Monday, May 28, 2018

"Poor Joshua!" Redux: DHS "Not Responsible" for 1475 Missing Immigrant Children

Between October and December 2017, the U.S. Office of Refugee Resettlement (ORR) was assigned to check in on the more than 7000 children supposedly placed with a sponsor or guardian.  The result?  Almost 20% of the children who arrived unaccompanied at the border -- are missing.

One might think that the government would be concerned.  But no.  According to Steve Wagner of the US Department of Health and Human Services, the government isn't responsible for these children once they're released from government care and placed with private sponsors, even though the placement was made by the U.S. government.

A state government similarly washed its hands of responsibility for a vulnerable child in the 1989 Supreme Court case of Deshaney v. Winnebago County.  There, the state of Wisconsin was well aware of dangers that Joshua Deshaney faced when he was placed  in the custody of his violent and abusive father.  Joshua was beaten to the point of brain damage, falling into a coma from which he never emerged.  Joshua and his biological mother sued, but the majority of the U.S. Supreme Court concluded that the state bore no responsibility, despite that fact that the state's order had resulted in the placement and the state had failed to act when social workers noted dangerous conditions in the home and indications of the father's abuse.

In one of the more famous dissents in the annals of 20th century Supreme Court jurisprudence, Justice Harry Blackmun lamented the boy's fate. "Poor Joshua," he exclaimed, and argued that legal rigor must include some room for compassion.

In asserting that the U.S. government bears no responsibility for missing immigrant children, the government appears to be relying on the precedent of the Deshaney case, which has since been reinforced in Castle Rock v. Gonzales; there, the U.S. Supreme Court held that a state was not culpable for its failure to enforce a protective order, with tragic results.

But the U.S. government's confidence may be misplaced.  There are several ways in which a legal challenge to ORR's practices could be distinguished from Deshaney.  First, the loss of nearly 1500 children constitutes a widespread policy failure tantamount to affirmative state action, not the more isolated acts of discretion-gone-wrong raised in prior cases.  Second, if any of these children were separated from their parents at the border, the government's actions are interventions that place children in a worse situation vis-a-vis familial care; this is quite distinct from the position argued in Deshaney that Joshua, placed with his father, was no worse off because of government involvement, or the argument in Castle Rock that the order of protection did not change the underlying situation .  Third, because both the children and their parents in these cases are undocumented immigrants, they have no choice but to place singular reliance on the government.  In the vast majority of jurisdictions (and under federal law), the affected individuals have no access to counsel and no ability to structure alternative arrangements or challenge the government's decisions in real time.  In Gonzales, the Court suggested that the holder of the protective order might have taken alternative steps to secure protection; the same cannot be said of vulnerable immigrant children.  

It would be foolhardy to predict that the current Supreme Court will follow Justice Blackmun's dissent should a challenge to this practice reach the Court.  Yet, there must be some constitutional limit to government impunity for affirmative actions that harm children -- not only by making them vulnerable to trafficking, but also by subjecting them to trauma and, in some cases, the torture of family separation.  Justice Blackman's anguished cry, "Poor Joshua!" stands as a moral rebuke to policies that ignore the impacts of government actions. 

But "Poor Joshua!" is also a rallying cry that reminds us of the stakes.  Brain damage in the Deshaney case; three girls killed in Castle Rock; 1500 vulnerable immigrant children missing, according to today's news.  Someday, governments will be held legally as well as morally responsible for such policies.

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