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Download the full Immigrant Child Health Toolkit.The following content is for informational purposes only and not for the purpose of providing legal advice.
Immigrant children may live in a “mixed status” family with an undocumented parent/primary care giver who lacks the proper documentation to live legally in the United States. Immigration enforcement actions can lead to the sudden removal of an undocumented parent without giving the family notice or time to prepare for the parent’s removal.
Children whose parents are taken into custody and/deported have been shown to experience mental and emotional health problems including sleeping and eating disturbances, anxiety, depression, poor school performance, and other types of distress. Forced separations due to immigration enforcement can also result in a child’s household losing a working parent, which has been shown to threaten in family housing and food stability1.
The mere possibly of deportation can negatively impact the well-being of some immigrant children, whether or not they themselves or family members are undocumented. Mexican immigrant children specifically have shown emotional distress, fear, confusion and anxiety2.
As part of the social history, pediatricians may consider asking families if a parent/other key family member has left or is potentially going to leave the family for any reason. This information may help provide insight into the child’s health. Reassure families that the information they provide in the health care setting is confidential and that the practice is not involved in immigration enforcement.
It is extremely important for parents/primary caregivers who may face separation from their children to develop a plan for their children’s health and safety, in the event of separation.
Pediatricians should advise parents/ primary caregivers who may be at risk for separation from children to take the following basic steps:3
- Appoint power of attorney to a trusted adult to care for children in the event of removal/deportation. Because the requirements for legally executed Powers of Attorney vary considerably by state, seeking the assistance of attorney is recommended.
- Maintain copies of medical records, including immunization history, medications and other health information. Give a copy to a trusted adult.
- Maintain copies of your child’s birth certificate, social security card and passport(s). Give a copy to a trusted adult.
- Maintain documentation about any public benefits your child may be receiving from local, state, or federal programs. Eligibility for these programs may be affected by parental deportation. Give a copy to a trusted adult who can help maintain the child’s benefits if possible.
- Maintain documentation of children’s school records. Give a copy to the adult that you have designated as Power of Attorney.
Pediatricians should refer families to legal partners for assistance with legal and immigration related issues, such as local legal aid organizations and non-profit advocacy groups . When addressing deportation issues with families, pediatricians should reassure families that the information they provide in the health care setting is confidential and that the practice is not involved in immigration enforcement.
What should I do if a family asks me to write a letter of support to prevent deportation/removal of a child’s primary care giver? If I write the letter, what is most helpful to include/address?
Pediatricians may be asked to write a letter of support for immigrant families who face parental deportation/ separation from a child. Support letters may also be requested for visa applications and other immigration administrative hearings. The pediatrician may be asked to attest that the parent(s) appear to be providing good care for a child and/or that the child seems to emotionally and physically well. Alternatively, the pediatrician might be requested to attest that the child has medical and/or psychological conditions for which he/she is currently being treated, and it is the pediatrician's professional opinion that it is not in the child's best interest to disrupt this care or send him/her to a location where adequate care may not be available.
If a pediatrician chooses or is required to attest to the state of the child's physical health, psychological health, and/or the need for treatment, he/she should: (1) reference medical notes when appropriate, (2) clearly identify as opinion any opinions offered, (3) release or disclose HIPAA-protected information only after obtaining proper consent or authorization, and (4) restrict his/her comments to fact with which he or she is personally familiar; care should be taken not to include false statements or to mislead officials. The pediatrician may incur significant liability risks if the statements are knowingly false or markedly exaggerated.
Support letters must be individualized and tailored to address any legitimate hardship that a child would face if the child’s parent is detained or deported. If the child’s parent(s) is working with an immigration attorney, the pediatrician should contact the attorney to address what to include in the letter. However, generally, a pediatrician should consider the following when writing a letter of support or affidavit:
- Write the letter specifically for your patient. Honestly address your patient’s issues and situation without exaggeration or falsehood.24
- Provide an overview of the physician's education, training, expertise, and the number of years in practice. This may persuade the immigration judge to accept the physician as an expert witness.25
- Provide an objective and individualized description of the child’s medical diagnosis, treatment, and prognosis. The letter must be factual, unbiased and authoritative.26
- Discuss the instrumental role the parent plays in seeking, supporting and maintaining treatment, e.g. taking child to treatment, administering medication or otherwise providing care.
- Discuss how the child will be harmed physically, emotionally, and psychologically if the parent is detained or deported. Provide examples of the health consequences the child would face without their parent participating in their health care. If possible, discuss how the child would not get the care they need in their parent’s country. Overall, your written testimony should support the parent’s assertion that the child will suffer extreme hardship if the parent is detained or deported.
- Always provide facts and rationale for your medical opinion.
- Provide supporting medical documents or reports
24 Expert affidavits that are general in nature and not specifically prepared for the patient are given less weight by immigration judges. See Wang v. BIA, 437 F.3d 270, 274 (2d Cir. 2006).
Katherine J. Eder, The Importance of Medical Testimony in Removal Hearings for Torture Victims
, 7 DEPAUL J. HEALTH CARE L. 281, 306 (Spring 2004) (“Expert evidence, which includes both documentary and testimonial evidence, can be very significant and potentially determinative in whether a party meets his or her burden of proof.”); see also Garry Malphrus, Expert Witnesses in Immigration Proceedings
, 4 IMMIGRATION LAW ADVISOR 1, 13 (May 2012).
28 Eder, supra note 8 at 305.
29 Expert testimony and affidavits that are highly conclusory in its opinion without facts and rationale for the opinion are not persuasive. See Malphrus, supra note 8 at 13.
Can immigration enforcement request information about my patient families? What do I do if this happens?
It is imperative that anytime immigration enforcement contacts a pediatrician for patient information that the pediatrician forwards the request to their health care facility’s legal department, or in the case of a sole practitioner, their legal counsel. There are many complex and multi-faceted legal issues associated with producing medical records to Immigration and Customs Enforcement. The request for documents may be impacted by the following laws:
- U.S. Constitution, Fourth Amendment;30
- Health Insurance Portability and Accountability Act of 1996 (HIPAA);31
- Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act);32
- Individual State Privacy Laws;33 and
- Legal Process such as court-ordered or administrative warrants, subpoenas, or summons.
It is helpful to develop written policies and procedures on handling document requests and to train health care providers on how to interact with immigration authorities. Because there may be legal obligations on the health care provider if the request is a valid court order, a physician should never simply ignore a request. Pediatricians should document any experiences of intimidation or involvement with immigration enforcement officials. This information should be shared with the health care facility’s legal department.
Practices may choose to designate a specific individual or individuals to assume primary responsibility for handling contacts with law enforcement officials. If this occurs, inform all other staff about the role of the designated individuals and any other established procedures for the practice in the event of an immigration enforcement action.
30 Generally bars the government from engaging in unreasonable searches and seizures. U.S. CONST., amend. IV.
32 50 U.S.C. § 1861.
33 State laws may offer stronger consumer protection then HIPAA.