Being separated from your children is a parent’s worst nightmare. But, unfortunately, it’s the reality for hundreds of immigrant parents and thousands of children across the United States, including in Illinois. Families can be separated if the parents are detained by U.S.

Immigration and Customs Enforcement (ICE), are deported, or are seeking asylum at a U.S. border. While this is an incredibly difficult situation for everyone involved, it’s important for parents to be aware of their rights, what policies and laws are in place, and how an immigration attorney may be able to help.

ICE Directive 11064.3: Interests of Noncitizen Parents and Legal Guardians of Minor Children or Incapacitated Adults

On July 14, 2022, U.S. Immigration and Customs Enforcement issued directive 11064.3 titled “Interests of Noncitizen Parents and Legal Guardians of Minor Children or Incapacitated Adults.” This directive replaced 11064.2 “Detention and Removal of Alien Parents or Legal Guardians.” The 2022 directive was created with the purpose of ensuring that there are cohesive, uniform policies in place to establish how the parental rights of noncitizen parents will be protected during immigration enforcement.

ICE takes a formal stance that immigration enforcement activities should not “unnecessarily disrupt or infringe” on the rights of noncitizen parents or legal guardians. It also recognizes that parents continue to have certain parental rights even if they have been detained or deported or are facing other enforcement actions.

How Does Immigration Status Impact Your Ability to Parent Your Children?

While being detained or deported doesn’t change or alter your parental rights, it can create situations where it is impossible to exercise them fully. For example, parents generally have the right to custody of their children unless they have been deemed unsafe or unfit. But if a parent is currently in immigration detention, they generally cannot provide or care for their children.

If the parent is being deported and their children are not U.S. citizens, the children will generally return to the country of origin with the parents. But if the parents or legal guardians are noncitizens and the children are U.S. citizens, it creates a legal issue because the children can’t be deported. If removal proceedings against the parents can’t be stopped, it can result in the children being placed in the U.S. foster care system.

What Parental Rights Do Detained or Deported Parents Have?

If a parent has not otherwise been deemed unfit or unsafe, they have the right to custody of their children. This is regardless of their immigration status or whether they have been detained or deported. Parents also have the right to be notified of any custody proceedings and to have copies of all the related documentation. They also have the right to attend any custody proceedings, even if they are currently being detained.

It’s important to note that while these rights exist and should be protected, this isn’t always the case. In many situations, noncitizen parents face significant challenges in being able to maintain custody of their children once they are separated. An immigration attorney can explain to you what’s going on, what your rights are, and what you can do to increase the chances that you can be reunited with your children or have them placed with a family member or other trusted adult.

What Happens to the Child When the Parent Is Deported?

When children and their parents are separated due to immigration issues, there are generally three potential outcomes:

• The child is placed in foster care within the United States.
• The child is placed with a relative or other trusted adult known to the family.
• The child returns to the country of origin with their parents when the removal proceedings are finalized.

What options are available to you depend on whether your parental rights are still intact and whether the child is a U.S. citizen. In situations where the parents are not together, the noncustodial parent has the right to pursue custody of the child. This is true whether the noncustodial parent is a citizen or whether they are currently living in the United States or another country. If this is relevant to your situation, talk with an immigration attorney about what this process entails.

What Legal Options May Be Available?

If you are dealing with the possibility of being separated from your children — or it’s already happening — it can be difficult to know where to begin. An immigration attorney can help you identify what immigration issues you’re facing as the parent and your legal options, as well as what you can do to pursue family reunification. In some cases, you may be able to stay in the United States by applying for a T visa, U visa, or VAWA petition. You may also be able to reapply for a visa once you are back in your home country.

Children whose parents have been deported may also be able to apply for Special Immigrant Juvenile classification in some cases. An immigration attorney can also help you understand how you can continue to have visitation with your child and what steps you can take to pursue reunification when possible.

If you’re a parent facing deportation proceedings or you are being threatened with immigration detention, call Gilliam Law at 866-511-3422 to schedule a consultation with an immigration attorney. We’re to help you navigate this complex situation, explain your options, and ensure you’re aware of your rights.

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