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  • Mother Loses Battle for Custody of Her Son

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    Missouri Judge Upholds Decision to Terminate Parental Rights of Encarnación Bail Romero

    New York City, July 18, 2012—In a legal battle that has focused national attention on the urgent need for immigration reform, a Missouri judge has ruled against Encarnación Bail Romero, whose son Carlos was adopted by an American couple against her wishes. Carlos was just an infant when his mother, a young woman from Guatemala, was arrested during an immigration raid at the poultry processing plant where she worked. He is now five and has been living with his adoptive parents, who renamed him Jamison, for most of his life. Ms. Bail Romero is expected to appeal Judge David Jones’s decision.

    “One of the many tragedies of this case is that there is no good outcome,” said Emily Butera, senior program officer for the Women’s Refugee Commission’s detention and asylum program. “Heartbreak is inevitable for one of the two families and regardless of who is ultimately awarded custody, nothing will ever erase the trauma that this young child and everyone who loves him has experienced. Another distressing aspect of this case is that it didn’t have to happen. Rather, cases like these are the byproducts of fundamental gaps in the immigration and child welfare systems that make it all but impossible for parents in immigration detention to participate in proceedings affecting custody of their children.”

    Ms. Bail Romero’s case exemplifies the need to safeguard the parental rights of undocumented immigrants. While in custody, Ms. Bail Romero’s parental rights were repeatedly violated by the family court, the child welfare system and the immigration system.

    The Women's Refugee Commission is disappointed that the court’s decision fails to recognize the primacy of the parent’s right to due process, regardless of her immigration status. Thousands of foreign-born parents of U.S. citizen children are separated from their children and risk losing permanent custody. Five and a half million children in the U.S. have at least one undocumented parent and 4.5 million of these children are U.S. citizens. Immigration judges currently have no discretion to consider the impact of a parent’s deportation on his or her children.

    The lack of coordination between federal and state laws and immigration, family and child welfare policies complicates the issue. Parents can be detained for weeks or months without knowing what has become of their children. In some cases, they lose permanent custody of their children because they are unaware of or unable to participate in child welfare processes and attend family court proceedings while they are in detention or after they have been deported. In other cases, parents are deported without seeing their children or being able to arrange for their care.

    No standardized procedures are in place yet to ensure that all parents and caretakers of minor children are considered for release or alternatives to detention, although the immigrant rights community has been waiting for several years for a classification process that would encourage ICE to make custody decisions based on humanitarian factors, such as being the parent of a minor child in the U.S. Similarly, parents are not guaranteed a phone call at the time of apprehension to make child care arrangements, and ICE officers lack sufficient training to assess the potential impact of a parent’s apprehension on children’s safety and parental rights. Legislation has been proposed at the state and national levels, including a bill introduced in Congress just last week by Rep. Lucille Roybal-Allard (D-CA.) called the Help Separated Families Act. The bill aims to improve outcomes for children with detained and deported parents by ensuring that immigration status alone does not disqualify or prevent a parent or relative from caring for a child.

    “Passage of the Help Separated Families Act would be a big step in the right direction as it addresses the potential for bias against undocumented immigrants with children in child welfare care,” said Butera. “Until we reform both immigration and child welfare practices to ensure that they are not creating impediments to parental rights and family unity, cases like Ms. Bail Romero’s will continue to plague the justice system and families will continue to be torn apart.”

    Emily Butera is available for comment at 202.492.4451.