US President Donald Trump signed an executive order on June 20 purporting to end immigrant family separations at US border with Mexico. Four days later, the departments of Homeland Security and Health and Human Services announced a plan to reunite approximately 2,000 children who were taken from their parents at the border between April and the time the executive order was signed.
Immigration advocates have noted many shortcomings with the executive order. They also emphasize the logistical difficulties parents are experiencing as they try to locate and contact their children. Sadly, these hurdles are only the tip of the iceberg. One thing few people currently realize is many of these families will most likely never be reunited. The policies the Trump administration is enforcing, especially after the new executive order, are for the most part similar to those first enacted under President Obama.
In 2014, during a surge in illegal border crossings, the Obama administration attempted to detain hundreds of families indefinitely – until the practice was legally challenged and stopped. This is essentially the same policy the Trump administration has adopted under the executive order. Even before the 2014 surge, the Obama administration increased efforts to detain and deport undocumented immigrants within the US, resulting in numerous family separations. It is reasonable to expect that the eventual outcomes of today’s separations will mirror these earlier ones.
The biggest issue is how family law views detained undocumented parents. When immigrant children are separated from their parents, they enter two different legal tracks. The parents will likely remain in detention centers until their cases are heard by immigration judges. Most will face immediate deportation. The Health and Human Services’ plan states parents will be reunited with their children before deportations, but this seems highly unlikely.
Hundreds of these children have already been sent to state foster care facilities where they have become wards of the state. Their care and custody decisions will be handled first by state welfare agencies and then by a state court. Reunification becomes less likely as the length of separation increases. Immigrant parents have the same legal right to the care and custody of their children as American citizens. State courts and welfare agencies have frequently concluded that a parent’s undocumented status and their willingness to cross the border illegally was proof enough of parental unfitness that could justify the termination of parental rights. In addition, courts have often demonstrated little sympathy for the fact that detention and deportation can make a parent’s efforts for reunification extremely difficult.
For deported parents seeking reunification with their children, the prohibition on re-entry can be a major hurdle. It means parents cannot enter the US to contest the termination of their parental rights. If parents do attempt re-entry after deportation they risk arrest, which further hampers their efforts to be reunited with their kids. Moreover, courts have repeatedly confirmed that an undocumented immigrant’s motivations for illegal re-entry are irrelevant.
Deported parents are rarely able to return to the US to seek reunification, and this has allowed courts to treat deportation as abandonment. A final issue that may affect undocumented immigrant parents’ ability to reunite concerns the efforts of third parties to gain custody of the removed children. The longer the children remain in foster care, the more likely it is that attachments will grow. Many of these families will seek to adopt these children.
It’s not clear whether today’s separated families will have the same difficulties regaining custody previous immigrant families faced, but it appears likely. In fact, given the current anti-immigrant sentiment, the hurdles these immigrant parents may encounter will be significantly greater.
Article by Marcia Zug, Professor of Family Law, University of South Carolina.