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How Immigrants Prepare for the Possibility of Deportation

Many immigrants are now making contingency plans—like a will, but for immigrants—to map out what will happen to their kids, belongings, and lives in the United States if they're deported.

by Serena Solomon
Oct 19 2016, 4:00am

Photo via Wikimedia Commons

Monica Velasco cried over the document she needed to write. Once completed, signed, and notarized, the piece of paper would give a close friend the power to care for her children if something were to happen to Velasco and her husband.

"It was really hard because it made me think of what will happen with my kids if I'm not here," Velasco told me through a translator. She is 29 and has lived in Arizona as an undocumented immigrant for a decade.

Velasco isn't talking about dying, and she's not drafting a will. She was writing a power of attorney agreement that would be activated if she and her husband are deported.

On the low end, an estimated 740,000 parents with US-citizen children were deported between 2003 and 2013, according to a joint report from the Migration Policy Institute and the Urban Institute. The result is often chaos for families. At best, children are thrown to an unprepared caregiver such as a grandparent or older sibling. At worst, they end up in foster care or even adopted by a US family, preventing children from reuniting with their biological parents.

To lessen the turmoil that can ripple out from a deportation, some undocumented immigrants are preparing legal documents that detail who will care for their children if one or both parents are detained or deported. These documents can also cover what will happen to their property such as a cars or homes, as well as who will manage their businesses.

"You just assume nothing will happen to you and you don't want to think about something happening, but it is important to do if you want your kids to end up with the right person," Barbara Kagan, public service counsel at law firm Steptoe & Johnson, told me.

Kagan helped author the guide "What if I'm Picked Up By ICE in Arizona," which walks undocumented immigrants through the steps they can take to shore up care of their children before a deportation occurs. (ICE, Immigration and Customs Enforcement, is the federal agency responsible for detaining undocumented immigrants.) The guide is specific to Arizona's immigration and child protection laws and policies, but Kagan told me she's now planning to expand it to other states.

Very few undocumented immigrants have any plan for their family when they are deported, according to Jeremy Slack, an assistant professor at the University of Texas at El Paso. In preliminary findings for a report Slack is working on, only 26 of about 300 parents questioned had formal agreements with a guardian to take over care of their children. Another dozen or so had informal agreements.

"They are really worried about day-to-day concerns like money, education, opportunity for their children," he said. "Most of them don't have the time or the energy to really invest in a complex plan to prepare for these disaster scenarios."

What happens to children once a parent is detained by immigration enforcement can change from state to state and scenario to scenario. Sometimes they are placed with next of kin—more likely if the other family member is here legally, according to immigration advocates. Other times, children are placed into foster care if there is no legal guardian or family member to intervene. In 2011, more than 5,000 children of detained or deported parents were in foster care, according to a report from Race Forward, a racial justice group.

While rare, children can be permanently adopted regardless of the biological parent's wishes. In 2007, a woman named Encarnación Bail Romero was picked up by ICE during a raid at the poultry processing factory where she worked. Some undocumented workers with small children were let go, but because Bail had a fake ID, she was detained. After 18 months in jail and in line for deportation back to Guatemala, a judge cited abandonment when he terminated Bail's parental rights. A Missouri couple adopted her son Carlos, changing his name to Jamison.

For this reason, it's hugely important to assign care to another person prior to a deportation. But locating a viable and willing caregiver can be difficult, according to Kagan. Not only should the children be comfortable with the chosen person, but they should also have the capacity to care for the children.

"You may have an aunt or a friend or someone who is really close and truly loves the children, but who does not necessarily know what it is like to really be raising children," said Kagan. Finances can also be an issue, as immigrants are advised to provide an emergency fund to help with the cost of raising the children.

When Velasco asked a potential caregiver, she felt an additional weight: Her youngest son is autistic and requires specific care.

"I was nervous about asking the person the question and I said I would understand if she said no," Velasco said. The person, an American citizen who previously worked with her husband and knew the kids since birth, agreed to step in if needed.

These agreements can be formalized in one of two ways: Power of attorney, a private agreement between parents and caregiver, gives temporary custody to the nominated caregiver. It can be terminated or renewed by the parent at anytime, although with great difficulty if the parent is not in the United States.

A temporary guardianship is a formal agreement that can be prepared ahead of time and filed with a court if deportation occurs. It gives the caregiver full authority to make decisions as though they were the parent including what school the child attends or what vaccinations are given. Depending on the situation, guardianship can be binding until the child's 18th birthday.

Laurie Melrood, an immigrant family services consultant, walks undocumented immigrants through these steps. Besides preparing the legal documents, Melrood also tells parents to gather anything—medical history, school records, vaccination records—that relates to the child, so the guardian will have everything needed to take over care.

"I call it a shoebox," she told me. "You have to get a shoebox with all the paperwork revolving around the children."

When determining whether to detain or release an individual, ICE does take into consideration—on a case by case basis—whether or not someone is the primary caregiver of a child, according to a statement the agency sent to VICE. In 2013, the agency issued a directive on how it would assist detained parents. One commitment requires ICE to accommodate "to the extent practical" any efforts of a caregiver facing deportation to arrange "the care or travel" of their child.

But reuniting a child with a parent in another country also requires some forward thinking, according to Melrood. For a child to be accepted into Mexico as a new resident, for example, the child would at least need a Mexican passport and access to their US or Mexican birth certificate. Velasco has already organized dual Mexican and US citizenships for her three children for this reason.

Power of attorney agreements not only prevent children from an unwanted fate, but also property and businesses. Melrood also encourages those she works with to create a plan and draw up agreements for anything of value—cars, mortgage, bank accounts, and businesses—because without these agreements, those can all be seized.

One 39-year-old woman (who declined to give her name because she is in the US illegally) told me that all her family's money is tied up in two cars and a three-bedroom home in Arizona. All are paid in full. To protect these assets from seizure, the woman signed a power of attorney agreement that would allow a friend of nine years to manage everything if her and her husband are deported. All the documents—the contract, insurance, deeds, car registration—are in a locked box in her bedroom.

And the fear is real: The woman was deported about eight years ago, but came back to the US.

"If I am in Mexico and everything I own is in the states," she told me, "I know I will not lose everything."

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