When Immigration Detention Means Losing Your Kids

Originally published on December 8, 2017 11:21 am

About five million children in the United States have an undocumented parent. These families have always been at risk of separation if the parents are detained, but expanded immigration enforcement actions under the Trump administration may increase that risk.

Immigration attorneys are warning that without preventative measures, more children will end up in foster care, and their parents will struggle to regain custody from outside the United States. They point to cases like that of a Guatemalan woman named Maria Luis, who was separated from her children back in 2005.

Federal immigration agents picked up the young mother, who was living in the country illegally in Grand Island, Nebraska. She was detained for about a month, separated from her 7-year-old son and infant daughter. She thought the children would rejoin her on the flight to her native Guatemala, right up until an immigration agent escorted her to her gate.

"There was no Angie, no Daniel," she recalls. She says the officer told her, "your children are going to stay with the state. Your children aren't going to Guatemala."

Boarding the plane that would take her thousands of miles away from them, Luis says, "I wanted to kill myself. I wanted to die."

In the absence of a legally documented guardianship plan, children of detained parents can be handed over to the foster system. To get them back, parents must navigate a complex bureaucracy, often in a second language, while living in an immigration detention facility, or even another country.

"For any parent who has been deported and leaves children behind in the United States, it's obviously really difficult to put that family back together," explains Emily Butera, an expert on policies affecting immigrant families at the Women's Refugee Commission.

A limited number of children may be detained with their parents. But many are not, either at immigration agents' discretion or because they are U.S. citizens.

If undocumented parents have not designated a suitable legal guardian, their children may be placed into foster care. Local child protection systems can enforce a range of requirements to regain custody, from a home study to holding a steady job or even psychological testing.

"That's something that's very difficult for a parent to do in the U.S. living in the community, let alone for a parent to do who's in detention, let alone for a parent to do who's been deported," says Butera.

Back when Maria Luis' case got national attention, this was a big problem. According to one study in 2011, an estimated 5,000 children whose parents had been deported were in foster care. That included some who had entered custody before their parent's immigration detention.

Under intense criticism that some parental rights had been terminated because of detention or deportations, the Obama administration made a number of policy changes. It implemented new rules to make sure parents' interests were taken into account during immigration proceedings, and it focused deportation efforts on immigrants who committed crimes in the U.S., releasing many detained parents back to their communities.

After President Trump took office, he expanded the immigration dragnet to include anyone in the country illegally. Butera says the expansion "is likely to result in more children being placed into child welfare care and, as a result, more parents losing their parental rights."

Her organization and others have been urging parents in the United States to prepare documents designating guardianship of their children in case of their own arrest.

Immigration and Customs Enforcement told NPR it is "committed to ensuring that the agency's immigration enforcement activities...do not unnecessarily disrupt parental rights." But the Trump administration stands by its overall immigration crackdown, saying it is merely enforcing the law.

When Maria Luis was detained in 2005, she hadn't designated a legal guardian for her two children. In her quest to get them back, she faced questions about her parenting, and had to prove to the state of Nebraska that she could provide a stable home in her remote, impoverished town in Guatemala.

A team of pro bono attorneys fought her case all the way to the Nebraska Supreme Court. She describes the first time she saw her children in five years, when she was allowed to return to the United States for a hearing.

"Daniel knew me but Angie didn't. I said to her 'I'm your mother," Luis says.

"No, you're not my mother," her daughter replied.

"That hurt me a lot," she remembers, "because I had fought and fought and cried for so many years."

Luis eventually won her case, overcoming arguments from state foster care officials that her children would have better lives in the U.S.

She says her children have done well in Guatemala in the years since they returned together, but they miss the United States a lot. She does too.

Angie lacks documentation that she was born in the U.S. Daniel has proof of citizenship and would like to return, but he doesn't want to leave his mother behind.

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RACHEL MARTIN, HOST:

About 5 million children in the U.S. have a parent who is in this country illegally. These families have always been at risk of being separated if the parents are detained, but that risk has been heightened as the Trump administration cracks down on illegal immigration. Emma Jacobs reports that immigration attorneys are now warning that more children could end up in foster care.

EMMA JACOBS, BYLINE: Maria Luis and her family were separated back in 2005. Federal immigration agents in Grand Island, Neb., picked up the young mother who was in the country illegally. She was detained about a month apart from her two children. She thought they would rejoin her on her flight to her native Guatemala right up until an immigration agent escorted her to the gate.

MARIA LUIS: (Speaking Spanish).

JACOBS: Maria says her daughter Angie and son Daniel weren't there.

LUIS: (Speaking Spanish).

JACOBS: She says the officer told her that her children were going to stay with the state. They weren't going to Guatemala. On the plane that would take her thousands of miles away from them, Maria says she thought she wanted to kill herself. She wanted to die.

LUIS: (Speaking Spanish).

JACOBS: This is the worst case scenario an undocumented parent can face. At the same time you're being deported, you lose custody of your children to foster care and have to navigate a complex system in a second language from another country to get them back.

Immigration attorneys warn parents about this. They advise them to have a clear legally documented plan for the care of their kids in case they're detained or deported. Emily Butera is an expert on the rights of immigrant families. She works for the Women's Refugee Commission.

EMILY BUTERA: But for any parent who is deported and who leaves children behind in the United States, it's obviously really difficult to put that family back together.

JACOBS: Some children are detained with their parents, but some aren't. For instance, immigration agents typically don't detain children who were born here because they're U.S. citizens. If children of undocumented parents don't have a suitable legal guardian, they are placed into foster care. And their parents must go to court and meet many requirements to regain custody, like a home study or psychological testing.

BUTERA: And that's something that's very difficult for a parent to do in the United States living in the community, let alone for a parent to do who's in detention, let alone for a parent to do who's been deported.

JACOBS: Back when Maria Luis' case got national attention, this was a big problem. An estimated 5,000 children were in foster care whose parents had been deported, according to one study in 2011. Under intense criticism, the Obama administration made some changes. It implemented new rules to make sure parents' interests were taken into account during immigration proceedings. And it targeted immigrants who committed crimes in the U.S. So fewer parents were detained. Then Trump took office and targeted anyone in the country illegally. Here's Emily Butera again.

BUTERA: We are in a particularly precipitous situation now with this vast expansion of immigration enforcement that's likely to result in more children being placed into child welfare care and, as a result, more parents losing their parental rights.

JACOBS: Immigration and Customs Enforcement told NPR it is, quote, "committed to ensuring that the agency's immigration enforcement activities do not unnecessarily disrupt parental rights," unquote. But the Trump administration stands by its crackdown, saying it is merely enforcing the law.

Maria Luis hadn't designated a legal guardian for her two children when she was detained a decade ago. She faced questions about her parenting and had to prove she could provide a stable home in her remote poverty-stricken town in Guatemala. A team of pro bono attorneys fought her case all the way to the Nebraska Supreme Court. She recalls the first time she saw her children in five years when she was allowed to return for a hearing.

LUIS: (Speaking Spanish).

JACOBS: Maria says Daniel knew her, but Angie didn't and told her she wasn't her mother. Maria says that hurt a lot because she had fought and fought and cried for so many years. Maria eventually won her case, overcoming arguments from state foster care officials that her children would have better lives in the U.S.

ANGIE: Hello?

JACOBS: When I reached the family in Guatemala last month, it was Angie who answered the phone.

ANGIE: I'm her daughter. Yes, she's here.

JACOBS: Maria says her children are doing well, apart from the normal teenage issues.

LUIS: (Speaking Spanish).

JACOBS: She says her children miss the United States a lot. While Angie lacks documentation that she was born in the U.S., Daniel has proof of citizenship and could return. But he doesn't want to leave his mother behind.

For NPR News, I'm Emma Jacobs.

(SOUNDBITE OF THE BLAZE'S "PRELUDE") Transcript provided by NPR, Copyright NPR.