In a directive dated Aug. 29, 2017, which U.S. Immigration and Customs Enforcement only posted publicly this week, the government significantly weakened safeguards for the rights of parents during the course of immigration enforcement.
The release of the policy change comes amid growing concern that the Trump administration is increasing the separation of families as part of its immigration enforcement agenda. Without the specific guidance for exercising discretion, this directive has the potential to split up more families—increasing the number of children hurt by immigration enforcement.
The “Detention and Removal of Alien Parents or Legal Guardians” directive replaces the agency’s previous policy, “Facilitating Parental Interests in the Course of Civil Immigration Enforcement Activities.” That policy—also known as the Parental Interests Directive—had been in effect since August 2013.
While the 2013 policy was by no means perfect, the explicit emphasis and overall intent was critical: minimize the unintended consequences of immigration enforcement on parental rights and child well-being.
The Trump administration’s new directive significantly diminishes mechanisms previously implemented to protect the parental rights of individuals in immigration proceedings. Significantly, it eliminates the 2013 guidance for applying prosecutorial discretion when a case involves children.
The new directive includes the following changes:
- Eliminates prior guidance for immigration officials to take into account an individual’s role as a parent, legal guardian, and/or a primary caretaker of a minor child when deciding whether to exercise prosecutorial discretion in a case.
- Eliminates guidance for ICE to facilitate a parent’s temporary return to the United States in order to participate in court proceedings affecting their parental rights.
- Does not specify that, should a parent be detained, initial detention should be as close as practically possible to the minor child(ren).
- Instructs ICE agents to generally accommodate a parent or legal guardian’s efforts to make care arrangements for their minor U.S. citizen or legal permanent resident child(ren), rather than immediately calling child protective services as instructed in the 2007 memorandum “Juveniles Encountered During Fugitive Operations.”
- Eliminates training instructions, requirements, and compliance mechanisms related to parental rights and interests.
Although some language remains the same—such as discouraging the transfer of a detained parent to a different ICE Field Office region—the intent of the new directive stands in stark contrast to the superseded Parental Interests Directive.
The 2013 directive instructed ICE agents to ensure that immigration enforcement activities do not “unnecessarily disrupt the parental rights” of parents or legal guardians of minor children. The language in the new directive is considerably weaker: “ICE personnel should remain cognizant of the impact enforcement actions may have on a lawful permanent resident or U.S. citizen minor child(ren).”
From policies themselves to the way they are implemented, the United States should reflect its values and keep families together.