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The extreme hardship of gaining custody after removal.


The case of Mexican father Felipe Montes and his American citizen children highlights the bind faced by immigrant families in custody proceedings.  Parents wanting to keep their families intact are forced to take different or even contradictory stances in immigration court and in state proceedings.

Briefly, here is Montes' story based on news reports (read Fox News or NPR ):

Mr. Montes lived and worked in North Carolina for many years, even though he never had a valid visa  or legal status in the United States.  He married a U.S. Citizen and was by all accounts a good father to his three American-born sons. Unable to get a North Carolina driver's license because he had no Social Security number, he was cited by the local police multiple times for driving without a license and related offenses.   Eventually, these driving violations put Montes on the radar of Immigration and Customs Enforcement (ICE).  Montes was detained and sent back to Mexico.  Ill and unable to work, Montes' wife could not take care of the children on her own, and within weeks the children were taken into state custody and put in foster care.  The county social services agency does not want to send the boys to Mexico, citing reasons such as lack of running water on the farm where Montes lives, poor communication infrastructure which has made it difficult for Montes to keep in touch and participate in phone conferences. 

One of the primary legal difficulties in a situation like this is that the standards that immigration courts look at when deciding whether to force a family to split up or leave the country are entirely different from the standards that the state courts and agencies that handle family law and child welfare would use.  

In order for a father like Montes to get an immigration judge to cancel his removal and allow him to stay in North Carolina with his family, he would need to show that his family would suffer "extreme hardship" if they moved to Mexico.  Simply a lower standard of living than they are used to in the United States would not suffice.  Based on media accounts, Montes' farmhouse in Mexico is close to a school and has electricity, satellite TV, a modern kitchen and access to bottled drinking water.  Absent other factors*, it sounds like it would be hard for Montes to convince an immigration judge that his family would face "extreme hardship" living there.

However, when his children became wards of the state and the county social services stepped in, Montes found himself facing an entirely different standard.  These agencies are charged with acting in the "best interest of the children."  How "best interests" are determined may vary from place to place.  Family unity is usually a primary conern, but living conditions, social setting, educational opportunities, and community ties may all be considered.  One can imagine that a social services agency may find that a particular living situation is not in a child's best interest, even though the living conditions do not amount to extreme hardship.  Of course, these state agencies have no authority to bring the removed parent back to the U.S. even if that is in the child's best interest!

A parent facing removal from the United States faces a dilemma.  In order to receive cancellation of removal and stay in the U.S. with his children, he will need to show that life for his children would be extremely hard in his home country.  Thus, he has an incentive to emphasize the worst aspects when describing the living conditions. Should the immigration court decide that the conditions do NOT reach the level of "extreme hardship," however, this parade of horribles presented in immigration court may come back to haunt the parent in future custody determinations, where the parent will want to show that it is now in the children's best interest to live with him in those conditions.

Even for families where social services are not involved, the "best interest" and "extreme hardship" standards can cause conflict.  Relationships become strained when one parent is out of the country, and the U.S. parent may decide try to limit or deny visitation, citing how awful the foreign parent had said conditions were.

*It is reported that Mrs. Montes suffered mental illness.  In some cases, immigration judges have found that a mentally ill spouse would suffer "extreme hardship" moving to a location without appropriate services available.  I am not in a position to tell if this would have worked for the Montes family or not.


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