Shocking the Conscience: Justice Department versus the Health of Immigrant Women and Children

In April, the U.S. Jus­tice Depart­ment announced that it would crim­i­nal­ly pros­e­cute migrants who had been appre­hend­ed after cross­ing the U.S.-Mexico. bor­der. An imme­di­ate con­se­quence of this announce­ment, explained in detail here, is the sep­a­ra­tion of chil­dren from their parents.

Rather than being allowed to stay with their chil­dren in an immi­grant deten­tion cen­ter while await­ing a hear­ing on depor­ta­tion before an immi­gra­tion judge, adults are being sent to fed­er­al jail to await a hear­ing before a fed­er­al judge, with the poten­tial of serv­ing time in fed­er­al prison pri­or to depor­ta­tion. Once their par­ents are in the fed­er­al jail sys­tem, chil­dren are ren­dered “unac­com­pa­nied minors”–even though they crossed the bor­der with their parents–and put into the cus­tody of the Office of Refugee Reset­tle­ment, under the Depart­ment of Health and Human Ser­vices. This sep­a­rates par­ents and chil­dren admin­is­tra­tive­ly as well as physically.

Pro­fes­sion­al soci­eties such as the Amer­i­can Psy­chi­atric Asso­ci­a­tion and the Amer­i­can Acad­e­my of Pedi­atrics have issued state­ments oppos­ing fam­i­ly sep­a­ra­tion, based on evi­dence that it risks imme­di­ate and last­ing harms to chil­dren. Pri­or to this move by the Jus­tice Depart­ment, pub­lic health experts and immi­grant health advo­cates had drawn atten­tion to oth­er pub­lic health con­se­quences of the Trump administration’s immi­gra­tion enforce­ment pri­or­i­ties. These include the health-relat­ed dan­gers to chil­dren who fear a parent’s deten­tion and depor­ta­tion, adverse effects on learn­ing, and health risks to par­ents who fear depor­ta­tion and to fam­i­lies who for­go health-relat­ed pub­lic ben­e­fits to which they may be enti­tled out of fear of scruti­ny of immi­gra­tion status.

The offi­cial aim of the fam­i­ly sep­a­ra­tion pro­to­col is to deter unau­tho­rized bor­der cross­ings. Its moral shock, regard­less of one’s posi­tion on immi­gra­tion, is that doing dam­age to chil­dren is cen­tral to its imple­men­ta­tion. As jour­nal­ist Masha Gessen has explained, threat­en­ing or harm­ing chil­dren is a tac­tic that should have no place in a democracy’s pub­lic pol­i­cy. Even if this pol­i­cy is rethought and rescind­ed, chil­dren will have suf­fered avoid­able harm.

[Update: Ethi­cists peti­tion Pres­i­dent Don­ald J. Trump, Attor­ney Gen­er­al Jeff Ses­sions, and Sec­re­tary of Home­land Secu­ri­ty Krist­jen Nielsen to end the pol­i­cy of sep­a­rat­ing chil­dren from their par­ents. See the peti­tion here.]

In anoth­er Jus­tice Depart­ment move with pub­lic health impli­ca­tions, Attor­ney Gen­er­al Jeff Ses­sions yes­ter­day over­turned an his­toric 2014 fed­er­al Immi­gra­tion Court rul­ing that rec­og­nized the asy­lum claims of women sub­ject­ed to vio­lence in domes­tic rela­tion­ships. The 2014 rul­ing con­cerned a woman from Guatemala who with her three chil­dren had fled a phys­i­cal­ly and sex­u­al­ly vio­lent mar­riage, seek­ing asy­lum in the U.S. This rul­ing upheld her asy­lum claim in accor­dance with long­stand­ing inter­na­tion­al cri­te­ria, ground­ed in the 1951 Con­ven­tion on Refugees. It rec­og­nized the respondent’s cred­i­ble fear of per­se­cu­tion as a mem­ber of a group– name­ly, women in relationships–unable to pre­vent or leave sit­u­a­tions of life-threat­en­ing vio­lence or to rely on state pro­tec­tion. In argu­ing that U.S. would no longer rec­og­nize fear of domes­tic vio­lence or gang vio­lence as grounds for asy­lum, the attor­ney gen­er­al has framed domes­tic vio­lence as “pri­vate behav­ior.” This rea­son­ing ignores well-known struc­tur­al fac­tors, such as local vio­lence, weak or cor­rupt pub­lic sys­tems, and cul­tur­al per­cep­tions, which often under­mine the inter­ests of less-pow­er­ful groups and make it impos­si­ble for peo­ple tar­get­ed for vio­lence to remain free, alive, and con­fi­dent of legal pro­tec­tion in the soci­ety where they live.

This rul­ing has reper­cus­sions region­al­ly, espe­cial­ly for women in Cen­tral Amer­i­ca for whom the U.S. may be the safest haven from con­tin­u­ing local threats and lack of pro­tec­tion, and inter­na­tion­al­ly, as it con­tra­dicts decades-long efforts to rec­og­nize gen­der-based vio­lence as a form of per­se­cu­tion that calls for struc­tur­al respons­es, includ­ing refuge. It should also be trou­bling to Amer­i­can cit­i­zens, as it sug­gests a deeply ret­ro­gres­sive char­ac­ter­i­za­tion of vio­lence with­in rela­tion­ships as a “pri­vate” matter.

Nan­cy Berlinger is a research schol­ar at The Hast­ings Cen­ter and a June 2018 res­i­dent at the Bel­la­gio Cen­ter of the Rock­e­feller Foun­da­tion, where she is work­ing on a book project on migrants as social cit­i­zens. She codi­rects The Hast­ings Center’s Undoc­u­ment­ed Patients project, a knowl­edge hub on health care access for unau­tho­rized migrants and mixed sta­tus fam­i­lies in the Unit­ed States. Rachel Zacharias, a project man­ag­er and research assis­tant at The Hast­ings Cen­ter, pro­vid­ed back­ground research.

This post was orig­i­nally pub­lished in The Hast­ings Cen­ter’s Bioethics Forum.  Please click here to access the orig­i­nal post online.

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