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April 23, 2018 Practice Points

Updated ICE Policy on the Detention and Removal of Alien Parents or Legal Guardians

By Jessalyn Schwartz

In August 2017, US Immigration and Customs Enforcement (ICE) issued a new policy to replace the 2013 directive regarding their facilitation of parental interests and the 2007 policy on juveniles encountered during their operations. The new procedures govern the detention and removal of individuals who have a direct interest in family or child welfare court proceedings, including creation/modification of parenting plans, child custody matters, visitation, support, distribution of property, or other legal circumstances related to their parental rights. ICE is to be aware of the impact of their decisions and enforcement on the minor children who are law permanent residents or U.S. citizens, but this policy does not limit the authority to make individual enforcement determinations depending on the situation at hand.

The policy requires an Enforcement and Removal Operations Executive Associate Director to ensure compliance, as well as to designate a specific Child Welfare Coordinator. This Coordinator is the primary contact and subject matter expert for all ICE personnel in regards to child welfare issues for detained persons. They are required to evaluate information collected by ICE regarding the detained parents or guardians and disseminate it to field staff. They provide guidance on appropriate enforcement of the policy, in regard to placements, transfers, court attendance, visitation, and other areas, to Field Office Directors (FODs) and the requisite designee of that director, known as the Field Point of Contact (POC). The Child Welfare Coordinator is additionally responsible for handling complaints on child welfare issues received by ICE and coordinating with the necessary ICE, child welfare, judicial or consular personnel. The POCs are charged with the management of all public inquiries related to familial ties of detained parents and guardians and with communicating regularly with the Child Welfare Coordinator and completing all mandated trainings.

The new procedures encompass a) the handling of minor children encountered during enforcement actions; b) the detention and transfer of detained parents and guardians; c) participation by detained parents and guardians in court proceedings; d) visitation between parents/guardians and their children; and e) care and travel of children pending removal of the parent. Practitioners must note that much of this guidance includes the caveat that it must be followed when practicable, feasible, or only upon request, and zealous advocacy is necessary to ensure compliance. The policies, as aforementioned, are as follows:

  • Minor Children Encountered During Enforcement Actions: ICE should not assume custody of or transport a minor who is a U.S. citizen or lawful permanent resident, or is not otherwise removable from the U.S. If there are no signs of abuse or neglect, ICE is to accommodate the efforts of parents or guardians to make alternative arrangements for these children and to document the request for transfer of custody to a viable third party. If there is no viable third party option or if there are indications of abuse or neglect, the local child welfare and/or law enforcement agency should be contacted. All information should be entered into the ICE system.
  • Detention and Transfer of Detained Parents and Guardians: If the children or the ongoing relevant court proceedings are taking place within the area of responsibility of where the parents were initially apprehended, ICE must not place the parent/guardian outside of that area unless it is required by other ICE policy or is "operationally necessary."
  • Participation in Family Court or Child Welfare Proceedings: The FOD must arrange for an in-person appearance for a parent/guardian at court proceedings when required to regain custody AND when there has been a request to appear with reasonable notice with provided documentation evidencing the hearing by the parent/guardian or their counsel/representative. Other requirements include that the proceeding must be located in a reasonable driving distance from the detention facility and that transportation and escort of the parent/guardian is not unduly burdensome or present safety or security risks. If transportation is not possible, accommodations are to be made by phone or video conferencing from the detention facility or field office, if allowed by the court. The parent/guardian is the party responsible for obtaining this allowance. If the parent/guardian does not want to attend or participate, ICE is not to interfere with this decision, but must document the choice. All actions taken in relation to participation are to be documented.
  • Visitation: ICE must facilitate regular (with an implication that this means monthly) visitation between the parent and children. Note: The following visitation requirements are only "upon request." If minors are not allowed in the detention facility, the FOD must arrange visits within 30 days and consider a transfer to a different facility where visits will be possible in the future. If the transfer is denied or takes time the FOD must continue the monthly visits. If the court or child welfare agency has made an order for visitation in order for the parent to regain custody, documentation of this requirement must be provided and the FODs must facilitate the required visitation, including contact visits. These visits are not to impede on the safety and security of the facility or the normal visitation rights of the parent under this policy. Finally, if in-person visits are not possible, phone or video conferencing should be provided with approval of the court or child welfare agency, if needed. All visitation shall be documented by ICE personnel in the appropriate system.
  •  Care and Travel of Minor Children Pending Removal of Parent: If parents or guardians maintaining their parental rights are subject to a final order of removal, FODs or POCs should accommodate their efforts to make arrangements for their children (such as effectuating a guardianship or arranging travel to the country of origin). This includes coordinating access to counsel, consulates, courts, family members, and travel agencies. ICE may provide the removal itinerary for the parent in advance to the parent or their representative to assist in planning, if there are no concerns regarding security.

Records related to court documentation, visitation, and family law case files will be retained for a period of 100 years and then transferred to the National Archives as required under the ICE A-File records schedule. Information regarding minor children interactions, family court or child welfare proceedings will be kept for 75 years under DHS records schedule. ICE has compiled a useful Fact Sheet summarizing these policies and procedures and the Women's Refugee Commission has generated an extensive FAQ page to assist practitioners and other collaterals in supporting detained parents/guardians and impacted minor children.

Jessalyn Schwartz is an attorney in Boston, MA, focusing on child welfare and mental health law.

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