Reports of young children ripped from their parents’ arms at the U.S.-Mexico border are causing outrage, and rightly so. But this shocking practice is just the latest example of the Trump administration’s systematic assault on bonds of love and kinship that American immigration law has long valued and protected.
“Family separation” is a tactic designed to scare away migrants and asylum seekers, especially those from Latin America. It is also a bargaining chip in the president’s ruthless attempt to force Congress to agree to a radical cutback in legal immigration and to the construction of a wall along the southern border. The pretense is law enforcement, but cruelty to families has become the hallmark of the Trump administration’s overall immigration policy.
Consider the president’s “travel ban.” If the children, spouses, parents and other close relatives of American citizens and lawful immigrants come from any of six Muslim-majority countries, they cannot visit, let alone immigrate to America. Waivers are nearly impossible to obtain. The ban was temporary at first, but unless the Supreme Court steps in, the president’s executive order will make this kind of family separation indefinite.
Trump’s administration also has been trying to end the Deferred Action for Childhood Arrivals program (so far, it has been thwarted by court decisions). Terminating DACA would expose hundreds of thousands of young people to deportation to countries they barely know and to indefinite separation from their families in the United States.
Last week, Atty. Gen. Jeff Sessions decreed that asylum would no longer be granted to migrants based on life-threatening violence at the hands of partners and spouses, or of criminal gangs, a change that unravels protections already established under U.S. and international law.
These policies attack the most vulnerable migrants — families fleeing unspeakable violence, women whose own countries can’t or won’t protect them, children who lose their parents to deportation or detention. They target people of color and religious minorities purposefully and unabashedly. And they take us back to other shameful periods in American history — enslaved families torn apart and Native American children taken from their parents in the name of assimilation.
Starting in 1790, race played a major role in determining who could be a U.S. citizen, and by the 1880s, who could enter the country. These racial restrictions routinely separated families. Chinese immigrants and Chinese Americans suffered well into the 20th century under laws that regularly kept out wives and children, through outright exclusion or the threat of long periods of detention on infamous Angel Island, in San Francisco Bay.
Congress gradually repealed racial and ethnic restrictions on immigration and citizenship. The country came to recognize that our immigration rules should protect the dignity and integrity of all families. In 1965, Congress said explicitly that the government could not deny a visa based on national origin, race or gender. The same law established the family as part of the bedrock of American immigration policy. When President Lyndon B. Johnson signed this bill, in a ceremony at the base of the Statue of Liberty, his message was clear: No longer would families be “kept apart because a husband or a wife or a child had been born in the wrong place.”
Even as immigration enforcement intensified in recent decades, protecting families remained a key focus of immigration officers and courts. The Violence Against Women Act allows battered spouses, children and parents of American citizens and permanent residents to stay in the U.S. if they qualify under the law. Both Republican and Democratic administrations — until this one — have taken family ties into account in setting priorities for immigration enforcement. The government seldom deported undocumented mothers and fathers of U.S. citizens, as is now becoming common, unless the parent had a criminal record.
For more than half a century, then, U.S. immigration has operated as part of a cluster of constitutional and international laws that emphasize the value of all families. The Supreme Court has long interpreted the Constitution to protect family relationships from undue government interference. Parents threatened with the loss of their children have rights to due process. The government may not remove children from parents unless the child’s safety is threatened. Nor may it deny family rights based on race, gender or religion.
The government may not remove children from parents unless the child’s safety is threatened.
Under international human rights law, too, family protection is foundational. Responding to the Nazi practice of dismantling Jewish and Polish families, the 1948 Declaration of Human Rights includes this clear statement: “The family is the natural and fundamental group unit of society and is entitled to protection” from the government.
This is not to say that domestic and international law has perfectly protected families. It would be naïve to think that zealous immigration enforcement has never before visited hardships on immigrant families. But Trump’s orders are different. They are intentionally callous and cavalier about tearing families apart. Terrorizing immigrant communities and coercing politicians are the goals.
The president’s extremist policies can be stopped. Congress and the courts can act; lawsuits, protests and the ballot box will make a difference. We must reject the administration’s claim that it has unfettered power to regulate the border. That is the logic of tyrants.
It has taken the Trump administration only 18 months to sabotage our immigration policy’s foundation of equal treatment and family integrity. It may well take years to undo the havoc. And the damage done to families at the border will take far, far longer to repair.
Kristin Collins, Serena Mayeri and Hiroshi Motomura are law professors at Boston University, the University of Pennsylvania and UCLA, respectively. They are co-authors of an amicus brief on family protections in immigration law that was submitted to the Supreme Court in the travel ban case.
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