Planning for Detention: How 2 States Help Immigrant Children Stay Out of Foster Care

Planning for Detention: How 2 States Help Immigrant Children Stay Out of Foster Care

By Mattie Quinn


  • The Trump administration has detained record numbers of immigrants, including children who are separated from their parents.
  • The parents of roughly 273,000 children who are U.S. citizens face deportation due to the impending loss of their Temporary Protected Status.
  • Maryland and New York passed bills to expand emergency guardianship laws, allowing immigrants to keep their kids out of federal custody or foster care in the event that they are detained or deported.

Since Donald Trump became president, immigration arrests have quadrupled, placing hundreds of thousands of immigrants at risk of deportation and separating tens of thousands of children from their parents. On an average day, there are 44,000 immigrants being held in federal custody, which Vox reports is an all-time high up from the pre-Trump record of 34,000.

As of November, 14,000 immigrant kids were in government custody without their parents — another record high. To keep more of these kids from falling into federal care or foster care, lawmakers in two states have expanded emergency guardianship laws. And despite the divisive nature of immigration policy, the legislation has attracted bipartisan support.

“Right now, there are so many unknowns for Dreamers, DACA recipients, people with TPS,” says Carlo Sanchez, a son of El Salvadoran immigrants who co-sponsored the bill in Maryland. “We have a responsibility to talk about what happens when those people go away.”

The legislation allows immigrants who fear they are at risk of deportation to assign a “standby guardian” for their children or dependents. If a parent is deported or arrested, their children can legally stay with that person.

The new laws are meant to be more proactive and simpler than the existing process for appointing guardians to kids whose parents have been detained. The current process starts only after families are separated, is more arduous and requires more legwork from the child. These bills are “getting ahead of the issue,” says Sanchez.

The paperwork can be found on the Maryland Judiciary website. While Maryland’s law doesn’t require a parent or guardian to file the paperwork with a court until after six months, the other state that has taken similar action — New York — does. For the first six months, guardians in Maryland are only required to show the paperwork to the proper authorities, such as ICE, when the question of a child’s placement comes up.

Sanchez says the potential Temporary Protected Status (TPS) rollbacks deepened deportation fears in his community of Prince George’s County, which has a sizable El Salvadoran population. Depending on the outcome of a lawsuit, the Trump administration could end TPS for immigrants from El Salvador, Haiti, Nicaragua and Sudan. TPS provides legal protections for immigrants from countries and regions suffering from political violence or natural disaster. More than a quarter of a million U.S. citizen children — 273,000 — have a parent whose TPS standing could be revoked in the next year.

“I was hearing how worried people were. My own parents were worried about their neighbors and were talking about what they wanted to do to help them, and it spurred this thought [to expand guardianship],” says Sanchez.

“Even if this impacts just one family, we’ve done what we need to do,” Nily Rozic, the New York Assemblymember who co-sponsored the guardianship bill in her state, told the New York Daily News.

Guardianship laws aren’t a new concept: 29 states have them, but they don’t specifically apply to undocumented immigrants. Most of them stem from the height of the AIDS epidemic in the 1980s and ’90s when terminally ill parents wanted to control who would watch over their children in their absence.

Immigrant rights advocates hope other states use the Maryland and New York laws as a blueprint.

“It’s a sympathetic law that doesn’t cost anything — if anything it saves money because kids aren’t going into the foster care system,” says Randye Retkin, director of LegalHealth, a division of the New York Legal Assistance Group, which helped craft the bill.

Both bills passed with bipartisan support — in New York, it was unanimous. Sanchez says some of his Republican colleagues in Maryland were initially concerned it was like a “sanctuary state” policy, but once he explained that it builds off existing laws and doesn’t interfere with the federal government’s immigration policies, those lawmakers were on board.

“It’s really easy to not reinvent the wheel and just update those provisions with what the needs are now,” he says. “States have to be ahead of the curve of this.”

Originally published in Governing on January 31, 2019.

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