Women’s Refugee Commission
Research. Rethink. Resolve.

Torn Apart by Immigration Enforcement:
Parental Rights and Immigration Detention

December 2010

Research. Rethink. Resolve.
Since 1989, the Women’s Refugee Commission has advocated vigorously for policies and programs to
improve the lives of refugee and displaced women, children and young people, including those seeking
asylum—bringing about lasting, measurable change.
The Women’s Refugee Commission is legally part of the International Rescue Committee (IRC), a nonprofit 501(c)(3) organization, but does not receive direct financial support from the IRC.

Acknowledgments
This report was written by Emily Butera, with research, editing and drafting support from a team of
individuals from the Women’s Refugee Commission and the law firm of Steptoe & Johnson, LLP. Content,
research and editing review was conducted by Michelle Brané and Katharina Obser. Thanks to Women’s
Refugee Commission interns Lauren Groth, Jessica Jones and Carly Stadum for assistance with research
and drafting of the Due Process and International Human Rights Law Appendices. A special thank you
to George Grandison, partner at Steptoe and Johnson, LLP, for his extensive pro bono support, research
and guidance. Designed and edited by Diana Quick.
The Women’s Refugee Commission wishes to acknowledge the contributions of various pro bono
attorneys and NGOs who shared their clients stories with us and assisted us with access to interview
detainees.
Above all, we thank the courageous families who shared their stories with us.
The Women’s Refugee Commission is grateful for the support of the Oak Foundation, the Moriah Fund
and the Herb Block Foundation.
© 2010 Women’s Refugee Commission
ISBN:1-58030-088-X

Women’s Refugee Commission
122 East 42nd Street
New York, NY 10168-1289
212.551.3115
info@wrcommission.org
womensrefugeecommission.org

Women’s Refugee Commission

Contents
Definitions............................................................................................................................... i
Executive Summary ............................................................................................................. 1
Key Findings ................................................................................................................... 2
Key Recommendations ................................................................................................ 3
Introduction and Background: Parental Rights and Immigration Enforcement ..... 4
Scope of this report ....................................................................................................... 5
How Are Parental Rights Challenged by Immigration Enforcement,
Detention and Deportation: A Hypothetical .................................................................. 5
Why Are Challenges to Family Unity and Parental Rights Occurring? . ................. 6
Lack of appropriate guidelines .................................................................................... 6
Lack of effective screening and phone calls.............................................................. 7
Problems arising from limited communication and
frequent transfers . .......................................................................................................... 8
A note about detention reform and the detention of parents ............................... 9
How Does Detention Compromise Parental Rights? ................................................. 10
A note about the detention standards ....................................................................... 11
How does deportation impact parental rights and family unity? .............................. 12
Conclusion ............................................................................................................................ 13
Recommendations ................................................................................................ ............ 14
Notes....................................................................................................................................... 18
Appendices ........................................................................................................................... 21
Appendix A: How Children Move Through the Child Welfare System ............. 21
Appendix B: Legal Rights of Detained Immigrant Parents.................................... 22
Appendix C: International Law on Family Separation and Parental Rights ...... 24

i

Definitions
Caregiver: An individual who provides regular financial, physical and other direct support to children, the
elderly, the physically or mentally disabled, or any other category of dependent person.
Caretaker: An individual who is temporarily designated by a custodial parent, legal guardian or caregiver to
provide financial, physical and other direct support to a child or dependent.*
Child: As defined in Section 101(b)(1) of the Immigration and Nationality Act (8 U.S.C. 1101(b)(1))), a child
is typically considered to be unmarried and under 21 years of age.
Dependency Action: The legal proceedings governing the adjudication of child abuse and neglect cases.
These actions may include trials to determine whether the child was abused or neglected, removals of the
child from his or her home into foster care, extensions of foster placement, terminations of parental rights and
other related proceedings until the child has achieved permanency or aged out of care.
Dependent: An individual whose support and maintenance is contingent upon the assistance of another.
Typical dependents include children and individuals who are seriously ill or disabled.
Detention: Government custody or any other deprivation of the freedom of movement of an individual by
government agents in the context of immigration-related enforcement activity.
Immigration Enforcement Action: The apprehension of, detention of, request for or issuance of a detainer
for an individual(s) for suspected or confirmed violations under the Immigrant and Nationality Act by the
Department of Homeland Security or a cooperating entity/surrogate.
NGO: An independent, nongovernmental organization that provides social services or humanitarian assistance
to the immigrant community.

* Note that the definitions for caregiver and caretaker used in this report are not derived from any statutory definition for these terms.
We use them simply to distinguish between a person other than a parent or legal guardian who provides regular care for a child or
dependent and a person who becomes a temporary caretaker for a child or dependent after their parent, legal guardian or caregiver
is detained or deported.

1

Executive Summary
Joanna is an attorney who regularly visits men and
women in immigration detention to assess conditions
and immigration relief options. Maria1 is one of the
women she visited. When Joanna sat with Maria to
begin her interview, Maria handed her a document and
asked her to tell her what it said. The document was
written in English, which Maria did not speak. When
Joanna took a closer look she realized that the document was a letter from a family court informing Maria
that her parental rights had been terminated while she
was in immigration detention. Maria had not even been
aware that a termination process had been initiated.
Approximately 5.5 million children in the United States
live with at least one undocumented parent.2 Three
million of them are U.S. citizens.3 These children are
uniquely situated in relation to federal immigration law
because immigration enforcement activities against
their parents can have a particularly dramatic and disproportionate effect on them. According to a report by
the Department of Homeland Security, Office of the
Inspector General, more than 108,000 alien parents
of U.S. citizen children were removed from the United
States between 1998 and 2007.4 Deportation forces
countless parents to make heart-wrenching decisions
about what to do with their children. For some families,
however, there is no choice to be made. Immigration
apprehension, detention and deportation can trigger a
complex series of events that undermine parents’ ability to make decisions about their children’s care, complicate family reunification and can—in some circumstances—lead to the termination of parental rights.
With the exception of parents5 apprehended in large
worksite enforcement operations, few parents benefit
from time-of-apprehension protocols designed to minimize adverse consequences of detention and deportation on children. There is no guarantee that apprehended parents can make a phone call within a reasonable
time of apprehension in order to make care arrangements for children. While Immigration and Customs

Enforcement (ICE) makes efforts to identify and release parents apprehended in large worksite raids, the
majority of parents are not subject to any humanitarian
protections and immigration officers struggle with how
to handle apprehensions where children will be impacted. Many parents are transferred from the area in
which they are apprehended to an immigration detention center without knowing what care arrangements
have been made for their children and without knowing
how to remain in contact with their children. For these
parents, it can be difficult, if not impossible, to locate
and reunite with their children at the conclusion of their
immigration case.
The legal systems governing immigration law and family
and child welfare law are not well calibrated. The awkward intersection of these two disciplines can create
challenges to parental rights and family unity, violations
of due process, significant trauma for children and undue burden for our social services system. Yet adverse
effects that arise at the crossroads of the two systems
could be reduced or avoided through policies and procedures that are not inconsistent with the enforcement
of existing immigration or child welfare laws.
Since the Women’s Refugee Commission began focusing on this issue in 2007, we have found that challenges to parental rights are becoming more frequent
as immigration enforcement expands.6 Our interviews
with detained parents continue to reveal cases in which
parents are unable to locate or communicate with their
children, unable to participate in reunification plans and
family court proceedings, and unable to make arrangements to take their children with them when they leave
the country. With the increased participation of states
and localities in immigration enforcement programs like
Secure Communities7 and the expansion of this program nationwide by 2013 we can expect the number of
parents who are apprehended and deported to remain
stable or increase. Unless ICE takes step to reduce the
unnecessary detention of parents, to ensure that detained parents can take steps to protect their parental
rights and to facilitate the ability of parents facing deportation to make decisions in the best interest of their

2

children challenges to parental rights will remain a very
real problem for children, families and society.

Key Findings
Challenges at the time of apprehension
The release of parents, whether on their own
recognizance or into an alternatives to detention
program, is the most economical and effective means of
keeping families together. However, ICE has extremely
limited time-of-apprehension protocols to identify
parents and prioritize them for release. In the absence
of clear and consistent guidance from headquarters,
the decision whether or not to detain a parent is ad
hoc and decisions that can have significant impact on
parental rights and children’s welfare come down to an
individual immigration officer. The guidance that does
exist prioritizes the involvement of child welfare services
in certain circumstances, which can create unnecessary
complications for parental rights. In addition, there are
no clear procedures to guide immigration officers in
ensuring that parents who must be detained are able to
make care arrangements for their children before they
are transferred to a detention facility.
Parents’ inability to make childcare arrangements can
result in children being left in an unsafe environment
or being unnecessarily placed into state child welfare
custody. While ICE is developing a risk assessment
tool that will identify the most vulnerable and those who
do not need to be detained and will preference them
for release, countless barriers remain for parents who
are detained and the tool only classifies sole caregivers
(not all parents) as vulnerable.
Challenges arising during detention
Once a parent is transferred to a detention facility, it
can be extremely difficult to remain in contact with a
child, to communicate with the child welfare system
and to reunify with the child. Child welfare agencies

struggle to locate detained parents, particularly when
a parent is transferred between detention facilities.
Though ICE has taken steps to improve the public’s
ability to locate detainees, the online locator system
does not completely resolved the difficulties that arise
when trying to locate parents.
Once a child is in state child welfare custody, a parent
must comply with a reunification plan in order to be reunited with the child. These plans may include requirements such as regular phone calls and contact visits.
Immigration detention significantly impairs parents’
ability to comply with these plans.
Detention also impairs parents’ ability to participate in
family court proceedings. Some parents never receive
notification of a hearing because the child welfare system and family courts do not know how to find the parent. Other times, parents are aware of proceedings but
are not able to be present, even by phone, because
the detention facility cannot or will not assist with participation. Although ICE has indicated its willingness to
facilitate appearance there is no requirement that facilities do so. While the forthcoming 2010 Performance
Based National Detention Standards will for the first
time contain language addressing parents’ access to
and ability to participate in family court proceedings,
language we have seen suggests there is no guaranteed right to access and that access will continue to
be dependent on the deportation officer’s discretion.
Challenges arising at the time of deportation
Family reunification is often compromised by the logistical challenges of deportation. In most cases, parents
learn of their deportation date only shortly before their
departure and this information is not shared outside of
ICE. Arranging for a child to reunify with a parent who
is being deported becomes extremely difficult; obtaining travel documentation and the money necessary for
a flight are both barriers to a parent’s ability to reunify
with his or her child.
Finally, immigration judges have no discretion to consider the adverse impact of parental deportation on a

3

U.S. citizen child. The gaps and failures in our immigration laws and child welfare system can create long-term
family separation, compromise parents’ due process
rights and leave children with lasting psychological
trauma and dependency on the state.

Key Recommendations8
•	 Congress should move quickly to pass legislation
that reaffirms our nation’s commitment to family unity
and that reduces the adverse consequences that immigration enforcement has on parental rights, including the Humane Enforcement and Legal Protections
for Separated Children Act and the Child Citizen Protection Act.9
•	 ICE should prioritize the best interest of children
when making detention decisions that impact upon
their well-being.

•	 ICE should establish procedures to ensure detained
parents are able to meaningfully participate in all
plans and proceedings impacting upon custody of
their children.
•	 DHS, the Department of Justice, the Department of
Health and Human Services and nongovernmental
organizations should work together to improve communication between the immigration, child welfare
and family court systems.
•	 ICE should facilitate the ability of parents, legal
guardians and caregivers to reunify with their children
at the time of deportation.
•	 Reinstate judicial discretion to consider the best interest of children in decisions related to deportation
of parents.

Raquel was eventually granted immigration status and reunited with her children. However, while she was detained her children
spent months in the care of distant relatives who did not care for them properly and were eventually placed in foster care. Her
children are still traumatized by the experience.

4

Introduction and Background:
Parental Rights and Immigration
Enforcement
The Women’s Refugee Commission advocates for the
protection, access to safety and right to due process
of refugees, asylum seekers and migrant women,
children and families. To realize this goal, we regularly
engage in field research and fact-finding to constructively comment on current policies and promote positive policy reforms.
Since 1997, we have advocated for improved protections for women, children and families impacted by the
U.S. immigration system. Our groundbreaking reports,
including most recently Locking Up Family Values:
The Detention of Immigrant Families and Halfway
Home: Unaccompanied Children in Immigration
Custody, helped shine a light on inappropriate and
unsafe treatment of children and families in immigration detention and led to significant reforms, such as
the end to family detention at the T. Don Hutto facility
in Taylor, Texas, in September 2009.
In the course of researching medical care provided
to adult women in immigration detention we began to
uncover an alarming trend: women we spoke with told
us that they did not know where their children were.
Upon further inquiry we learned that many parents10
are not given an opportunity to make decisions about
care for their children before they are placed in immigration custody. All of these parents live with the fear
that they will not be able to reunite with their children
when they are released or deported. In many of these
cases, permanent family separation occurs because
it is simply too difficult or too expensive to reunite in a
parent’s home country after the parent is deported, or
because a parent—faced with a Sophie’s Choice—
decides to leave a child behind in the United States.11
In the worst cases, parents actually have their parental
rights terminated, often because they cannot partici-

pate in custody proceedings from detention or because of a bias against immigrant parents in the family
courts and child welfare system.
In the years that we have worked on this issue we
have found that the potential for family separation as a
result of immigration enforcement is significant and is
not improving. In our interviews with detained parents
we continue to hear reports of custody concerns.
Attorneys and advocates across the country bring us
new stories on a regular basis. Immigration enforcement is on the rise12 and with the increased participation of states and localities through programs like
Secure Communities13 we can expect the number of
people apprehended and deported to remain stable or
increase.
Although the government does not keep consistent
data on the number of parents who are deported14 we
can make certain inferences about the real and potential impact of family separation. As of 2008, there
were roughly 11.9 million undocumented immigrants
living in the United States.15 Of those who are working age, approximately half have at least one child.16
Approximately 5.5 million children live with at least one
parent who is an undocumented immigrant.17 That is
roughly one-tenth of all children in the United States.18
Three million of these children are themselves U.S.
citizens by virtue of having been born here.19
In short, in millions of families in the United States,
there is at least one parent who is an undocumented
immigrant and one child who is a citizen. Such families
are uniquely situated in relation to federal immigration law because immigration enforcement activities
against the parents can have a particularly dramatic
and disproportionate effect on the children. According
to a report by the Department of Homeland Security,
Office of the Inspector General, over 108,000 alien
parents of U.S. citizen children were removed from
the United States between 1998 and 2007.20 Many
of these families are forced to make heartwrenching
decisions about who will leave the country and who
will stay. For other families, however, there is no deci-

5

sion to be made. When a parent is taken into immigration custody and a child is placed into the state child
welfare system a complex series of events is triggered
that can lead to permanent family separation and even
termination of parental rights.
We believe that enforcement and detention policies
and procedures, and immigration law itself, must be
revised to reaffirm family unity, protect children, unburden state social service organizations and strengthen
society as a whole. It is possible to enforce the rule
of law without unnecessarily violating basic principles
of parental rights, family rights, due process and child
welfare.

Scope of this report
This report will focus on infringement on parental rights
as a result of immigration enforcement, detention and
deportation as well as on the collateral damage our
current immigration practices cause for parents and
children.21 Our recommendations focus on preserving

Immigrant mothers and their U.S. citizen children are often separated
when parents are deported.

family unity—a founding principle of U.S. immigration
law—by reducing the likelihood that children will be
unnecessarily placed in the child welfare system and by
protecting a parent’s right and ability to make decisions
in the best interest of his or her child.

How Are Parental Rights
Challenged by Immigration
Enforcement, Detention and
Deportation? A Hypothetical
Rosa22 was an undocumented mother living in South
Carolina. One afternoon on the way to pick up Rebecca and Thomas, her two young, U.S. citizen children, from school she was pulled over for driving with
a broken taillight and found to be in an immigration database. The local police decided not to charge her, but
were not able to release her because ICE had placed
a hold on her. Several days later she was transferred
to an immigration detention center in Texas. Rosa had
been too afraid to tell police that she had children,
and by the time she was granted a phone call school
officials had already contacted her cousin to pick the
children up at school. Eventually they were placed in
foster care.
Rosa was unable to afford phone calls from detention
and did not know what had happened with her children. The children’s case worker did not know where
to look for Rosa and no contact was made until many
months later, when Rosa’s immigration attorney intervened. The caseworker finally contacted Rosa and told
her she would have to take parenting classes and have
regular contact visits with her children if she wanted to
reunite with them after she was released. But the facility where she was held did not offer parenting classes
and there was no one who could bring the children to
Texas to visit with her. Months passed without Rosa

6

being able to comply with her reunification plan.
Eventually the state of South Carolina filed a petition
to terminate Rosa’s parental rights. Rosa received little advance notification of her court date. She asked
her deportation officer for assistance in participating in court by video-teleconference but her request
was ignored. Her immigration attorney filed multiple
petitions for humanitarian release so that she could
appear in court but they were rejected. Just a few
weeks before her family court date Rosa was deported. Once in El Salvador she had no way to comply
with her reunification plan, no money to hire an attorney and no way to present her case in court. Her
parental rights were terminated shortly thereafter.

Why Are Challenges to Family
Unity and Parental Rights
Occurring?
When a child is placed into the child welfare system
following a parent’s apprehension, challenges to family unity and parental rights can arise. This is a result
of the complicated intersection of the immigration and
child welfare systems. In general, these two systems
and the actors working within them do not understand
each other. Child welfare workers do not know how to
navigate the detention system to locate a parent. Family
courts do not understand that parents may not appear
for custody proceedings because they are in detention and there is no way for them to do so. Immigration
and Customs Enforcement (ICE) does not recognize
the child welfare implications of its actions. The agency
unnecessarily holds parents for long periods, far from
home, family courts, their children and their children’s
case workers and gives them no way to comply with
the family reunification requirements that they are expected to meet in order to reunite with their children
at the conclusion of their immigration case. Adding to
the complexities that arise at the intersection of these

Mother at Risk of Deportation Fears Having to
Leave Daughter Behind
Maribel, a citizen of Mexico with a one-year-old
U.S. citizen child, was stopped while driving in
Manassas, Virginia. She did not have papers and
had a fake identification document with her. She
was arrested, prosecuted for the false document,
and once she completed her sentence, transferred into ICE custody. Her child was taken into
foster care. Once in ICE custody, she immediately
agreed to be deported to Mexico and wanted to
take her child with her. After a month of detention,
Maribel was released on an ankle bracelet and
has been trying ever since to find a way to coordinate her deportation so that she can leave with
her child. It has been three months and the child
is still in state custody. Maribel is afraid she will be
given a date to report for deportation and that she
will not have found a way to take her child with her
before it is time for her to go. She is desperately
working to try and make sure this doesn’t happen.
two worlds are restrictive immigration laws that do not
afford immigration judges the discretion necessary to
keep parents and children together.

Lack of appropriate guidelines
Release of parents, whether on their own recognizance
or into an alternatives to detention program,23 is the
most economical and effective means of ensuring that
families stay together and that parents are able to make
decisions in the best interest of their children. However,
aside from narrow guidelines that apply only in isolated
circumstances, ICE does not have any effective and
consistent time of apprehension guidance to identify
parents and prioritize them for release.
In 2007, following public outcry about the separation of
children from their parents after worksite raids in New
Bedford, Massachusetts,24 ICE released “Guidelines
for Identifying Humanitarian Concerns Among

7

Administrative Arrestees When Conducting Worksite
Enforcement Operations.” These guidelines instruct
ICE officers to plan in advance for the humanitarian
screening of all individuals identified in worksite raids
involving 150 or more people to ensure that vulnerable
persons are identified and considered for release
shortly after apprehension.25 In 2009, these guidelines
were expanded to apply to worksite raids involving 25
or more people.
While these guidelines have been helpful in reducing
cases of family separation during large worksite raids,
the guidelines do not apply to the majority of immigration
apprehensions. Most family separation cases arise out
of small-scale immigration enforcement actions such
as home raids, fugitive operations, traffic stops or jail
screening programs. We expect these methods of
apprehension will increase as local law enforcement26
cooperation with ICE increases. We are unaware of any
provisions in Memoranda of Understanding between
ICE and local law enforcement entities carrying
out enforcement actions that require humanitarian
screening at apprehension.
In addition to the worksite raids guidelines, ICE has
issued a memorandum instructing agents on what
to do when juveniles are encountered during fugitive
operations.27 However this memorandum is not
consistently implemented across ICE field offices28
and does not apply to local law enforcement. It is also
inconsistent with the maintenance of family unity and
respect for a parent’s right to make decisions involving
the best interest of his or her child.29 The memorandum
prioritizes contacting child welfare and the police over
permitting a parent to select placement for a child
present during an enforcement operation.30 This policy
undermines a parent’s ability to decide what is best for
his or her child and creates an unnecessary burden on
the state and local child welfare systems.
In addition to undermining the well-being of children
and families, the absence of clear and appropriate
guidelines creates a lack of consistency and a great
deal of confusion on the part of ICE agents. Some ICE

Children separated from parents who are in immigration detention
or have been deported may end up in foster care or with unknown
relatives.

agents use their discretion to not detain parents based
on their concerns about children who may be left
behind. Others decide to detain parents even if they
know children will be impacted. Enforceable guidelines
are critically needed to establish screening and release
parameters at the point of apprehension. These
guidelines must apply to local law enforcement and
must require that any individual who is apprehended be
screened within a window of time that does not exceed
the average school day. When parents are not identified
and prioritized for release, children are needlessly left in
unsafe situations or placed into foster care, which can
trigger events that compromise parental rights.

Lack of effective screening and phone calls
The worksite raids guidelines specify that every
apprehended individual be screened by ICE or the
Division of Immigration Health Services (DIHS)
to determine whether they have any humanitarian
concerns, including whether they are a parent or

8

caretaker to a dependent, or are pregnant, nursing,
disabled or seriously ill. Those determined to be
vulnerable are preferenced for release or some sort
of alternative to detention. However, as stated in the
previous section, no such screening provisions apply
outside the worksite raids context.
Policies to protect family unity and parental rights
must be well calibrated to the fear of police and
ICE that is present in many immigrant communities.
Expanding the worksite raids guidelines in their current
form to all enforcement actions is not likely to go far
enough to protect parental rights. Most people who
are apprehended will not disclose to ICE or local law
enforcement that they have children out of fear that
their children, or their children’s caretaker, will also
be apprehended. One solution is for ICE to engage
local, independent and neutral nongovernmental
organizations (NGOs) to screen all apprehended
individuals to determine whether they are parents
or have other humanitarian concerns that would
necessitate release. Thus far ICE has not been willing
to explore suggestions that outside screeners conduct
the screening.
Phone calls are a particularly critical measure to
preserve parental rights and ensure that the best
interest of children is protected, regardless of whether
or not effective screening mechanisms are in place.31
There is currently no requirement that an apprehended
individual be granted a phone call when they are
apprehended on suspicion of an immigration violation.
They may receive a phone call when they are booked
into a local jail, but this may be some time after they are
apprehended. In addition, when brought into a local jail,
individuals are often unaware at that time that they will
be detained on an immigration charge. We have heard
stories of parents who used the phone call provided
by local police to notify their child’s caretaker that they
would be released, only to find out that because of an
ICE detainer they would be transferred to ICE once
local police had finished with them.32 At this stage,
they do not receive a second phone call to make more
permanent arrangements for their children.33

Granting all apprehended individuals a phone call
within a short time of apprehension,34 regardless of
whether the person is known to be a parent, would
result in a significant reduction in challenges to parental
rights. This could be done with minimal expense to the
federal government or local law enforcement as many
people have a cell phone with them when they are
apprehended.

Problems arising from limited communication
and frequent transfers
When parents are not identified and considered for
release, or at a minimum granted phone calls in a timely
manner, children are at risk of being left behind at home
or school or placed into the child welfare system. In some
cases, children end up living with the other parent, with
relatives or with friends. Such arrangements can make
it easier for a parent to reunite with a child post-release
by keeping children out of the child welfare system.
However, we have heard a number of stories in which
informal arrangements with relatives or friends have
resulted in children ultimately entering the child welfare
system when the caretaker can no longer provide care
or when the care situation becomes unsafe. In other
cases, children are placed into the child welfare system
directly following their parent’s apprehension, either
because the apprehending entity contacts child welfare
or because a good Samaritan (school employees, day
care workers, neighbors, etc.) contacts child welfare
when a child is left alone at home or school.
Once a child is in the child welfare system, child welfare
will look for a placement with relatives. When this is
not available or appropriate, child welfare will generally
place the child with a foster family. Once children
are outside of relative care it can be very difficult for
the parent to locate them, especially if the parent is
transferred out of state.
Currently there is no requirement that a parent and child
(or child’s caretaker) have information about where the
other is going before the parent is transferred from the

9

Children Scattered to the Four Winds When
Their Mother Is Detained
Jeanne, from Haiti, has four U.S. citizen children
who lived with her in the U.S. The sheriff’s department appeared at her home two months after an
abusive boyfriend made a false 911 call against
her. She was placed under arrest, booked, strip
searched in front of male deputies and then sent
to a detention facility for immigrant female detainees in Key West—over 400 miles away from her
children.
She was unable to make arrangements for her
children and for months had no idea where they
were, how to contact them or even whether they
were safe. It is unclear who arranged placements
for the children.
When a nonprofit attorney was able to get her out
of detention after six months she discovered that
the children also had no idea where she had been
or how to contact her. They had been scattered to
the four winds. One child spent most of his time in
his abusive father’s taxi cab, even sleeping there.
One was found living with an unknown family
that had taken him in and a third was living with a
school friend’s family after having been kicked out
of her abusive father’s home.35
area in which he or she was apprehended to a detention
center. As a result many parents find that once they are
in detention they cannot find their children. Many do not
even know that their children have been placed into the
child welfare system. This may be because the parent
does not understand the child welfare system and does
not know who to contact for help in locating his or her
child, or because the parent is not able to communicate
with the child’s caseworker, either due to a language
barrier or a lack of funds for phone calls.
The challenge of communication goes two ways. In
addition to obstacles parents face in locating children,
many child welfare case workers struggle to find
detained parents usually because they do not know the

immigration detention system exists, or because they
do not know how to navigate it. These difficulties are
further compounded when parents are later transferred
between detention centers, sometimes from one state
to another.36 The result of these barriers is that parents
cannot find their children, cannot comply with (and
often do know about) family reunification plans and are
significantly more likely to face challenges to parental
rights.
While ICE is not—and should not be—responsible for
placement arrangements for a child, the agency, if it
wishes to detain a parent, should not transfer the parent
from the area in which he or she was apprehended
to a detention center until the parent is aware of the
arrangements made for his or her child and is able to
communicate with the child, the child’s caretaker and
the child’s case worker (if child welfare is involved).

A note about detention reform and the
detention of parents
In 2010, ICE began piloting a risk assessment tool
intended to identify apprehended individuals who may be
eligible for release or an alternative to detention. Under
this tool, which is expected to be rolled out nationwide
once cleared through the agency, every person who
comes into the custody of ICE will be screened to
determine whether they are eligible for release or
alternatives to detention. The tool bases determinations
about eligibility for release on whether the person has
certain vulnerabilities (one of which is whether they are
a sole caregiver) as well as whether they have ties to
the community, pose any threat to public safety or are
deemed to be a flight risk. It is expected to prevent
the detention of parents in some instances. However
because the tool only considers “sole caregivers” as
eligible for release there will be many parents who
will still be detained if there is another parent in the
home.37 In addition to the parental rights implications
of this limitation the standard is also problematic
because it could result in a child being left in an unsafe
situation with an abusive parent. Furthermore, the risk

10

Family Reunited at Airport as Mother
Is Deported
Blanca and her husband were pulled over in a
routine traffic stop and detained when the police
discovered that their immigration papers were not
in order. Their two sons, who were in their care
at the time they were detained, watched as their
mother and father were handcuffed and taken
away. The children were placed in foster care,
despite the fact that Blanca’s sister in Texas—a
green card-holder—was willing and able to care
for the children. For two months, Blanca had no
idea where her children were as she was transferred to various jails and detention facilities. Her
husband was deported. Unbeknownst to Blanca,
her children were in the process of dependency
proceedings. Fortunately, Blanca was able to
meet with an immigration attorney and her consulate who were able to help find out where her
children were and explain the situation to the court
before her parental rights were terminated. After
months of being unnecessarily separated from
family members, the judge ordered the children to
be reunited with their mother at the airport when
she was deported. The family now lives together
in Honduras.
assessment tool does not currently apply until a parent
comes into ICE custody. This can be days or weeks
after local law enforcement officials apprehend them.
By this time children may have already been placed into
the child welfare system.
In 2010, ICE also launched an online detainee locator
system, which enables anyone with the alien registration
number (A#) or name and country of birth of a detainee
to determine where they are being detained. The
locator system should increase caseworkers’ ability
to locate detained parents. However, this does not
make it any easier for a detained parent to comply
with a reunification plan or participate in family court
proceedings.

How Does Detention
Compromise Parental Rights?
When a child is in the custody of the child welfare system there is usually a reunification plan established as
a precursor to family reunification. The reunification
plan38 sets forth steps a parent must take in order to
reunite with his or her children, and may include things
like regular contact visits and phone calls, and parenting and anger management classes. Often, the child
welfare system interprets a parent’s failure to comply
with the reunification plan as a sign that the parent is
not committed to reunifying with his or her child or does
not have the capacity to ensure the child’s well-being.
Immigration detention significantly impairs parents’
ability to comply with reunification plans, as well as to
appear at court proceedings impacting upon custody
of their children. Such impediments increase the likelihood that parental rights will be terminated. Additional
obstacles to reunification and the preservation of parental rights arise from the unintended consequences
of child welfare laws designed to promote permanent
and stable placements for children.39
Immigration detention centers do not provide access
to the kinds of classes mandated under reunification
plans, even though access to such programming is often available for parents in the criminal justice system.40
In many immigration detention centers phones do not
work or cut off after a certain time, limiting detainees’
ability to communicate with their children. In addition,
even if they know where their children are, individuals
in immigration detention often cannot afford the expensive phone cards necessary to have regular conversations.45 Complicating reunification plan compliance
even further, it is extremely difficult for parents to have
contact visits with their children. Often parents are detained far away from where they were apprehended
and there is no one to transport children to the facility.
Even if parents manage to have the children brought to
the facility, many immigration detention facilities do not
allow contact visits. Visits are conducted through glass

11

Fourteenth Amendment Guarantees Due Process Under the Law, Including for Immigrants
The Fourteenth Amendment of the U.S. Constitution ensures that all persons, including undocumented
immigrants, are entitled to due process and equal protection under the law.41 This means that all parents,
no matter what their immigration status, must be accorded due process of law.42 Parents possess a fundamental right to family, which includes determining how their children are to be cared for and raised.43
At its most practical level, these rights require that parents, including those in detention, have the opportunity to make decisions regarding the care and well-being of their children (including—in the case
of a final order of deportation and in cases involving U.S. citizen children—the right to decide whether to
take the child with them or leave them behind). These rights also include the opportunity to fight for the
custody of their children when it is challenged, to attend all family court proceedings and to participate in
any reunification plans or remedial measures states may develop in response to child welfare concerns.
Immigration status itself is not sufficient cause for termination of parental custody and detained parents
must be able to defend against collateral claims of abandonment or neglect. When immigrant parents
and other guardians are denied their fundamental right to participation, it can have serious or detrimental
consequences for family unity and prevent family courts from fulfilling their obligations towards the best
interest of the child. The procedural divide between immigration authorities and family law effectively
denies them due process.44 For more information on the due process and equal protection rights of
undocumented parents see Appendix B.
or even by video. In some cases children are undocumented, and it is not safe for them to enter a detention
center, or even to travel. Some detained parents are
aware of the reunification plan and desperately want
to comply but there is simply no way for them to do so.
Others do not understand the reunification plan or do
not know how to take the steps necessary to comply. A
third category of parents has had no contact with their
children or the children’s case worker and do not even
know that the clock is ticking on their parental rights.
Even more anxiety inducing than the inability to comply
with a reunification plan, and even more problematic, are
difficulties related to accessing family court proceedings. We have met detained parents who are aware of
an upcoming family court date but who have no way to
participate in the proceedings. There is no requirement
that ICE facilitate parents’ access to family court. Some
parents have persuaded facility staff to allow them to
participate by telephone or video-teleconference and a
smaller number have been transported to court. However, others tell us that they have asked for assistance
in participating but ICE has denied their request. ICE

has advised us46 that parents with family court dates
simply have to submit a request to their deportation officer and the deportation officer will facilitate their participation, either by telephone, video-teleconference or
in person. However, few of the parents we have met in
detention were aware of this right and only one managed to gain access to proceedings.47 We have also
heard stories of parents who had no contact with their
court-appointed attorney and did not even know that a
motion to terminate their parental rights had been filed.
As a result of the many impediments to participating in
family court proceedings some parents only learn that
their parental rights were terminated after the fact.
We acknowledge that the intersection of the immigration and child welfare systems is complicated by geography (including the detention of parents far from
where they were apprehended) and the fact that there
are 50 different state child welfare systems with different rules, policies and understandings about the detention system. This provides further evidence that parents
should not be detained unless absolutely necessary.
Alternatives to detaining parents do exist and are ap-

12

propriate in most cases. ICE should utilize all options
other than detention so as not to interfere with a parent’s due process rights and fundamental right to make
decisions in the best interest of his or her children and
to protect the best interest of children.48 When a parent
must be detained, ICE must guarantee his or her ability
to protect his or her parental rights by ensuring that he
or she is able to comply with reunification plans and
participate in family court proceedings.

A note about the detention standards
ICE is expected to begin applying the 2010 Performance Based National Detention Standards at the
largest detention facilities once cleared through the
agency and to roll these enhanced standards out gradually at other facilities in the years to come. For the first
time the standards are expected to have language addressing parents’ access to and ability to participate
in family court proceedings. The draft language that
we have seen does not go far enough in guaranteeing
parents’ access (stipulating that it is at the discretion
of the deportation officer and available resources). In
addition, the standards are not codified and are not enforceable under law.

How Does Deportation
Impact Parental Rights
and Family Unity?
Many parents are ordered deported long before they
face any legal challenge to their parental rights. This
does not mean, however, that their rights have not been
compromised by detention and it does not mean that
family unity will be easily restored. The deportation process is extremely unpredictable, and when combined
with difficulty obtaining travel documents for children
and the high cost of travel many parents have to return
to their country of origin without their children. Some

Woman Deported Without One-Year-Old Baby
Luz was detained with her 15-year-old son and
held at the Berks Family Facility in Pennsylvania.
At the time she was detained she had left her
one-year-old U.S. citizen child with her neighbor
for what she expected to be a brief time. Detained
and ordered deported, she was desperate to take
her child with her to her home country but she
had no way to make arrangements. She had no
passport or travel documents for the baby. It was
virtually impossible for her to obtain documents,
pay for an airline ticket or arrange for the child
to travel with her while she was in detention. Luz
desperately called the Women’s Refugee Commission office, her consulate, her neighbor and
her deportation officer for help in taking her child
with her. In the end she was deported without her
baby. The last she heard of her child, the baby’s
father, who had never before acknowledged the
child, had picked him up from the neighbor.
families are able to reunify at a later date. But in many
cases, reunification does not occur, either because
there is no way to facilitate it or because a parent
makes the difficult decision to leave his or her child in
the United States.
Few parents know the date on which they will be deported in advance. ICE deports the majority of adults
on flights operated by the agency that depart whenever there are a sufficient number of persons being
deported to a particular country. ICE does not share
information about deportees’ travel arrangements outside the agency for security reasons. We have heard
accounts of cases in which a parent’s date of travel
was changed at the last minute because a child’s caretaker had learned of travel plans. In these situations
families may have purchased a plane ticket for a child
that cannot be refunded, and the family may not have
extra money to purchase a second ticket or to pay for a
caretaker to accompany a child to the parent’s country
of origin. Such situations put children and parents in

13

State Prevents Family Reunification

Countless children live with the trauma of separation from detained or
deported immigrant parents.

unnecessarily vulnerable positions and can create de
facto permanent separation. ICE has the capacity to
arrange for family reunification prior to deportation, and
can arrange for transportation of families on commercial carriers when necessary.
Family reunification can also be compromised by logistical challenges that are far less likely to exist if a parent
is living in the community and able to make preparations for deportation. It is extremely difficult for parents
to obtain passports and other travel documents for children from detention. In addition, it can be difficult for a
parent to obtain a passport or take a child out of the
country without the other parent’s consent.49 In these
cases there is little a parent facing imminent deportation can do to obtain the documents necessary to take
children with them.
In some particularly troublesome cases50 children have
been prevented from reunifying with a parent following deportation because the child’s caseworker did not
believe it was in the best interest of the child to live in
the parent’s home county. While many caseworkers are
extremely sympathetic to the needs of children whose
parents face detention and deportation and work hard
to reunify families, there is also evidence that bias
against immigrant parents exists.51

Mateo and Isabel were removed from their mother—Stefanie’s—care following a series of voluntary interactions with a state healthy child program
that resulted in a call to child welfare services and
the local police. Although the state never pursued
the charges against her, Stefanie was transferred
to ICE custody and quickly ordered deported on
immigration charges. During her time in immigration detention she was allowed only one visit with
her children. The state was aware of the pending deportation but refused to allow Stefanie
to take her children with her. A custody hearing
was scheduled for after Stefanie’s deportation.
She was represented by appointed counsel who
presented no evidence on her behalf. The children
remained in state custody and a reunification plan
was established.
Stefanie struggled to comply with the reunification plan because the state child welfare agency
repeatedly failed to communicate with her and
never provided her with a copy of the plan in her
native language, Quiché. Eventually her parental
rights were terminated. Following appeal and with
the assistance of pro bono counsel, Stefanie has
reunited with her children. In restoring custody,
the state Supreme Court found that the state
failed to demonstrate that Stefanie was an unfit
mother and inferred that the actions taken by the
state were driven by an unproven assessment that
the children would be better off living in the United
States.
All of this trauma could have been avoided if protections had been in place. Stefanie could have
been released while her case was pending so that
she could care for her children. She also should
have been provided with clear instructions in a
language she understood and a way to comply
fully with the reunification plans. Absent a finding
of negligence or abuse she should also have been
able to take her children with her when she was
deported.52

14

Some parents facing deportation decide that they
would prefer their children to stay in the U.S.—as is
their right. Since 1996, when the Illegal Immigration
Reform and Immigrant Responsibility Act (IIRAIRA)
stripped immigration judges of their discretion to consider the adverse impact of deportation on U.S. citizen
children, there is no way for a parent to stay in the United States with their children if they make this choice.
These situations usually result in long-term separation
of the family. In addition to the psychological implications arising from the loss of parental support, the inability of parents to remain with their children can result
in children becoming dependent on the state.

Conclusion
It is generally in the best interest of children to remain
with their parents, absent any evidence of abuse, abandonment or neglect. Parents do not lose their right to
make decisions regarding the care and well-being of
their children simply because they are detained and deported. Yet when ICE apprehends immigrant parents
it all too frequently puts children at risk and violates
parents’ due process rights by preventing them from
making child care decisions of their choosing; detaining parents unnecessarily and often far from home;
and—when the parents’ detention results in children
being placed in the child welfare system—preventing
parents from participating in reunification plans and
accessing family court proceedings. The failure of ICE
policy and practice to respect parental rights and to
protect the sanctity of the family is compounded by a
lack of discretion in our immigration laws that would enable judges to recognize and support the best interest
of children by considering the impact that deportation
of parents has on the U.S. citizen children left behind.
However, the failures depicted in this report are not the
fault of ICE or immigration law alone. The child welfare
system is a complicated web of federal, state and local
laws that do not mesh well with immigration law and

the complex system of detention and deportation. As a
result, the rights of immigrant parents and best interest
of their children can suffer. Child welfare workers and
child welfare law should be applauded for their efforts
to promote appropriate and permanent solutions for
children in unstable circumstances. Yet too often when
children are placed in foster care because a parent is
detained, the child welfare and family court systems fail
in their duty to make reasonable efforts to locate the
parent, notify them of court proceedings, facilitate their
ability to participate in court, provide them with case
information and effective counsel and support their reunification plan.53 Furthermore, it would be imprudent
to ignore the fact that bias against immigrant parents
exists in the child welfare system. In addition to the barriers to reunification created by detention and deportation, immigrant parents who face termination of their
parental rights are held to a different set of standards
when courts factor language, nationality or immigration
status into decisions about custody rights. Decisions
about whether or not it is appropriate for a child to be
with his or her parent should be made on the basis of
findings of abuse or neglect, and not on the parent’s
immigration status.
In the face of ongoing family separation and challenges
to parental rights there is a real need to better calibrate
immigration policy and child welfare practice. Both the
immigration and child welfare systems must develop
and implement improved protocols and practices to
ensure that the systems understand each other and
can communicate in a way that reduces adverse consequences for parents and children and protects parental rights.

Recommendations
The Women’s Refugee Commission believes that the
following recommendations will preserve parents’ ability to make decisions in the best interest of their children and will reduce the unnecessary separation of

15

families as a byproduct of immigrant enforcement:

Legislative recommendations
Congress should move quickly to pass legislation that
reaffirms our nation’s commitment to family unity and
that reduces the adverse consequences that immigration enforcement is having for parental rights. Several
such bills have already been introduced, including the
Humane Enforcement and Legal Protections for Separated Children Act—introduced in the House of Representatives by Representative Lynn Woolsey (D-CA6)
and in the Senate by Senator Al Franken (D-MN) and
Senator Herb Kohl (D-WI)—and the Child Citizen Protection Act, introduced in the House of Representatives by Representative José Serrano (D-NY16).54

Recommendations related to risk
assessment and screening
In many cases, the risk assessment tool is expected to
establish vulnerabilities too late to avoid family separation, to diminish collateral effects on children and to reduce the burden on state resources. Risk assessment
could be made more effective by making the following
changes:
•	 Issue guidance directing ICE officers and state and
local law enforcement entities cooperating with ICE
to consider the best interest of children or dependents in all decisions related to detention, release
or transfer of a parent, legal guardian or caregiver.
(DHS)
•	 Expand the risk assessment tool’s list of vulnerabilities to include all parents, legal guardians and caregivers, not just sole caregivers. Ensure that the risk
assessment tool succeeds in reevaluating parents,
legal guardians and caregivers for release at regular intervals so they can care for children and participate in family court proceedings (if applicable) and
instruct ICE field offices to prioritize release on humanitarian grounds if new information becomes avail-

able regarding a humanitarian situation after a person
has been detained. (DHS)
•	 Expand the use of the risk assessment tool to all instances in which a detainer is requested or issued
and incorporate this expansion into detainer guidance. (DHS)
•	 Create an exemption to issuance of a detainer for
misdemeanors, minor offenses and other nonviolent
felonies. (DHS)
•	 Utilize designated independent screeners, which
could include representatives of local social services
or community-based NGOs, to assist with evaluating
all apprehended individuals for vulnerabilities via the
risk assessment tool. (DHS/NGOs)
•	 Issue guidance requiring that all screening is done
in a nonconfrontational environment by experienced
persons able to communicate in the language of the
individual arrested. (DHS)

Recommendations related to appropriate time
of apprehension guidelines
ICE should prioritize the best interest of children when
making decisions that could impact upon their well-being. ICE should, at a minimum:
•	 Issue new guidelines applicable to all operations
conducted by ICE and state and local law enforcement entities cooperating with ICE that grant all apprehended individuals phone calls within a short time
of apprehension. (DHS)
•	 Affirmatively retract the 2007 Fugitive Operations
memo directing ICE fugitive operations teams to preference contacting child welfare when children are
present and issue new guidance instructing all ICE
officers and state and local law enforcement entities
cooperating with ICE to prioritize care arrangements
designated by parents, legal guardians or caregivers
over notification of child welfare, absent any indication that such an arrangement would place a child in

16

imminent danger. (DHS)
•	 Immediately provide apprehended individuals with
contact information for local immigrant service organizations, pro bono family law attorneys and state
child welfare services in all 50 states, the District of
Columbia and all U.S. territories to assist parents, legal guardians and caregivers in finding necessary legal representation. If parents require assistance from
a social service agency, ICE or state and local law
enforcement entities cooperating with ICE should
facilitate such assistance by providing the individual with an opportunity to contact that agency. Post
contact information for child welfare entities in all 50
states, the District of Columbia and all U.S. territories
in detention center housing pods so that parents, legal guardians and caregivers can more easily locate
their children, communicate with case workers and
notify the appropriate agency of any concerns about
their children’s safety. (DHS)
•	 Issue guidance barring ICE and state and local law
enforcement entities cooperating with ICE from using children as translators or to assist in the apprehension of others. (DHS)
•	 Issue guidance discouraging ICE and state and local
law enforcement entities cooperating with ICE from
conducting enforcement operations when children
are present. (DHS)
•	 Issue guidance prohibiting transfer of parents, legal
guardians and caregivers from the area in which they
were apprehended until care arrangements have
been made for children or wards and parents, legal
guardians or caregivers and children know how to
contact each other; if bed space limitations are a factor instruct field offices to reconsider release or alternatives to detention. (DHS)
•	 Develop and communicate to ICE officers and state
and local law enforcement entities cooperating with
ICE a consistent policy for timely release of parents,
legal guardians and caregivers detained in enforcement operations. Parents, legal guardians and care-

givers of young children or dependents should be released early enough in the day so that school children
and children in childcare do not experience disruptions in care. (DHS)
•	 Provide all ICE officers and state and local law enforcement officers in jurisdictions that cooperate with
ICE with training and instruction, developed and administered by independent NGOs with relevant child
welfare expertise, on what steps to take to ensure
that the arrest and detention of a person on suspicion
of immigration violations does not adversely affect
children or dependents or raise other humanitarian
concerns. (DHS/NGOs)

Recommendations related to guidelines for
detention of parents, legal guardians and
caregivers
Parents and legal guardians have a right to due process
with regards to custody of their children. Because state
child welfare systems require parents, legal guardians
and caregivers to maintain a relationship with their
children in order to reunify post-release, ICE’s policies
should not deprive a parent, legal guardian or caregiver
of their ability to comply with reunification case plans
and to participate in custody proceedings. Instead ICE
should undertake the following steps:
•	 Ensure that the 2010 Performance Based National
Detention Standards guarantee all parents, legal
guardians and caregivers access to all proceedings
impacting upon custody of their children, including
transporting parents, legal guardians and caregivers
to proceedings when practicable. Monitor all facilities
used to detain people on suspicion of immigration
violations for compliance with the standards and apply penalties for noncompliance to ensure that these
guarantees are implemented in all facilities. (DHS)
•	 Establish a detainee advocate who is physically available and accessible to all immigration detainees in
order to facilitate communication and coordination
of social welfare needs that arise due to detention

17

and to prepare detainees for safe reintegration or
repatriation. This advocate should have experience
in social work and the role should include, but not
be limited to, facilitating compliance with reunification plans and participation in proceedings impacting
upon custody of children. (DHS)
•	 Institute a dedicated toll-free telephone hotline (in a
minimum in English and Spanish) so that family members, attorneys, family courts, guardians ad litem,
court appointed attorneys, persons caring for or representing children and children can locate parents,
legal guardians and caregivers even if they do not
have access to the internet. (DHS)
•	 Provide all parents, legal guardians and caregivers
with regular and flexible contact visits in a childfriendly space and regular free phone calls to their
children or dependents for the purpose of complying
with reunification plans. (DHS)
•	 Ensure through training and dissemination of information that family court judges, child welfare workers
and other professionals in disciplines that may interact with immigrant families are informed about immigration law and the immigration detention system and
are aware of options to facilitate detained parents’
appearance in family court proceedings, including
provisions in the detention standards. (DHS/HHS/
DOJ/NGOs)
•	 When a reunification plan is in place, consider releasing a parent, legal guardian or caregiver to participate in case management services as a mechanism
to preserve family unity while ensuring appearance in
proceedings. (DHS)
•	 Include basic information on the child welfare system and rights pertaining to custody proceedings in
all legal orientation presentations to assist parents,
legal guardians and caregivers in locating children,
communicating with the children’s case worker and
exercising their right to participate in proceedings impacting upon custody of children. (DOJ/NGOs)

Recommendations related to reunification
upon release or deportation
Reunification with the parent, legal guardian or caregiver is generally in the best interest of children and
should not be undermined by logistical impediments.
To streamline reunification we recommend:
•	 Notify ICE of court proceedings impacting upon
custody of a child and request that ICE facilitate a
parent, legal guardian or caregiver’s participation in
court proceedings. (State Family Courts/Legal and
Child Welfare Representatives Operating in Family Courts)
•	 Issue guidance instructing ICE personnel to facilitate
the ability of parents, legal guardians and caregivers
to reunify with their children at the time of deportation, including delaying deportation pending travel
arrangements for children and assisting in obtaining passports, birth certificates and other necessary
documents so that children can accompany parents.
(DHS)
•	 Create procedures through which parents’ travel information can be released for the purpose of facilitating family unity at the time of deportation. (DHS)
•	 Utilize commercial flights for the deportation of individuals known to be parents, legal guardians or caregivers of minor children. (DHS)
•	 Institute a pilot point of contact project to facilitate
communication between detained parents, legal
guardians and caregivers and the child welfare system. (DHS/NGOs)

Recommendations related to judicial
discretion
Family unity is generally in the best interest of the child
and would be best served by considering the impact
that deportation has on children’s well-being. To expand protections for children we recommend:

18

•	 Reinstate judicial discretion to consider the best interest of children in decisions related to deportation
of parents. (Congress)

Notes
Names have been changed throughout this report to protect individuals’ identities. This case study is a hybrid designed to give the
reader an overview of the many problems parents can face as a
result of immigration enforcement.
1

Terrazas, Aaron and Batalova, Jeanne, U.S. in Focus: Frequently
Requested Statistics on Immigrants and Immigration in the United
States. October 2009. http://www.migrationinformation.org/USfocus/display.cfm?id=747.
2

3

Ibid.

Department of Homeland Security, Office of Inspector General,
“Removals Involving Illegal Alien Parents of United States Citizen
Children” p. 4. January 2009.
4

5
The same issues facing parents also face legal guardians and
caregivers of minor children in the U.S. For simplicity’s sake we
have chosen to use the term parent. When we refer to parents, we
are also referring to legal guardians and caregivers.
6
See http://www.ice.gov/news/releases/1010/101006washingto
ndc2.htm for more information on increasing enforcement.
7
One of a range of programs through which state and local law enforcement cooperate with Immigration and Customs Enforcement
(ICE) in the identification and apprehension of individuals suspected of being in violation of immigration law. For more information, see
http://www.ice.gov/access/.
8

For a complete and detailed list of recommendations, see page14.

Both HELP bills would require the Department of Homeland
Security to institute critical protections to reduce infringement on
parental rights as a result of detention and deportation, including:
considering the impact on the child of decisions to detain parents,
legal guardians and caregivers; ensuring that detained parents
can comply with reunification plans and participate meaningfully in
family court proceedings; and facilitating family unity at the time of
deportation if a parent wishes to leave the country with their child.
For more information see http://www.womensrefugeecommission.
org/programs/detention/parental-rights/1051-advocacy-for-thehelp-act-hr-3531-congress-version and http://www.womensrefugeecommission.org/programs/detention/parental-rights/1052-advocacy-for-the-help-act-senate-version. The CCPA would restore
the ability of Immigration Judges to use discretion, in certain cases,
9

to allow the parents of U.S. children to remain in the Unites States
and avoid separation that would be caused by the parent’s deportation.
10
The same dynamics and problems facing parents also face nonparental caregivers of children and other dependents. For simplicity
we have chosen to use the term parent in the body of this report
to refer to parents, legal guardians and caregivers. However, as
reflected in the recommendations, we note that the same policy
changes necessary to protect parents must also apply to legal
guardians and caregivers in order to fully protect the best interest
of their children and wards.
11
There is often no mechanism for immigration relief based on family unity and therefore no way for the family to remain together in
the U.S. when a parent is ordered deported. There are also bars to
reentry for people who have been deported.

http://www.ice.gov/news/releases/1010/101006washingtondc
2.htm.

12

One of a range of programs through which state and local law enforcement cooperate with Immigration and Customs Enforcement
(ICE) in the identification and apprehension of individuals suspected of being in violation of immigration law. For more information, see
http://www.ice.gov/access/.
13

In FY 2010, Congress directed the Department of Homeland
Security (DHS) to begin gathering data on the number of parents
of U.S. citizen children who are removed from the United States.
DHS reports that it has begun tracking this information but has
yet to make the figures public. As discussed in the House and
Senate reports, ICE does not currently track in any meaningful or
comprehensive way information about the removal of alien parents
of U.S.-born children. In order to better understand the scale and
intricacies of this issue, the conferees direct ICE to submit, within
60 days after the date of enactment of this Act, an evaluation of the
process and data management system changes necessary to track
the information discussed in both the House and Senate reports,
including a timeline for implementing the required changes in fiscal
year 2010. ICE is directed to begin collecting data on the deportation of parents of U.S.-born children no later than July 1, 2010,
and to provide the data at least semi-annually to the Committees
and the Office of Immigration Statistics.” Department of Homeland
Security Appropriations Act, 2010: report together with additional
views (to accompany H.R. 2892), 111th Congress, 1st session,
2009, H. Rep. 111-298.
14

15

Terrazas and Batalova.

Randy Capps et al., The Urban Institute, “Paying the Price: The
Impact of Immigration Raids on America’s Children,” p. 15. 2007.
16

17

Terrazas and Batalova.

18
David B. Thronson, Custody and Contradictions: Exploring Immigration Law as Federal Family Law in the Context of Child Custody,

19

59 HASTINGS L.J. 453, 454 (2008) (“Custody and Contradictions”).
19

Terrazas and Batalova.

20
Department of Homeland Security, Office of Inspector General,
“Removals Involving Illegal Alien Parents of United States Citizen
Children” p. 4. January 2009.

There are numerous resources available that focus more generally on the impact of enforcement on children and families. See
http://www.firstfocus.net/library/reports/caught-between-systemsthe-intersection-of-immigration-and-child-welfare-policies; http://
www.urban.org/publications/411566.html; http://www.urban.org/
publications/412020.html.
21

ance and it was unclear whether this guidance remains in effect.
29
August 24, 2007 ICE memo from John P. Torres, “Juveniles Encountered During Fugitive Operations.”
30
In some jurisdictions local time of arrest protocols between police
and child welfare services require police to contact child welfare
whenever a child is present at the time a parent is arrested. These
geographic distinctions must be taken into account in developing a
comprehensive, national strategy for preventing family separation.

Even if screening is conducted by NGOs phone calls will be
essential in preserving family unity and should be provided to all apprehended individuals within a short time of apprehension.
31

32

Interview by Michelle Brané, Austin, Texas, March 19, 2009.

This hypothetical represents the most extreme infringement on
parental rights. However, in many cases children are not in the state
child welfare system or parents are deported before they face any
legal challenge to their parental rights. While rights are not terminated under a court order, these parents face a de facto loss of
custody because they have no way to reunify with their children
once they have left the U.S.

Everyone who arrives at a detention center is granted one free,
three-minute phone call. However parents may not arrive at a detention facility until days or weeks after they are apprehended.

Alternatives to detention include community based programs
that help ensure appearance in court, periodic check-ins, or even
ankle bracelets. Fore more information see http://www.womensrefugeecommission.org/programs/detention/detention-reform/
our-work-on-detention-reform.

Example provided by Florida Immigrant Advocacy Center, Miami,
Florida.

22

23

See
http://www.washingtonpost.com/wp-dyn/content/article/2007/03/17/AR2007031701113.html.

24

These guidelines were the product of discussions between
Senator Edward Kennedy, Representative Bill Delahunt and ICE
following the raid: ICE Guidelines for Identifying Humanitarian Concerns Among Administrative Arrestees When Conducting Worksite Enforcement Operations (http://www.nilc.org/immsemplymnt/
wkplce_enfrcmnt/ice-hum-guidelines.pdf); April 2009 Worksite
Enforcement Strategy Memo (http://www.ice.gov/doclib/foia/dro_
policy_memos/worksite_enforcement_strategy4_30_2009.pdf);
memo on Juveniles encountered during Fugitive Operations (http://
www.ice.gov/doclib/foia/dro_policy_memos/juvenilesencounteredduringfugitiveoperations.pdf).
25

Both states and localities can have agreements with ICE to enforce immigration law. For simplicity’s sake we use the term “local
law enforcement” in the body of this report but this phrase refers to
both state and local law enforcement entities cooperating with ICE.
26

August 24, 2007 ICE memo from John P. Torres, “Juveniles Encountered During Fugitive Operations.” http://www.ice.gov/doclib/
foia/dro_policy_memos/juvenilesencounteredduringfugitiveoperations.pdf.

27

28
Earlier this year, the Director of the ICE Office of Policy informed
us that the agency was undergoing a review of previous policy guid-

33

This window must constitute a window of time that enables parents to make care arrangements before their child’s care is in jeopardy.
34

35

For more information on telephone access and transfers see
Jailed Without Justice, Amnesty International, March 25, 2009.
p.34-36. See also U.S. Detention of Asylum Seekers: Seeking
Protection, Finding Prison, Human Rights First, revised June 2009.
36

37
Though they may be eligible for release on the basis of some
other vulnerability.
38
Also called a case plan. Before a state can formally terminate
parental rights they must establish a case plan that gives a parent
an opportunity to rehabilitate. Even in the case of detention, the
state must make reasonable efforts to enable the parent to comply.
The state must also maintain contact with the parent and provide
the plan in the parent’s native language. To avoid having parental
rights terminated, a parent must participate in case planning, remain involved in their child’s life and demonstrate their commitment
to reform. If the parent is then found to be fit, he or she is entitled to
maintain custody of the child and to designate a caretaker for the
child during detention. For more information on how children move
through the child welfare system see Appendix A.

As an example, obstacles to reunification for detained parents
have been created by the Adoption and Safe Families Act (ASFA),
a law passed in 1997 to prevent children from languishing in the
foster care system. ASFA triggers certain permanency actions once
a child has been out of a parent’s care for a designated period of
time. While the aim of ASFA was appropriate, the law is having unintended consequences for parents who are detained.
39

40

For more information on programs serving the families of offend-

20

ers see http://www.fcnetwork.org/Dir2001/dir2001al-fl.html.
41

Plyer v. Doe, 457 U.S. 202 (1982).

42

Ibid.

43

Santosky v. Kramer, 455 U.S. 745,753 (1982).

See David Thronson, “Custody and Contradictions: Exploring
Immigration Law as Federal Family Law in the Context of Child
Custody,” Hastings Law Journal, vol. 59 (February 2008): p. 453
(Thronson explains how family law inappropriately acts as de facto
immigration law and vice versa).

44

See Jailed Without Justice, Amnesty International, March 25,
2009.
45

Conversation with Andrew Strait, Chief Public Engagement Officer, Office of State, Local and Tribal Coordination, U.S. Immigration
and Customs Enforcement; October 26, 2010.

46

“Migrant Women and Children at Risk: In Custody in Arizona,”
Women’s Refugee Commission, October 2010. http://www.womensrefugeecommission.org/reports/cat_view/68-reports/71-detention-a-asylum.
47

For more information on parents’ due process rights see Appendix B.

48

This can be particularly problematic and worrisome in cases
where a child is with an abusive parent.

49

Anonymous case relayed to Michelle Brane´ by social workers attempting to facilitate the reunification of four children who remained
in foster care in Washington state while their mother tried to reunite
with them in Guatemala.

50

“Deported Woman Keeps Custody,” Martha Stoddard, WorldHerald Bureau. June 27, 2009. http://www.omaha.com/article/20090627/NEWS01/706279922.
51

Supreme Court of Nebraska. In re INTEREST OF ANGELICA L.
and Daniel L., children under 18 years of age. State of Nebraska,
Appellee, v. Maria L., Appellant. 277 Neb. 984, 767 N.W.2d 74.
52

Absent findings of abuse or neglect that indicate reunification is
not in the best interest of the child.
53

Both HELP bills would require the Department of Homeland
Security to institute critical protections to reduce infringement on
parental rights as a result of detention and deportation, including:
considering the impact on the child of decisions to detain parents,
legal guardians and caregivers; ensuring that detained parents
can comply with reunification plans and participate meaningfully in
family court proceedings; and facilitating family unity at the time of
deportation if a parent wishes to leave the country with their child.
For more information see http://www.womensrefugeecommission.
org/programs/detention/parental-rights/1051-advocacy-for-thehelp-act-hr-3531-congress-version and http://www.womensrefugeecommission.org/programs/detention/parental-rights/1052-ad-

54

vocacy-for-the-help-act-senate-version. The CCPA would restore
the ability of Immigration Judges to use discretion, in certain cases,
to allow the parents of U.S. children to remain in the Unites States
and avoid separation that would be caused by the parent’s deportation.

21

YES

One day to six months from hotline call

Services
successful?

(substance abuse, domestic
violence, family preservation, kinship
placement)

Close file
and/or
monitor case

Offer services

NO

Investigation:
Is child in imminent
danger?

Refer to community services

NO

Investigation:
Allegation
substantiated?

YES

(alternative response, differential response, etc.)

NO

Allegations meet
investigation
standards?

YES

NO

CPS files Petition for
Dependency

72 hours after
filing petition

Offer services
and/or
monitor case

ICWA*

15 to 90 days
after first hearing

(every six months
thereafter, if needed)

12 to 18 months after
first hearing

Alternative permanent
placement (usually
foster or kinship care)

OR

Guardianship

OR

Adoption (requires
termination of
parental rights)

OR

Reunification with
parent(s)

ICWA*

employee orientation

3 to 30 days after
second hearing

NO

Dispositional/
Dependency Hearing:
Is child a ward of the
state (dependent)?

YES

Court/review board
monitors case (every
six months)

Usually plan for
reunification and another
permanency option

Permanency Planning
Hearing:
Determine best
permanency option

Parents ordered into services

Concurrent Planning:

May offer services,
monitor case or
close case

ICWA*

ICWA*

NO

Adjudicatory/FactFinding Hearing:
Are the allegations
against the parents true?

Shelter Care/
Preliminary Protective
Hearing: Should child
be removed from home?

NO

YES

YES

3) Congregate care

Agency monitors case

3) Congregate care

2) Non-relative foster care or

2) Non-relative foster care or

Agency monitors case

1) Kinship care or

Child continues in:

1) Kinship care or

Child placed in:

Parents offered services

Child Welfare Courts

Chart provided by Casey Family Programs.. See www.casey.org/Resources/Publications/pdf/HowChildrenMoveThroughCW.pdf

Allegations of
abuse or neglect
called into CPS
Hotline

CPS
INVESTIGATES

YES

Child Protective Services

22

APPENDIX A: How Children Move Through the Child Welfare
System

23

APPENDIX B: Legal Rights of Detained Immigrant Parents
The Fourteenth Amendment of the U.S. Constitution
declares that “[n]o State shall . . . deprive any person
of life, liberty, or property, without due process of law;
nor deny to any person within its jurisdiction the equal
protection of the laws.” 1 The Supreme Court has
determined that undocumented immigrants are considered to be “persons” under the Fourteenth Amendment, and thus are entitled to the same due process
and equal protection guarantees as U.S. citizens.2
Due process consists of requires both a protection
against certain government infringements on liberty
and a procedurally fair process that protects against
arbitrary decisions and also a substantive component
that bars certain government actions regardless of the
fairness of their procedures.3
Amongst the constitutional guarantees afforded undocumented immigrants, the right of a parent to the
care, custody, and management of her children is considered to be a fundamental interest protected by the
Fourteenth Amendment that is “far more precious than
any property right.” 4 While states do have the obligation to protect minor children from neglect or abuse,
there is a strong public policy in favor of protecting
the family unit.5 So long as a parent is providing for
children “adequately” and “the minimum requirements
of child care are met,” the parent’s rights cannot be
infringed.6
While the laws on child custody vary by state, the
Supreme Court has determined that procedures used
by the state to terminate parental rights must meet the
requirements of due process.7 To terminate a detained
immigrant’s parental rights, a court must first determine (a) whether the parent is unfit under state law
and (b) whether such termination will be in the child’s
best interest.8 The court must have clear and convincing evidence that the parent is unfit, such as evidence
of chronic abuse, abandonment, or failure to maintain
contact with the child.9

Often, before a state can formally terminate the parental rights of a detained parent, they must establish
a case plan that gives the parents an opportunity to
rehabilitate.10 Even in the case of detention, the state
must make reasonable efforts to enable the parent to
comply.11 The state must also maintain contact with
the parent and provide the plan in the parent’s native
language.12 To avoid having parental rights terminated,
a detained parent must participate in case planning,
remain involved in his or her children’s lives and demonstrate his or her commitment to reform. If the parent
is then found to be fit, s/he is entitled to maintain
custody of the child and to designate a caretaker for
the child during detention.13
If the state proceeds to a hearing with the intention
of terminating a detained parent’s rights, the hearing
must be fair and include an opportunity to present
objections, confront witnesses, and defend against
the charges raised. While the exact procedures of a
hearing will vary by state, the interests of the parent
strongly favor allowing for any necessary safeguards
so that the parent’s rights are not unfairly terminated.14
Detained parents are entitled to notice of an action
against them, written in their native language,15 but the
parents often have the burden of informing the courts
of their whereabouts, unless the state can reasonably
determine their location.16 Many states also require
that detained parents receive a court-appointed
lawyer for custody hearings, even though they are not
normally entitled to one in immigration court.17 However, detained parents are not always entitled to be
physically present at the hearing and may instead have
to participate telephonically.18
Parental detention or deportation does not by itself
justify terminating parental rights.19 However, courts
have considered whether the separation resulting
from such circumstances may lead to abandonment
or failure to maintain contact with a child, two widely
recognized justifications for severing the parent-child

24

relationship. In certain circumstances, the deportation or detention of a parent, combined with other
extenuating factors, has been sufficient to terminate
a detained immigrant’s custody of his or her child.20
For example, in 2004 an undocumented mother of
a young child was deported and her parental rights
terminated because, in addition to being deported,
she refused to see her child before being removed
and had maintained infrequent contact with the child
since her deportation.21 However, other courts have
held that when a state takes action to knowingly deport parents who have children in the United States,
with the “purpose of virtually assuring the creation
of a ground for termination of parental rights,” and
then proceeds to seek termination, the state violates
the due process rights of the parent.22 Because the
grounds for termination of parental rights vary so
greatly, detained parents may be forced to navigate a
confusing and difficult process where their rights are
not always clear.

Appendix B: Notes
U.S. Const. amend. XIV, § 1.
Plyler v. Doe, 457 U.S. 202 .1982.
3
Daniels v. Williams, 474 U.S. 327, 331. 1986.
4
Santosky v. Kramer, 455 U.S. 745, 753. 1982.
5
Moore v. East Cleveland, 431 U.S. 494, 503. 1977.
6
Reno v. Flores, 507 U.S. 292, 303-04. 1993.
7
Lassiter v. Department of Social Services, 452 U.S. 18. 1981.
8
Child Welfare Information Gateway, Grounds for Involuntary Termination of Parental Rights (2007). http://www.childwelfare.gov/
systemwide/laws_policies/statutes/groundtermin.cfm.
9
Santosky, 455 U.S. at 747-48.
10
See e.g., In re Maria S., 98 Cal. Rptr. 2d 655, 659 (Cal. App.
2000).
11
Id. at 660.
12
Interest of Angelica L. & Daniel L., 767 N.W.2d 74. 2009.
13
In the Matter of Huff, 969 A.2d 428, 432 (N.H. 2009).
14
Lassiter, 452 U.S. at 27.
15
In re Interest of Mainor, T. and and Estela, T., 674 N.W.2d 442,
462-63 (Neb. 2004).
16
In re A.R., 673 S.E. 2d 586-87 (Ga. App. 2009).
17
S. Adam Gerguson, Note, Not Without My Daughter: Deportation and the Termination of Parental Rights, 22 GEO. IMMIGR.
1
2

L.J. 85 (2007).
18
Mainor T., 674 N.W.2d at 460.
19
See In re A.E., 208 P.3d 1323 (Wyo. 2009) (noting that states
have generally shied away from finding per se unfitness based on
broad categories).
20
See In re Christian M-R, 2008 Conn. Super. LEXIS 1783
(Conn Super. Ct. July 8, 2008) (terminating parental rights of an
undocumented father on the basis of failure to maintain an ongoing relationship with the child); Cf. In the Interest of M.M, 587
S.E.2d 825 (Ga. App. 2003) (finding that since an illegal father
had cooperated with the court, was trying to obtain residency,
and consistently visited his child, termination of his parental rights
on grounds that he might someday be deported could not be
sustained).
21
See In re L.A.R., 695 N.W.2d 42 (Iowa Ct. App. 2004).
22
See In re Shane P., 58 Conn. App. 234, 753 A.2d 409, 2000;
See also Mainor, T. and Estela, T. 674 N.W.2d at 462-63 (mother’s deportation did not equate to abandonment).

25

APPENDIX C: International Law on Family Separation and
Parental Rights
International law prohibits arbitrary family separation
and provides due process protections to children and
parents in order to strengthen family unity. In the past
two decades, the United Nations and other multilateral
organizations have increasingly addressed this problem through treaties, declarations and judicial decisions. In consequence the prohibition against arbitrary
family separation is developing into a fundamental
principle (jus cogens) that may soon become binding
through customary international law.1 According to
the Vienna Convention on the Law of Treaties customary international law may bind a country to certain
legal norms even if the country does not recognize it
as law.2 A norm or treaty becomes customary international law when states practice the norm(s) and
believe they are bound to do so by law (opinio juris).3
While the United States has not ratified many of the
international instruments that guarantee protections to
families against separation, the United States should
seek to comply with accepted international humanitarian legal principles.4
1. Family as the fundamental group unit
States have long recognized a right to family as a
fundamental human right, which merits protection by
law. Article 16 of the Universal Declaration of Human Rights stresses, “The family is the natural and
fundamental group unit of society and is entitled to
protection by society and the State.” 5 This principle
has been reaffirmed by numerous treaties, such as the
International Covenant on Civil and Political Rights
(“ICCPR”) in Article 23,6 the International Covenant
on Economic Social and Cultural Rights (“ICESCR”)
in Article 10,7 the Riyadh Guidelines,8 the International Convention on the Protection of the Rights of
All Migrant Workers and Members of Their Families
(hereafter “Convention on Migrants”) in Article 44,9
the American Convention on Human Rights in Article
17,10 the European Council’s Convention for the Pro-

tection of Human Rights and Fundamental Freedoms
(hereafter, “CPHRFF”) in Article 8,11 and the American Declaration on the Rights and Duties of Man in
Articles V, VI and VII.12
International courts have also interpreted law to
conform with the principle of the right to family. The
European Court of Human Rights wrote in the Case
of Buchberger v. Austria, “The mutual enjoyment by
parent and child of each other’s company constitutes
a fundamental element of family life, and domestic
measures hindering such enjoyment amount to an
interference with the right protected by Article 8 of the
Convention [CPHRFF].” 13
To underscore the family as a fundamental group unit,
many of the international conventions stress respect
for parental rights. The Convention on the Rights of
a Child (CRC) mandates that states “[r]espect the
responsibilities, rights and duties of parents or, where
applicable, the members of the extended family or
community...” 14 While the United States has not ratified the CRC for reasons not necessarily relating to
the principles it articulates, the convention represents
international law in most of the world and is the most
widely ratified human rights treaty.15 Again this principle is repeated in other treaties including the ICCPR
16
and the Convention on Migrants.17 The CRC also
demands respect for a child’s right to maintain his or
her identity, including his or her name, nationality, and
family relations.18 The Inter-American Commission
on Human Rights recently determined in the case of
Wayne Smith and Hugo Armendariz et al, v. United
States, that U.S. deportation policy violates fundamental human rights because it fails to consider evidence
concerning the adverse impact of the destruction of
families, the best interest of the children of deportees
and other humanitarian concerns.19

26

2. Migrant families’ need for protection by states
International law also reinforces human rights guarantees to all, regardless of their status. While the United
States, as well as most of the states of the Northern Hemisphere, has not signed the Convention on
Migrants,20 the treaty highlights the need for greater
protections of human rights for migrants because their
vulnerable status will more likely produce a scattering in the family. In Article 17, the convention requires:
“Whenever a migrant worker is deprived of his or her
liberty, the competent authorities of the State concerned shall pay attention to the problems that may be
posed for members of his or her family, in particular for
spouses and minor children.” 21
3. Children’s best interest considered first in family
separation
A prevailing principle in determinations affecting family
separation is the consideration of the best interests
of the child. Article 9 of Convention on the Rights of
a Child requires, “States Parties shall ensure that a
child shall not be separated from his or her parents
against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such
separation is necessary for the best interests of the
child.” 22 Article 3 specifically states that in “all actions concerning a child” the best interests should
be of primary consideration. Other treaties, including
the African Charter on the Rights and Welfare of the
Child23 and the European Convention on the Exercise
of Children’s Rights,24 also mandate weighing the
child’s best interests in matters affecting a child. In
the Human Rights Council Resolution, “Human Rights
of Migrants: Migration and the Human Rights of the
Child,” the Council also called upon states to model
their laws on this principle and to make best interests
a factor in decisions on whether to detain parents.25 In
the Declaration on Social and Legal Principles relating
to the Protection and Welfare of Children (hereafter
“Child Welfare Declaration”), the General Assembly
called upon states to be guided by the principle that

“the best interests of the child, particularly his or her
need for affection and right to security and continuing
care, should be the paramount consideration.” 26
Generally, international law interprets the best interests of the child to presume family unity and a right
of children to know and/or preserve his or her familial
identity.27 For instance, the CRC explicitly states that
a child has the right “to know and be cared for by his
or her parents” and “to preserve his or her identity,
including nationality, name and family relations as recognized by law without unlawful interference.” 28 The
European Convention on the Exercise of Children’s
Rights explicitly mandates that children be given a
right to express their views in proceedings affecting
their welfare as well as having their viewpoint considered by judicial authorities.29 The Inter-American
Commission on Human Rights has determined and
reaffirmed on various occasions that under the American Declaration, “the absence of any procedural opportunity for the best interest of the child to be considered in proceedings involving the removal of a parent
or parents raises serious concern” and that “removal
proceedings for non-citizens must take into consideration the best interests of the non-citizen’s children
and the deportee’s rights to family, in accordance with
international law.” 30
4. Right to procedural protections when family unity is
threatened by state action
International Law also specifies procedural protections to be afforded to parents and children in situations of state-imposed family separation. Notice,
access to courts and reunification facilitation are key
guidelines for the protection of children and parents in
state-imposed family separation.
Notice. Article 9(4) of the CRC mandates that information on the whereabouts of missing family members must be provided to parents, children and other
affected family members unless such information
is detrimental to a child’s well-being.31 The Vienna
Convention on Consular Relations, which the United

27

States has ratified, compels states to permit consular
officers to visit those detained and requires states to
notify consular offices when respective citizen-children
are taken into custody by the child welfare agencies.32
The Convention on Migrants also reiterates this right
as well as mandating the right to notice of rights and a
right to an attorney.33
Access to Courts. Article 9(2) of the CRC requires
that all parties have the opportunity to participate
in child welfare proceedings and make their views
known.34 Article 3(2) of the CRC also guarantees
protection of parental rights as well as the legal rights
of children. The Child Welfare Declaration requires
that “sufficient time and adequate counseling should
be given to the child’s own parents, the prospective adoptive parents and, as appropriate, the child
in order to reach a decision on the child’s future as
early as possible.”35 In the Body of Principles for the
Protection of All Persons under Any Form of Detention or Imprisonment, the General Assembly declared
that any form of detention and all collateral effects on
a person’s human rights must be subject to effective
control of a judicial authority.36
Reunification. Article 10 of the CRC requires states to
permit parents and children entrance for the purposes
of reunification and to allow reunification to happen in
the most humane and expeditious manner.37 Article 44
of the Convention on Migrant Workers also requires
states to facilitate reunification of migrant families.38
The Human Rights Council Resolution, “Human
Rights of Migrants: Migration and the Human Rights
of the Child,” also called upon states to put in place
repatriation mechanisms that consider both family
unity and the best interests of the child.39
These international humanitarian principles vouchsafe
family unity and afford minimum protection in the midst
of state imposed detention and family separation. By
effectively implementing such standards, states can
ensure children’s and parents’ rights are protected
from arbitrary, harmful interference.

Appendix C: Notes
“Given the widespread occurrence of family separation, the
state element is probably lacking. Furthermore, few sources of
international opinion have addressed this problem in any kind of
comprehensive manner. We believe, however, that such a norm
is beginning to evolve in fragmentary ways. Sufficient consensus
exists against particular types of family separation…to constitute
customary international law.” Sonja Starr and Lea Brilmayer, “Family Separation as a Violation of International Law,” 21 Berkeley J.
Int’L. 213, 230. 2003.
2
See Vienna Convention on the Law of Treaties, Article 38.
http://untreaty.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf.
3
For more on customary international law see, Anthea Elizabeth
Roberts, “Traditional and Modern Approaches to Customary International Law: A Reconciliation,” http://www.asil.org/ajil/roberts.pdf
4
For a discussion on U.S. approach to Treaties see, Frederic
Kirgis, “Reservations to Treaties and U.S. Practice,” ASIL Insights.
May 2003. http://www.asil.org/insigh105.cfm.
5
Universal Declaration of Human Rights, U.N. Doc A/810/71.
December 10, 1948. http://www.ohchr.org/en/udhr/pages/introduction.aspx.
6
UN Doc A/RES/21/2200. December 16, 1966. http://www2.
ohchr.org/english/law/ccpr.htm.
7
Ibid.
8
Principle 12, A/Res/45/112 of 14 December 1990. http://
www2.ohchr.org/english/law/juvenile.htm.
9
This treaty, while not customary law, still represents human
rights concerns of countries that are more affected by migration. International Convention on the Protection of the Rights of
all Migrant Workers and Members of Their Families, U.N. Doc
A/45/158. December 18, 1990. http://www2.ohchr.org/english/
law/cmw.htm.
10
“Pact of San Jose, Costa Rica,” November 22, 1969. http://
www.oas.org/juridico/english/treaties/b-32.html.
11
http://conventions.coe.int/Treaty/en/Treaties/Html/005.htm.
12
American Declaration on the Rights and Duties of Man (American Declaration). http://www.cidh.oas.org/Basicos/English/Basic2.American%20Declaration.htm.
13
Application no. 32899/96 (20 March 2002), at § 35.
14
Article 5. December 18, 1990. http://www2.ohchr.org/english/
law/crc.htm.
15
Family law traditionally is a state jurisdiction and recent U.S.
policy has also advocated for strict U.S. sovereignty. See Luisa
Blanchfield, “The United Nations Convention on the Rights of the
Child: Background and Policy Issues,” (Congressional Research
Service, December 2, 2009). http://fpc.state.gov/documents/organization/134266.pdf.
16
Article 18. http://www2.ohchr.org/english/law/ccpr.htm.
17
Article 12. http://www2.ohchr.org/english/law/cmw.htm.
1

28

Article 8.
IACHR, Report No 81/10, case 12.562, July 12, 2010.
20
International Convention on the Protection of the Rights of
all Migrant Workers and Members of Their Families, U.N. Doc
A/45/158. December 18, 1990. http://www2.ohchr.org/english/
law/cmw.htm.
21
Ibid.
22
http://www2.ohchr.org/english/law/crc.htm.
23
Article 4. http://www.unicef.org/zimbabwe/zimbabwe_ACWRC-2010.pdf.
24
Article 6. http://conventions.coe.int/Treaty/en/Treaties/
Html/160.htm.
25
U.N. Doc A/HRC/Res/12/6 (12 October 2009). http://daccess-dds-ny.un.org/doc/RESOLUTION/GEN/G09/165/57/PDF/
G0916557.pdf?OpenElement.
26
Declaration on Social and Legal Principles relating to the
Protection and Welfare of Children, with Special Reference to
Foster Placement and Adoption Nationally and Internationally, A/
Res/41/85 (3 December 1986). http://www.un.org/documents/
ga/res/41/a41r085.htm.
27
Sonja Starr and Lea Brilmayer, “Family Separation as a Violation
of International Law,” 21 Berkeley J. Int’L. 213, 222 (2003).
28
Articles 7 and 8. http://www2.ohchr.org/english/law/crc.htm.
29
See Articles 3 and 6. http://conventions.coe.int/Treaty/en/Treaties/Html/160.htm.
30
IACHR, Report on the Situation of Human Rights of Asylum
Seekers within the Canadian Refugee Determination System,
(2000), paragraph 159 – 160, 163.
31
http://www2.ohchr.org/english/law/crc.htm.
32
Articles 36 and 37. T.I.A.S. No. 6820, 21 U.S.T. 77. April 24,
1963. http://untreaty.un.org/ilc/texts/instruments/english/conventions/9_2_1963.pdf; see also Pamela Kemp Parker, “When A Foreign Child Comes into Care, Ask: Has the Consul Been Notified?,”
ABA Child Law Practice, vol.19, no.12 (February 2001).
33
Article 16, International Convention on the Protection of the
Rights of all Migrant Workers and Members of Their Families, U.N.
Doc A/45/158 (December 18, 1990). http://www2.ohchr.org/
english/law/cmw.htm.
34
http://www2.ohchr.org/english/law/crc.htm.
36
Article 15, Declaration on Social and Legal Principles relating
to the Protection and Welfare of Children, with Special Reference
to Foster Placement and Adoption Nationally and Internationally,
A/Res/41/85.December 3, 1986). http://www.un.org/documents/
ga/res/41/a41r085.htm.
36
A/RES/43/173. December 9, 1988. http://www.un.org/documents/ga/res/43/a43r173.htm.
37
http://www2.ohchr.org/english/law/crc.htm.
38
International Convention on the Protection of the Rights of
all Migrant Workers and Members of Their Families, U.N. Doc
A/45/158. December 18, 1990. http://www2.ohchr.org/english/
law/cmw.htm.
18
19

U.N. Doc A/HRC/Res/12/6. October 12, 2009). http://daccess-dds-ny.un.org/doc/RESOLUTION/GEN/G09/165/57/PDF/
39

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