The Roots of Trump’s Family Separation Policy

Susan J. Terrio

Confused about what’s new and what’s not in Trump’s cruel migrant detention policies? Here are some answers.

A boy and father from Honduras are taken into custody by US Border Patrol agents near the US-Mexico border on June 12, 2018 near Mission, Texas. They were then sent to a US Customs and Border Protection processing center for possible separation. John Moore / Getty

Interview by
Meagan Day

With outrage growing over the Trump administration’s decision to detain and separate immigrant parents and children, Jacobin’s Meagan Day sat down with Georgetown professor Susan J. Terrio, author of the 2015 book, Whose Child Am I? Unaccompanied, Undocumented Children in U.S. Immigration Custody, which examined migrant kids who had traveled to the US by themselves, without a parent or guardian by their side.

As Terrio points out, those kids often had family members in the US who were waiting for them and whom they were trying to reach. In assuming the role of legal guardian for unaccompanied minors, the US government was practicing a form of family separation that predated the current crisis. Here, she talks about what happens to immigrant kids when the state falsely claims there’s no one else to care for them.


MD

You spoke to many formerly detained immigrant youth for your book. Why and under what circumstances do these young people leave the countries they’re from?

ST

The vast majority of the unaccompanied immigrant kids I spoke to had left their home countries in the Central American Northern Triangle because they felt they had no choice. Some of them were fleeing gang-related violence, and many others had experienced horrific domestic violence at home or were street children and were therefore vulnerable to various forms of violence because they were exposed and had no adult protectors.

Many were crossing the US-Mexico border so that they could reunify with family who were already in the country. Often their caregiver relationships had fallen apart when the kids were in their home country because of poverty, or because elderly grandparents couldn’t take care of them, or because they found themselves without any sort of means of support and feared gang or cartel violence. Most of the kids I talked to weren’t in a position to pay for smugglers, or they only had very limited means, so they went on their own or with other groups of kids, joining people they met en route.

MD

What’s happening right now — the family separation based on new policies under President Trump — is of a somewhat different nature. But in many cases, the effects will be the same. What are some of the consequences of detention on kids’ lives?

ST

First, I will say that there are a lot of similarities. The kids I was looking at in my 2015 book had crossed alone, and because they were not with a primary caregiver or biological relative when they were apprehended, they were designated as unaccompanied children and put into mandatory detention, at which point the government then became their legal guardian. But in some sense, the designation of unaccompanied minors was a fiction. Over 90 percent of those kids did have family members or surrogate caregivers in the United States who were more than willing to provide care for them. So, there was family separation at play in those cases as well.

I didn’t speak to kids who were currently in detention, because of the power dynamic. I felt that because of the constraints and constant surveillance they were under, they could not truthfully answer, or I might put them in a bad position by asking them to reflect critically on the conditions they were experiencing at the time. So, I spoke to kids after their stays in Office of Refugee Resettlement (ORR) detention, and I tried to get a sense of their remembered experience. And one of the central challenges in getting kids to talk to me is the stigma that they felt having been apprehended, having been treated like criminals.

When you’re in detention, you can’t leave. ORR describes these facilities as home-like settings. But home-like settings do not provide twenty-four-hour surveillance, line of sight checks, monitored entrances and exits, and all the features of a closed penal or psychiatric facility. What I found across the board was frustration — kids were frustrated because they had family in this country, and it was the government that, in becoming their legal guardian, made all the decisions about when they would leave, who they would be released to, who would qualify as an approved sponsor, and how long they would stay in detention.

Many of the kids were depressed, they were anxious, and this was exacerbated by the fact that they had no way of knowing whether they would get legal status. Under the current system, they’re not guaranteed any legal counsel. Yes, they have the right to hear attorneys tell them what their rights are, but at the time I was doing research those attorneys were absolutely legally forbidden from representing the kids. So, one of their central challenges was getting attorneys to represent them. Most of them were indigent. They couldn’t afford to hire their own attorneys, and they didn’t have the linguistic or cultural competence to do that anyway. Moreover, it was extremely difficult to secure counsel from detention, because they had limited access to phones, their calls were monitored, etc.

So, they experienced stigma and frustration at the very least — and worse. The longer the stays extended, the more likely it was that they would act out. Kids who acted out or attempted or threatened to escape were at risk of what the system calls being “stepped up,” or moved to a higher-security facility. And that made everything even more difficult.

Now what we’re seeing is a wave of kids who are being separated from their parents and in effect being turned into unaccompanied minors. The length of stay is increasing. So many of these kids will experience the exact same problems.

MD

This is not the first time shocking images of children in detention centers have made the news. How did the Obama administration respond to an earlier crisis in 2014?

ST

Because of the increase in political corruption and state dysfunction in Central America’s Northern Triangle, all forms of violence were on the incline, but particularly gang and cartel violence. Many women and children were living in their home countries without male protection and were targeted for extortion, recruitment into gangs, and other forms of violence. As a result, starting in 2012 there was a wave of unaccompanied children as well as single mothers with very young children seeking to cross the US-Mexico border, literally fleeing for their lives.

The summer of 2014 was a critical turning point. At one point, 500 kids a day were crossing the border. The system had been designed for only 6,000 admissions per year. No one anticipated the numbers would balloon like that, and the Obama administration began to build emergency shelters in response.

The Flores Settlement Agreement, which was a consent decree reached in 1997, had called for a national set of standards to govern the treatment of kids in detention. According to Flores, they are supposed to be put in the least restrictive setting possible, according to their age and needs, and released promptly. But if you read that agreement very closely, it says that in a situation of emergency or crisis, some of those protections can be set aside. So, in 2014 the system did become overwhelmed and unable to meet the criteria laid out by the Flores Settlement Agreement. And many of those protections were indeed set aside.

At the same time, the Obama administration looked at what was happening, and through their various media channels began to send the message that this couldn’t continue, that if kids and families came across the border they would be sent back. Up to 2014, there had been a policy of apprehending and releasing would-be asylum petitioners on their own recognizance, with the expectation that they would not be detained pending resolution of their removal proceedings. That changed in 2014. The Obama administration, as part of its deterrence initiative, hastily constructed facilities for families and placed them in indefinite detention. These facilities were constructed in Karnes City and Dilly, in Texas, and the conditions there have been truly horrific.

The Obama administration didn’t outright attempt to separate parents or primary caregivers from children. That’s the main difference between what was happening then and what’s happening now.

MD

In 1984, an influx of children from El Salvador crossed the border fleeing civil war in their home country. The Immigration and Naturalization Service (INS) made automatic detention the norm as a response. Why did they do that, and how did that decision shape the child immigrant custodial system?

ST

There was no child immigrant custodial system before then. That was the beginning. So, again, in 1984 there was a flood of kids coming across the border, and again many of their parents were already here. Initially there had been a system for them to be seen and evaluated in the context of community organizations. But the head of the INS suddenly felt that to protect them — that was his cynical rationale — they had to be put into detention. What the INS really wanted was to use the kids to get at parents who were living in the US at that point, particularly in California. The rule was, “We take these kids into detention and the only people we can release them to are their parents,” prompting parents, many of them undocumented, to come forward.

The kids were put into horrific, appalling conditions. Strip-searched, shackled, treated like criminals — really young kids. They weren’t given any medical facilities, any educational facilities, any recreational services.

That garnered the attention of some NGOs in Southern California, who sued the government. It took at least nine years of litigation, because it kept getting bumped up to the next level. It went to the Supreme Court, and the majority opinion by Antonin Scalia said, “Yes the government can detain indefinitely unaccompanied minors.” But they kicked it back to the district court in California and said, “You have to resolve the conditions that prevail in these centers.” This ultimately led to the Flores Settlement Agreement.

And reforms were implemented, many of them positive. Being fed regularly, having access to medical and mental health services, those things are necessary. But the basic question all along has been, “Why do they need to be detained in the first place?” The legacy of that original INS system in 1984 is with us today. Our current system was created on the foundations of a system that was totally inadequate and riddled with conflicts of interest.

From that point onward, the government was prosecuting the same kids that it was detaining. Many advocates point to the Homeland Security Act of 2002, when the jurisdiction for this population shifted to ORR and the INS was broken apart, and they say, “Well they resolved the conflict of interest, because the same entity is no longer both the jailer and the caregiver.” But in my book, I argue that the conflict of interest has never been fully resolved. Because when these kids are taken into custody and designated as unaccompanied minors, the government becomes their legal guardian. The government is still administering mandatory detention on the one hand, and removal proceedings on the other.

As for the Trump administration’s family separation policy, the sleight of hand was taking kids away from their parents, designating them as unaccompanied minors, and sticking them in shelters without their parents. The backlash was so severe that Trump has now issued an executive order saying families will instead be detained together — indefinitely. For the record, the Flores Settlement Agreement says that kids who are accompanied by their parents can be detained for no longer than twenty days.

MD

What kinds of arguments and narratives are being used to justify these cruelties?

ST

There’s a lot of ignorance. There’s a lot of fear. The media and the Trump administration talk about these immigrants’ inability to assimilate, that they’re rural people without high levels of education who won’t ever be able to ever fit into our society. There are moral panics connected to what Americans view as an incursion of illegals who are supposedly inclined toward criminality.

And meanwhile it’s said constantly that they’re taking jobs. That scapegoating narrative is very seductive. In the last thirty years, middle-class Americans have experienced more downward mobility than upward mobility. There is a genuine class anxiety on the part of native-born Americans, who aren’t sure if their children will be able to have the same living standards they had. There’s an underlying economic set of fears that have been very successfully heightened, marshaled, and exploited by the Trump administration through nativist and racist rhetoric.

That combination has a corrosive effect that ripples out through the body politic, creating a tear in the social fabric. Unfortunately, the people who most suffer from it are this population of immigrant kids fleeing violence, who are the very picture of vulnerability.