New York City, January 28, 2011—On Tuesday, January 25, the Missouri Supreme Court sent the case of a Guatemalan woman whose parental rights were terminated following an immigration raid at her workplace back to the lower court for a retrial. Encarnación Bail Romero, whose son was adopted by an American couple against her wishes, has been separated from her child for nearly four years. While the Supreme Court reversed the termination of Ms. Bail Romero's parental rights and the adoption decision, the Court was unable to reunite Ms. Bail Romero with her son because procedural errors in the family court require the case to be tried again.
The Women's Refugee Commission greets the Supreme Court's decision with mixed emotions. The ruling reaffirms parents' fundamental right to raise their children, and to due process before the law. However, in this case, the family court, the child welfare system and the immigration system failed both mother and child. Ms. Bail Romero was unable to meaningfully participate in custody proceedings while in custody. She was notified of proceedings in a language she could not understand. She was pressured to give up custody of her child, and refused to do so. Finally, following ineffective representation by her court-appointed attorney, she was represented by an attorney hired by the individuals who ultimately adopted her son. The Supreme Court's recognition that appropriate processes and procedures were not followed in terminating parental rights is a victory for justice, but in this case—and in the cases of many other immigrant parents who face challenges to their parental rights—justice delayed is too often justice denied."The trauma faced by all parties in this case should never have occurred," said Emily Butera, program officer for the Women's Refugee Commission's detention and asylum program. "We are pleased that, the Supreme Court's decision recognizes the principle of due process guaranteed by the constitution regardless of a person's immigration status. No one should fear losing their child under these circumstances, and no child should be separated from his parent unless it is for his safety. At the same time, the decision to return the case to the lower court means months, and possibly years, of continued separation at great cost to the well-being of the family. "
Five million children in the U.S. have at least one undocumented parent and three million of these children are U.S. citizens. Immigration judges currently have no discretion to consider the impact of a parent's deportation on their children.
Tragedies such as these are not necessary and can be avoided without compromising rule of law or immigration enforcement efforts. Immigration and Customs Enforcement (ICE) can take steps to ensure that parents have access to their children and courts, and has the discretion to release parents so that they can undergo immigration proceedings in their home community, where they can continue to care for their children and make arrangements to take their children with them—or leave them in a safe situation—if they are ordered deported. There are cost-effective alternatives to traditional immigration detention that can be used to ensure appearance in proceedings while minimizing the trauma to children and families and reducing unnecessary burdens on the child welfare system. ICE's failure to use these options leads to great damage to children and has the potential to create a generation of lost children, needlessly denied a meaningful relationship with detained and deported parents and far more likely to live in poverty, struggle in school and face unemployment and homelessness.
"When parental rights are not protected, nobody wins," said Butera. "Families are broken and the trauma experienced is immeasurable and, too often, irreparable. In this case, a child has needlessly suffered because of a broken system. We are advocating for policies that protect due process, and keep families together."