Separating immigrant families is unconstitutional

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Homeland Security Secretary Kirstjen Nielsen was recently presented with a proposal to enact a policy of separating immigrant children from their parents as an alleged way of halting immigrant families from coming to the United States. If approved, this policy would give the stamp of approval to a horrible and unconstitutional practice that families my organization works with in Texas are already experiencing.

The Obama administration tried something similar to deter immigrant families from coming to the U.S. In August 2014 the government began a policy of not issuing bonds to families with the stated aim of forcing them to remain in detention to discourage future immigrant families from coming to the U.S.  

{mosads}In 2015 a federal district court in Washington D.C. ruled the no-bond policy unconstitutional, in part for lacking any evidentiary correlation to preventing new arrivals and because it unjustifiably denied the families their liberty in order to attempt to change the behaviors of other people.


The Trump administration is attempting to do the exact same thing, and it is also unconstitutional for similar reasons. First, our constitution does not allow the government to punish one person solely in an attempt to alter the behavior of someone else. Second, there is absolutely no evidence that separating families will deter more families from coming. I have worked with detained families for over three years and the vast majority of them are asylum seekers fleeing persecution in their home country.

Parents do not voluntarily take their children from their home, school, friends, and family, on a long and dangerous journey through crime-ridden countries, without very good reason. Even if parents hear that the U.S. government is separating families, for many parents the most important thing is that their children are safe. In fact, one of the reasons that parents travel with their children is to protect them on the journey. As one asylum seeker explained to me, ‘‘if you have a 50 percent chance of surviving if you leave your country but you will definitely be killed if you stay, the choice to make the journey is easy.’’

The Trump administration completely fails to grasp the danger that these families are facing in their countries. The administration also fails to understand that our asylum laws exist to protect people, and that they require that those seeking asylum have a chance to apply for protection.

Forcing a parent to give up their child into the custody of the Health and Human Services (HHS) is an illegal form of coercion intended to prevent both that family and future families from accessing their right to seek asylum.

Denying access to our asylum process is also a complete betrayal of our American values. Our country was founded by people fleeing persecution and our humanitarian principles say that we should offer safe haven to those escaping repression and violence around the world. As Ronald Reagan reminded the nation in his farewell address, our democracy shines as a beacon on the hill ‘‘for all who must have freedom, for all the pilgrims from all the lost places who are hurtling through the darkness.” Let’s not let that light dim.

Separating families is also inhumane. It traumatizes children and their parents needlessly. Considering that many asylum-seeking families are fleeing traumatic events, the additional trauma of being separated compounds the already high emotional stress children and their parents are experiencing. This is especially true for children, who are easily impressionable and whose development can be negatively impacted in the long term.

Furthermore, our Constitution protects the right to family. The Supreme Court stated in Moore v. City of East Cleveland that “the Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation’s history and tradition.”

In Smith v. Organization of Foster Families Justice Stewart elaborates, ‘‘[i]f a State were to attempt to force the breakup of a natural family, over the objections of the parents and their children… I should have little doubt that the State would have intruded impermissibly on ‘the private realm of family life which the state cannot enter.’”

In March 2017 then-DHS Secretary John F. Kelly considered splitting up families, stating that the children would be “well cared for as we deal with their parents,”, as if an unknown government shelter worker can take the place of a parent in a child’s life. In fact, an HHS official told the Washington Post that their shelters are already at maximum capacity or “dangerously close to it,” indicating that the government does not have even a fraction of the capacity it would need to separate children into HHS facilities. In November alone, U.S. agents detained 7,018 families along the border with Mexico.

The Migrant Center for Human Rights has worked with a number of families forcibly separated by immigration. We have seen parents separated from their children, husbands separated from their wives, brothers separated from their sisters. They often are not told where their family member is being taken or what is going to happen to them. They are afraid. They struggle to get in contact and to prepare their cases without the assistance of family, who are often key witnesses, making it difficult to access their due process rights to a fair hearing of their case.

Sara Ramey is Executive Director of the Migrant Center for Human Rights. She has represented detained asylum seekers in Texas since 2012.

Tags immigrant family Immigration Kirstjen Nielsen

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