Guest Blogger: Emily Butera from the Women’s Refugee Commission
What if I told you you could permanently lose custody of your child because you are undocumented? Or because you do not understand English? Or you are unable to communicate with the child welfare system and family court from immigration detention? What if I told you you might have to leave your child behind if you are deported because you may not have time to get the child a passport or will not be able to coordinate the flight arrangements? You might tell me that these kinds of things do not happen in the United States. Sadly, you would be wrong.
With immigration enforcement increasing, my inbox has been flooded with stories such as Encarnación Bail Romero’s. Encarnación is a Missouri mother whose son was adopted by total strangers – against her will, without her consent and despite her efforts to oppose the adoption – while she was in custody following a raid on her Missouri worksite. Encarnación was not adequately represented in family court, and was unable to read the court documents notifying her of the pending adoption and her right to appeal because they were in English, a language she does not speak. She is now fighting to regain custody of her son. However, she is scheduled for deportation to Guatemala in February and her attorneys do not know whether they will win her case – or win it in time.
Almost everyone who contacts my organization, the Women’s Refugee Commission, with a story of separation asks for help finding a family law attorney for the parent or for guidance on helping detained parents communicate with the child welfare system. Unfortunately, the assistance we can offer them is limited, and there are no easy answers.
Immigration law and family law intersect in a capricious manner. Family courts and the child welfare system have a responsibility to reunite a child with his parents whenever possible. However, family courts do not always look favorably on reunification in cases where a parent is detained or likely to be deported. The situation is further complicated by the tremendous difficulty child welfare workers and family courts have in locating detained parents, and the significant challenges parents face in complying with family reunification plans and participating in family court proceedings from detention.
In some cases, like Encarnación’s, judges base termination decisions on the fact that the mother does not have legal status and may be deported. In others, child welfare workers oppose family reunification because they think that a U.S. citizen child should not live in another country. Certainly, in cases where there is evidence of abandonment, abuse or neglect the child welfare system and family courts have an obligation to protect children. But in so many of these cases the parent’s only fault was being in the wrong place, with the wrong nationality, at the wrong time.
Because it is difficult to gather accurate data about the undocumented population it is impossible to know how many children have already been affected. What we do know is that hundreds of thousands of children may be impacted by their parents’ apprehension and that there is no effective or enforceable policy for preventing it.
When Encarnación told her story during a briefing in the House of Representatives last week you could have heard a pin drop. A number of attendees listened with tears in their eyes. Stories like Encarnación’s turn the numbers into faces for a moment, and I hope that Encarnación’s visit to Washington will help her reunite with her son. But action on an individual case is not enough. We need enforceable, nationwide screening protocols, with a statutory preference for release of parents and caregivers, to increase the likelihood that women like Encarnación can care for their children throughout their immigration proceedings and can make the best decision for their family if they are ordered removed. We also need to ensure that when parents must be detained they can remain in communication with their children, can comply with reunification plans, and can participate fully in their custody case.
The U.S. government has an obligation to enforce immigration law, but it also has a responsibility to protect parents’ fundamental right to custody of their children. The preservation of family unity is a legal and moral duty, but it is also smart social policy. As we go about immigration enforcement we must ensure that the children of immigrants do not become another needless statistic in the child welfare system.
Photo courtesy of the New York Times.