In cases involving undocumented parents and U.S. citizen-children, the child welfare system often has little power to ensure family preservation. Despite family preservation being one of child welfare’s primary goals when parents are detained and/or deported by the U.S. Customs and Immigration Enforcement Agency (ICE), protective child welfare policy has a tendency to backfire causing havoc on thousands of mix-status families.
Unlike other forms of child protective removal, undocumented parents need not present any previous risk to their child’s safety; removal can be entirely warranted by the parents’ forced detainment and deportation. According to a national study by Race Forward, once a citizen-children of an undocumented parent enters the child welfare system, the parents are at higher risk for termination of parental rights because detainment and deportation significantly impairs their ability to participate in child welfare planning and custody hearings. The citizen-children of undocumented parents are also more likely to be placed in foster care with strangers or in institutions compared to other children as potential kinship-care candidates are less likely to be U.S. citizens.
In 2011, the United States was home to over 5,821,000 citizen-children with undocumented parents. Over the same time that the general rate of deportation has doubled, the rate of deporting parents with US citizen children has quadrupled. In 2011, about 22 percent of deportations were parents with citizen children compared to 8 percent between 1998 and 2008. According to Race Forward’s ,“conservative estimates” there are currently at least 5,100 children living in foster care because their parents have either been detained or deported. This number is estimated to rise to at least 15,000 in the next five years given the increasing rate of deportation in the U.S.
This unique intersection of child welfare and immigration policy represents a fundamental failure to realize the goals of both the child welfare system and the immigration enforcement system and is an affront to the American value of family.
On August 23 2013, ICE released a new set of policy directives entitled, “Facilitating Parental Interests in the Course of Civil Immigration Enforcement Activities.” This directive is the first national attempt to address the growing social problem of separated mixed-status families and its implications have the potential to be very beneficial. However, unless social workers and child welfare professionals are made aware of these new requirements (and hold ICE accountable to them), this directive may only have a small impact.
Below is a a brief overview of the policy directive and other critical policies affecting parents in the immigration system and child welfare system. Following this breakdown is another quick overview of the issues that remain unaddressed and will continue to plague mixed status families who at risk for losing their children due to their entanglement with the immigration and child welfare system.
Key Current Policies
- The primary ICE personnel for assisting in child welfare cases are called “Field POCs (Points of Contact) for Parental Rights.” Filed POCs must respond to and investigate complaints about parental-interest matters and complaints may be submitted by any concerned party. Each local Enforcement and Removal Operations Field Office must have at-least one Field POC for Parental Rights and information about contacting these individuals in available online and should be posted in all detention facilities
- When a detainee is identified as a parent, this information must be reported to the ICE database known as ENFORCE. ICE is not responsible for relaying this information to child welfare administrations.
- Prosecutorial discretion in immigration hearings is permitted in cases involving parents with citizen children. This includes the ability to release parents into the community under supervision while they await trial, the ability to expedite a case, or throw the case out on humanitarian grounds.
- Field Directors must attempt to place parents close to their children or family court jurisdiction and must attempt to limit transfers away from these locations
- Detention facilities must allow parents to attend child welfare proceedings either in person or by video/phone conferencing
- If court-ordered, children are allowed to visit their parents in detention facilities
- Parents with citizen-children must be given advanced warning of their scheduled deportation and must be provided assistance in making arrangements for their children
- ICE can approve a parent’s re-entry into the US for the sole purpose of attending their child’s custody hearing. This is determined on a case-by-case basis and parents must pay for all travel arrangements
- Undocumented citizens are allowed to be kinship care parents in certain jurisdictions
What Policy Does Not Address
- Most child welfare agencies have no formal policy for communicating with detention centers and ICE in general and handle cases with detained/deported parents on an ad-hock basis
- Upon apprehension, ICE officials rely on local law enforcement policy which often does not allow parents to make arrangements for their children at the time of their arrest and requires protective services to be called
- Potential foster care candidate who are undocumented citizens often do not come forward out of fear of deportation despite eligibility in certain jurisdictions
- Very few services are available for people while in detainment and almost none of the services often required to regain custody of a child, outside child visitation, are available
- Despite authority to use prosecutorial discretion, this privilege is seldom granted for parents
- Foreign consulates can be very helpful in keeping mixed status families together, yet no formal policy addresses engagement and communication between consulates and child welfare
ICE’s new policy directive is a long-awaited step in the right direction for mixed-status families. Yet, Emily Butera of the Women’s Refugee Center’s explains in her blog, child welfare advocates support the directive with “cautious optimism.”
The directive will provide relief for thousands of mother and fathers who face separation due to their entanglement with immigration and child welfare systems. This policy enables parents to fight for their rights while in detention centers and after deportation by allowing them the opportunity to comply with child welfare case planning. It increases accountability and service coordination by designating field personnel and directors to oversee the facilitation of parental rights. At its core, this policy reduces the due process violations experienced by detained and deported parents and better reflects American’s values about family unity and wellbeing.
Despite these gains, the ICE policy directive has not resolved a number of key challenges undocumented parents face in the immigration and child welfare system. Most importantly, parents with citizen children will be at a similar risk for detainment and deportation as they were before the policy. In addition, their children will also be at the same risk for entering the child welfare system, as ICE officials will still deny parents the opportunity to make informal childcare arrangement. This unaddressed challenge will continue to unnecessarily place children at risk for foster care entry and termination of parental rights.
In closing, while it may seem easy to demonize the US Customs and Immigration System, it is important to recognize they ICE is the only federal administration to formally address the challenges faced by mixed status families in the immigration and child welfare system. So far, no policy action has been taken by the Administration for Children and Families. It will not be possible to effectively respond to this issue unless both systems are at the table and communicating with each other.
Key Studies & Reports
ICE Parental Interests Initiative
Frequently Asked Questions about the Parental Rights Directive
Race Forward’s “Shattered Families” Report (2011)
The Southwest Institute for Research on Women’s “Disappearing Parents” Study (2011)
The Women’s Refugee Commission’s “Torn Apart by Immigration Enforcement” Report (2010)
Sentencing Project and First Focus’s “Family Unity in the Face of Immigration Enforcement” Article (2013)
The Immigration Policy Center’s 2012 “Falling Through the Cracks” memorandum (2012)