Amongst immigration activists and legal scholars, there has been much recent criticism of the way in which detained parents are deprived of their rights to participate in parenting and family court proceedings while being detained. Due to insufficient communication, it has become common for detained parents to be unaware of family court proceedings concerning their parental rights, thus creating a serious due process concern when those proceedings carry on without them.

Perhaps in response, Immigration and Customs Enforcement (ICE) has recently issued a new directive introducing new policies to attempt to address those problems.

The directive outlines three main concerns. First, ICE states that it seeks to accommodate parents who are primary caretakers of minor children (without regard to the child's citizenship status). Second, it seeks to accommodate parents and guardians who have a direct interest in a family court hearing involving a minor or child welfare. Finally, ICE states that it is particularly concerned with parents or guardians whose children are U.S. Citizens or Lawful Permanent Residents.

To facilitate these priorities, ICE pledges to appoint a point of contact for parental rights (or Field POC) in each detention facility who will communicate with a Parental Rights Coordinator to implement this directive.

Thus, in the future, if ICE receives credible information that a detainee is a parent or legal guardian of a USC or LPR minor, these officers are to re-evaluate the custody determination, using discretion pursuant to the directive. In practice, for example, if the Field POC determines that a new detainee is a parent, and either the child or family court proceeding is in the geographical area of intake, the detainee shall not be initially detained outside that area, nor shall he/she be transferred outside that area.

According to the directive, ICE will also make efforts to permit detainees to attend in-court proceedings while detained, or alternatively, appear telephonically.  If a family court orders visitation between detainee and his/her child, the directive requires that ICE officers make efforts to provide contact visitation, or as a second preference, video visitation.

Finally, if a lawfully removed person alerts ICE that his parental rights may be terminated in the United States, and that the parent's actual presence is necessary to prevent termination, ICE will consider a grant of parole to the United States for the sole purpose of participating in those proceedings.

Overall, the directive states an important acknowledgement of the problem, and a thoughtful plan to address it. We applaud the effort and hope to see it successfully implemented.