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16 Child. Rts. Litig. 15 (2013-2014)
Undocumenting Parenting: Immigration Status as a Proxy for Parental Fitness

handle is hein.aba/chrglit0016 and id is 98 raw text is: hidren's R ts Lii on u r V2014, o4 Undocumented Parenting: Immigration Status as a Proxy for Parental Fitness By Marcia Zug - July 14, 2014 Parents have a constitutional right to the care and control of their children and this right is not confined to citizens. Undocumented immigrant parents also have this right, yet many of these parents are losing their children and having their parental rights terminated. On the surface, these separations and terminations are the result of immigration law because families are separated when undocumented parents are placed in detention facilities or deported. However, family separation is not the goal of immigration law and an examination of such cases demonstrates that the permanent removal of children from their undocumented parents is more often the result of state child welfare agencies and family courts than federal immigration law. United States immigration law assumes immigrant parents will retain custody of their children regardless of the parents' immigration status and therefore considers family separation an unlikely consequence of deportation. According to the Bureau of Immigration Affairs (BIA), when an alien parent's child is a United States citizen and the child is below the age of discretion, and if the alien parent is deported, it is the parent's decision whether to take the minor child along or to leave the child in this country. In re B & J Minors, 279 Mich. App. 12, 20 n.5 (2008). Immigration authorities take it for granted that immigrant parents will bring their children with them if deported, and parents claiming that deportation will result in a separation from their children are required to present significant evidence of intention to separate. Even then, the BIA has held that absent proof of extreme hardship to a child if he returns to his parents' native country with them, we will generally consider the decision to leave the child in the United States to be a matter of personal choice. In re Ing, 20 I. & N. Dec 880, 886 (B.I.A. 1996). Nevertheless, many immigrant parents are losing their children despite immigration law's presumption that deported parents retain custody of their children. In fact, family and juvenile courts and child welfare agencies routinely express the belief that a parent's undocumented status means the parent is, by definition, unfit, without any additional evidence. In some cases, an undocumented parent can be labeled unfit for simply not speaking English. For example, in an illustrative case from Mississippi, the State Department of Social Services was contacted after an undocumented immigrant mother, Cirila Baltazar Cruz, gave birth to a daughter. The department immediately removed the child, finding the mother's lack of English placed her unborn child in danger and will place the baby in danger in the future. In a similar case from Tennessee, an immigrant mother had her daughter removed after the child's teacher accused the mother of neglect. The court agreed, finding the mother unfit because she did not speak English and then prohibited contact with the daughter until the mother demonstrated her commitment to her daughter by learning to speak English. © 2014 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. Page 15 of 29

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