Frequently Asked Questions (FAQ) on Child Care Provider Rights with Respect to Immigration Enforcement
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Providers must ensure that the person who brings the child to, and removes the child from, the child care facility signs the child in and out. The person who signs the child in and out must use their full legal signature and record the time of drop-off and pick-up. Providers should keep sign-in and sign-out sheets with the required signatures for at least a month unless for example they are required to keep the sheets longer per the requirements of a subsidy agency.
If the child’s parent is deported and the child is being taken care of by another caregiver, the caregiver should sign the child in and out of the child care facility. The sign-in and sign-out sheets with the caregiver’s signature should be sufficient for the provider to receive payment from subsidy agencies.
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A child’s absence from a child care program may be excused in the case it is considered a “family emergency” or when the absence is “in the best interest of the child.” Child care providers must adopt reasonable policies that outline the circumstances that qualify as excused absences. 1 Providers should then communicate these policies to parents.
A parent’s decision to keep their child at home due to fear an immigration sweep may be considered an excused absence. Parents and providers should note that absences “in the best interest of the child” cannot exceed ten days for the contract term. Attendance records should always include the name of the child, the date, specific reason for the absence, and the parent’s signature or the provider’s signature if verification of the excused absence is made over the phone.
Unless child care is abandoned (when a family has not used child care nor been in communication with the provider for seven (7) consecutive calendar days and has not notified the provider of the reason the family is not using services), the provider should be paid according to the plan established when the parent first enrolled the child, regardless of the child’s actual attendance. Providers should review their subsidy agency’s handbook for more information and note that there may be limits on how many excused absences the agency will pay for during any particular contract term.
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We all have constitutional rights regardless of our immigration status. These rights are also applicable to family child care businesses, including those that offer federal or state subsidized child care. These rights include the right to ask immigration agents to identify themselves, the right to stay silent, the right to document and record the event, and the right to ask for documentation and deny entry into private spaces without a judicial warrant. Additionally, because family child care providers are operating their businesses out of their homes, which are considered private spaces, they can deny immigration agents access to their homes if the agents do not have a judicial warrant.
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If a child care provider has a two weeks’ notice requirement for withdrawal in their contract and a family breaches the contract by not providing two weeks’ notice, the provider can try to enforce their contract by 1) using a deposit the family may have paid during enrollment in order to cover any unpaid fees (if the provider required a deposit under the contract); or 2) writing a demand letter to the family giving them a specific deadline by which to make the payment and then filing a small claims lawsuit against the family if they do not make the payment by the deadline. See more information about filing small claims lawsuits here.
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Providers should always try to ensure all children in their care have multiple emergency contacts/authorized pick-up persons.
Providers who retain a child past the child’s normal pick-up time due to a parent’s detention may risk non-compliance with staffing ratios and/or capacity limits based on the provider’s child care license. However, a parent’s detention may be considered an emergency. The provider should immediately contact their licensing analyst for guidance and file an Unusual Incident/Injury report (Licensing Form 624B) with Community Care Licensing.
Once a provider has attempted to contact all individuals on the child’s emergency contact/authorized pick-up list, the provider should document the situation to justify the need for emergency extended care. Documentation should include the child’s name, the date and time when extended hours were required, and any relevant details known about the parent’s detention. Providers should also record their efforts to reach all authorized individuals and emergency contacts. If a substantial amount of time has passed without successfully contacting any emergency contacts/authorized individual, the provider should contact the non-emergency line of the local law enforcement agency or child protective services.
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Providers should remain calm and provide reassurance to children, ensuring that they are and feel safe. Providers should make efforts to minimize any contact between children and immigration agents, such as guiding children inside or positioning them out of the agent’s view. Providers should then adhere to their established procedures and written policies for interacting with law enforcement/immigration agents. Further guidance on immigration agent interactions and sample policies are available here.
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Though a family child care provider may not own their home, they control the space where child care is provided. A family child care provider generally has a reasonable expectation of privacy in their home, which means that an immigration agent would need a judicial warrant to enter the home. If immigration agents arrive, the provider should request to see any warrants and follow established protocols for interacting with law enforcement. It is important to document all interactions with ICE with as many relevant details as possible.
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The Center for Law and Social Policy (CLASP) has created a guide to creating safe space policies for early childhood programs, which can be found here. Providers should also make sure they update emergency contact and authorized pick-up person information for children in their care, and encourage families to create emergency plans for their children’s care.
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Permanent residents are required to carry proof of their immigration status at all times, and a green card serves as this proof. Individuals should carry their green card to protect themselves from the risk of detention or arrest. Having necessary documentation can help ensure that interactions with law enforcement proceed more smoothly. Providers who present their green card and are ignored should politely hand the agent their green card, emphasize their legal status, and ask about the reason they have been stopped and/or questioned. Also calmly inform the agent that you would like to remain silent and that you do not consent to any searches. If issues continue, record the agent’s badge number and name and contact legal counsel when it is safe to do so.
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If a child has an urgent medical issue, the provider should immediately contact the child’s parents/guardians to notify them. If a provider has the parents/guardian’s permission, they may seek emergency medical care for the child. This form can be used to get permission for emergency medical care. The Emergency Medical Treatment and Labor ACT (EMTALA) is a federal law that requires hospitals with emergency departments to screen all patients, regardless of their immigration status, to determine the appropriate course for treatment. If the hospital finds that the child has an emergency medical condition, it must either provide necessary treatment or arrange a safe transfer to another facility. The goal of the EMTALA to ensure that everyone has access to the necessary emergency medical services.
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Providers with Limited English Proficiency (LEP) – those who have limited ability to speak, read, write, or understand English – may be entitled to language assistance. Whether a provider is designated as LEP depends on the context. Immigration agents may determine that a provider has sufficient English language skills to function in one setting but not another.
Language Access Services are defined as “oral and written language services to enable LEP individuals to communicate effectively with staff to gain access to participate fully in the services, activities, or other programs administered by immigration agents.” It is US Immigration & Customs Enforcement (ICE) policy to provide these services to “members of the public who are seeking access to ICE’s programs, activities, and services; LEP individuals subject to ICE enforcement actions; LEP individuals in ICE custody; and LEP individuals that ICE works to protect.”
“The ICE LAP applies to the Agency functions in which ICE employees interact with members of the public, persons involved in law enforcement interactions, persons detained in ICE custody, and persons subject to reporting requirements with ICE (e.g., orders of recognizance, orders of supervision), including victims and witnesses in HSI investigations. This includes, but is not limited to, websites, blogs, social media, email, telephone, and in-person contact.”
ICE detention facilities must provide information to all detainees in the language or manner which they can understand throughout the process. Detainees also have access to professional interpretation and translation services and bilingual staff to facilitate communication. Most written materials are translated into Spanish as well as other languages prominent among the Limited English Proficiency population. Detainees have rights to oral interpretation when written materials are not translated into their language or in cases of illiteracy.
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If immigration agents arrive, with or without a warrant, child care providers have the right to remain silent. To invoke this right, clearly state: “I want to remain silent and speak to a lawyer.” At that point, immigration agents must stop any questioning. It is important to actually remain silent and not to resume conversation after invoking this right, as doing so may unintentionally waive it.
Providers have the right to consult an attorney when they are “in custody”—that is, when they are not free to leave. This includes situations where a provider is detained for questioning or placed under arrest. In these circumstances, providers have the right to have an attorney present during any questioning. Please note that the government is not required to provide a free attorney to detained individuals/individuals in immigration proceedings. Some nonprofit legal service providers such as CHIRLA, CARECEN, Immigrant Defenders, and Public Counsel may be able to provide services free of charge.
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The REAL ID primarily affects air travel and access to secure federal facilities like federal courthouses and military bases. Families or providers who may need to travel on domestic flights should obtain a REAL ID. Providers and families may apply for a REAL ID at a local DMV branch by presenting proof of identity and California residency as well as their Social Security number. Undocumented California residents who have an AB 60 driver’s license are ineligible for a REAL ID driver’s license or identification card.
The REAL ID is unlikely to directly impact child care providers or families seeking child care services. Providers should reassure families that they can still lawfully enroll their child in the child care even without a REAL ID. A driver’s license or other form of identification, including an AB 60 license, is sufficient for families to enroll their children in child care programs.
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Law enforcement and immigration agents may only enter private spaces with a judicial warrant. If immigration agents arrive at a family child care home, the provider should avoid opening the door unless the agents have a judicial warrant. Following the child care facility’s policy, the person authorized to speak with the immigration agents may ask the officers to slide any warrant they may have under the door or otherwise show the warrant for inspection without requiring the door to be opened.
Judicial warrants are search and/or arrest warrants that must be issued by a federal court and signed by a judge to be valid and enforceable under the Fourth Amendment. While the documents used for both home and workplace searches and arrests are generally the same, the information required for lawful entry may differ. For example, because individuals have a greater expectation of privacy in homes than in workplaces, the warrant for a workplace may permit broader searches. Specifically, judicial warrants for workplaces may extend to business records, employee information, or client files. Because homes are entitled to greater protection than workplaces, warrants to search homes must be more specific about the information or items of interest. Also remember that a judicial arrest warrant alone does not give immigration agents authority to enter a third party’s home or business to make an arrest.
Administrative warrants are not court orders. An administrative warrant will be signed by an immigration officers rather than a judge. These do not give immigration agents the right to enter private areas. These can be used in public to detain the person named in the warrant. ICE officers who only possess administrative warrants may not enter a family child care provider’s home without the provider’s consent.
Look for:
Who issued the document?
Does it authorize a search of the facility? What does it authorize?
Has it expired? Have more than 14 days elapsed since it was signed?
Is it signed by a judge and not an immigration official?
If the warrant is signed by an immigration officer or a Department of Homeland Security agent and not a judge, it is not a valid judicial warrant. If it is signed by a judge, check that the judge’s signature is written directly on the page and is not stamped or created using a computer font. Ensure that the signature matches the printed name underneath. A valid judicial warrant should list dates of issuance and expiration. Finally, confirm that the judicial warrant is legible, neatly formatted, and includes information about the place(s) to be searched and/or the items or people to be seized.
For more information on identifying judicial warrants and subpoenas, please see this resource.
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Providers approached by immigration agents while on the street should:
Remain calm
Inform the agent that they wish to remain silent
Ask if they are free to leave
If the agent says the provider is free to leave, the provider can calmly leave the area
If the agent says the provider is not free to leave, the provider should politely decline to answer any questions and ask to speak with their attorney
Refrain from showing documentation unless provider is approached while driving, under lawful arrest, or is a non-citizen
Do not present false information.
Avoid signing any documents without an attorney present
Write down all relevant information about the interaction
Providers approached by immigration agents while with children should also:
Ensure that the child is safe
Reassure the child that the situation is being handled
Inform the agent that they wish to remain silent and that they would need to contact and get permission from the child’s parents/guardians before the agent proceeds with any questioning of the child
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While the Trump administration has used the Alien Enemies Act of 1798, rather than judicial warrants, to deport individuals suspected of gang activity, these deportations have been subject to legal challenges in the courts. Federal courts are currently blocking the administration from invoking this law to carry out deportations.
FAQs on Parents Rights with Respect
to Immigration Enforcement
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First, providers should always try to ensure all children in their care have multiple emergency contacts/authorized pick-up persons. Parents should designate alternative caregivers who would be willing to care for their child in the case of their detention or deportation and add these caregivers to their daycare’s emergency contact/authorized pick-up lists. For guidance on how to plan for your children’s care in the event of an emergency, please review this guide.
In the event a child is not picked up from daycare, the provider should record their efforts to reach all of the child’s emergency contacts and authorized individuals. If a substantial amount of time has passed without successfully contacting any emergency contacts/authorized individuals, the provider should contact the non-emergency line of the local law enforcement agency or child protective services. If necessary, providers may release children to police or child welfare workers, making sure to check their photo identification and recording the official’s name and badge number.
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Parents and guardians may authorize additional individuals to pick up their children from the daycare by providing authorization to the provider in writing. The authorization should be signed by the parent/guardian and include the authorized individual’s full name, contact information, relationship to the child, and a statement permitting the provider to release the child to that individual. Providers often have a standard authorized pick-up person form to document the above. Providers should also encourage parents and guardians to review and update the form as needed.
Additionally, if parents/guardians want guidance on how to designate an alternative caregiver for their child that can also make decisions about the child’s education and medical needs in the parent/guardian’s absence, they should review this guide.
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Currently, parents without legal status are unlikely to face detention solely because they receive child care subsidies. Most child care subsidy programs do not consider immigration status when determining eligibility, so it is less likely that a family will be targeted for detention due to their use of those benefits.
The majority of state-fundedchild care subsidy programs do not require parents to disclose their immigration status when applying. However, some programs, like CalWORKs, do consider immigration status as part of eligibility criteria.
Federal programs like the Child Care Development Fund and Head Start similarly do not require that parents disclose citizenship status when applying, especially when the benefit is for a U.S. citizen child. Certain federal grants also provide funding for state child care subsidies. Eligibility for such federal grant funding may depend on the child’s immigration status rather than the parent’s. Still, it is unlikely that receiving child care benefits alone will lead to a parent’s detention. Although the current administration has adopted a variety of measures to carry out its immigration policies, it does not appear likely that records of who receives child care subsidies will be used for immigration enforcement purposes.
Generally, parents can also use child care subsidies without it impacting their ability to obtain lawful permanent residence in the future (it is not likely to trigger a public charge determination). 2 Parents and providers should however continue monitoring any policy changes related to this issue.
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When engaging in these sensitive conversations with families, providers should gently emphasize the importance of having an emergency plan in place. This plan should outline parents’ wishes and give clear guidance to child care providers about the child’s care in the event of an emergency (e.g., detention, deportation, hospitalization, etc.). Emergency plans should answer who will take care of the child, list steps for providing care, and detail parenting preferences. Parents should also include copies of important documents as part of the plan. Documents may include the child’s birth certificate, medical records, school records, passports, social security cards, caregiver’s affidavit and/or nomination for a guardian (if relevant), list of relatives and friends who can be contacted as needed, and any of the family’s court records and immigration documents.
Providers and parents should review the emergency contact information that is on file to ensure that it is accurate and up to date. Verify the individuals authorized to pick up the child as well as those individuals’ contact information. The authorized individuals should be made aware that they will be contacted in case of an unexpected emergency.
When thinking about alternative caregivers, parents should choose a stable, trusted adult whom the child knows. Providers should encourage families to identify a few alternative caregivers in case their first choice is unavailable. The caregiver should be familiar with the family’s wishes regarding the child’s medical care and education.
There are both informal and formal caregivers. An informal caregiver can physically take care of the child, but does not have legal rights to make all decisions for the child. With an informal caregiver, the parent keeps legal custodial rights over the child. In California, informal caregivers can use the Caregiver Authorization Affidavit to inform child care providers, school officials, and doctors that they will be housing, feeding, and caring for the child in the parent’s absence. This form is authorized by California law, but is not part of a court process. Families should be aware that the designated caregiver need not have legal immigration status, and only the designated caregiver is required to sign the form. An example of the Affidavit can be found in this guide.
A judge can grant formal custody of the child to a caregiver through a legal guardianship. Under a legal guardianship, parents’ legal rights over their child are paused until the guardianship is terminated or the minor turns 18. Guardians must be at least 18 years old, have the child in their physical care, and are responsible for making legal, medical, and education-related decisions as well as meeting the child’s basic needs. Only courts can appoint a legal guardian, however, parents may nominate a specific individual to serve as their child’s guardian by completing the GC-211 form or a Nomination of Guardian form (and have it notarized). Parents may make this nomination apply only in the event of their detention or deportation. Courts will consider the nomination when making a decision on guardianship.
Guardianship is a lengthier legal process. First, it requires that the potential guardian complete various application forms and notify relatives about the plan for guardianship. Once those forms are submitted, the court will appoint an investigator to meet with the potential guardian to conduct a background check and understand the need for guardianship. Finally, after additional paperwork, the potential guardian will attend a guardianship hearing. There, the judge will determine whether the designated caregiver should serve as the child’s legal guardian. Guardianship is best suited for longer-term parental absences, as it generally requires a court order to terminate. More information on guardianship is available in thisguide. Step-by-step instructions and forms are also available here.
A parent can ask that the court terminate the guardianship at any time so that the parent can regain custody and their legal rights. However, it is important to know that it can sometimes be hard to terminate a guardianship.
To support families in the process of emergency planning, it can be helpful to offer families sample documents or templates to create a plan that fits their needs and reassure them that their children are entitled to free public education regardless of immigration status. Finally, providers should encourage families to discuss these plans with their children and ask that children memorize authorized individuals’ contact information. Discuss ways families can emotionally support their children and have conversations that allow children to voice and navigate any fears or confusion. Providers should offer contact information for local legal aid organizations and have resources available for families to review and offer their children.
Some resources and organizations include:
For Adult Family Members:For Children:
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Providers should create and maintain an emergency plan in case of an owner or assistant’s detention. This plan should outline all staff responsibilities and steps to ensure that children remain safe. If needed, other adults at the provider’s facility should contact each child’s parent/guardian to ask that they be picked up. If a child’s parent/guardian cannot be reached, providers should refer to the list of authorized individuals and contact those individuals.
It is critical to identify and train several alternative caregivers who meet the state’s licensing requirements that will be able to provide care for children during an emergency. Providers should ensure that any protocol complies with the California Community Care Licensing Division’s requirements. If that alternative caregiver is available, they can assume responsibilities of the detained business owner or assistant. If unavailable, the facility may need to temporarily close until a licensed provider can resume child care services. Available staff should also notify the provider’s licensing analyst immediately and file an unusual incident report.
This resource provides general guidance only and should not be construed as legal advice. The information in this resource may change over time. If your small business needs legal assistance, or if you have further questions about these topics, please contact Public Counsel’s Community Development Project at (213) 385-2977, ext. 300 or apply for their services online at: https://publiccounsel.org/programs/community-development-project/get-help/
The Community Development Project provides free legal assistance to qualifying low-income entrepreneurs and qualifying nonprofit organizations that share our mission of serving low-income communities and addressing issues of poverty within Los Angeles County.