Since President Barack Obama first took office in January 2009, his administration has made immigration enforcement a top priority. In 2012, the U.S. government spent more money to deport immigrants – $18 billion – than on the FBI, Secret Service, DEA, U.S. Marshal Service and the Bureau of Alcohol, Tobacco, and Firearms combined. Since January 2009, the Obama administration has removed over 2.2 million immigrants. Of the over 211,000 individuals deported between January and June of 2011, nearly 22% (over 46,000) are parents of U.S.-citizen children. One collateral consequence of these deportations is that over 5,100 children have been placed into foster care. The deported parents of these 5,100 children in foster care are at high risk of losing their parental rights through termination of parental rights proceedings, thereby losing their legal relationship with their children forever.
The termination of parental rights of fit, deported immigrant parents occurs largely due to two different flaws in the family law system: first, the Adoption and Safe Families Act requires that a state bring termination proceedings against a parent whose child has been “out of custody” for fifteen of the proceeding twenty-two months; second, instead of discerning a parent’s fitness to deciding whether to terminate parental rights, family courts are employing a “best interest of the child” test—an extremely subjective determination, vulnerable to abuse and bias. The United States has a sinister history of discriminating against non-whites and immigrants, which is deeply embedded into both immigration and family law. This history has set the stage for the problematic practice of terminating the parental rights of fit but deported immigrant parents, raising very serious constitutional and human rights concerns.
Remedying past injustices and present discrimination against immigrant parents requires consideration of Critical Race Theory, LatCrit, and other critiques of traditional and liberal jurisprudence. It requires consideration of the various competing interests at play in termination of parental rights proceedings and the various constitutional provisions affected. Only by considering the unique legal situation of immigrants and people of color, the various competing interests at play, and the constitutional and human rights held by immigrant parents, will we be able to craft fair family laws and discern the best way to prevent undue terminations of parental rights of fit but deported immigrant parents.