How U.S. Policy Has Failed Immigrant Children: Family Separation in the Obama and Trump Eras

• Author: Claudio J. Perez
• Pages: 37-66

37

How U.S. Policy Has Failed Immigrant

Children: Family Separation in the

Obama and Trump Eras

CLAUDIO J. PEREZ*

Introduction

In 2018, U.S. citizens and people across the globe decried President

Donald Trump’s “zero tolerance” immigration policy and the resulting

separation of children from their families, but some may be surprised

to learn that President Barack Obama also separated families at the

Mexican border. During the Obama Administration, U.S. immigration

policy required the Department of Homeland Security (DHS) to process

immigration violations as civil violations, but after President Trump’s

executive order to federal prosecutors, those crossing the border without

inspection were charged with criminal offenses. Undocumented border

crossers with children were then moved to criminal detention facilities

where their children were not allowed to be held. This resulted in an

unprecedented number of family separations at the U.S. border. President

Trump built upon the immigration policies of his predecessors in such

         

   

time again as families were separated at the border. Furthermore, these

criminal prosecutions also arguably violated the constitutional rights of

* Claudio J. Perez is a Marion County public defender in Indianapolis, Indiana. He received

his J.D. in 2020 from Indiana University Maurer School of Law. Prior to law school, he earned

an M.A. in Theological Studies from the University of Notre Dame. He is a former family case

manager and investigator with the Indiana Department of Child Services and Adult Protective

Services. The author would like to thank Professor Luis Fuentes-Rohr and Ben Adams for their

invaluable review and comments on this Article.

Published in Family Law Quarterly, Volume 54, Numbers 1 & 2, 2020. © 2021 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof

may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

38 Family Law Quarterly, Volume 54, Number 1, 2020

migrant parents seeking asylum. As a result, hundreds of children suffered

psychological damage that, according to medical professionals, will be



Even though the plenary powers doctrine grants the executive branch

broad authority over immigration enforcement, it does not eliminate the

right of family integrity in immigration contexts. No U.S. law mandates

detention or prosecution of families caught illegally crossing the border.

The desire to strictly enforce immigration laws in the service of “saving

the American worker from the dissolution of our borders”1 or under other

nativist political slogans must be secondary to humanitarian goals of

maintaining family health and integrity of all people within our borders.

           

immigration policies of the Obama2 and Trump Administrations.3 It then

discusses the Trump Administration’s “zero tolerance” policy and the

psychological impact of family detention and separations.4 Following

this background, the Article examines current federal law and precedent

regarding the separation of immigrant families in civil law and then

5

The Article then proceeds to offer some suggestions for addressing

these prevailing legal and social challenges. These suggestions include

expanding the dialogue surrounding family separations to encompass

U.S. immigration policy as a whole,6 as well as eliminating (or greatly

restricting) family detentions, creating an Article I court for immigration,

and passing legislation outlining how immigrant families should be treated

at the border.7 Finally, the Article offers some summary and concluding

remarks.

The future of the U.S. policy after the 2020 presidential election is

currently uncertain.8 Perhaps 2021 will bring a new political moment

that would allow the U.S. government to address the immigration issues

outlined here.

1. JEFF SESSIONS, IMMIGRATION HANDBOOK FOR THE NEW REPUBLICAN MAJORITY: A MEMO

FOR REPUBLICAN MEMBERS 5 (2015), https://www.aila.org/File/DownloadEmbeddedFile/69750.

2. See infra Part I.

3. See infra Part II.

4. See infra Part III.

5. See infra Part IV.

6. See infra Part V.

7. See infra Part VI.

8. This Article was initially written before the 2020 presidential election and was completed

in December 2020. The issues discussed in this article are still relevant but now have a new

political context.

Published in Family Law Quarterly, Volume 54, Numbers 1 & 2, 2020. © 2021 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof

may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.