By Gianna Borroto, Immigration Impact
U.S. Immigration and Customs Enforcement (ICE) recently announced a new directive aimed at preserving family unity and the parental rights of noncitizens. The directive, “Interests of Noncitizen Parents and Legal Guardians of Minor Children or Incapacitated Adults,” went into effect on July 14. Though media outlets have lauded the policy as a way to end family separations at the border, it falls short of offering significant protections to keep families together.
The directive provides guidance to ICE officers who encounter parents of minor children or guardians of incapacitated adults during apprehension and detention. Most of the guidance relates to situations where ICE has apprehended an adult caregiver, while the minor child or incapacitated adult is not detained. Under the new guidance, caregivers should be allowed to coordinate care for minor children and/or incapacitated adults before detention, have regular visitation with their dependent family members while detained, participate in custody or similar state court proceedings, and be paroled into the United States under limited circumstances after removal.
The first parental interest directive was published in 2013 by the Obama administration. In 2017, the Trump administration stripped the original directive of many crucial protections and placed greater emphasis on whether children were lawful permanent residents or U.S. citizens. The July 2022 directive supersedes the 2017 Trump-era guidance.
The latest guidance mirrors many aspects of the original Obama-era parental interest directive, with a few expansions. For example, while the 2013 directive only covered parents of minor children, the new directive includes protections for legal guardians of incapacitated adults. The new directive also makes it clear that the child or incapacitated adult need not have lawful immigration status to benefit from the guidance.
The updated guidance includes a new requirement that immigration officials affirmatively inquire about a noncitizen’s parental or legal guardianship requirements during initial and subsequent encounters. Officers must enter and track the family’s information in a government database. Though this policy could potentially help identify families who have been separated en route to the United States, the directive does not provide guidance on whether family units should be detained together. Nor does the policy apply to close family members who do not have legal custody but are nonetheless acting as a child’s primary caregiver.
Another part of the directive allows for deported parents or guardians to be paroled back into the United States for the limited purposes of attending a hearing on the termination of their parental or guardianship rights. The directive makes clear that the person must leave the United States after the hearing and certify that they are not traveling to the U.S. for immigration purposes. Paroling an individual when their custodial rights are about to be terminated does little to keep families together. The guidance could have instead asked officers to consider the effects of deportation on an individual’s minor children or others in their care before moving forward with removal.
While the expansions to the directive are welcome additions, the updated guidance is not groundbreaking. It is common sense for ICE to allow parents and guardians to arrange care for dependent family members before being removed from their homes and taken to immigration detention. However, reports of scared and confused children left to fend for themselves after immigration raids show that even basic parental interest policies are crucial. The government must work to ensure that officers in the field consistently follow these policies.
Nearly 10 years have passed since the first parental interest directive and the Biden administration’s new guidance is a missed opportunity to bolster protections for caregivers and to preserve family unity. While the updated guidance is an improvement compared to Trump-era policies, it merely restores the status quo.
The administration can and should issue additional guidance to ensure that detention and deportation do not tear families apart, leaving vulnerable individuals without their primary caregivers.