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Deportation Policy At Crossroads: Family Unity Or Foster Care?

– Posted in: Immigration Law, Policy & Politics | Family Immigration
children of immigrants-face-family-separation

It’s an awful choice.

Facing deportation, many immigrants have only one defense against removal from the U.S.

Cancellation of removal.

With an emphasis on the hardship family members will suffer if the immigrant is deported, it requires immigrants with young children to make a painful decision at the outset of their cases.

Two options exist.

Take their children to a country foreign to them.

Leave them with relatives or friends in the U.S.

In some cases, even while immigrants fight against deportation, this decision is arbitrarily stripped from them.

In the process, they lose their children altogether

A Government-Induced Forfeiture
Of Parental Rights

Last fall, Colorlines, an investigative news website, uncovered that many immigrant parents were deprived of parental rights after being taken into custody by immigration agents.

According to the report, Thousands of Kids Lost From Parents In U.S. Deportation System, at least 5,100 U.S. citizen children with immigrant parents are living in foster care.

In many cases, the parents have lost all contact with their children while in detention centers.

Not allowed to attend custody hearings, their rights as parents were terminated under the guise of abandonment.

Many of the children will never see their parents again.

Given current detention and deportation trends, the Colorlines report conservatively estimated another 15,000 children will be separated from their parents and placed in U.S. foster homes over the next five years.

Encarnacion Bail Romero Case
Sparks National Debate

In 2007, Encarnacion Bail Romero was arrested in an immigration raid at a poultry plant where she was working. Since she had entered the country without permission, she was taken into ICE custody.

At first, relatives assumed custody of Carlos, her infant son. Later, friends took over caring for him, while Romero remained in detention.

Over time, a young couple, Melinda and Seth Moser, assumed the responsibility for Carlos. Soon afterwards, they filed for adoption, claiming Romero had abandoned her son.

While in custody, Romero was not provided with any legal representation.

Romero, who speaks not Spanish but an Indian dialect, was not given translation help for the paperwork sent to her. Lacking such assistance, she refused to sign adoption papers.

Immigration authorities did not allow her to attend any family court hearings. The family law judge held that Romero had abandoned her son and terminated her parental rights.

When Romero was released in 2009, she fought to regain custody. The State Supreme Court agreed, sending the case back to the family law court for a new hearing.

Romero’s efforts became the subject of national headlines.

Her ordeal was explored in a recent ABC Nightline news special, “Stolen Babies? Controversy in Missouri.”

A few weeks ago, after the airing of the ABC special, Romero again lost her battle to regain custody of her son. A new appeal, challenging the ruling, is expected.


In The Best Interests Of The Children?

Romero was not the first immigrant to lose her child due to immigration status.

She will not be the last.

On December 12, 2006, ICE raided a meatpacking plant in Worthington, Minnesota. The raid left many children – most of them U.S. citizens – without their parents.

One second grader returned from school that day to find his two-year old brother alone. For nearly a week, the second grader played surrogate parent until his grandmother arrived to take care of them.

These situations cry out for a national solution.

As an immigration family petitions and visas attorney, I handled child custody, foster care, and adoptions for over a decade. I can attest a comprehensive solution is not achievable solely through the family law court system.

Absent federal guidelines, for both immigration and family law agencies, the concept of “the best interests of the child” is too easily turned into another form of misplaced punishment towards undocumented immigrants.

Those who suffer the most are not the immigrant parents.

It’s the children.

Children who are deprived of their parents in violation of the foremost principles of immigration and family law.

And unlike little Romero, many children stripped from their immigrant parents do not end up in loving families. They languish in the foster care system, bouncing from home-to-home, during their formative years.

A rational legislative approach is needed.

Will Congress Keep Immigrant
Families Together?

Currently, three legislative proposals exist.

  • On June 22, 2012, Minnesota Senator Al Franken and Wisconsin Senator Herb Kohl introduced the Humane Enforcement and Legal Protection (HELP) for Separated Children Act. After this effort failed, Franken, joined by Senators Dick Durbin (D-IL), Kirsten Gillibrand (D-NY), and Amy Klobuchar (D-MN), reintroduced the legislation on July 21, 2011.
  • Likewise, after her attempt to pass similar legislation in 2010 died, California Congresswoman Lynn Woolsey reintroduced the HELP Separated Children Act in the House of Representatives on July 21, 2011.
  • More recently, on July 16, 2012, Congresswoman Lucille Roybal-Allard (D-CA) introduced a new legislative proposal, the Help Separated Families Act, in response to the Romero case.

None of them have gained political traction.

According to Franken, four million U.S. citizen children in our country have at least one undocumented immigrant parent. These children, he points out, “should not have to live in fear that one day their parents will simply not come home.”

Announcing her bill, Roybal-Allard emphasized the country can no longer ignore the human cost of a broken immigration system.

“People,” she added, “regardless of their immigration status, deserve to know that their children are cared for, and when possible, children should be able to remain under the care of a family relative instead of becoming a ward of the state.”

However, in a Congress not known for being immigrant-friendly, the purposes underlying such legislation have fallen on deaf ears.

Family Unity Safeguards For Children

In short, here is my list of key concerns which must be addressed in any legislative packet to preserve the family unity of immigrant families:

  • Enable Detained Parents To Remain Involved With Their Children
    Immigrants, once detained, should be allowed free, confidential calls to arrange for the care of their children. Family relatives and local agencies should be granted privileges to coordinate regular visits between the children and their parents.
  • Identify At-Risk Children Needing Temporary Care And Support
    Many immigrants are afraid to share any confidential information with immigration agents at the time of their detention. Immigrant-friendly mechanisms should be set in place to carefully screen and identify whether detained immigrants have at-risk children left at their homes.
  • Ensure Participation Of Parents At Family Court Hearings
    No family court decisions should be made unless immigrant parents have been given a meaningful opportunity to participate at custody and adoption hearings. Parents should be provided legal and translator services, allowing them to effectively take part at all stages of child custody, state welfare, or adoption proceedings.
  • Assist Parents With Immigration Paperwork For Children
    Once a final decision has been rendered to deport a parent back to his or her home country, the parents should receive assistance to obtain the documents necessary for their children to accompany them. Parents should be not be deported until their children are able to leave with them.

Matter of Antonio Calderon-Hernandez

As I was working on this article, the Board of Immigration Appeals addressed what happens to the children of immigrants facing removal in a slightly different context.

As a deportation defense lawyer, I believe the BIA’s decision in Matter of Antonio Calderon-Hernandez was long overdue.

The Board stated when two immigrant parents are living in the United States without immigration documents, but only one is facing deportation, “it is reasonable to assume the child will be cared for and supported by the parent who remains here, absent evidence to the contrary.”

In the past, judges have denied such claims made by immigrants without presenting affidavits of the other immigrant parent or relatives and other supporting evidence.

Yet, the court and DHS attorneys know that few, if any, immigrants, lacking permission to live in the U.S., are willing to testify or appear at a deportation hearing, on behalf of another undocumented immigrant.

Too often, this tactic enabled judges to minimize, if not ignore, the hardship which flows from family separation.

Similar to the BIA’s logic, it is also reasonable for family law judges to assume, and to allow, a child to be cared for and supported by other adult relatives living in the U.S. until the immigrant parent is released from custody.

The Impact of Massive Deportation Cases

Unfortunately, things could get worse before they get better.

According to data obtained by the Transactional Records Access Clearinghouse (TRAC), the number of cases awaiting resolution before the Immigration Courts reached a new all-time high of 314,147 by the end of June 2012.

These numbers hold grave potential to undermine current foster care estimates.

Even if only 10% of these cases pertain to undocumented immigrants with children, this equals over 30,000 children, per year, who may be at-risk of being placed in foster care facilities.

Let’s be clear. No child should be permanently removed from a parent’s custody solely based on immigration status.

As Roybal-Allard has noted, the current situation is “absolutely, unquestionably inhumane and unacceptable” for a country which claims to value family and fairness.

Maybe she assumes too much.

Washington’s ongoing disinterest in the shattering of immigrant families, after all, reflects not only a lack of concern for family unity, but also a lack of commitment to due process.

By Carlos Batara, Immigration Law, Policy, And Politics