Date of Graduation

Fall 12-14-2018

Document Type

Thesis

Degree Name

Master of Arts in International Studies (MAIS)

College/School

College of Arts and Sciences

Department/Program

International Studies

First Advisor

Bill Ong Hing

Abstract

This thesis argues that the United States is failing to fulfill its obligations under the Convention on the Rights of the Child (CRC) in its adjudication of the hardship standard in non-LPR cancellation of removal. It is well-documented that the current interpretation of the “exceptional and extremely unusual hardship” standard results in the separation of families and de facto deportation of children, many of whom are U.S. citizens. This thesis contends that this practice is not only unjust, but also unlawful.

First, it argues that the CRC in general and Article 3 (the “best interests” principle) in particular have risen to the status of customary international law. Second, drawing on legal principles of statutory interpretation, it finds that the hardship provision of the statute governing cancellation of removal for non-LPRs, INA § 240A(b)(D), is ambiguous and should therefore be interpreted in a way that accords with the CRC and the “best interests” principle. Third, it illustrates that the current adjudication of the “exceptional and extremely unusual hardship” standard is substantially different to a “best interests” assessment and is therefore not in compliance with the CRC.

It concludes that, because the CRC is customary international law, and ambiguous statutes must be interpreted in a way that complies with international law, the hardship standard must be re-interpreted so that it incorporates a “best interests” assessment in all cases involving children. Finally, it offers guidelines for short- and long-term changes which could bring the hardship standard in line with the Convention and the “best interests” principle.

Available for download on Tuesday, December 17, 2019

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