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Re-Introducing Judicial Discretion Would Limit Families Split by Parental Deportation

As an immigration attorney it is agonizing to see families horribly damaged by the deportation of one or both parents, leaving the children in the care of family, friends or the U.S. foster care system. These parents must make painful decisions about whether to leave their U.S. born children in the country in hopes that they will take advantage of the many opportunities here or take them to a country with much fewer prospects. Many of these cases involve parents who have broken no major laws and pose no threat to others, but have been caught up in an aggressive anti-immigration system that allows judges no room to be lenient.

The Office of the Inspector General for the Department of Homeland Security estimates that at least 108,000 parents of U.S. citizen children were deported between 1997 and 2007, but these estimates are probably significantly lower than the actual number. In the first half of 2011, 46,486 parents of children born in the United States were deported, according to a DHS report. An estimated 5,100 children of deported parents were in the foster care system in 2011. It is also projected that almost 15,000 more children could enter the child welfare system over the next five years as a result of detained or deported parents.

Many of these parental separations could be eliminated if immigration judges could be permitted to exercise judicial discretion. A 1996 law prohibits judges from considering the impact on children in these cases. Many of the children left in the care of others may suffer from a wide variety of health issues as a result of loss of parent. According to a study by the DHS and the International Human Rights Law Clinic, children left behind have an increased likelihood of developing depression, anxiety and insomnia. Many of these children also experienced declines in academic performance, more behavioral incidents, and a higher likelihood of dropping out of school.

Although these cases mostly involve undocumented aliens, in almost ten percent of these cases the parents are legal residents. Surprisingly, the legal system can be extremely harsh even on those immigrants who are in the country legally. In many cases, these parents are misinformed about the risk of deportation. Many times, parents are not properly informed about when they may be deported, which often leaves them no opportunity to arrange living situations for their children. Sometimes, children of detained parents are shunted into foster care because child welfare authorities make the decision in place of a parent.

These gross injustices have recently come to light and organizations like the American Civil Liberties Union are pressing Congress and the Obama administration to allow judges the use of judicial discretion especially in parental deportations. With almost 10,000 illegal immigrants detained daily for only minor offenses, many immigration advocates urge the federal government to re-examine this huge waste of taxpayer resources.


As a practicing immigration attorney in the Austin area, I encounter these situations on a regular basis. If you or a family member would like advice or assistance in a deportation case, or any immigration issue, my office is available for private consultations. Please call (512) 215-5225 for an appointment.