Even though I'm daily in the trenches and not much about immigration shocks me any longer, I'm stunned by the recent ABC Nightline report that a new method of punishment for undocumented immigrants has been devised - taking away their U.S. citizen children. See: Stolen Babies? Immigrant Mother Loses Four Kids Didn't we learn anything back in the 1950's and 1960's when thousands of Native American children were taken away from their families under the motto: "Kill the Indian, Save the Man" - causing decades of psychological trauma and necessitating the passage of the Indian Child Welfare Act of 1978?
In a report released last year titled "Disappearing Parents", Nina Rabin, an attorney with the University of Arizona's Immigration Law and Policy Program argues that systemic failures in our federal immigration enforcement and our state child welfare systems have led to situations where parents are apprehended and placed into detention facilities and are unable to attend family court hearings to fight for custody of their children. In the Nightline case mentioned, Arizona courts terminated a mother's parental rights to her four children, including the youngest who was separated from her mother at three months. More than three years later the children no longer speak Spanish, are in foster homes, and are in the process of being adopted.
Ms. Rabin's report, which draws upon dozens of interviews with caseworkers, judges and lawyers in Arizona alone, concludes that the Nightline case is not an isolated example but rather is systemic and frequently goes unreported and unnoticed because the parents are powerless to do anything. She quotes one juvenile court judge as saying, "For me, there is just so much confusion. Nobody really understands how the [immigration] system works. No one understands it. The children certainly don’t understand it, their parents don’t understand it, their child welfare lawyers don’t understand it, we as judges really don’t have a sufficient understanding of the way the process works. . . it is such a mystery to everyone. It just seems like this big, amorphous mystery."
Although the Immigration and Customs Enforcement folks argue that they are less likely to detain undocumented parents who have not committed any crimes, a report from last summer titled "Shattered Families", prepared by the Applied Research Center, finds that an estimated 5100 children in 22 states were in foster care after their parents were detained or deported. Of those, some have been put up for adoption by American families, potentially creating heart-wrenching custody battles such as the one described here. Although ICE says that such cases are "rare", the ARC report concludes that at least 15,000 more children will face similar threats to reunification with their parents over the next five years.
An appellate judge in the adoption case mentioned above ruled that the mother had willfully abandoned her son and couldn't offer him a future, and that her "lifestyle...of smuggling herself into a country illegally and committing crimes in this country is not a lifestyle that can provide stability for a child." Never mind that the crime in question was only immigration related and that the American adoptive father himself had pled guilty to a felony for possession of stolen property in his younger days. Fortunately the Missouri Supreme Court overturned the decision and called the boy's five year separation from his Guatmalan mother a "travesty of justice", but the consequences for all concerned will be painful and enduring.
This raises the question: how many undocumented mothers and fathers will be able to fight their way through our courts, particularly if they've already been deported to another country, live in poverty, and don't have access to counsel? And what are the long-term emotional consequences for their forceably separated children? Isn't there another, more humane way of approaching the problem?
Of course there is. Fifteen years ago these issues rarely arose because there were more discretionary bases for fighting deportation. Hard working mothers and fathers who hadn't committed any crimes were rarely deported but rather were sponsored by employers or family members and paid a fine for their immigration overstays. Or they were granted "suspension of deportation" by beneficent immigration judges who recognized the extreme hardships that their deportation would create. Many such individuals moved forward to lead productive lives and become community leaders, teachers, and doctors, such as some of the individuals profiled in my book, Green Card Stories . It is really time for us to put our heads together as a civilized society and figure out a humane and compassionate solution. If we are sensible, bi-partisan and above all true to the basic tenets of our immigrant nation, we can fix our broken immigration system without breaking up families and destroying lives.