INTRODUCTION

Historically, the United States has been a popular destination country for international immigrants, and the topic of immigration tends to be controversial in the American political landscape. In the summer of 2014, however, a special group of immigrants dominated the national conversation: unaccompanied children from Latin America. 1 Headlines from national news outlines reported on the vitriolic issue of how the U.S. should respond to the perceived increase in unaccompanied children crossing the border. President Obama addressed the issue, stating that although the actual number of children crossing the border was at an all-time low,2 he would still implement a program to provide unaccompanied migrant children representation through the creation and funding of AmeriCorps.3 Created in June of 2014, the organization is funded by two million dollars in grants and “provide[s] one-hundred lawyers and paralegals in twenty-eight states” to represent unaccompanied immigrants “under the age of sixteen in removal proceedings.”4

Providing legal representation in a system where there is no right to counsel is an important first step, 5 but the challenges of representing unaccompanied child immigrants demands a multidisciplinary approach. Recently, the rise of “Trauma-Informed Care” (TIC) in the medical and social services field has revolutionized services for children, and its philosophy and methods are directly transferrable to those engaged in “legal care.” 6 Through a wedding of TIC and zealous legal representation, a child’s journey through the legal system need not be as traumatic as the journey to the United States.

I. BACKGROUND OF LATIN AMERICAN IMMIGRATION

The United States is often referred to as “a nation of immigrants,”7 and according to the Migration Policy Institute, the U.S. is the number one destination for immigrants. 8 In fact, according to the Census Bureau, the percentage of the United States population that is foreign born has been on the rise since the 1970s and reached 12.9% in 2010.9 The Census Bureau also reports that the majority of foreign born people in America are from Mexico and Central America. 10

The top Latin American source countries for immigration to the United States are Mexico, El Salvador, and Guatemala,11 all countries with high levels of political and economic insecurity. 12 Many explanations are circulated for the high number of immigrants from these countries, and each source country has different “push” factors. However, a few themes seem to emerge from every analysis: dangerous or economically disadvantageous conditions in the home country, the goal of family reunification, and relative proximity to the United States.13

Although Latin American immigration to the United States has been on the rise for decades, the summer of 2014 highlighted a perceived surge of unaccompanied immigrant children. 14 The issue came to the forefront of American news when townspeople in Arizona and California gathered to protest and turn away buses of immigrant children. 15 In California, the buses were leaving overcrowded Texas detention centers and the children were in the care of older relatives, but in Arizona, the buses transported unaccompanied immigrant children exclusively. 16 Arizona protestors bearing signs with phrases like, “no open borders” and blocking buses full of children provoked outrage and added a new wrinkle to the immigration debate:17 how should the United States deal with unaccompanied children crossing the border?

† Student attorneys in the Thomas and Mack Immigration Clinic at the William S. Boyd School of Law. Many thanks to Professor Fatma Marouf for her fearless leadership of the Clinic and her invaluable contributions to this article, which started out as a project for her immigration class.
1 PETER J. MEYER ET AL ., CONG . RESEARCH SERV., UNACCOMPANIED CHILDREN FROM CENTRAL AMERICA : FOREIGN POLICY CONSIDERATIONS, 1 (2016), http://trac.syr.edu/Immigration/library/P10211.pdf; see e.g. Sonia Nazario, The Children of the Drug Wars: A Refugee, Not an Immigration Crisis, N.Y. TIMES (July 11, 2014), https://www.nytimes.com/2 014/07/13/opinion/sunday/a-refugee-crisis-not-an-immigration-crisis.html; Lauren Fox, Anti-Immigrant Hate Coming From Everyday Americans, U.S. NEWS (July 24, 2014), http://www.usnews.com/news/articles/2014/07/24/anti-immigrant-hate-coming-from-everyday-americans.
2 President Barak Obama, Remarks by the President in Address to the Nation on Immigration (Nov. 20, 2014).
3 Erin B. Corcoran, Getting Kids Out of Harm’s Way: The United States’ Obligation to Operationalize the Best Interest of the Child Principle for Unaccompanied Minors, 47 C ONN. L. REV . ONLINE 1, 5 (2014).
4 Id.
5 A recent survey of similarly-situated immigrants in removal proceedings revealed that immigrants with legal representation enjoyed odds fifteen times greater than immigrants without representation. Ingrid V. Eagly & Steven Shafer, A National Study of Access to Counsel in Immigration Court, 164 U. P A . L. REV . 1, 2 (2015). Recently, New York became the first state to provide all immigrants in removal proceedings with an attorney. New York State Becomes First in Nation to Provide Lawyers for All Immigrants Detained and Facing Deportation, VERA INST. JUST., https://www.vera.org/newsroom/press-releases/new-york-state-becomes-first-in-the-nation-to-provide-lawyers-for-all-immigrants-detained-and-facing-deportation (Apr. 7, 2017).
6 Carly B. Dierkhising, et al., Trauma-Informed Justice Roundtable: Current Issues and New Directions in Creating Trauma-Informed Juvenile Justice Systems, NAT’L CHILD TRAUMATIC S TRESS NETWORK (Aug. 2013), http://www.nctsn.org/sites/default/files/a
ssets/pdfs/jj_trauma_brief_introduction_final.pdf.
7 See, e.g., Kay Deaux, A Nation of Immigrants: Living Our Legacy, 62 J. SOC. ISSUES 633, 634 (2006). This phrase was popularized by John F. Kennedy’s book of the same name. Id.; JOHN F. KENNEDY, A NATION OF IMMIGRANTS (1959).
8 Top 25 Destinations of International Migrants, M IGRATION POL’Y INST. (2015), http://www.migrationpolicy.org/programs/data-hub/international-migration-statistics.
9 Steven A. Camarota, Ctr. for Immigration Studies, Immigrants in the United States: A Profile of America’s Foreign-Born Population 9 (2012),
http://cis.org/sites/cis.org/files/articles/2012/immigrants-in-the-united-states-2012.pdf; The Foreign–Born Population in the United States, U.S. Census Bureau 3, https://www.census.gov/newsroom/pdf/cspan_fb_slides.pdf (last visited Mar. 18, 2017).
10 The Foreign–Born Population in the United States, supra note 9, at 6; CAMAROTA, supra note 9, at 16.
11 Jie Zong & Jeanne Batalova, Frequently Requested Statistics on Immigrants and Immigration in the United States, MIGRATION POL’Y INST. (Apr. 14, 2016), http://www.migrationpolicy.org/article/frequently-requested-statistics-immigrants-and-immigration-united-states.
12 See U.S. CONFERENCE OF CATHOLIC BISHOPS, MISSION TO CENTRAL AMERICA : THE FLIGHT OF UNACCOMPANIED CHILDREN TO THE UNITED STATES 2, 8 (Nov. 2013), http://www.usccb.org/about/migration-policy/upload/Mission-To-Central-America-FINAL-2.pdf; Jie Zong & Jeanne Batalova, Central American Immigrants in the United States, MIGRATION POL’Y INST. (Sept. 2, 2015), http://www.migrationpolicy.org/article/central-american-immigrants-united-states.
13 U.S. CONFERENCE OF CATHOLIC BISHOPS, supra note 12; see also Gordon H. Hanson & Craig McIntosh, Birth Rates and Border Crossings: Latin American Migration to the US, Canada, Spain, and the UK, 122 ECON . J. 707, 708–09, 716 (2012); Jesus Rios & Steve Crabtree, One in Four Latin Americans Wishes to Emigrate, GALLUP (Jan. 21, 2008), http://www.gallup.com/poll/103837/one-four-latin-americans-wishes-emigrate.aspx.
14 PETER J. MEYER ET AL., supra note 1.
15 Michael Martinez et al, Growing Protests Over Where to Shelter Immigrant Children Hits Arizona, CNN (July 16, 2014), http://www.cnn.com/2014/07/15/us/arizona-immigrant-children/; Michael Martinez & Holly Yan, Showdown: California Town Turns Away Buses of Detained Immigrants, CNN (last updated July 3, 2014), http://www.cnn.com/2014/07/02/us/california-immigrant-transfers/.
16 See sources cited supra note 15.
17 See Martinez et al., supra note 15. Some protestors also distributed flyers which read “[w]e are being invaded!” Id.

INTRODUCTION

“They stole my babies from me. They took them from me. . . . I don’t know if I’ll ever see them again,” a woman detained in federal immigration  custody exclaimed.¹ The woman unlawfully emigrated from Jamaica to the  United States over twenty years ago.² After her arrival, she gave birth to U.S. citizen children.³ When U.S. Immigration and Customs Enforcement  (ICE) arrested her for immigration violations, she lost physical custody of  them.⁴ While in ICE detention, she only knew that a state agency had placed her children in foster care, but she did not know any other  pertinent details about their status.⁵ After she was detained, she had no  contact with the caseworker who handled their subsequent placement.⁶ This unfortunate woman faced the prospect of deportation, and consequently feared that she may never see her children again.⁷

Sadly, this situation is not uncommon for an undocumented immigrant parent in ICE custody.⁸ As of 2011, at least 5,100 children were  in foster care due to either their parent’s being placed in detention facilities, or because of their subsequent deportation.⁹ How and why are otherwise functional families residing in the United States constantly being separated by the federal government?

Since federal statutes govern immigration law and state statutes  govern family law, the two areas of law collide when immigrants are a party in a child custody case.¹⁰ The example discussed above illustrates the usual result: ICE detains immigrants and separates them from their U.S. citizen children. The federal government controls immigration removal hearings, and state governments, via family court, handle child custody proceedings.¹¹ Instead of the federal and state governments smoothly intersecting, they stay on parallel tracks by separately enforcing two judicial proceedings.¹² Due to the separation, family courts terminate parental rights without taking into consideration a parent’s immigration status or detention.¹³ ICE is not ignorant to the injustice—demonstrated by an ICE issued August 2013 directive (ICE Directive).¹⁴ The ICE Directive created policies to help detained immigrant parents become involved in family court proceedings.¹⁵

This Article argues that despite the recent ICE Directive detained and deported immigrant parents still face obstacles in maintaining legal custody of their U.S. citizen children. Part I of this Article discusses the legal basis for the separation between immigration law and family law. It also provides a legal summary of the development of the fundamental right to be a parent as established by the U.S. Supreme Court. Part II discusses the injustice undocumented immigrant parents confront in state court proceedings that terminate parental rights. Part III provides an overview of the ICE Directive. Part IV analyzes problems with the ICE Directive. Part V introduces several proposals, which if followed, may help to protect the parental rights of immigrants, and ensure that the United States adheres to its public policy of keeping family units intact.

I. AN OVERVIEW OF FEDERAL AND STATE LEGAL AUTHORITY

A. Federal Immigration Authority

It is undisputed that the federal government governs immigration law, as the U.S. Supreme Court has consistently recognized. For example, in 1889, the Court stated that “[t]he government of the United States, through the action of the legislative department, can exclude aliens from its territory is a proposition which we do not think open to controversy.”¹⁶ The Court more recently acknowledged the inherent federal power over immigration law when it analyzed the constitutionality of state legislation in Arizona v. United States.¹⁷ The Court noted that the federal government has “undoubted power over the subject of immigration and the status of aliens.”¹⁸ The federal government derives its plenary authority to regulate immigration from several clauses of the U.S. Constitution.¹⁹

Exercising its authority, Congress enacted the Immigration and Nationality Act (INA), a comprehensive statute on immigration law.²⁰ The INA authorizes various agencies within the federal government to enforce national immigration laws.²¹ The Department of Homeland Security, the Department of Justice, the Department of Labor, and the Department of State constitute the main government immigration enforcement agencies.²² ICE is “the principal investigation arm of the U.S. Department of Homeland Security . . . .”²³ Within ICE is the Office of Enforcement and Removal Operations (ERO).²⁴ The ERO “identifies and apprehends removable aliens, detains these individuals when necessary and removes illegal aliens from the United States.”²⁵ The INA gives federal agencies like ICE the authority to arrest and detain undocumented immigrants.²⁶ Since the federal legislature enacts immigration laws, and federal agencies enforce them, the federal government alone controls the procedures that lead to the removal of immigrant parents from the United
States.²⁷

1 SETH FREED WESSLER, APPLIED RESEARCH CTR., SHATTERED FAMILIES: THE PERILOUS INTERSECTION OF IMMIGRATION AND THE CHILD WELFARE SYSTEM 22 (2011) [hereinafter SHATTERED FAMILIES], http://www.sph.sc.edu/cli/word_pdf/ARC_Report_ Nov2011.pdf.
2 Id.
3 See id.
4 See id.
5 See id.
6 Id. 7 Id.
8 See id. at 29.
9 Id. at 6.
10 See David B. Thronson, Custody and Contradictions: Exploring Immigration Law as Federal Family Law in the Context of Child Custody, 59 HASTINGS L.J. 453, 454, 456 (2008) [hereinafter Custody and Contradictions].
11 See id. at 454, 456–57.
12 See id. at 456.
13 See id. at 468–69.
14 U.S. IMMIGRATION & CUSTOMS ENF’T, 11064.1: FACILITATING PARENTAL INTERESTS IN THE COURSE OF CIVIL IMMIGRATION ENFORCEMENT ACTIVITIES 1 (2013)[hereinafter ICE DIRECTIVE], http://www.ice.gov/doclib/detention-reform/pdf/parental_interest_directive_ signed.pdf.
15 See id. 16 Chae Chan Ping v. United States, 130 U.S. 581, 603 (1889). See also Galvan v. Press, 347 U.S. 522, 531 (1954) (noting that “the formulation of [immigration] policies [being] entrusted exclusively to Congress has become about as firmly imbedded in the legislative and judicial tissues of our body politic as any aspect of our government.”).
17 Arizona v. United States, 132 S. Ct. 2492, 2497–98 (2012).
18 Id. at 2498.
19 U.S. CONST., art. I, § 8, cls. 3, 4, 11. See Stephanie M. Gomes, Building Trust in Our Communities: States Encourage Their Residents to Speak Up in the Wake of the Federal Government’s Silence, 33 QUINNIPIAC L. REV. 715, 721 (2015) (noting that the previous clauses grant the federal government power over immigration). The plenary power includes both implicit and explicit constitutional authorities. The precise source of federal immigration power is debated. See also Evan C. Zoldan, Strangers in a Strange Land:
Domestic Subsidiaries of Foreign Corporations and the Ban on Political Contributions from Foreign Sources, 34 LAW & POL’Y INT’L BUS. 573, 584 (2003) (noting that there are textual and non-textual sources for the plenary power over immigration); Allison Brownell Tirres, Property Outliers: Non-Citizens, Property Rights and State Power, 27 GEO. IMMIGR. L.J. 77, 86 (2012) (noting that the source of the constitutional basis for plenary power has been debated at length); Anne E. Pettit, “One Manner of Law”: The Supreme Court, Stare Decisis and the Immigration Law Plenary Power Doctrine, 24 FORDHAM URB. L.J. 165, 172–73 (1996) (describing the U.S. Supreme Court’s use of various sources to support the federal government’s plenary power over immigration).
20 See Immigration and Nationality Act of 1952, 8 U.S.C. §§ 1101–1537 (2012).
21 See id. § 1103(a)(1) (“The Secretary of Homeland Security shall be charged with the administration and enforcement of this chapter and all other laws relating to the immigration and naturalization of aliens.”).
22 See IMMIGRATION AND NATIONALITY LAW: PROBLEMS AND STRATEGIES 3 (Lenni B. Benson et al. eds., 2013).
23 ICE, DEP’T OF HOMELAND SECURITY, https://www.dhs.gov/external/ice (last visited
Oct. 22, 2015).
24 See Who We Are, U.S. IMMIGR. & CUSTOMS ENFORCEMENT, https://www.ice.gov/
about (last visited Oct. 22, 2015).
25 Enforcement and Removal Operations, U.S. IMMIGR. & CUSTOMS ENFORCEMENT,
https://www.ice.gov/ero (last visited Oct. 15, 2015).
26 See Immigration and Nationality Act of 1952, 8 U.S.C. § 1357(a) (2012).
27 See 3 TEX. JUR. 3D Aliens’ Rights § 5 (2015).

† Jessica N. Flores is a law clerk at Kelley Drye & Warren LLP in New York. She graduated from Cornell Law School in 2015 with a concentration in public law, and was a blog editor for the Cornell Journal of Public Policy. She was also a member of the Latin American Law Student Association (LALSA). During law school, Jessica interned with the  Department of Immigrant and Refugee Services at Catholic Charities Community Services, Archdiocese of New York. She received her B.A. in history with a concentration in Spanish from Columbia University in 2010. She would like to thank her parents, John and Lucille, sisters, Danielle and Melissa, and Jim Lynch for their unconditional support. She would especially like to thank Professor Steven Yale-Loehr for his invaluable guidance throughout the writing process.