"I think it's a trend," Zug says. "It's been increasing over the last five years — much more under Obama than Bush."

Scholars and advocates say immigrant families are broken up in this country for a number of reasons, the most common of which appears to be the tendency of some judges to confuse immigrant rights with parental rights, the latter being one of the most fundamental rights guaranteed by the U.S. Constitution, regardless of citizenship or nation of origin.

Undocumented immigrants might be dispatched to detention centers without being permitted to arrange for childcare. They're typically poor, terrified, unable to speak English and unaware what rights they have. Some aren't alerted to custody hearings that have been scheduled in family court. Others don't learn that their parental rights have been terminated until after the fact.

"When they met him it was love at first sight," says Bess Lanyon, a friend of Carlos' adoptive parents. "That little boy lives a wonderful life."
"When they met him it was love at first sight," says Bess Lanyon, a friend of Carlos' adoptive parents. "That little boy lives a wonderful life."
Encarnación Bail lost custody of her son while jailed for immigration violations.
John H. Tucker
Encarnación Bail lost custody of her son while jailed for immigration violations.

"It's very clear that these cases do arise regularly," says Nina Rabin, director of the Bacon Immigration Law and Policy Program at the University of Arizona. In May Rabin published a report titled "Disappearing Parents," in which she recommends that detention centers establish programs to educate immigrants about their parental rights.

Owing to such trends, many legal scholars are closely following the Bail case. "It's really an indicator showing the degree to which immigrant parents are able to exercise their rights under the law," says Emily Butera, a member of the Women's Refugee Commission, an advocacy group headquartered in New York City.

Marcia Zug says Bail is fortunate to have found competent legal representation — a rarity in this type of case, and a fact that bodes well for Bail. Of the five other adoption-separation cases she has tracked that were appealed to a higher court, Zug reports, three resulted in reversal. Ironically, she says, Bail was lucky to be arrested with a federal crime, which gave her time to find a lawyer.

Zug has her own opinion about the Carthage case.

"I think there was actually some baby-snatching going on," she conjectures. That said, she blames the court, not the parties involved. "I think they honestly believed they were doing what was in the best interest of the child," Zug says. "It's a delicate point: growing up in rural Guatemala versus growing up in middle-class suburban America."


Perched on a chair in the small home she shares with her family in Carthage, Encarnación Bail resembles one of the Spanish dolls displayed on the bookshelf: her tiny frame held stiffly upright. Bail's thick black hair reaches past her shoulders; wavy bangs frame a round face punctuated by large dark eyes, one of which has welled over with a single teardrop.

Bail knows that her son lives in Carthage, but she doesn't know where, nor does she know the identity of the Mosers. "I see a little kid across the way and wonder," she says, then wipes away the tear.

When she is asked whether she wants to stay in America or return to Guatemala after the resolution of the upcoming adoption hearing, Omar Riojas, her Seattle-based lawyer who's listening in on speakerphone, cuts in to veto the question before she can reply.

An hour later Bail sits in a pew at St. Ann's Roman Catholic Church, a little nephew nuzzled on one side of her and a niece on the other, reciting the Responsorial Psalm in Spanish:

Señor, you are just and the judgments you make are right. Show me mercy when you judge me.

Whatever might transpire in the months to come, Bail has already endured a lifetime's worth of judgment since coming to Carthage. Francisco Bonilla questions why she left her other two children behind in Guatemala. When Linda Davenport visited her in jail four autumns ago, she bluntly asked Bail whether she'd had her tubes tied.

"Don't make another mistake with this child," Davenport implored.

"I have asked for forgiveness because I have made a lot of mistakes," Bail told Davenport moments later. "Right now I'm focusing on the future of my children, and I want to see them get ahead. God has put into me good thoughts. God never abandons his children."

Davenport herself paid a price for her unauthorized jailhouse visit: She was fired by the school board for improper conduct. The board would subsequently sack Davenport's supervisor, Lynda Homa, as well. Homa appealed her firing and lost.

Davenport declined to comment for this story, other than to say she had the boy's best interests at heart. "I answer to a much higher power," she wrote in a letter to Carthage School District superintendent Blaine Henningsen in April 2009, after Henningsen learned of her visit to Bail's jail cell. "I was advocating for a child; that is my job description and I am proud of what I have done in my 8 years of service to [the program] and those I have helped."

Jennifer and Oswaldo Velazco declined to be interviewed by Riverfront Times, as did Circuit Judge David Dally.

Though most Carthage residents who are familiar with the case say they've moved on, some remain intrigued by the conundrum it poses.

"I can see both sides of the story, and there's really no right answer," says Wendi Douglass, executive director of the Carthage Convention and Visitor's Bureau.

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