If Parents Get Deported, Who Gets Their Children?

This article was originally published by Stateline, an initiative of The Pew Charitable Trusts.

As the Trump administration increases immigration enforcement actions against working adults, grandparents and other extended family members—often immigrants themselves—are stepping in to care for many of those children left behind.

One in five children being raised by extended family members—grandparents, aunts, uncles, cousins—live in an immigrant household, more than half a million children, a new report shows. And as the number of deportations continues to rise, the number of immigrant “grandfamilies” will increase as well, researchers say.

These immigrant grandfamilies face formidable challenges: traumatized children, lack of easy access to social services such as Medicaid and food stamps, and a fear of engaging with government agencies lest caregivers be deported as well.

Immigration advocates have called for greater resources from federal, state and local officials. Some state governments have stepped in, to help immigrant parents prepare for the prospect of being separated from their children, who often are American citizens, and to help caseworkers ensure that minors will be cared for if parents are deported.

The push by states to protect children affected by federal actions reflects the ongoing conflict among officials at all levels of government over finding the best way forward as the Trump administration continues its zero-tolerance approach to illegal immigration.

“We expect that with increased immigration enforcement, we will see more children in the care of their grandparents,” said Ana Beltran, the author of the report by D.C.-based nonprofit Generations United, which looks at the obstacles immigrant grandfamilies face.

This year, two states have stepped in to address this growing problem by setting up “standby guardian” laws, processes for parents to designate legal guardians, often grandparents, in case they’re arrested on immigration charges.

In May, Maryland Gov. Larry Hogan, a Republican running for re-election in a left-leaning state, signed a law allowing parents to designate a guardian to care for their children “in the event of an adverse immigration action” without losing their parental rights.

And in June, New York Gov. Andrew Cuomo, a Democrat who also is running for re-election, signed a law that would allow immigrant parents who’ve been detained in the state or are facing deportation to appoint a guardian for their children.

Lawmakers introduced similar bills in Pennsylvania, in June, and in New Jersey last week.

“We are now in a political environment, facing the very real prospect that more families will be separated,” said Maryland state Sen. William Smith, a Democrat who sponsored that state’s legislation.

“This gives parents an avenue to provide for their children’s security,” Smith said. “It’s a legal roadmap parents can create—before something happens.”

With these laws, nothing happens until the “triggering event,” such as a deportation, arrest or official notice from U.S. Immigration and Customs Enforcement, known as ICE.

The goal is to encourage child protective service caseworkers to be on the lookout for designated standby guardians, to make sure that children are provided for and an adult is authorized to make decisions about their health and education.

In signing the New York law, Cuomo said it’s intended to increase protections for children of immigrant parents amid the Trump administration’s zero-tolerance policy and to “send a message loudly and clearly that … we will do everything in our power to protect the health and well-being of these innocent children.”

Both laws, which passed overwhelmingly with bipartisan support, expand on existing, health-related statutes, which allowed parents to designate a guardian in the event they became incapacitated or died.

New York passed the original law in 1992, at the height of the AIDS crisis. Both new laws expand the definition of what qualifies as a “triggering event” to include immigration enforcement proceedings.

The idea was to provide parents with peace of mind that there was a legal plan in place if the worst does happen, said Nick Katz, senior manager of legal services for CASA, a nonprofit immigration services organization based in Maryland.

New York’s law is more detailed. It also allows a legal guardian or a primary caretaker, such as a grandparent, to designate a standby guardian as well.

“The last thing you want is for a parent to lose control of their children,” said Randye Retkin, director of LegalHealth, a division of the New York Legal Assistance Group, which helped craft the New York legislation. “With this law, they don’t. They put a plan in place.”

‘They Can Take You Away’

Over the past year, President Donald Trump’s administration has announced that it was ending the Temporary Protected Status program for immigrants from El Salvador, Haiti, Nicaragua and Sudan.

TPS, as it is known, is typically awarded to immigrants from countries that have experienced a disaster, such as an earthquake or a war. Conditions in those countries had improved enough for residents to return safely, administration officials said.

And ever since, “M,” a 47-year-old mother of five from Haiti, has been overcome with worry.

That policy change “was what caused my big problem,” said M, who came to the United States after the 2010 earthquake devastated her home country.

The nursing assistant has been living here legally under TPS ever since, with her two U.S.-born children. Her older children, who were born in Haiti, live with family there. She spoke to Stateline through an interpreter.

“I was hearing people say they can come to your house and take you away,” said M, who asked that only her middle initial be used because she is afraid she will be targeted for deportation.

“I didn’t want my children feeling like they wouldn’t have anyone to stay with if something happened to me.”

Two months ago, with the help of lawyers at the New York Legal Assistance Group, she used the New York law to designate a close friend to be the standby guardian for her children, ages 8 and 9.

Together, they came up with a plan: If anything happened to M, her friend, who also is Haitian, would step in. And as soon as possible, the friend would send the children to join her in Haiti.

Once she signed the papers, M said, “I did feel better. I was so worried. This gave me a complete headache.”

Earlier this month, a U.S. district judge issued a temporary stay on Trump’s plans to end TPS for migrants from El Salvador, Haiti, Nicaragua and Sudan, which could mean deporting thousands of recipients. There are 300,000 TPS migrants in the U.S. from those four countries.

TPS holders, the ruling found, “are faced with a Hobson’s choice of bringing their children with them (and tearing them away from the only country and community they have known) or splitting their families apart.”

Fear Factor

Across the United States, a growing number of children are being raised by extended family members and family friends, called “kinship caregivers,” who step in to care for children when their parents can’t. In the past 10 years, the rate of children being raised by grandfamilies increased by 9 percentage points, largely because of the opioid crisis, the Generations United report found.

Now that percentage is likely to increase even more. Deportations this year are up 9 percent as of June, compared with the same period in time in 2017, ICE data shows.

Between 2009 and 2013, 5 million children were living in the United States with at least one undocumented parent, according to a 2016 report by the Migration Policy Institute, a Washington, D.C.-based research nonprofit. Nearly 80 percent of those children were U.S. citizens—most living in poverty.

Children fare best when they can stay with family, research shows. And when they can’t stay at home, grandparents and other extended family members often are the best choice to care for them, child welfare advocates say.

Staying with family members also lessens the burden on the foster care system. Grandparents and other relatives raising children save taxpayers $4 billion each year by keeping the children out of the foster care system, a Generations United analysis of foster care payments shows.

When parents are detained or deported, their children typically end up living with a grandparent or extended relative. Often, these children are born in the United States, though some are immigrants who crossed the border under great duress, only to be separated from their parents.

Immigrant grandfamilies face more than the usual hurdles for grandparent caregivers.

“You’re dealing with a child or multiple children who’ve been exposed to extreme emotional stress, seeing one or both parents arrested, detained and deported,” said Katz of CASA.

In general, grandparents raising grandkids often can’t get benefits that children living with licensed foster care families would have access to, such as monthly foster care maintenance payments. And it’s even more difficult for immigrant caregivers, who might themselves lack legal documentation, Beltran said.

The rules vary greatly from state to state, but in general, undocumented caregivers wouldn’t be eligible to become licensed foster care parents, according to a 2017 report by the American Bar Association.

And even in states where these grandparents could join the foster care system, they may be stymied by practical barriers, such as background checks, fingerprinting and the need for Social Security numbers, said Mark Greenberg, a senior fellow at the Migration Policy Institute.

Often, those requirements are put in place to protect the child, Greenberg said. But if child welfare agencies don’t make accommodations for undocumented family members, it makes it all but impossible for them to get the help they need from those agencies, he said.

Language barriers also pose obstacles. But one of the biggest challenges these families face is their own fear, advocates say. Many come from countries where interacting with government entities could put your life at risk.

The specter of stepped-up immigration arrests has further stoked that fear, Greenberg said. This year, the federal agency responsible for the well-being of migrant children began sharing immigration material with ICE. That has meant that family members stepping in to care for the children — “sponsors” — could end up being deported themselves.

And earlier this month, the Trump administration proposed tightening the so-called public charge rule, which regulates government benefits. A version of the proposed rule was leaked earlier this year, igniting fear among immigrant communities.

Once the proposed changes take effect, an immigrant who accepts Medicaid or food stamps might find it much harder to get a green card.

This fear could keep extended family members from signing up for benefits for which children are eligible, Beltran said.

“Immigrants are on alert,” Beltran said.

But they don’t need to be, said Jessica Vaughan, director of policy studies for the Center for Immigration Studies, a research and advocacy group that supports limited immigration. The proposed rule change, she said, is intended to make sure that immigrant adults applying for green cards and visas are following the law, which says they must be self-sufficient.

The rule does not apply to eligible children in the country legally, Vaughan said.

Advocates in those fearful immigrant communities “should be helping people understand there’s no need for that fear,” Vaughan said.

Standing By

Advocates are pushing for federal, state and local governments to help immigrant grandfamilies. Many of them want federal programs to support children in the form of health insurance, nutrition assistance and the like to exempt caregivers from “public charge.”

At the state and local level, advocates should push officials to ensure that social service agencies are immigrant-friendly, with language interpreters on hand, and to make it easier for eligible immigrants to access Medicaid and other federal health programs, such as the Children’s Health Insurance Program, Beltran said.

Officials also should encourage immigrant parents to come up with contingency plans in the event they are arrested by ICE, immigration advocates say.

“Emergency planning for immigrant families is necessary,” said Katz of CASA, which supported the Maryland law.

After she signed the papers in New York, M sat down with her two children. She wanted them to understand as best they could what would happen if she was deported.

“They told me they will pray to God, and God will make everything happen,” M said. “They’re very scared if I leave them, they might as well be dead.”