Families and children under U.S. Immigration law

Immigration law is changing at a rapid pace, and the burden of these changes often falls on the most vulnerable immigrants — children. Undocumented children are affected by law and policy governing parental rights and the integrity of the family unit.

Separation of Families at U.S. Entry Points

On May 7, 2018, Attorney General Jeff Sessions announced a significant change to U.S. immigration policy. Adults who are stopped by the Border Patrol will be sent directly to detention centers run by Immigration and Customs Enforcement to await trial in federal court while any children with them will be turned over to the Department of Health and Human Services’ Office of Refugee Resettlement. This policy change means that children who enter the U.S. with their families will be treated no differently than unaccompanied minors. They will be separated from their parents or guardians and their custody will be overseen by a different federal agency (DHHS).

Further, the new policy will impose criminal penalties (for “smuggling a child”) on first-time offenders. Previously, the first time an undocumented person tried to cross the U.S. border, he or she was merely sent back to the country of origin. Now, instead of being subject to civil deportation proceedings, first-time offenders face six months in prison, while those caught trying to cross the border a second time can be sentenced to two years in prison. (Depending on their criminal records, immigrants who repeatedly try to cross the border may face up to 20 years in prison.) This policy of separation and mandatory detention extends even to asylum seekers, that is, immigrants fleeing violence or persecution in their countries of origin. Such immigrants may still apply for asylumbut will remain in detention, separated from their children, while their applications are reviewed.

Even before this policy was announced, undocumented families were separated by ICE and the Border Patrol. A 2013 report estimated that, in the preceding year, more than 150,000 immigrant children had been separated from their parents. This practice means that any family attempting to enter the U.S. without documentation runs a significant risk of being split up.

Parental Rights of Detainees

In August 2017, Immigration and Customs Enforcement (ICE) issued a new Directive on the parental rights of detainees. A previous Directive from 2013 allowed ICE agents to exercise discretion in enforcement of immigration laws to prevent parents from being separated from their children. (Please note that these Directives apply only to agents of ICE, who are responsible for investigating potential immigration violations within the U.S. and not to Border Patrol agents, who are charged with guarding U.S. border regions.) The 2017 Directive does not consider (or even mention) “parental interests,” eliminates training on sensitivity to parental interests for ICE agents,and does away with terms that would enable detained parents to maintain relationships with their children. The current Directive also gets rid of provisions allowing a detained parent to participate directly in family court hearings that could result in the loss of parental rights.

The picture isn’t entirely bleak: the 2017 Directive encourages field agents to permit parents to make their own childcare arrangements at the time of arrest rather than immediately contacting child welfare services.Please note that this Directive applies to families who have been in the U.S. rather than to families newly attempting to enter the country; it appears to give parents who have been in the country greater say in their children’s guardianship. The effect of this Directive is to keep children out of the court system and to preserve ties with families and communities. The 2017 Directive also continues a policy put in place in 2013, which allows detained parents to make phone calls to their families,coordinate travel plans for their children, and receive visits from the children while in detention. Further, the policy does not explicitly prohibit field agents from using their individual discretion on detaining parents, although the Directive removes all mention of discretion. It should be noted that the Directive is not legally binding and applies to legal guardians of children as well as to parents.

Related page: The Rights of Undocumented Children and Youth (including DACA)