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Immigration Law Associates, PC

ICE Could Learn from Solomon’s Choice

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By: Denise Ferrufino*

Immigration and Customs Enforcement (ICE) claims it does not intend to split apart families. Yet, it continues to deny deported parents custody of their children or the right to even make decisions for their children. ICE does not have the proper policies or systems in place to handle cases regarding children and their illegal parents. Although ICE is aware of children being involved, they state that it is not their responsibility to call child welfare agencies after a parent has been deported. According to the 2011 report from the Applied Research Center, approximately 5,100 children in 22 states were in foster care after their parents had been detained and deported. The majority of illegal parents lose custody of their children because they are deemed to be unfit parents due to their immigration status. Other factors are normally not taken into consideration.

Two years ago, Felipe Montes was deported to Mexico, and now may lose the right to see his three children. Montes was married to a U.S. citizen and North Carolina native, so he could have been eligible to obtain legal immigration status, but he could not afford the lengthy and expensive process. Montes was the primary provider for his family, since his wife could not work due to a mental illness. He was abruptly separated from his family and does not have the right to have his children live with him in Mexico. ICE assumed that his wife would be able to care for the children, and was not aware of her mental illness. Montes’ three children are currently in foster care, since his wife cannot take care of them due to illness and lack of income.

Even though Montes could come back to the United States for humanitarian reasons, because he is the primary provider for his children, ICE refused to reconsider his circumstances and admit him. Montes is trying a different approach and asking the North Carolina courts to let his children live with him in Mexico. Donna Shumate, Montes’ lawyer, will be representing him in a family court hearing on April 5, 2012.  The Alleghany County Department of Social Services refuses to send the Montes children to their father in Mexico because they are concerned that Montes’ home in Mexico does not have running water. Alleghany County is taking the position that authorities should not exile children to a foreign county when they can stay in the United States.

The director of Social Services said that the Department’s mission is to protect children from abuse, and its next priority is to reunite families. Montes does not have any criminal history, nor is there any indication that he would abuse his children if they lived with him. The Department of Social Services should adhere to its mission and allow children of deported immigrants to reunite with their parents, as long as the parents are fit to raise their children. Social workers in Mexico determined that Montes’ home is acceptable for the children to live in and there is no evidence that he is an unfit parent. He should not be punished as a result of his immigration status and prevented from seeing his children.

Legal experts say that the child welfare system often refuses to send U.S-born children to live with their deported parents. For Felipe Montes it does not matter where he is, as long as his children are by his side.

* Denise Ferrufino is a Beach-Oswald intern and a college student at George Mason University.

Filed under: Immigration Issues