Perspective: Family separationAssessing the Legal Landscape of Family Separation in the Immigration Context

Published 28 October 2019

While prior presidential administrations have certainly struggled with periodic migration and border security challenges, officials in the Trump administration revived a controversial proposal that had been considered briefly during the Obama administration, but quickly shelved as “too opprobrious and unpalatable.” Carrie Cordero, Heidi Li Feldman, and Chimène Keitner write that “Once implemented last year, the early effects of the family separation policy and practice were swift, and devastating: Children were separated from their parents or family members at the border as a consequence of a new prosecutive guideline from the Justice Department. Parents were given little or no information about where the children were re-located to, or when, if ever, the families would be reunited.” They add: “As far as we know, until 2018, the U.S. government had not previously implemented a policy and practice of intentionally separating migrant and asylum-seeking families as a means of deterrence. As Americans, each of us was horrified our government would rip vulnerable children from their families in such a deliberate way.”

Former Secretary of Homeland Security Kirstjen Nielsen was interviewed this week as part of FORTUNE’s “Most Powerful Women Summit” in Washington. Carrie Cordero, Heidi Li Feldman, and Chimène Keitner write in Just Security thatNielsen, who seemed nonplussed that her interviewer, PBS NewsHour’s Amna Nawaz, intended to conduct a serious interview and not simply sit back and let the former Trump administration official recite her cybersecurity talking points, doubled down on her role in family separation, stating that she did not regret “enforcing the law.”

Cordero, Feldman, and Keitner write:

While prior presidential administrations have certainly struggled with periodic migration and border security challenges, officials in the Trump administration revived a controversial proposal that had been considered briefly during the Obama administration, but quickly shelved as “too opprobrious and unpalatable.” Once implemented last year, the early effects of the family separation policy and practice were swift, and devastating: Children were separated from their parents or family members at the border as a consequence of a new prosecutive guideline from the Justice Department. Parents were given little or no information about where the children were re-located to, or when, if ever, the families would be reunited. While statistics available as of early fall 2019 indicate that over 4,000 children were separated from their parents at the southern border, the numbers continue to go up, including new information from the ACLU that more “tender age” children were separated than previously disclosed. It took advocacy litigation and a court order to begin the process of reunification, a process that continues even today.

As far as we know, until 2018, the U.S. government had not previously implemented a policy and practice of intentionally separating migrant and asylum-seeking families as a means of deterrence. As Americans, each of us was horrified our government would rip vulnerable children from their families in such a deliberate way. Each of us observed the developments from different political and personal perspectives, but collectively, as lawyers and law professors, we wondered how the government’s activities were even arguably legal under either domestic or international law. The Trump administration’s family separation policy shocked our respective consciences.

So, we set to work. As one component of the Center for a New American Security’s project on DHS Oversight & Accountability, we spent the summer of 2019 surveying law relevant to this administration’s implementation of family separation. Drawing from our combined research and experience in constitutional, domestic and international law, we set out to explore and explain the numerous areas of law implicated. We concluded that diverse legal grounds all indicate the unlawfulness of family separation as a policy tool for deterring immigration. A pre-publication draft of the resulting article, The Law Against Family Separation, is now available on SSRN, and will be published in final form by the Columbia Human Rights Law Review, in early 2020. Here we provide a brief précis.