This Article explores the issue of grandparent caregiver deportation. The phenomenon of grandparents raising grandchildren is not new, but the number of children being raised by grandparents is at an all-time high and growing. Numerous circumstances can lead to a grandparent's assumption of caregiving responsibilities, but in most cases, grandparents assume this role because there is no one else. For thousands of children, grandparents are the only family they have, and without them these children would be placed in foster care and subject to the serious problems that plague children in foster care. The importance of grandparent caregivers cannot be understated. Consequently, laws and policies that impact grandparent-headed households deserve special care and attention.
Specifically, this Article focuses on the impact of immigration law on grandparent-headed families. A growing problem facing many of these households is the grandparent caregiver's immigration status. Many grandparent caregivers are undocumented immigrants who face the ever present, and increasing, threat of deportation. Such deportation can be devastating for their U.S. citizen grandchildren. The Immigration and Nationality Act, which controls who may enter and remain in the United States, contains exceptions to deportation. One such exception is the "hardship" exception, which authorizes cancellation of the removal of a deportable alien if such removal would cause hardship to a category of persons, defined in the statute as consisting of the "alien's spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence." Grandchildren are absent from this list and, consequently, courts have found grandparents are ineligible for cancellation of removal.
This Article argues that, given the unique circumstances that typically lead to the assumption of primary caregiving by grandparents, the hardship exception should be amended to make grandparents eligible for cancellation of removal. It further argues that such a change will have a significant and beneficial impact despite the extremely high bar for cancellation of removal and the infrequency with which it is granted in the case of parental deportations. As this Article will demonstrate, the circumstances surrounding grandparent caregiving are often quite different from parental caregiving. Grandparents are likely to assume caregiving only after the child has already undergone significant hardship; they are typically the last relative caregivers before a child is placed in foster care and they usually do not have legal custody and thus cannot take their grandchildren with them if deported. Cancellation of removal in parental deportation cases is almost unheard of, but if grandparents qualified for cancellation of removal they might frequently meet the criteria for such relief.
Marcia Zug, Deporting Grandma: Why Grandparent Deportation May be the Next Big Immigration Crisis and How to Solve It, 43 U.C. Davis L. Rev. 193 (2009)