Today, immigrant parents in civil detention are vulnerable to losing their parental rights. When a parent is detained or otherwise unable to care for his children for more than 15 months, the Adoption and Safe Families Act requires a state to petition to terminate his parental rights—in every case, without any allegation of unfitness, and over the objection of both the parent and the children. In other words, the state imposes enormous physical and temporal distance between a parent and her children by detaining her while her immigration case is pending, and then uses that distance as a justification to extinguish her legal rights to her children. This devastating practice is the result of the overlapping but uncoordinated interaction between immigration law and family law, which allows and even encourages states to strip noncitizen parents of their parental rights as a consequence of their civil detention and, by extension, their immigration status. Parents can be forced into the cruel dilemma to fight their immigration case and lose their parental rights, or preserve their family’s unity, even if it means deportation. This Article explores the fundamental unfairness and irrationality of the government’s intrusion into immigrant families in these situations and suggests potential solutions at federal, state, and local levels to restore agency to immigrant parents and defend family integrity.
DOJ guidance for mentally impaired detainees in immigration removal proceedings should be amended to provide counsel at earlier signs of incompetence.
Voting rights advocates should explore section 11(b) of the Voting Rights Act as a vehicle to combat voter intimidation.
Mandatory arbitration for guestworkers, a uniquely vulnerable group, will result in class inequality and worse conditions for all workers.
An evidentiary privilege to protect workers' confidential communications from disclosure in federal and state court proceedings would support unions.