Upon arriving at the border, either alone or with their parents, children from abroad are placed in the care of the Office of Refugee Settlement. Until June 20 of this year, those minors who arrived with their parents were still marked by the government as “unaccompanied” because of the administration’s policy of separation at the border. Thus, the parents’ cases were put on a separate track, leaving the children. some as young as 2, alone as they went through the immigration system.
Of course, as many of the parents were deported – very few have a chance in hell without an attorney that they’re not entitled to – many kids were left behind. Separation at the docket is more accurate than separation at the border. What could compound this problem? State judges granting parental rights to foster parents stateside while not having a damn clue what’s going on with the biological ones:
Alexa’s case began in November 2015 under the Obama administration, years before Trump’s family-separation policy rolled out. Her 15-month separation from her mother exposes the fragile legal standing of children under the care of the federal Office of Refugee Resettlement and a flawed, piecemeal system that can change the course of a child’s life.
It took 28 minutes for a judge in a rural courthouse near Lake Michigan to grant Alexa’s foster parents, Sherri and Kory Barr, temporary guardianship. Alexa’s mother and the little girl’s immigration attorney were not even notified about the proceedings.
Based on their experiences with Alexa, the Barrs had become convinced that Alexa’s mom was a bad mother and that the little girl would be abused if she were reunited with her.
“My wife and I are sick over this,” Kory Barr told the judge, who wished him good luck as he granted the foster parents’ request two days after Christmas.
“Based on their experiences with Alexa”? It’s understandable that the foster parents felt a protective instinct for the child, and that they wanted the best for her. But courts are where reason and logic experience are supposed to be paramount, where learned jurists use their expertise (or lack thereof, in a particular area of the law) to make a just determination, or decide that the subject matter is in the wrong place.
During an emergency hearing, Kory Barr pounded on the judge’s bench as he begged him to help them keep the girl in Michigan and insisted that child-welfare experts needed more time to investigate.
“Every day they are telling us this could happen very fast,” he said. “We have her bags packed.”
Judge Mark Feyen confessed he wasn’t familiar with the federal agencies involved, saying, “This is kind of hard to pin down exactly who the interested parties are.”
Responding to their concerns that Alexa’s life could be in danger, Feyen granted the Barrs temporary custody after their attorney, Joshua Mikrut, asserted he had a “loose understanding” that a prior order had been issued suspending Ramos’ parental rights, though he didn’t know where. The judge asked him to return with proof, and also scheduled a full guardianship hearing for a few weeks later.
“Every time I get one of these, I learn a little more,” the judge said.
The lawyer has a “loose understanding” of the immigration process, and the Judge is learning “a little more” as he goes. This is where it gets dangerous. It’s a toxic mix of incompetence and improvisation, and it involves people’s lives. And where the hell is ORR in all this? Can’t it have an attorney appear in these courts on its behalf, if nothing else. to paint a clearer picture or wave the Supremacy Clause flag?
Even if the local judges wanted to find out what the hell is happening on the federal side, they’re not qualified to do so, and there are temporal and geographical constraints. There’s no online docket for deportation proceedings. Aside from being present during the deportation hearing (which they won’t be) and understanding the dynamics (which they can’t), the judge or his representative would have to go in person to the immigration court to request a physical copy of the file, which may take days to locate if the case is not pending or recently closed. The file will rarely contain the deported parents’ contact information from abroad.
Only then will the Judge be able to find out: (i) the contact information for the attorney of record; (ii) if a deportation order for the parent, assuming one exists, is final and not pending appeal; and (iii) whether there were allegations of prior criminality in the charging document. Even if there are charges of prior crimes, there’s too much background information missing to make a competent determination as to the parents’ criminality.
There’s a practical way for these parents to avoid this mess, even if they face deportation. The ORR can release unaccompanied minors to an “appropriate sponsor” in the U.S. once she comes forward and tells ORR that she will assume responsibility for the child. There are many parents from Central America who send their children with a group* to the border – a practice that’s dangerous, for obvious reasons – and they have a family contact in the States ready to come forward and ask for custody from ORR.
As for the local judges granting parental rights here when the parents exist elsewhere, there is a practical answer as well. Get out of the business of granting adoptions of children of deported parents when you have no competency to do so.
*The definition of “group” varies in reality, from criminality to familiarity. Some pay coyotes to bring their kids to the border, while some children chug along Central America with their peers, until they reach the border and are processed by CBP or make the daring trek across the border.