donate in donate in

learn. play. act.

Breakthrough

Get our emails!

A global organization building a culture of human rights. Visit us

Ring the Bell

One million men. One million promises. End violence against women. Visit Now

America 2049

You change America, before it changes you. Play now

Iced

Immigrant teen vs. immigration system: can anyone win? Visit

Bell Bajao

Ring the bell. Bring domestic violence to a halt. Visit

#Im Here

For Immigrant Women Visit

Iamthisland

Immigrant teens on life in America. Visit

Homeland Guantanamos

Go undercover to find the truth about immigrant detention. Visit

RSS RSS

Delayed justice for Guatemalan mother Encarnacion Bail Romero

Guest blogger: Michelle Brané, Director, Detention and Asylum Program, Women’s Refugee Commission

In 2007, Encarnación Bail Romero, a young woman from Guatemala, was arrested and detained during an immigration raid at the Missouri poultry processing plant where she worked. The fact that Encarnación was a mother with a baby at home did not matter. She was detained without the opportunity to make care arrangements for her son, Carlos—a U.S. citizen—who was just six months old. While in detention, Encarnación was not allowed to participate in her custody case and consequently, her parental rights were terminated. Carlos was adopted by a couple soon after.

This week, the Missouri Supreme Court decided to send Encarnación Bail Romero’s case back to the lower court for yet another hearing. When I heard this, I couldn’t help but welcome the news with mixed feelings. The fact that the court acknowledged that proper procedures were not followed is a relief; however, the court’s failure to reunite a mother and son and delay justice is a travesty. Encarnación’s son has been with his adoptive parents for over two years now, and has come to know them as his only parents. The more time that is spent in this limbo with a mother separated from her child the more harm is done.

I first met Encarnación in 2009, several years after she was arrested during an immigration raid at the poultry processing plant where she worked. Carlos—a U.S. citizen—was just six months old at the time of the raid. When I spoke with Encarnación I was struck most by not only her heartache, but also the incredible strength she has carried in her fight to reunite with her son. As a mother of two young children myself, hearing stories like Encarnación’s makes my heart stop. What would it feel like to not know if my children were safe, to have them think that I did not want them because I was locked in detention and unable to care for them?

Encarnación told me that while she was in detention, Carlos had a series of caretakers. He was first at her brother’s home and then with her sister before being cared for by a local couple who offered to babysit. She was approached and asked to allow her son to be adopted but she refused, asking instead that her son be placed in foster care until she could care for him herself.

Encarnación was then swept up in a series of events that ultimately led to the unjust termination of her parental rights. She was given information about her custody case in English—a language she does not understand. Her lawyer was hired by her son’s future adoptive parents, demonstrating a clear conflict of interest. And, despite Encarnación’s clear desire to be reunited with her son, a court found her to have abandoned him. Her parental rights were terminated, and Carlos was adopted. Encarnación’s case is complicated, involving the failures of multiple systems, but had Encarnación’s right to due process been upheld, none of this would have happened. She would have been able to present her case in court, and Carlos would still be with her.

Perhaps the greatest tragedy in this story is that many other families are suffering this same fate—a fate that could be avoided. Both Immigration and Customs Enforcement (ICE) and family courts have the legal obligation to ensure detainees are able to participate in all aspects of their custody and immigration cases. ICE has the authority to release parents from detention so that they can continue to care for their children while undergoing immigration proceedings. And should the outcome of their immigration case order them deported, mothers and fathers have the right—and must be given the opportunity—to either take their children with them or leave them behind in a safe situation.

Releasing parents from detention does not mean weakening immigration enforcement or letting undocumented migrants go free. Parents in immigration custody have an incentive to appear for their hearings and comply with court orders, simply because they do not want to lose their families. And for those who need some sort of supervision, ICE has access to cost-effective alternatives to traditional immigration detention that can be used to ensure parents appear at custody proceedings. It is critical that these alternatives be used in order to protect children from becoming unnecessary collateral damage.

Five million children in the United States have at least one undocumented parent and three million of these children are U.S. citizens. ICE’s failure to utilize these options has the potential to create a generation of lost children who are needlessly denied a relationship with their detained or deported parents. These children are far more likely to live in poverty, struggle in school and face unemployment and homelessness.

The court in Encarnación’s case has recognized the damage done by failing to uphold the 14th amendment, the constitutional right that ensures all persons—including undocumented immigrants—are entitled to due process and equal protection under the law. Encarnación’s case has shown that where due process rights are denied, families suffer. As a nation that prides itself on valuing the sanctity of family unity, we must uphold our commitment to the bond between parent and child, regardless of immigration status.

Are children of immigrants becoming needless statistics in the child welfare system?

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.