Parents have a constitutional right to the care and control of their children and this right is not confined to citizens. Undocumented immigrant parents also have this right, yet many of these parents are losing their children and having their parental rights terminated. On the surface, these separations and terminations are the result of immigration law because families are separated when undocumented parents are placed in detention facilities or deported. However, family separation is not the goal of immigration law and an examination of such cases demonstrates that the permanent removal of children from their undocumented parents is more often the result of state child welfare agencies and family courts than federal immigration law.
United States immigration law assumes immigrant parents will retain custody of their children regardless of the parents' immigration status and therefore considers family separation an unlikely consequence of deportation. According to the Bureau of Immigration Affairs (BIA), when "an alien parent's child is a United States citizen and the child is below the age of discretion, and if the alien parent is deported, it is the parent's decision whether to take the minor child along or to leave the child in this country." In re B & J Minors, 279 Mich. App. 12, 20 n.5 (2008). Immigration authorities take it for granted that immigrant parents will bring their children with them if deported, and parents claiming that deportation will result in a separation from their children are required to present significant evidence of intention to separate. Even then, the BIA has held that "absent proof of extreme hardship to a child if he returns to his parents' native country with them, we will generally consider the decision to leave the child in the United States to be a matter of personal choice." In re Ing, 20 I. & N. Dec 880, 886 (B.I.A. 1996).
Nevertheless, many immigrant parents are losing their children despite immigration law's presumption that deported parents retain custody of their children. In fact, family and juvenile courts and child welfare agencies routinely express the belief that a parent's undocumented status means the parent is, by definition, unfit, without any additional evidence.
In some cases, an undocumented parent can be labeled unfit for simply not speaking English. For example, in an illustrative case from Mississippi, the State Department of Social Services was contacted after an undocumented immigrant mother, Cirila Baltazar Cruz, gave birth to a daughter. The department immediately removed the child, finding the mother's lack of English "placed her unborn child in danger and will place the baby in danger in the future." In a similar case from Tennessee, an immigrant mother had her daughter removed after the child's teacher accused the mother of neglect. The court agreed, finding the mother unfit because she did not speak English and then prohibited contact with the daughter until the mother demonstrated her "commitment to her daughter" by learning to speak English.
There are also many court decisions finding undocumented parents unfit based on little more than their immigration status. For example, in Angelica L.,767 N.W.2d 74 (Neb. 2009), the court found an undocumented mother unfit because she "either A) embarked on an unauthorized trip to the United States with a newborn premature infant or B) gave birth to a premature infant in the United States" after entering the country illegally. Without deciding between the two, the court held that either scenario demonstrated "that [Maria] did not provide the basic level of prenatal and postnatal care." According to the court, good mothers do not illegally cross the border if they are pregnant or if they have a baby and consequently, the court terminated the mother's parental rights.
Courts and agencies also display a stunning lack of sympathy when confronted with the difficulties faced by undocumented parents trying to reunite with their children. For example, In Anita C., 2009 WL 2859068 (Cal. App. Sept. 8, 2009), the court held the fact that certain parenting classes did not exist in Guatemala did not excuse the deported mother's failure to attend such classes. Instead, the court blamed the mother for this situation, stating that by choosing to enter the U.S. illegally and getting deported, "the mother placed herself out of reach of many of the services . . . [the state] could have provided." The court then concluded that the fact the mother's deportation left her unable to comply with the terms of the reunification plan was simply "a sad consequence of illegal immigration." Similarly, in In re Adoption of C.M.B.R., 332 S.W.3d 793 (2011), the court was willing to find that Bail Romero's ICE detention, which forced her to separate from her child, qualified as "abandonment" and thus justified the termination of her parental rights.
As the above examples demonstrate, in cases concerning undocumented parents, courts are frequently abandoning the fitness requirement and replacing it with a standard that permits them to terminate undocumented parents' rights whenever they determine termination to be in the child's best interest. Moreover, as these cases also show, courts and agencies are often inclined to find against the parents simply because they believe life in the United States is preferable. For example, in Angelica L., the state presented evidence to demonstrate that "living in Guatemala would put [the children] at a disadvantage compared to living in the United States." The state contrasted the standard of living in Guatemala with that of the United States, and used this difference as evidence to argue that the children should remain in the United States rather than be reunited with their mother in Guatemala.
These conclusions are a significant departure from the well-established characterization of "fit parent," which is typically defined as providing a minimally adequate amount of care. In undocumented parent cases, courts are skipping this step and instead asking whether these parents meet the difficult and highly subjective standard of being a "good parent" and/or whether it is in the child's best interest to have their parental rights terminated.
"Good parent" is typically defined in relation to dominant cultural norms. According to family law Professor Annette Appell, this currently means "married, white, Christian (preferably Protestant); Anglo, and relatedly, English-speaking; and middle class." "Bad" Mothers and Spanish Speaking Caregivers, 7 Nev. L.J. 759, 771 (2007). Defining "good parent" in relation to such norms can be particularly problematic for immigrant parents because these norms may differ widely from those present in their country of origin. For example, American norms hold that families should be independent and not too reliant on extended family or community members. Professor Naomi Cahn has noted this means that parents, and particularly mothers, are expected "to be primarily responsible for their children." Policing Women: Moral Arguments and the Dilemmas of Criminalization, 49 DePaul L. Rev. 817, 822 (2000). Consequently, shared child rearing, a practice common throughout much of the world can, when practiced in America, put parents at risk of being considered bad.
Also problematic is the fact that some state agencies seem to be deliberately working toward separation of undocumented families. The state's testimony in Angelica L. led to the termination of the mother's parental rights. However, even before trial, the state was making efforts to ensure this outcome, and in undocumented parent cases such obstruction is not uncommon. In Angelica L. the state's obstruction efforts including assigning the Spanish-speaking mother a non-Spanish speaking caseworker, withholding the children's contact information from her, neglecting to provide her with a physical copy of her case plan, and responding to her request for help complying with her case plan, with the statement she would "have to take initiative for that herself."
In other cases, state agencies are not only unhelpful; they are actively aiding termination efforts. For example, the Commissioner of the Alabama DHR purposefully lied about the danger that continued custody by Marta Alonzo, an undocumented immigrant teenage mother, posed to her son, Javier, in order to facilitate the child's removal. According to the Commissioner, the child was neglected and removal "saved his life." Vivi Abrams, Fuller Says DHR Workers Removed Baby, Birmingham News, Oct. 25, 2003. He publicly stated that "[t]here is no question but that he was in imminent danger." However, the child's doctor publicly disputed them, stating that Alonzo was a fit parent who sought medical treatment and never placed her child in danger. Similarly, in the case of Karen Arriga, an undocumented teenage mother whose children were removed based on questionable charges of neglect, the state agency lied not only to terminate her parental rights but also to ensure her deportation. After Arriga's children were taken into protective custody, Arriga was told by members of Family Preservation, a welfare group under contract with the Florida Department of Children and Families, that she should come to their offices for a supervised visit with her children. When she arrived at the facility, ICE officers were waiting to take her into custody. In B and J Minors, the undocumented parents' deportation was also arranged in a similar manner. In that case, the State Department of Human Services (DHS) was ordered to provide reunification services to the undocumented immigrant family. DHS objected to reunification and requested termination. After the court denied this request, DHS reported the parents to ICE officials and the parents were deported. DHS then renewed its petition to terminate their parental rights and, because the court found deportation made reunification unlikely, it granted the termination.
These cases demonstrate that child welfare agencies and family courts frequently believe that immigrant children's best interests are served by terminating their undocumented parent's rights. However, history has shown that beliefs about "good parents," particularly when applied to minority parents, are highly susceptible to bias and often lead to decisions that harm the very children they were intended to protect. For example, beliefs about the inferiority of American Indian culture and families led to the removal of generations of American Indian children in order protect them from the "damaging" influences of their parents and provide them with the benefits of "civilization." The effects of these removals were devastating and many Indian families and tribes and are still recovering from the consequences of these removals decades later.
Similarly, during the late nineteenth and early twentieth centuries, thousands of immigrant children were removed from their immigrant parents, placed on "orphan trains," and sent to the homes of families in the West and Midwest. However, despite the label "orphan," many of these children were not orphans. Mostly, these were children of recent Catholic immigrants who were sent west so they could be adopted by "better" Protestant families. According to the Protestant groups organizing these adoptions, the children's Catholic parents were bad parents and thus, removing their children and sending them across the country to the homes of strangers was in the children's best interest.
The above removal policies were widely supported at the time, but they have now come to be regarded as harmful and racist. Consequently, the fact that similar justifications are being used to support the removal of immigrant children from their undocumented parents is highly concerning. One recent improvement however is the promulgation of new ICE guidelines known as the Parental Interest Directive. The directive was issued in response to the significant public outrage that occurred after a number of highly publicized workplace raids resulted in the separation of nursing immigrant mothers from their infants. The new guidelines seek to help undocumented families and prevent such separations in the future by permitting the monitored release of parent caregivers when possible, placing detained parents in facilities close to their children and by helping detained parents reunite with their children prior to deportation. Such changes are encouraging, but their effects are limited. Courts and state welfare agencies are still facilitating the removal of hundreds, perhaps thousands, of children from their undocumented parents and such practices must end.
Keywords: litigation, children's rights, immigration, deportation, child removal, parental rights, undocumented parents