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Michelle Brané

Michelle Brané

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Delayed Justice for Guatemalan Mother Encarnación Bail Romero

Posted: 02/ 5/11 01:32 PM ET

In 2007, Encarnación Bail Romero, a young woman from Guatemala, was arrested and detained during an immigration raid at the Missouri poultry processing plant where she worked. The fact that Encarnación was a mother with a baby at home did not matter. She was detained without the opportunity to make care arrangements for her son, Carlos -- a U.S. citizen -- who was just six months old. While in detention, Encarnación was not allowed to participate in her custody case and consequently, her parental rights were terminated. Carlos was adopted by a couple soon after.

This week, the Missouri Supreme Court decided to send Encarnación Bail Romero's case back to the lower court for yet another hearing. When I heard this, I couldn't help but welcome the news with mixed feelings. The fact that the court acknowledged that proper procedures were not followed is a relief; however, the court's failure to reunite a mother and son and delay justice is a travesty. Encarnación's son has been with his adoptive parents for over two years now, and has come to know them as his only parents. The more time that is spent in this limbo with a mother separated from her child the more harm is done.

I first met Encarnación in 2009, several years after she was arrested during an immigration raid at the poultry processing plant where she worked. When I spoke with Encarnación, I was struck most by not only her heartache, but also the incredible strength she has carried in her fight to reunite with her son. As a mother of two young children myself, hearing stories like Encarnación's makes my heart stop. What would it feel like to not know if my children were safe, to have them think that I did not want them because I was locked in detention and unable to care for them?

Encarnación told me that while she was in detention, Carlos had a series of caretakers. He was first at her brother's home and then with her sister before being cared for by a local couple who offered to babysit. She was approached and asked to allow her son to be adopted but she refused, asking instead that her son be placed in foster care until she could care for him herself.

Encarnación was then swept up in a series of events that ultimately led to the unjust termination of her parental rights. She was given information about her custody case in English -- a language she does not understand. Her lawyer was hired by her son's future adoptive parents, demonstrating a clear conflict of interest. And, despite Encarnación's clear desire to be reunited with her son, a court found her to have abandoned him. Her parental rights were terminated, and Carlos was adopted. Encarnación's case is complicated, involving the failures of multiple systems, but had Encarnación's right to due process been upheld, none of this would have happened. She would have been able to present her case in court, and Carlos would still be with her.

Perhaps the greatest tragedy in this story is that many other families are suffering this same fate -- a fate that could be avoided. Both Immigration and Customs Enforcement (ICE) and family courts have the legal obligation to ensure detainees are able to participate in all aspects of their custody and immigration cases. ICE has the authority to release parents from detention so that they can continue to care for their children while undergoing immigration proceedings. And should the outcome of their immigration case order them deported, mothers and fathers have the right -- and must be given the opportunity -- to either take their children with them or leave them behind in a safe situation.

Releasing parents from detention does not mean weakening immigration enforcement or letting undocumented migrants go free. Parents in immigration custody have an incentive to appear for their hearings and comply with court orders, simply because they do not want to lose their families. And for those who need some sort of supervision, ICE has access to cost-effective alternatives to traditional immigration detention that can be used to ensure parents appear at custody proceedings. It is critical that these alternatives be used in order to protect children from becoming unnecessary collateral damage.

Five million children in the United States have at least one undocumented parent and three million of these children are U.S. citizens. ICE's failure to utilize these options has the potential to create a generation of lost children who are needlessly denied a relationship with their detained or deported parents. These children are far more likely to live in poverty, struggle in school and face unemployment and homelessness.

The court in Encarnación's case has recognized the damage done by failing to uphold the 14th amendment, the constitutional right that ensures all persons -- including undocumented immigrants -- are entitled to due process and equal protection under the law. Encarnación's case has shown that where due process rights are denied, families suffer. As a nation that prides itself on valuing the sanctity of family unity, we must uphold our commitment to the bond between parent and child, regardless of immigration status.

Take action now to help keep families together.