Guest Post: Justice Ginsburg’s Query in Preap and the Best Interests of the Child

Spyros D Orfanos

Justice Ginsburg’s Query in Preap and the Best Interests of the Child by Dr. Spyros D Orfanos, Clinic Director, New York University, Postdoctoral Program in Psychotherapy and Psychoanalysis, and Jessica L. Rofé, Immigrant Defense Fellow, Immigrant Rights Clinic, New York University School of Law

 

On Wednesday, October 10, 2018, the Supreme Court heard oral argument in Nielsen v. Preap, a case testing the federal government’s authority to reach into communities, arresting and jailing immigrants without a bond hearing, including greencard holders and asylees. At oral argument, Justice Ginsburg queried why two people who had received convictions for identical offenses, one of whom is arrested by immigration officers immediately upon release from criminal custody and the other who is arrested and jailed years after reuniting with family and community, should be treated differently under the mandatory detention statute. To be clear, mandatory detention is extreme and devastating in all its forms, uprooting families, many of whom have built their lives in the United States for decades. But the sudden detention of family members who have since returned to the community involves a special kind of cruelty. One of us served as counsel to amici, whose clients and members have suffered from the government’s overreaching interpretation of its detention powers; the other as a clinical psychologist who has evaluated family members of those who were abruptly disappeared. Together, we have observed firsthand the serious negative mental health consequences of the abrupt disruptions of family life that are caused by the government’s expansive reading of the mandatory detention statute.

If we are fortunate, most of us grow up with parents, family, and community that allow us to benefit from the foundation of loving attachments. Secure attachments lay the groundwork for a sense of trust, confidence, and emotional health in the infant and young child. Consistent attachments build resilience, and aid in the survival of loss and trauma. If a child is separated from family and community abruptly the outcome can be psychologically devastating.

Psychologists have known this for decades. In the 1940s, Renee Spitz observed, “If a child is taken from his mother’s care, when he is so passively and passionately attached to her, it is indeed as if his world is shattered. . .It is really as if his mother has died.” Today, the psychological toll of broken attachments is empirically well documented; we are hard-wired to feel serious distress when separated from parents.

Unfortunately, for many children in our country the protection offered by caring and compassionate parenting is seriously interrupted. This is not limited to migrant children and parents separated at the US-Mexico border. It is also the case for children born in the US to noncitizen parents, including asylees and lawful permanent residents whose parents are suddenly removed from their homes.

One of the most brutal and long ranging consequences of this kind of separation is the violation of a child’s attachment to parents. The evidence of the major emotional and physical consequences of abrupt and/or prolonged separation is unequivocal. Children living under the threat of parent deportation, family disruption, and broken bonds often suffer serious depression, anxiety, detachment, and behavioral disturbance. Symptoms such as sleep difficulty, nightmares, flashbacks, crying, and aggressive outbursts are common. Many even develop medical problems, such as autoimmune illnesses. These consequences can last a lifetime.

Take the case of “Ms. Fatimatou,” who was detained and placed in deportation proceedings in 2016 by ICE nearly a decade after having been arrested for a minor stealing offense. She took money from her boss with the hope of replacing it with her next paycheck because she was poor and was trying to save her family from eviction. The criminal court judge did not jail her, rather, after her arrest she was sentenced to probation. She returned to her life as a working mother, completing probation and repaying all of the funds she took.

Nearly a decade after her conviction, ICE arrested Ms. Fatimatou as she was dropping off her 4-year-old, “Obi”, at his daycare. When her children returned that day from school, their mother was gone, all for a conviction that predated the birth of her youngest child. ICE detained Ms. Fatimatou in upstate New York for over six months, until her lawyers secured her release after a bond hearing--the very right the Trump Administration is trying to take away.

The three children were bereft. The oldest, an adolescent boy, was full of rage at the injustice to his mother. The middle child, a girl, became seriously detached from others and, when not mumbling, was mute. Little Obi was overwhelmed with symptoms of debilitating anxiety, frenzy, and fear. The children’s resiliency, coping skills, and cognitive abilities were compromised. They were all at high risk for negative mental health outcomes.

The psychological assessment of Ms. Fatimatou found her to be a responsive spouse and a nurturing mother. Yet, despite the early emotional foundation she provided for her children there was frightening damage caused by the detention. Ultimately and in part as a result of our interventions on their behalf, Ms. Fatimatou received a waiver of her deportation by the immigration court.

How can we ever calculate the costs of the trauma to the children, the family and the community as a result of mandatory detention? How is it possible that our federal government does not recognize the need on the part of children for loving and consistent attachments?

The detention of parents of American-born children is a harsh move away from the explicit goal of post-World War II immigration policy: family reunification. The government should keep families together and prioritize attachment relationships regardless of immigration status. A sense of belonging is crucial for mental health, supporting families, and building communities. We desperately need the Supreme Court and other judicial systems to honor the best interests of children.

Spyros D Orfanos, PhD, ABPP is Clinic Director of the New York University, Postdoctoral Program in Psychotherapy and Psychoanalysis and heads the Immigration and Human Rights Work Group. He is Fellow of the American Psychological Association.

Jessica L. Rofé is the Immigrant Defense Fellow with the Immigrant Rights Clinic at New York University School of Law and a co-author of the amicus brief submitted on behalf of the Advancement Project and other groups in Nielsen v. Preap

KJ