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Anchor Lisa Mullins speaks with Marcia Zug, professor of family law at the University of South Carolina School of Law, about the issue of illegal immigrants in the US who are separated from their children because of detention and deportation. Download MP3

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Lisa Mullins: Professor Marcia Zug teaches family law at the University of South Carolina, School of Law, in Columbia.  Professor, we just heard about that one case — the case of Bail Romero.  How common is it for undocumented workers here in the United States to be separated from their children who are also here?

Marcia Zug: I think it’s increasingly common.  The Bail Romero case is only one way it can happen.  Certainly when undocumented workers get picked up and placed into detention they can be separated from their children.  But what I’ve discovered in my research is increasingly, undocumented families are being separated from their children regardless of whether their undocumented status has been discovered by immigration…meaning it is state welfare agencies that are separating the children in the first instance; and it’s only after the children have been separated from the families that immigration becomes involved later.

Mullins: Well, what’s the reason?  I mean someone is not in detention if they are perhaps working or not working, but undocumented here in the United States, they have children who are here.  Why would the kids be separated through child welfare services?

Zug: Well, the cases are sort of all over the map.  The reason that they’re separated is the same reason that anyone can be separated.  The reason given is abuse and neglect.  However, in the undocumented immigrant cases, abuse and neglect can range from you know, violence or poor care to — there’s a case in Mississippi — where a mom lost custody of her child for abuse and neglect; and the reason given was that she didn’t speak English.

Mullins: That the mother didn’t speak English.

Zug: Right, and that was considered putting the child in danger.

Mullins: Is that something that would happen in other states as well or is that particular to Mississippi?

Zug: Well, I have a case from Tennessee that a similar finding was made.  And that case the mom was separated and the court said that until she demonstrated her commitment to her daughter by learning English, she didn’t have a chance of reuniting with her.

Mullins: Could that happen to someone who is here legally as well, that if they didn’t speak English they could be separated from their child?

Zug: Well, it’s not, the Mississippi case was overturned.  These are not valid findings of abuse and neglect, but the difference between an undocumented immigrant and a legal immigrant would be that the undocumented immigrant has the possibility of being deported.  And once the parent is deported, it’s going to be much harder for them to appeal.

Mullins: They can’t fight the case as long.

Zug: Exactly.  In most of the cases I’ve found they are overturned on appeal these types of rulings, but in a lot of these cases they’re never appealed because the parents are deported before then, and they don’t have the legal representation that’s going to fight for them after they’re deported.

Mullins: What are the other reasons that children are separated from their parents who are undocumented?

Zug: A lot of times the courts will say you’re being separated because your parents are undocumented, that that by itself makes you an unfit parent.  The law in the United States is that parents have a constitutional right to the care and custody of their children, absent the finding of abuse or neglect, regardless of whether you’re documented, undocumented, a citizen, whatever, you have the right not to lose your child unless you’ve demonstrated unfitness.  It’s only after a finding of unfitness that courts can come in and make a best interest analysis.

Mullins: And by being here in the U.S. illegally, does that by law constitute unfitness to be a parent?

Zug: Well, that’s what some of these courts are saying.  But under our case law I do not believe that fits in the definition of unfitness.  And in some of the cases that have been appealed to various state supreme courts, when it gets up to that level, the supreme courts have said that no, being an undocumented immigrant does not meet the definition of unfitness.  That’s not enough.

Mullins: Professor Marcia Zug at the University of South Carolina, School of Law, who is researching the cases of children of immigrants who are here illegally, children who are separated from their parents.  Thank you very much, Professor.

Zug: Thank you very much.

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