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Parents Without Immigration Authorization Should Plan Ahead

What can be done if you are deported, leaving your kids behind? Parents panic when they think about being separated from their children. Arizona parents present in the United States without legal permission face this fear constantly, as they could potentially be deported at any time.

What options exist for these parents? One option to consider is a Title 14 Guardianship for the children. To this suggestion, parents may initially yell out, “I am the parent, period. No guardianship. No way, no how.” It might not be the best option.  Or it might be best of all options, none of which are ideal.

More families are at risk than you might think. Arizona is home to over 344,000 people from other countries who do not have legal authority to be in the United States. Of those, around 97,000 are parents, 88% of whom have U.S. Citizen children.

Here’s why a Title 14 Guardianship might be a good idea. Once parents are detained by Immigration, the Department of Child Safety (DCS) is likely to take custody of the children. The children will be placed with family or in foster care. They will be deemed dependent because there is no parent or guardian able to exercise or capable of exercising care and control over them. A.R.S. § 8-201(15)(A)(i).

I have represented many deported parents involved in DCS Dependency cases who have no ability to return to the United States to parent their child.  Here are the options I have seen put in place for this situation:

  1. Move the children out of the United states to live with the parents. The children retain their U.S. Citizenship and become fully bilingual and bicultural.  But it may be difficult to enroll them in school if they do not read or write in Spanish. 
  2. Relinquish parental rights, and allow adoption under A.R.S. § 8-533.  Because there is no guarantee that a particular family member will be allowed to adopt (DCS does not generally allow for direct relinquishment), this is risky.
  3. The parent can agree to a Title 8 Guardianship of the children by choosing someone to take over the care of the children.  DCS may not agree to a Title 8 Guardianship as the agency generally prefers adoption over guardianship.

Keep in mind that none of these options are ideal.  Being taken into DCS custody can be frightening for a child.

Taking action before government intrusion is preferable. Consider a Title 14 Guardianship or a Notarized Power of Attorney. Both can be revoked at any time. Both protect the children by providing someone to make legal and medical decisions. A Financial Power of Attorney allows someone to manage bills and bank account in the event of deportation. Domestically created documents are accepted more readily than foreign ones. 

Call a qualified attorney to discuss your options.

[Cite 1 - Migration Policy Institute’s data from 2015 Census Bureau. ]

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