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

After immigration officialsraided 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 hasbeen separated from Carlos for nearly 4 years. During her detention, she wasnot allowed to participate in her custody case, resulting in the termination ofher parental rights. Against her wishes, an American couple adopted Carlos. Herlegal battle to get her son back continues.

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

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

The Board of ImmigrationAppeals, the highest adjudicatory board for immigration matters, has statedthat the parent being deported may decide whether to take the child or leavethe child in the US. However, CPS frequently fails to reunify children withtheir parents in foreign countries due to the difficulty of locating parentsabroad and the biased belief that children are better off in the US, even ifthat means that they are placed in foster care. 

Placing children ofdeported parents in foster care without attempting to reunite the biologicalfamily is in direct contravention of both domestic policy and internationallaw. Family reunification is always supposed to be the primary goal under USchild welfare policy. Similarly, the United Nations Convention on the Rights ofthe Child prescribes that children have the right to family reunification and theyshould not be separated from their parents against their will.

The detention anddeportation of immigrants is at its historical peak, and the numbers are onlyincreasing, resulting in more broken families and disenfranchised children.Recently, the Department of Homeland Security (DHS) began reviewingcurrently pending immigration cases to weed out “low priority” cases and scaleback deportations. Undocumented parents of US citizen children should qualifyas low priority cases. If relief from deportation is granted to these parents,families will remain intact, children will not be thrown into a foster caresystem rife with its own problems, and US taxpayers will save substantial sumsof money.

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