Love in the time of ice: how parents without papers are stripped of the right to raise their children in a safe and healthy environment

• Author: Asees Bhasin
• Position: Senior Research Fellow at the Solomon Center for Health Law and Policy at Yale Law School
• Pages: 875-908

ARTICLES

LOVE IN THE TIME OF ICE: HOW PARENTS

WITHOUT PAPERS ARE STRIPPED OF THE RIGHT

TO RAISE THEIR CHILDREN IN A SAFE AND

HEALTHY ENVIRONMENT

ASEES BHASIN*

ABSTRACT

This Article analyzes narratives around immigrant reproduction and traces the

construction of immigrants as bad and unfit parents. It seeks to connect these per-

ceptions, which are driven by nativist and racist beliefs, to the formulation of laws

and policies that are designed to unleash violence and fear on undocumented peo-

ple and their families. In particular, this Article focuses on the “right to raise

one’s children in safe and healthy environments” which, per the Reproductive

Justice (RJ) framework, is a human right that is guaranteed to all, regardless of

their immigration status. It outlines the capacious vision of the RJ movement,

which seeks to center marginalized communities and create conditions for them to

live without oppression and fear. The Article goes on to note how undocumented

immigrants are denied family unity, mental peace, government assistance, health

care, and social and economic mobility, thereby preventing them from raising

their children in safe, dignified, and healthy environments. It concludes by discus-

sing certain legal, policy, and structural changes proposed by communities and

grassroots organizers. If implemented, these changes may create conditions for

immigrant parents, families, and communities to live empowered, self-determined,

and healthy lives in alignment with the goals of the RJ movement.

*Senior Research Fellow at the Solomon Center for Health Law and Policy at Yale Law School. I

would like to thank Jill C. Morrison, Director of the Women’s Law & Public Policy Fellowship, for her

time, wisdom, encouragement, and comments on various drafts of this Article, and Shanta Trivedi for her

guidance through the writing and publication process. I would also like to thank Prashasti Bhatnagar and

the editors at the Georgetown Immigration Law Journal for all their work on this Article. © 2022, Asees

Bhasin.

875

TABLE OF CONTENTS

INTRODUCTION ......................................... 877

I. THE JOURNEY FROM “CHOICE” TO SOCIAL JUSTICE . . . . . . . . . . . . . 878

A. Shortcomings of the Reproductive Rights Movement. . . . . 878

B. Analyzing Intersecting Oppressions Using the RJ

Framework . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 881

II. NARRATIVES INFORMING THE DEVALUATION OF IMMIGRANT

PARENTHOOD ...................................... 883

A. “They’re bringing drugs. They’re bringing crime. They’re

rapists.”—Perceptions of Illegality and Criminality . . . . . 883

B. Myths of Hyper-Fertility and Hyper-Sexuality .......... 886

C. Birthing Narratives—Birth Tourism, Anchor Baby

Machines, and Welfare Queens .................... 888

III. VIOLATIONS OF THE RIGHT TO RAISE ONE’S CHILDREN IN A SAFE AND

HEALTHY ENVIRONMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 890

A. Living in the Shadows—Fear of Immigration Enforcement

and the Looming Threat of Family Separation .......... 892

B. The Weaponization of the Family Welfare System and the

Devaluation of Immigrants’ Cultural Norms . . . . . . . . . . . 894

1. The Systematic Denial of Access to Health Care . . . . . 897

C. Economic Choking—Limitations on Employment

Opportunity and Exploitative Labor Conditions . . . . . . . . 900

IV. ENVISIONING REPRODUCTIVE JUSTICE FOR UNDOCUMENTED

IMMIGRANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 903

A. Law and Policy Change ......................... 904

B. Radical Visions ............................... 906

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 908

876 GEORGETOWN IMMIGRATION LAW JOURNAL [Vol. 36:875

INTRODUCTION

For decades, vitriolic narratives, stemming from nativism, racism, and

xenophobia, have driven anti-immigration policy. In his characterizations of

immigrants, President Donald Trump likened immigrants to animals

1

See Julie Hirschfeld Davis, Trump Calls Some Unauthorized Immigrants ‘Animals’ in Rant, N.Y.

TIMES (May 16, 2018), https://perma.cc/S2Z3-NHT7.

and

vermin,

2

See David A. Graham, Trump Says Democrats Want Immigrants to ‘Infest’ the U.S., ATLANTIC

(June 19, 2018), https://perma.cc/M5VQ-6UUY (quoting Donald J. Trump (@realDonaldTrump),

TWITTER (June 19, 2018, 6:52 AM)).

rapists and criminals,

3

Donald Trump Transcript: ‘Our Country Needs a Truly Great Leader,’ WALL ST. J. (June 16,

2015, 2:29 PM), https://perma.cc/KW3W-XJHF [hereinafter Donald Trump Transcript].

and said they came from “shithole coun-

tries.”

4

Josh Dawsey, Trump Derides Protections for Immigrants from ‘Shithole’ Countries, WASH. POST

(Jan. 12, 2018), https://perma.cc/NDU2-RQX6.

He, and many before him, have asked why immigrants become

parents and invoked dehumanizing tropes of uncontrolled sexuality and

hyper-fertility,

5

as well as narratives of birth tourism, anchor-baby making,

and chain migration,

6

to spread fear of scarcity and cultural loss. This popular

public discourse serves as the bedrock of law and policy geared to deter im-

migration, compels immigrants to “self-deport,” and instills fear

7

—forcing

undocumented immigrants to “live in the shadows”

8

and raise their children

devoid of dignity in unsafe and toxic environments.

In 1994, a caucus of Black feminists coined the term “Reproductive

Justice,” locating reproductive rights in their political context, and analyzed

how intersecting identities of race, gender, class, ability, and immigration sta-

tus, among others, impacted reproductive decision-making.

9

This Article will

use the Reproductive Justice (RJ) framework, which recognizes three founda-

tional rights—the right to parent, the right to not have a child, and the right to

raise one’s children with dignity—to analyze the right of undocumented

immigrant parents to raise their children in a safe and healthy environment.

Part I of this Article briefly discusses the traditional reproductive rights

movement and its limitations. It juxtaposes this movement against the RJ

framework and broadly defines the right to raise one’s children in a safe and

healthy environment. Part II of this Article selects and describes three dehu-

manizing tropes invoked in discussions around immigrant reproduction and

parenthood. Part III discusses law and policy barriers that prevent undocu-

mented immigrant parents from realizing their right to raise their children in

safe and healthy environments. Part IV proposes recommendations that

would allow immigrant parents to create environments that are safe and

healthy for themselves and their children.

1.

2.

3.

4.

5. See infra notes 83–96 and accompanying text.

6. See infra notes 97–112 and accompanying text.

7. See infra notes 113–116 and accompanying text.

8. See infra notes 124–141 and accompanying text.

9. See infra notes 37–39 and accompanying text.

2022] LOVE IN THE TIME OF ICE 877