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Can the father or SIL not go pick the 2 year old up from Honduras at a later date if that's what the mother and father decide they want to do? The 2 year old has citizenship - while an unnecessary flight to Honduras with a 2 year old is obnoxious it's not exactly an irreparable harm - there are flights from Honduras to the US every day of the week, and I'm sure a gofundme could finance a few hundred dollars of plane tickets given this level of publicity.
Of course, ICE trying to interfere with the mother's ability to contact legal counsel is, if true, super concerning.
By the sounds of it, the father may not have legal status to be in the USA himself, and the sister-in-law who is a US citizen may be a remote family member, so is it better to put the child in the care of someone not a blood relative, rather than let her remain with her mother and sister? If the father was legal, the problem would be a lot simpler, but on the face of it nobody in the immediate family (except the child herself) has any legal right to be in the country.
Of course, we have to wait for more details to come out before we can decide on that.
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The fact that a kid has US citizenship does not mean that the the legal system of Honduras will refer to the US courts in any custody decision. So of the parents can not agree on what should happen with the child, the child will be deprived of the right of an US custody court deciding its fate. That would be irreparable harm -- unless Trump is willing to send SEAL team to repatriate the child.
Now, it could well be that the custody battle between father and mother is just a charade meant to delay the deportation of the mother. But presumably the Federal government can expedite that custody process. Unless the mother is due to have another baby (which Trump would prefer not to be a US citizen), I don't exactly see the urgency.
Also, no matter how you spin it, deporting two kids aged 2 and 11 along with their mother is terrible optics. The executive has some leeway in whom to deport, so Trump can not hide behind "just following the law" here. Presumably, Trump has already gotten rid of all the gang members, and the men with random tattoos and the people accused of a crime and "mothers of US citizens who went to their ICE check-ins" are the only ones left?
Please elaborate how you think the federal government can expedite state court judicial proceedings.
I have never seen this happen. I mean, I've only practiced law for 12 years so maybe I will see this in the future. But we live in a world of dual sovereignty, particularly with the courts.
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I think that this sort of irreparable harm is somewhat unavoidable in such circumstances. Janet Reno was willing to send tactical border patrol agents to return a toddler from extended family in the US to his father in Cuba -- there is an iconic photo of a federal agent pointing an MP-5 at a screaming toddler in his family's arms. Or that time the Carter administration allowed a Ukrainian teenager living in Chicago to claim asylum when his parents decided to move back to the Soviet Union. All of those cases are, in some ways "irreparable harm". But so is the reverse, and I'm not really sure how you'd consistently manage to avoid all such classes. I'm open to suggestions.
Both international and US law say that children subject to active custody disputes should not be removed from the jurisdiction of the child's habitual residence without the permission of the (family) court having jurisdiction, and should be returned quickly if they are removed - the big difference with the Eilan Gonzales case is that Eilan was habitually resident in Cuba (so the claim to keep him in the US was on best interest grounds) whereas the child here is habitually resident in the US (and the reason for removing them is to conveniently deport the mother). It isn't obvious how this interacts with immigration law if the child is an illegal immigrant (although I suspect an English or American domestic court would rule, contra the international law textbooks, that a child could not be habitually resident in a country where their presence was illegal), but this is a case where the child is a citizen.
Even if you disagree with the policy, the amount of process that is due before deporting a US citizen child with relatives in the US who claim to be able and willing to care for them is greater than zero. Based on both the press coverage and the general direction of Trump administration immigration process, it looks like ICE made no attempt to understand the family law position before deporting the mother and child - it looks like they went further and deliberately frustrated the parents' attempt to do so in order to get mum out of the country before a court could intervene.
Agreed that the most likely fact pattern is that the whole family (except for the US-born kid) including Dad were in the country with permission under one of the various Biden-era programmes, and can be legally deported now that Trump has revoked that permission.
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Presumably, to stay in the US as a minor, you require both (1) being allowed to stay in the US by the US gov (e.g. having asylum, citizenship or being tolerated) and (2) your legal custodian living in the US. In both of these cases, the subject of the custody battle was not a US citizen, so the federal administration had a lot more discretion. WP is not clear on how the custodial case for Walter Polovchak turned out and how federal courts became involved. The general vibe I get from both of these cases was that there was a lot more judicial oversight than in the present case.
Irreparable harm is unavoidable in custodial battles, sure, but I would argue that the proper place to decide how to minimize that harm is family court (which is supposed to take the child's best interests into account), not the whim of some ICE bigwig who is likely happy to fill another seat in the plane, citizen or not.
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Not only that, the practice of sending people away at the ICE checkin, as opposed to using that visit in to serve them with notice of termination of status so that they can get their shit and depart in an orderly fashion creates the an awful selection effect.
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If the father were legally in the United States, sure. It seems likely he is not, so if he leaves the country he will find it difficult to come back.
It sounds like the SIL is legally in the united states. With notarized parental consent letters on both sides and the 2 year old's passport I'd be surprised if there was any major issue in having the SIL pick up the kid and bring her back to the US to dad.
I doubt the notarized consent would be easy to get from mom, but that's because this sounds to me like a custody battle.
That depends on the Sister-in-Law's actual relationship to the mother, not the father.
The SIL and the mother do not necessarily have any legally relevant relationship. This is where the implication of the mother and father never being characterized as married potentially matters.
If the father's SIL is in fact the mother's sister, then as you say it could be legally simple to reverse if the parties are in agreement. That is not the same as administratively simple- I'd be surprised if the child has a passport- but
If the sister-in-law is a SIL due to the father marrying someone else- a currently undisclosed woman who would be unsympathetic to the narrative- then the analogy would be more akin to an adoption than familial custody.
The SIL's job in this case is "accompany the kid on the plane ride from mom to dad after both of them write consent letters and get them notarized". As long as both parents do that I expect the airline will be fine with it, and once the kid lands in the US she can't be denied entry into the US.
I don't expect the mom to agree to that, to be clear.
I think what is complicating this is that it's not the usual "who gets custody of the children after a divorce" or "who gets custody when the children are removed because of neglect or abuse" type case.
If the parents aren't married and the kids are living with the mother, and the mother and older sister and the father are not US citizens/have no legal right to be in the country, then handing over custody (temporary or longer) to the citizen sister-in-law is a different kettle of fish.
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Not quite. Remember- the father was not asking for custody for himself. The father was asking for custody to be transferred to his sister-in-law. And this sister-in-law who is supposed to be taking both escort and legal custody has no established relationship to the mother, only the father.
A notary might be able to help the plane ride in abstract, but a notary cannot transfer formal or de facto legal custody from a mother to a potentially unrelated citizen of another country. Since the purpose of the plane flight is to remove the mother's custody of the child, after she (reportedly) indicated to the US government she wanted to retain custody...
Then the mother will probably not sign a notarized consent letter, yes.
My point was that if both parents decided they wanted the kid to grow up in the US with the SIL that is still something they could arrange. Emphasis on the word "if".
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