The families who have been most catastrophically harmed by the Trump administration’s child-separation policy are those in which parents have already been deported while their children remain in government custody. Although there are no hard numbers, there are multiple reports of this happening, and of parents induced to give up their asylum claims for the uncertain promise of being reunited with their children. The former head of ICE suggested that the ranks of parents deported without their kids will grow, and the separations could be permanent. What legal options do parents have when their children are not just in separate facilities, but separate countries?
As you might imagine, litigating a case in one country while you’re in another is complicated. Courts in the vast majority of nations won’t take jurisdiction over a child-custody case when another court somewhere else already has the case or when the child has been living somewhere else for a certain period of time. (State law in the U.S. usually sets this at six months.) By the same token, U.S. courts won’t enforce custody rulings issued by courts without proper jurisdiction. A Nicaraguan mother can’t just go to a court in Managua and compel the U.S. to return her child.
For the most common kind of transnational custody case—disputes between private parties—international law recognizes that most people can’t resolve the matter on their own: A treaty creates special procedures so parents whose children are “illegally retained” in other countries can get them back without having to get on a plane. Unfortunately for deported parents, kids in federal custody probably don’t count as “illegally retained” for purposes of that treaty, which is aimed principally at child abductions, usually by noncustodial parents. The family separations happening at the southern border, however unjust, are being carried out under color of law. That means parents have to find a way to sue in a U.S. court or to enlist their own government to resolve the matter diplomatically with the U.S. government.
Theoretically, the diplomatic route shouldn’t be a problem. Federal law tasks the government with “reuniting unaccompanied alien children with a parent abroad in appropriate cases,” which should mean any case where a parent hasn’t been found unfit after a full and fair trial. When the U.S. government respects its statutory duty, parents stand a good chance of being reunited with their kids. That’s what happened in one of the few recent cases in which the federal government was directly involved in determining the custody of a child whose foreign parent wanted to regain custody.
In 1999, Elián González’s mother died in a shipwreck while bringing him from Cuba to the United States. González’s father, still in Cuba, sought his return through the U.N., with support from the Cuban government, while relatives in Miami, with whom the U.S. government temporarily placed him, sought to pursue an asylum claim on the boy’s behalf. The Miami relatives won some initial victories in court, but González and his father were ultimately reunited in large part due to the Clinton administration’s support: His father was granted a visa to come to the U.S., a federal appeals court deferred to the Immigration and Naturalization Service decision to reunite, and, most dramatically, a raid by armed federal agents took Elián from the Miami home of his relatives and delivered him to his father five months after he was rescued off the Florida coast.
When the U.S. government isn’t cooperative, the process can be much more arduous. The case of Felipe Montes is a good example of the obstacles that a deported parent can face, even when there’s no allegation that he’s unable to care for his kids. Montes was deported to Mexico in 2010 after being arrested on driving violations, and child protective services in North Carolina later removed his three children from the custody of Montes’ wife, who was struggling with mental health problems and drug abuse. Montes was in contact with the state agency and the court and told them he wanted to care for his children, but the court initially proceeded as though he was not a viable option because the federal government wouldn’t let him come back to participate in the case. It was only after the Mexican government intervened that the State Department reversed its earlier position and granted him a special visa. The visa didn’t allow Montes to work, but the Mexican government paid for his food and housing in North Carolina, and he was eventually able to reunite with his children and bring them back to Mexico after a 2½-year separation.
Molly Goss, a lawyer in Mexico City for the Institute for Women in Migration, which represents deported Mexican parents trying to reunite with children still in the U.S., told me that outcomes in American courts vary widely depending on the judge. “Judges don’t always understand the limitations of the immigration system, and they don’t want to do anything if the parent isn’t present in court,” she said. “They also sometimes look at the standard of living in Mexico compared to where a child is placed and figure the child will be better off in foster care.” Goss told me that Mexico has a robust consular system compared to many of the other countries that send large numbers of migrants to the U.S., and that the Mexican government routinely helps coordinate contact between separated parents and children. Still, she said, the obstacles are significant.
My own experience as an attorney representing parents in child-protection matters has shown that intransigence on the part of U.S. immigration can sometimes be an insuperable barrier when a parent and child would otherwise be reunited. In one recent case, I represented a foreign father whose son was born in the U.S. while his wife was here on a tourist visa. The baby was born with significant complications and couldn’t travel, and the mother, forced to remain in the U.S. longer than she had anticipated, ran out of her prescribed antidepressants. Hospital staff felt she was behaving erratically, and child protective services took custody of the baby. My client, although he was wealthy by the standards of his country and had visited the U.S. as a tourist before, was twice denied a visa to meet his son—a meeting that wouldn’t occur until the boy was 4 and had lived his entire life with one foster family.
Delays like that can extinguish any hope of reunification, because courts always consider children’s best interests, with an emphasis on the benefits of permanence and stability. Those considerations tilt away from family reunification with the passage of time, which worked against my client. By the time he was able to get a visa, his son was well settled in a foster family who was eager to adopt him, and the local child-protection court wasn’t willing to extend the case significantly for the two to get to know each other, let alone for my client to make the complicated arrangements necessary to obtain the level of medical care his son would need.
In some sense, Felipe Montes and my client were in a better position than many of the parents currently being deported without their kids. Because their children were involved in state child welfare proceedings, Montes and my client had appointed lawyers (49 states guarantee representation for parents in child welfare cases). Deported parents with children in federal custody aren’t entitled to appointed counsel once their misdemeanor illegal-entry charges are resolved, which usually happens well before their immigration cases are finished. Montes also benefited from Mexico’s relatively extensive system to help its citizens in cases like this, an effort that poorer countries like Guatemala and Honduras may not be able to duplicate. Deported people also can’t benefit from the many efforts that nonprofit legal organizations in the U.S. are making to provide free representation to immigration detainees, and they’re not covered by the ACLU’s pending lawsuit against Immigration and Customs Enforcement. The Department of Homeland Security’s alleged reunification plan makes no provision for parents already deported, other than that they should call a toll-free number, and even that can prove difficult for parents in rural areas.
Deported parents do actually have a stronger, more straightforward legal claim than parents still in detention. When parents are incarcerated on criminal charges—even the misdemeanors that the administration is using to jail migrants—child welfare law usually allows removal of their kids until they’re out of jail (and prior court rulings place limits on how long children can be detained with their parents when facilities allow for that). Deported parents are out of jail, and in most cases, there’s no court ruling that would impede their fundamental right to care for their kids. But as law professors are fond of saying, a right without a remedy is no right at all. For parents deported without their children, that remedy may prove cruelly difficult to reach.
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