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Immigration Status and Parental Rights

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As the main investigative arm of the US Department of Homeland Security, US Immigration and Customs Enforcement (ICE) must stay true to its mission of ensuring homeland security and public safety through the criminal and civil enforcement of federal laws pertaining to border control, customs, trade, and immigration. Unfortunately, in fulfilling its mission, the agency often ends up dividing families.

Felipe Montes is just one of many who have been separated from his family as a result of his immigration status. In fact, according to a 2011 report from the Applied Research Center, an estimated 5,100 children in 22 states were placed in the foster system after their parents were detained or deported.


For 32-year-old Montes, it all began when he illegally entered the US in 2003. Three years later he married Marie Montes, a North Carolina native, but never sought legal immigration status. Within the home, he provided for his family on both a financial and an emotional level as his wife, Marie Montes, suffered from a mental illness that hindered her from working. Prior to his deportation, Montes worked for a landscaping company while his two-and-four-year-old sons were cared for at a daycare facility.

It has now been two years since Montes was deported. His wife, who was eight months pregnant with their third son at the time, was left with three young children and no way to handle her new responsibilities. According to Drew Jackson, her court-appointed attorney, “Felipe was the caregiver of the family, the one that supported everybody, made the money and took care of the kids. Jackson went on to point out that his client is “just not in the position to support three children without her husband.”

Federal authorities can release individuals who function as the primary caregiver of minors but Montes was not given that reprieve. “They took me away and didn't let me say goodbye to my wife or kids. They didn't give me the opportunity to say anything or make any arrangements,” said Montes. Within two weeks of Montes' detainment, his sons were placed in foster care and shortly thereafter, he was deported.

He now resides in El Encino, a village in the Mexican state of Tamaulipas, with his uncle, aunt, and three nieces. His requests to raise his children in Mexico have been denied despite the fact that his wife supports the idea of reuniting the family in her husband's native country.

However, child welfare officials are now asking for the removal of Montes' parental rights so that his children can be cleared for adoption in the US. "I have always taken care of my children, I have always loved them. And now, the social services people want to take away my rights and give my children away to strangers," says Montes.

But he is not alone. According to legal experts, it is not uncommon for parents to lose custody of their children based purely on immigration issues. Once a US-born child of immigrants has been placed in the child welfare system, it is not likely that he or she will be released to another country to rejoin their deported parents. Officials don't aim to separate families but the system fails to give parents the right to reunite with children once they have been taken into custody.

Like many others who have lost custody of their children under similar circumstances, Montes does not drink, use drugs, or neglect his children in any way. His legal problems began with the passage of a state law that required a valid social security number to obtain a driver's license. With the enforcement of the 2007 law, Montes was unable to renew his license. Still, he continued to drive to work and was subsequently cited more than two dozen times for driving with an expired license, an expired registration, and failure to provide proof of insurance coverage. In 2009 he was sentenced to probation and then detained in 2010 after neglecting to attend one of his probation meetings. Within a month, he was back in Mexico.

The couple fostering Montes' two older sons has shown an interest in adopting the children but Montes is still holding tight to the hope that he will be reunited with them. A family court hearing is scheduled for April 5.

Looking for immigration attorney jobs, please click here.


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