Immigrant Families Face Child Welfare and Deportation

Harsher enforcement is tearing families apart.

By Michelle Chen Sep 08, 2010

If you look closely at the arguments for harsher immigration enforcement, two paradoxical strands emerge: 1) deport them all and make them take their "anchor babies" with them, and 2) deport them all and punish them by taking away their kids. For an immigrant family, either of these divergent scenarios is unimaginable, in different ways. We’ve reported before on child welfare interventions in immigrant families, but the issue has surfaced mainly through anecdotes in the media. A paper by Prof. Marcia Anne Yablon-Zug of the University of South Carolina School of Law tries to make legal sense of this pattern of child removal under immigration policy:

Increasingly, states are removing the children of undocumented immigrant parents and then terminating their parental rights. Such terminations represent a significant, but largely unnoticed, change in the law. There is no Supreme Court case or Congressional Act heralding this development. This is an unofficial change that comes directly from the child welfare agencies and family courts and their shifting conception of what justifies the termination of parental rights.

Building on the often warped criteria of child-welfare intervention, courts have applied three basic arguments in determining what is in the child’s "best interest" when a parent is slated for deportation:

The first involves concerns about the parents’ country of origin. Courts and agencies frequently conclude that it is not in the child’s best interest to live in a foreign country, far from friends and loved ones, where economic opportunities are limited and where the child may not even speak the language. The second justification is the inverse of the first. It is based on beliefs about the desirability and superiority of life in the United States. Given these assumptions, courts hold that it is in the child’s best interest to remain in the United States because life in the United States provides more opportunities; economic, educational, medical, etc., and an overall better quality of life. The third consideration used to find termination is in the child’s best interest is the fact that many of these children have the opportunity to be adopted by American families. Courts and agencies routinely conclude that such adoptions are in the children’s best interest and this justifies termination of parental rights.

So that leads us to cases like Encarnación Bail Romero’s. When the Guatemalan mother was detained, reported the New York Times last year, her son Carlos was placed with an affluent American family, and a judge decided that the new couple were more "fit" as parents than Bail, whose "lifestyle, of smuggling herself into the country illegally and committing crimes in this country, is not a lifestyle that can provide stability for a child." One of the most traumatic consequences of U.S. immigration policy is the banishment of an American-raised child to a strange country far from her community. But an even more chilling prospect is a mother losing her baby to a family of strangers, because their citizenship qualifies them to serve as the kind of parents that she, in the eyes of the law, can never aspire to be. (h/t ImmigrationProf)