INTRODUCTION

In the wake of the U.S. Supreme Court ruling in Obergefell v. Hodges,1 in which the Court held that the fundamental right to marry is guaranteed to same-sex couples by both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the Constitution, promoting the rights of lesbian, gay, bisexual, and transgender (“LGBT”) individuals and building a more accepting society towards these non-conventional sexual orientations seem to have become a plausible goal of the U.S. society. Many LGBT rights activists argue that sexual orientation is an immutable characteristic and not a preference, therefore our society should create a climate where the LGBT individuals “can live openly without discrimination and enjoy equal rights, personal autonomy, and freedom of expression and association.”2 Exalting the idea of equal protection, personal autonomy, and right of privacy led the public to advocate for the LGBT rights.

However, such a consensus undoubtedly affect important aspects of everyone else’s lives. In particular, the freedom of parents to freely control sex education for their children, cultivate important values in their lives, and make medical decisions for them have been slowly but surely infringed upon. 3 Moreover, our rights to free speech and free exercise of religion under the First Amendment have been also infringed upon as we are often compelled to refrain from making religiously motivated statements especially in a professional work environment. 4 Respecting and promoting LGBT rights is one thing, but being forced to accommodate them in a way that denies our own fundamental rights in relation to our very own families and professional lives is another.

One good example, which is the main topic of this Note, is how our society criticizes any Sexual Orientation Change Efforts (“SOCE”) put forth even within the boundaries of our own family life. The term, SOCE is defined in many State statutes as “the practice of seeking to change a person’s sexual orientation,” including “efforts to reduce or eliminate sexual or romantic attractions or feelings toward a person of the same gender.” 5 It is widely referred to as a “conversion” or “reparative” therapy in which mental healthcare practitioners use different types of methods to help LGBT individuals convert back to a life of heterosexuality.6

The methods used in SOCE include behavioral techniques, cognitive behavioral techniques, and psychoanalytic techniques, as well as other medical, religious, and spiritual approaches.7 While some are known to employ extreme and physically intrusive tactics, such as hormone therapy, electric shock, and nausea-inducing drugs, the most common practice used by healthcare practitioners today is the “talk therapy,” which does not involve any physical intrusions on patients.8 Most of the contemporary SOCE therapies only involves verbal communication that discusses “traditional gender-appropriate behaviors” and “biblical perspectives” on sexual orientations.9

However, such a consensus undoubtedly affect important aspects of everyone else’s lives. In particular, the freedom of parents to freely control sex education for their children, cultivate important values in their lives, and make medical decisions for them have been slowly but surely infringed upon. 3 Moreover, our rights to free speech and free exercise of religion under the First Amendment have been also infringed upon as we are often compelled to refrain from making religiously motivated statements especially in a professional work environment. 4 Respecting and promoting LGBT rights is one thing, but being forced to accommodate them in a way that denies our own fundamental rights in relation to our very own families and professional lives is another.

A step to legally resist SOCE was made by several States when they completely prohibited their mental healthcare practitioners from administering SOCE therapies to minors regardless of whether the minor and his or her parents consented to the therapy.10 Furthermore, even President Obama has also recently called for banning medical practitioners from administering SOCE therapies on LGBT youth. 11 Although these States’ ban on SOCE are enacted to regulate licensed healthcare providers, on a deep level, the most affected stakeholders are in fact private individuals such as parents who are consequently deprived of their fundamental rights to make important decisions pertaining to raising their children according to their own family and religious values.

One good example, which is the main topic of this Note, is how our society criticizes any Sexual Orientation Change Efforts (“SOCE”) put forth even within the boundaries of our own family life. The term, SOCE is defined in many State statutes as “the practice of seeking to change a person’s sexual orientation,” including “efforts to reduce or eliminate sexual or romantic attractions or feelings toward a person of the same gender.” 5 It is widely referred to as a “conversion” or “reparative” therapy in which mental healthcare practitioners use different types of methods to help LGBT individuals convert back to a life of heterosexuality.6

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.