Guardianships for Children of Immigrants


More and more, immigrants are talking about guardianships for their children. But what is a guardianship and do all immigrants need one? The short answers are: 1) a guardianship allows someone to act like a parent for your child if you cannot and 2) only in certain circumstances.

Some background is helpful. Under the prior president, immigration officials used their limited resources to target undocumented immigrants who had committed serious crimes. In contrast, the current administration has a policy of targeting any individual who has violated immigration laws whenever they are encountered. This has led to high-profile cases of families torn apart, individuals with DACA being deported, individuals being targeted at non-criminal court dates etc. The administration has the legal authority to do this – even if it is morally unjust – so it is likely to continue.

All immigrants fear these surprise arrest and possibly quick deportation, but immigrants with children especially worry about who will take care of their children. The idea of a guardianship is appealing for that reason. Three groups of immigrants should seriously consider a guardianship.

First, immigrants subject to reinstatement of a removal order are at high risk of arrest and quick deportation. If an immigration judge has previously ordered an immigrant removed (or deported or excluded), immigration does not need to give another court case, and can simply arrest and deport them.

Second, immigrants who might be subject to “expedited removal” have a similar risk. “Expedited removal” applies to immigrants who have not yet entered the US or who entered the US less than two years ago. Immigration officials are not required to send these individuals to court and can simply arrest and deport them.

Third, some immigrants, are subject to “mandatory detention.” This is a little different than the two other categories. Immigrants subject to “mandatory detention” cannot be released from jail. So even if these immigrants have a right to fight in court, they may have to stay in jail the whole time. Immigrants subject to “mandatory detention” are those with certain criminal convictions.

All immigrants should make a plan about what to do if immigration officials arrest them. But if you fall into any of the three groups above and if you have children in the US, that plan should include what will happen to your children. One solution might be a guardianship. But be careful. Guardianships are serious and sometimes difficult to cancel. If you do not fall into one of the three groups above, a guardianship is probably not necessary. The reason is that even if immigration officials were to arrest you, you would likely have the chance to be released from jail and then to fight your case in immigration court. That fight often takes years, which would leave you plenty of time to plan for the future.

In the end, every case is different. An attorney or a legal aid organization can help you decide if you are at high risk of being arrested, detained, or deported and whether a guardianship is right for you.

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