New Obama Directive Aims To Stop Detention Of Undocumented Parents With Minor Children

Marcus Garcia, 2, protests with family members during an immigration reform demonstration in front of the Immigration and Customs Enforcement (ICE), office on June 13, 2013 in Newark, New Jersey. (2013 Getty Images)

A new little-noticed directive by the Obama administration calls on immigration authorities to exercise discretion when dealing with undocumented immigrants who have minor children.

The directive, issued Friday evening, urges authorities to “exercise such discretion as early in the case or proceeding as possible.”

The new policy is aimed at addressing the problem of children falling through the cracks when their primary caregivers are detained and deported.

In 2011, roughly 5,100 U.S. citizen children of undocumented immigrants who were detained or deported were living in foster care, according to an analysis by the Applied Research Center. That study estimated that 15,000 more children would end up in foster care by 2016 if high numbers of detention and deportation continued under the Obama administration.

Immigration experts say about 200,000 parents of children who are U.S. citizens were deported between 2010 and 2012.

Immigrant rights advocates laud the new directive, though many said it falls short of resolving the larger issue of a broken immigration system that ends up separating families.

But proponents of strict immigration enforcement called it an end-run around Congress and accused the Obama administration of trying to sneak in another form of amnesty.

Emily Butera, who has worked with detained parents of minor children, said that the directive largely tries to close the gap that exists between the federal immigration enforcement and state child welfare systems.

Parents who have been in immigration custody often do not get the chance to place a phone call to alert their children or other adults about their arrest and detention, said Butera, senior program officer for the Women’s Refugee Commission’s, an immigrant advocacy group.

In many cases, child welfare authorities show up and take the children without knowing what happened to the parents, Butera said.

“The children are caught in a black hole because the two systems don’t understand each other and don’t cooperate very well,” she said in an interview with Fox News Latino.

The new policy, called “The Parental Interests Directive” and issued by U.S. Immigration and Customs Enforcement within the Department of Homeland Security, urges immigration authorities to consider alternatives to detention for undocumented immigrants when minor children are involved.

It calls for making sure that detained parents have as much involvement with their children — and any child welfare requirements and proceedings — as possible. And among key changes sought in the directive are keeping detained parents close to where their children live, as opposed to holding them in another state, and bringing back deported parents who are in danger of losing their children so they can participate in hearings and regain custody.

The directive still requires ICE agents to detain and deport immigrants who have serious criminal offenses, experts noted.

Marty Rosenbluth, an immigration attorney and executive director at the North Carolina Immigrant Rights Project, said that the directive is far less encompassing than many would like.

"Primarily, this new memo really isn’t about protecting parents of U.S. citizen children from being deported," he said. "As the memo says, 'This directive establishes ICE policy and procedures to address the placement, monitoring, accommodation, and removal of certain alley and parents.' In other words, it is more about what to do with these parents once they are already in removal proceedings to make sure that their parental rights are protected."

A key difference this time, Rosenbluth said, is that deported parents may be brought back, though under restrictive conditions.

"It provides for the facilitation of return for parents who have been deported to be able to return for family court or custody hearings," he said. "There have been several high profile cases recently where parents who were deported had to fight really hard to be able to come back for their hearings."

Those who favor strict immigration policies assailed the directive.

House Judiciary Committee Chairman Rep. Bob Goodlatte, a Virginia Republican, said the directive undermines the efforts in Congress to find a bipartisan solution to the flawed immigration system.

Many conservative members of Congress have criticized efforts by the Obama administration to loosen penalties for certain undocumented immigrants, including a 2012 directive suspending deportation for those who were brought to the United States as minors.

“President Obama has once again abused his authority and unilaterally refused to enforce our current immigration laws by directing U.S. Immigration and Customs Enforcement agents to stop removing broad categories of unlawful immigrants,” Goodlatte said in a statement.

“This new directive from the Obama Administration also poisons the debate surrounding immigration reform and shows that the Administration is not serious about fixing our broken immigration system,” Goodlatte added. “Instead of working with Congress to address problems with our immigration system, the President is working against us.”

Millions of U.S.-citizen children have undocumented parents, according to several studies — living in “mixed-status” households. Roughly 4.5 million U.S.-born children had at least one undocumented immigrant parent in 2010, an increase from 2.1 million in 2000.

“No parent should lose custody of their children simply because they are involved in immigration proceedings,” said Michelle Brané, director of the Women’s Refugee Commission.

“This announcement is an important acknowledgement that immigration enforcement can be carried out in a more humane and child-friendly manner.”