ICE issues policy to protect parental rights of immigrant detainees

The head of U.S. Immigration and Customs Enforcement (ICE) has directed agents to take several steps to protect the parental rights of immigrant detainees with underage or incapacitated children, according to an agency memo published Thursday.

The directive, issued by interim ICE Director Tae Johnson, created a new requirement for ICE deportation agents to ask immigrants whether they are the parents or legal guardians of children who are minors or incapacitated, and to record those cases in an agency database.

When such cases are identified during immigration arrests, the memo said, ICE agents must determine whether the parents can make arrangements for someone else to care for their children while they remain in government custody.

If parents are not able to make those arrangements, or if there are concerns of abuse surrounding the potential caretaker, ICE agents should ask a local child welfare or law enforcement agency to take custody of the children, Johnson said.

ICE must remain with the arrested parents at the site of the arrest until the caretaker or local child welfare or law enforcement agency can pick up the children. The memo also bars ICE agents from taking custody of or transporting the children unless they make a decision to detain them for immigration violations.

Johnson also instructed agents to generally avoid holding parents or legal guardians in these circumstances in detention centers that are far away from where their children reside.

"In the limited circumstances in which detention is appropriate," Johnson wrote in his 15-page memo, ICE should detain parents "as close as practicable to" their children or the location of any family court or guardianship proceedings.

Moreover, the memo said ICE should ensure detained parents can participate, either in person or remotely, in family court or child welfare proceedings that determine whether they can retain or regain custody of their children. Those parents, Johnson said, can also participate in programs required to keep custody of their children, and must have access to "regulator visitation" from their children.

"It is the policy of ICE to ensure that the agency's civil immigration enforcement activities do not unnecessarily disrupt or infringe upon the parental or guardianship rights of noncitizen parents or legal guardians of minor children or incapacitated adults, consistent with all legal obligations and applicable court orders," Johnson wrote in his memo.

Prior to deporting parents of minor or incapacitated children, ICE agents should allow them to make arrangements to have someone care for their children in the U.S. or to facilitate the return of their children to the country where they will be deported, the directive said.

If parents set to be deported have not completed child custody proceedings, Johnson said ICE "must consider under the totality of the circumstances whether continuing with removal is appropriate." When deciding such cases, ICE agents were directed to consider the parent's criminal history and their chances of retaining custody of their children.

Johnson's memo also created a mechanism for ICE to allow certain deported parents to return to the U.S. temporarily to attend proceedings over whether they will keep or regain legal custody of the children.

Thursday's policy is part of a larger Biden administration effort to reshape operations at ICE, an agency that has been subject to increasing criticism from progressive Democrats and activists over the past several years. 

Under President Biden, ICE has been instructed to generally avoid detaining families with children, pregnant or nursing women, victims of serious crimes and U.S. military veterans.

The Biden administration has also discontinued large-scale ICE arrests at worksites and expanded the list of so-called "protected areas" where deportations agents should generally not arrest immigrants to include disaster sites, places where children gather and social services establishments. 

In September 2021, the Biden administration also instructed ICE agents to prioritize the arrest of immigrants deemed to pose a threat to national security or public safety and migrants who recently entered the U.S. illegally. 

But those rules were halted last month after Republican officials in Texas and Louisiana convinced a federal judge to declare them unlawful. The administration last week asked the Supreme Court to pause that lower court order.

Republican lawmakers have criticized the Biden-era changes at ICE, saying they fail to deter illegal immigration. But the administration has argued the rules allow the agency to allocate limited resources to detain immigrants who endanger national security, public safety or border security.

The administration has also faced criticism from some progressives who have pushed for additional restrictions on immigration arrests and deportations. Heidi Altman, policy director at the National Immigrant Justice Center, a Chicago-based group that advocates for immigrants, said Thursday's memo should've limited arrests of parents with minor children in order to prevent separations.

"ICE's broad discretion to decide not to detain or deport parents whose children are growing up in the United States isn't even mentioned," Altman said.