Deported Father’s Case Ends As Congress Debates Immigration Changes

Felipe Montes, who lost his three U.S.-citizens sons when he was deported to Mexico in December 2010 will regain custody of his children.

By Seth Freed Wessler Feb 19, 2013

A deported father’s long, painful legal fight to regain custody of his children came to end today in a small North Carolina county courthouse. Felipe Montes, who lost his three U.S.-citizens sons when he was deported to Mexico in December 2010, stepped out of the court on this cold, rainy Appalachian day with his rights restored. He will now be allowed to take his children with him to Mexico.

"I am happy this part is over, finally," Montes said. "Now I have to make arrangements to go. But I’m ready to leave with my boys."

Felipe Montes’ case gained national attention last year after broke the story and the Latino advocacy group launched a petition calling on Allegheny County, North Carolina to reunite the boys with their father. The case has become emblematic of the rippling consequences of deporting parents, an issue that’s gained prominence in ongoing national debates about immigration reform.

"I grant legal and physical custody to the father, Felipe Montes," Judge Michael Duncan said. "Good luck," he added, before ending the short hearing.

When Montes was deported following a series of driving violations, he left behind his wife, Marie Montes, to care for their two children. The couple’s third baby was born while Montes was locked inside a Georgia immigration detention facility. Marie Montes, who has long struggled with drug addiction and psychiatric disability, could not care for the children alone, and they were placed with foster parents who hoped to adopt the boys.

But Felipe Montes protested, asking that the boys be placed with him. Until August, that appeared unlikely, but the case changed direction when federal immigration authorities, under pressure from the Mexican consulate, granted Montes a rare temporary immigration parole so he could attend the parental rights hearings.

"When he came back, he was no longer this man in a far away place but a father right in front of them," said Donna Shumate, Montes’ local court appointed attorney.

In November, Judge Michael Duncan granted Montes custody of his children on a trail basis, and for the last three months, the father has lived with the boys in the basement apartment paid for by the Mexican Consulate for the Carolinas.

Today, Judge said that the child welfare case would be formally closed; that Isaiah, 5, Adrian, 3, and Angel 2 will be fully returned to their father. Judge Duncan said that because the trial placement revealed no concerns with Montes’ ability to care for his kids, the country lacks a legal basis to retain custody of the children.

The child welfare department seemed to anticipate this and told the judge this morning that they recommend the children be reunified with their father.

Montes’ federal immigration parole requires that he leave the country before March 23rd. Montes plans to live with family in Tamaulipas, Mexico. Whether Marie Montes, who is a U.S. citizen, will join the family is unclear. The mother is currently incarcerated for parole violations and is pregnant with another child. The family has not decided where the new baby will live.

Cases like the Montes’ have become increasingly common in recent years as the federal government deports historic numbers of people from the interior of the United States. In December, Colorlines reported that between July 2010 and September 2012, over 205,000 parents of United States citizens were deported from the country. Some of these parents lose custody of their kids entirely. In November 2011, a Colorlines investigation revealed an estimated 5,000 children were stuck in foster care because whose parents were deported.

These separations have migrated toward the center of fledgling congressional debates over immigration. Earlier this month Representative Karen Bass, a California Democrat raised the issue during a House Judiciary Committee hearing on immigration reform.

"Because of the deportations that have taken place over the last few years there are anywhere to [sic] 5 to 6000 children who have been placed in foster care because their parents have been deported–the children were citizens," Rep. Bass said, referencing the 2011 investigation.

In similar fashion, during a Senate Judiciary Hearing last week, Senator Al Franken, a Democrat, cited data from the December story. He then asked Secretary Napolitano to explain her agency’s practices when deporting parents. Napolitano said that Immigration and Customs Enforcement agents try to ensure children have other family members to care for children. But she added, "Where the parents need to be deported…in some cases we have to call in whatever the social agency involved in the state appears to be." requested clarification on the policy from Immigration and Customs Enforcement, but the agency did not respond in time for publication.

Senator Franken said during the hearing that he plans to introduce legislation to protect families from separation during the deportation process. States have started to move to protect families from going through what the Montes family has. In 2012, California governor Jerry Brown signed the a set of bills to address the needs of parents facing deportation whose children are in foster care. The laws were the first of their kind in the country, and legislators in several other states are considering copying California’s lead.

North Carolina’s legislature is not one of these states, but for Felipe Montes, these changes would have come too late. Though he has now been reunited with his children, the father was separated from his sons for two years and must now leave the country to raise the boys.