born as Second Class Citizens in the U.S.A.: Children of Undocumented Parents, 63 Notre Dame L. Rev. 35 (1988).