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Immigration Law

What Should a Judge Do When Child Custody and Immigration Rules Clash?

Posted Jun 30, 2008 12:06 PM CDT
By Martha Neil

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If Carlos Alvarado is deported to Mexico, he loses the ability to see his 10-year-old son on a regular basis. Plus, in all likelihood, he won't be able to pay his court-ordered $276 monthly child support to the boy's mother, a legal permanent resident from Belize.

But immigration courts generally pay no attention to such concerns, which are paramount in family court decisions, reports the Los Angeles Times. Of course, when a child's mother or father is a single parent, or both parents are being deported together, their children can return along with them to the native country.

In Alvarado's case, an immigration judge, Christine Stancill, ruled in 2005 that he could stay in the U.S., because maintaining the role in his son's life anticipated by his joint custody arrangement would be an apparent "impossibility" if he was deported. However, the government appealed and the Board of Immigration Appeals overruled Stancill in 2007, saying that it wouldn't be all that difficult for 10-year-old Michael to visit Alvarado in Mexico, although his mother says she would not be comfortable with him traveling there.

Meanwhile, Alvarado has two younger sons with his new girlfriend, who is an illegal immigrant from Brazil and plans to move with him to Mexico if he is deported. If he is ordered deported and finds a way to stay in this country, the newspaper notes, he potentially violates a federal court order. If he complies, he likely violates the state-court order concerning child custody and support.

The situation simply isn't squarely addressed by the separate worlds of family and immigration court, lawyers and judges say.

"This has been a challenge to the courts for as long as I remember," says Bruce Einhorn, a retired immigration judge in Los Angeles. "One court doesn't know necessarily what the other court is doing, like the left hand doesn't know what the right is doing. It's one of those challenges that we have yet to meet."

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