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Ripped Apart by the Immigration System: Immigrant Parents of US-Citizen Children Should be Afforded Prosecutorial Discretion

Christy Carnegie Fujio, JD, MA, and Jessica Kurtz on December 12, 2011

After immigration officials raided the factory where she worked, Encarnación– a native of Guatemala – was arrested and detained. At the time, her son, Carlos – a US citizen – was only 6 months old. Encarnación has been separated from Carlos for nearly 4 years. During her detention, she was not allowed to participate in her custody case, resulting in the termination of her parental rights. Against her wishes, an American couple adopted Carlos. Her legal battle to get her son back continues.

Reports and criticisms of the immigration system tend to focus on the hardships felt by the detainees themselves, incarcerated and facing possible deportation. Far less attention, however, has been paid to their children. A recent study conducted by the Applied Research Center shows that 25% of individuals deported in 2011 left behind a US-citizen child. Because Child Protective Services (CPS) cannot legally place these children with undocumented family members such as aunts, uncles, or grandparents, the children end up falling into the general ranks of an expensive and already overcrowded foster care system.

The odds of reunification for children and their detained parents are extremely low. Detainees are frequently transferred, without notice, over hundreds of miles from home to facilities where Immigration and Customs Enforcement (ICE) has more bed space. Relocating a transferred person in the immigration detention system is difficult, and CPS is required to search for parents for only a limited period of time. Detained parents normally cannot attend juvenile court hearings to comply with CPS requirements. This inability to participate in the process often culminates in the termination of parental rights, and CPS takes custody of the child without parental consent or notification.

The Board of Immigration Appeals, the highest adjudicatory board for immigration matters, has stated that the parent being deported may decide whether to take the child or leave the child in the US. However, CPS frequently fails to reunify children with their parents in foreign countries due to the difficulty of locating parents abroad and the biased belief that children are better off in the US, even if that means that they are placed in foster care. 

Placing children of deported parents in foster care without attempting to reunite the biological family is in direct contravention of both domestic policy and international law. Family reunification is always supposed to be the primary goal under US child welfare policy. Similarly, the United Nations Convention on the Rights of the Child prescribes that children have the right to family reunification and they should not be separated from their parents against their will.

The detention and deportation of immigrants is at its historical peak, and the numbers are only increasing, resulting in more broken families and disenfranchised children. Recently, the Department of Homeland Security (DHS) began reviewing currently pending immigration cases to weed out “low priority” cases and scale back deportations. Undocumented parents of US citizen children should qualify as low priority cases. If relief from deportation is granted to these parents, families will remain intact, children will not be thrown into a foster care system rife with its own problems, and US taxpayers will save substantial sums of money.

Places: United States