Can Children Stay in the U.S. If Their Parents Are Deported?

When parents face deportation, one of the most pressing issues is what happens to their children. This article explores the various questions undocumented parents face in these challenging times.

Deportation and U.S. Citizen Children

Between 2013 and 2018, U.S. Immigration and Customs Enforcement (ICE) deported more than 231,000 people. Most of them reported having at least one U.S. citizen child. In 2019 alone, an additional 27,980 people with U.S.-born children faced deportation.

According to the Migration Policy Institute, around 4.4 million U.S. citizen minor children live with at least one undocumented parent. One in five children raised by extended family members live in an immigrant family household.

This number is expected to rise as more undocumented family members face deportation.

Legal Challenges to Birthright Citizenship

Children born in the United States are generally considered U.S. citizens. However, there are ongoing legal challenges related to birthright citizenship, particularly for children born to undocumented immigrants.

President Donald Trump issued an Executive Order on January 20, 2025, that attempts to end birthright citizenship for children whose parents are undocumented or not authorized to be in the country.

However, a U.S. federal district court in Seattle temporarily blocked enforcement of the order. Senior U.S. District Judge John Coughenour issued a temporary restraining order, calling the executive order “blatantly unconstitutional.”

Multiple lawsuits filed by state governments and nonprofits against this policy will continue to make their way through the courts. Until then, the executive order ending birthright citizenship remains on hold. And children born in the U.S. will continue to have citizenship rights, regardless of their parents' immigration status.

Below, we answer a few important questions related to U.S. citizen children whose parents could face deportation.

Can U.S. citizen children stay in the country if their parents face deportation?

Yes. Under the 14th Amendment of the U.S. Constitution, children who are born in the United States are citizens. This constitutional right remains valid despite the deportation of the undocumented parent.

This constitutional law protects U.S. citizen children. But it poses a challenging situation for families facing deportation. Parents must decide whether to take their children with them to their home country or arrange for them to stay in the United States with a legal guardian.

Who can be the child's legal guardian if they stay in the United States?

State laws primarily govern legal guardianship requirements. The specific requirements may vary in every state, but in general, legal guardians should be:

• At least 18 years old
• A U.S. citizen or a person with legal immigration status, like a lawful permanent resident (LPR)
• Of sound mind
• Not legally disabled
• Not convicted of a felony involving harm or threat to a child

The legal guardian could be an older sibling, a family friend, or anyone else who meets these requirements. The courts will also evaluate the legal guardian based on the child's best interest and ability to give the child a stable environment.

Legal guardians generally have all the same rights and responsibilities as the child’s parent. They can make decisions about the child’s schooling, medical care, and other important aspects of the child’s life.

It is also important to know that there are three different types of guardianship:

Plenary Guardianship (Full)

This type of guardianship grants physical and legal custody to the guardian. There is no end date. Parents must file a petition with the court to end the guardianship arrangement.

When a child has a full legal guardian, they must live with the guardian, not their parents. The guardian becomes their primary caretaker. For this reason, plenary guardianship is generally not recommended for families who are not currently facing a parent's deportation.

Standby Guardianship

Standby guardianship takes effect only if a triggering event occurs, such as a parent becoming terminally ill. Or, in this case, the deportation of the undocumented parent.

This allows the parents to keep their parental rights until the triggering event happens. Then, the legal guardian files for full guardianship. They have a set amount of time to do so, usually 60 to 90 days.

Some state laws include language that specifically allows standby guardianship for parents facing deportation. For example, in 2017, New York expanded its law on standby guardianship to include "administrative separation." This covers being detained by ICE or deported.

Other state laws on standby guardianship are more broadly written. So, while they don't explicitly address deportation, it might still be allowed. An immigration attorney licensed in the state where you live can help determine your options.

Short Term Guardianship

Short-term guardianship does not require court action or proceedings. It is a written agreement the parties can create as an emergency plan.

A short-term guardianship lasts for a set period but can be renewed according to the terms set out in the agreement. The parents and two other witnesses should sign the written guardianship agreement. It can also be beneficial to have the agreement notarized.

This arrangement can be made on short notice. But, there can be issues down the line. School officials, medical providers, and others might not honor the short-term guardianship as they would a court-ordered guardianship.

Should the undocumented parent choose a legal guardian before the removal process starts?

Yes. Parents subject to deportation should choose a guardian as early as possible. According to ICE Directive 11064.3 (2022), authorities must accommodate the deported parents' efforts to arrange their child’s care “to the extent practicable.”

It's best to have plans in place ahead of time. But the parental rights directive does provide some protections.

The directive requires ICE to provide parents with:

• The parental right to arrange care for their minor children
• The ability to communicate and maintain contact with their children
• The opportunity to participate in family court proceedings
• The right to coordinate with consular officers regarding child custody arrangements

Parents should also work within the state’s legal framework to initiate guardianship arrangements while coordinating with immigration officials. ICE requires its personnel to help undocumented immigrants make these arrangements whenever possible.

Undocumented immigrants should also be aware that the Adoption and Safe Families Act (ASFA) considers a child “abandoned" if the child has been out of their custody for 15 of the past 22 months. That is why it is crucial to arrange the legal guardianship of the child to prevent losing parental rights. Otherwise, the child will likely go into foster care.

Can parents with U.S. citizen children qualify for cancellation of removal?

Yes. Under the Immigration and Nationality Act, parents can qualify for cancellation of removal. However, the requirements under the law are strict. The applicants should prove that:

• The undocumented immigrant parent was in continuous physical presence in the United States for at least 10 years
• During that period, the parent exhibited good moral character
• The parent has no prior convictions for specified criminal offenses
• Removing the parent from the United States would result in “exceptional and extremely unusual hardship” to their lawful permanent resident or U.S. citizen child, spouse, or parent.

“Exceptional and extremely unusual hardship” is a difficult standard to meet. The hardship shown must be beyond what one would expect from a regular family separation.

What if one parent is a U.S. Citizen or a lawful permanent resident (green card holder), and the other is undocumented. Does the parent with lawful immigration status automatically get full custody if the undocumented parent is deported?

No. The court does not automatically grant child custody to the parent living in the United States when the other parent is deported. The legal standard for child custody remains as “the best interest of the child.” With this standard, the court looks at factors other than the person’s legal status. For instance, both federal and state family laws consider the following:

• The child’s relationship with both parents
• The ability of each parent to provide care for the child
• The ties of the child to their community
• The educational opportunities of the child
• The family support system

It's important to consult a child custody attorney to learn what options are available for your unique situation.

What happens to a child support order if the paying parent gets deported?

The child support order remains valid even after the parent's separation. But, although the deported parent still has a legal obligation to pay child support, it can be much harder to enforce after they leave the country.

The courts and state governments offer resources to help with child support enforcement. The Office of Child Support Enforcement (OCSE) also provides various mechanisms for international enforcement of child support orders.

Seek Legal Advice from an Immigration Law Attorney

Undocumented immigrants facing deportation may face various legal challenges. The thought of leaving their U.S. citizen child in America can further complicate these challenges.

Although every family’s situation is unique, it is always helpful to seek legal advice on guardianship from a family law attorney. They can help you understand the process better and find the best possible solution for your case. They can also help you gather the necessary documentation to ensure family reunification or look at all the possible steps to keep your parental rights. If you are a deportee, contact a qualified immigration attorney right away. They provide various legal services that can help your immigration case.