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Mother Loses Battle for Custody of Her Son

Posted: Jul 24, 2012

In a legal battle that has focused national attention on the urgent need for immigration reform, a Missouri judge ruled last week against Encarnación Bail Romero, whose U.S.-born son Carlos was adopted by an American couple against her wishes. Carlos was an infant when his mother, a young woman from Guatemala, was arrested during an immigration raid in May 2007 at the poultry processing plant where she worked. Now almost six years old, he has been living with his adoptive parents, who renamed him Jamison, for most of his life. While Ms. Bail Romero’s lawyer has indicated that they will appeal Judge David Jones's decision, this case serves as yet another reminder of daily threats to family unity that our immigration and child welfare laws create.

Over the past four years, I have visited immigration detention facilities across the country and have met dozens of immigrant parents. Almost all of them have talked to me about what it is like to be separated from their children, and many have told me that they are afraid they will never see their children again. Parents who are apprehended on immigration grounds are rarely given an opportunity to make care arrangements for their children. As a result, some parents do not know where their children are. Others worry that their children were left with their abusive partner, or are living with a relative or friend who does not have the resources to provide for them in the long term. For too many, the inability to make appropriate care arrangements leads to their children being placed in the care of the child welfare system. In each of these situations, there is significant risk that the outcome could look a lot like that in Ms. Bail Romero’s case.

One of the most striking patterns I have observed during my visits is that detainees without children primarily ask me to advocate for improvements to the terrible and inadequate conditions of their confinement. But in interviews of detainees with children, what they ask is very different; they ask for help to ensure that they will be able to see their children again. As Ms. Bail Romero’s repeated pleas that she be reunited with her son demonstrate, a parent’s love for her children does not depend on immigration status. All parents have a right to custody of their children that cannot be taken away without meaningful due process, and we owe it to every parent – U.S. citizen or not – to ensure that the system works to protect that right.

Unfortunately, cases like Ms. Bail Romero’s tragically illustrate the fundamental gaps in the immigration and child welfare systems that make it all but impossible for parents in immigration detention to participate in proceedings affecting custody of their children. Parents can be detained for weeks or months without knowing what has become of their children. In some cases, they lose permanent custody of their children because they are unaware of or unable to participate in child welfare processes and attend family court proceedings while they are in detention or after they have been deported. In other cases, parents are deported without seeing their children or being able to arrange for their care.

No standardized procedures are in place to ensure that all parents and caretakers of minor children are considered for release or alternatives to detention, although the immigrant rights community has been waiting for several years for a classification process that would encourage Immigration and Customs Enforcement (ICE) to make custody decisions based on humanitarian factors, such as being the parent of a minor child in the United States. In addition, parents are not guaranteed a phone call at the time of apprehension to make child care arrangements, and ICE officers lack sufficient training to assess the potential impact of a parent's apprehension on children's safety and parental rights. These inadequacies are complicated by the fact that immigration judges currently have no discretion to consider the impact of a parent's deportation on his or her children.

Thousands of foreign-born parents of U.S. citizen children are separated from their children and risk losing permanent custody. In the first six months of 2011 alone, more than 46,000 parents of U.S. citizen children were removed from the United States. Five and a half million children in this country have at least one undocumented parent and 4.5 million of these children are U.S. citizens. These numbers are only expected to grow in the years to come. We can no longer afford to ignore the reality of mixed status families. The social and economic costs of breaking these families apart are significant, but the solution exists: smart immigration reform that provides a path to permanency for those in the United States and greater opportunities for lawful immigration – and family unity – in the future.

Until we reform both immigration law and child welfare practices to eliminate impediments to parental rights and family unity, cases like Ms. Bail Romero's will continue to plague the justice system and families will continue to be torn apart.

Emily Butera is senior program officer of the detention and asylum program at Women's Refugee Commission.

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