ICE’s Child Welfare Directive Not a Fix, but a Good Start

by Kevin Lindsey

On August 23, 2013, U.S. Immigration and Customs Enforcement (ICE) issued a directive on “Facilitating Parental Interests in the Course of Immigration Enforcement Activities,” or the Parental Interest Directive.

While this directive does not fix our broken immigration system, it is an important step toward ensuring that immigration enforcement activities do not result in unnecessary family separation.

It was issued in response to the large and growing number of U.S. citizen children with immigrant parents or guardians who have been detained or deported. It is intended to ensure that detained and removed parents and guardians can maintain a relationship with their children and make decisions in their best interest.

With increased immigration enforcement activities in the last few years, the directive addresses a clear need. Between July 1, 2010 and September 31, 2012, ICE issued a total of 204,810 removals for parents of U.S. citizen children.

We know all too well that the detention and removal of parents has devastating effects for children. When parents are detained or removed, children may be left at home or school without anyone to care for them. To date, the Department of Homeland Security has not had a consistent policy to allow apprehended parents to make arrangements for their children’s care.

These children are also at increased risk of unnecessarily entering the child welfare system, at great cost to them, their families and to states. Children whose parents are detained or removed can go for months without speaking to or visiting their parents and are at further risk of permanent separation.

Because it is so difficult for detained and removed parents to participate in family court proceedings or to complete court orders that child welfare involvement necessitates, parental rights are sometimes terminated and some children may even be prematurely put up for adoption.

In 2011, the Applied Research Center estimated that at least 5,100 children with a detained or deported parent were living in foster care, and that 15,000 more children are at risk of entering the child welfare system over the next five years if policies are not implemented to reverse this trend.

The directive is intended to promote family unity by ensuring that parents and legal guardians of U.S. citizen or Lawful Permanent Resident (LPR) children who are placed in immigration detention and/or removal proceedings are able to make decisions regarding their child’s care, maintain contact with their children, and participate in family court proceedings that impact their parental rights.

It also reiterates the existing obligation that ICE personnel weigh whether prosecutorial discretion is warranted given a host of relevant factors, including whether an individual is a parent or guardian of a U.S. citizen or permanent resident child, or the primary caretaker of a child.

It does not, however, expand ICE’s prosecutorial discretion policy. Mandatory detention laws still trump humanitarian and family unity considerations, so if a parent, guardian, or primary caretaker is subject to mandatory detention or poses a risk to safety and security he or she must be detained.

While ICE’s Parental Interests Directive is not a permanent fix for an immigration system that is in urgent need of reform, it does have the potential to greatly reduce harm to children impacted by immigration enforcement actions. It will not put a stop to immigration enforcement policies that continue to tear families apart, but it is a commonsense, humane, and noncontroversial policy that reflects our American values and recognizes the paramount importance of the family in the life of a child.

For more specific information on the directive, please see the First Focus fact sheet:

Kevin Lindsey is director of policy and research at First Focus, a Washington, D.C.-based child policy organization.

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Legislative leaders in California have produced an initial plan to achieve Gov. Gavin Newsom's call for the closure of the state's Department of #JuvenileJustice, which once housed more than 10,000 youth and young adults and now holds fewer than 1,000.