Wednesday, June 10, 2020
Immigration Article of the Day: The Rise of Zero Tolerance and the Demise of Family by Mariela Olivares
This article explores the intersection of immigration law and family law and argues that the current regime dedicated to decimating immigrant families in the United States does not comport with the history and spirit of immigration law and policy. Policies shifting away from family unity and towards an inhumane treatment of immigrant families is anchored in the political rhetoric that normalizes the oppression of immigrants. By characterizing immigrants as nonhuman — even “animals,” as described by President Donald Trump — the current slate of anti-immigrant policies that specifically target families is normalized. Part I discusses contemporary immigration law that terrorizes the family unit and explores the Zero Tolerance Prosecution policy against asylum seekers and other entering immigrants that led to Customs and Border Protection officials tearing children away from their parents at the border. The continuation and expansion of family detention bolsters the policy, in which immigrant families and unaccompanied minors are held in government custody. These policies prevail in part because the narrative surrounding immigrant criminality and dehumanization — despite empirical evidence demonstrating no correlation between immigrant status and criminality — paves the way to more easily tyrannize immigrant families.
In contrast to this contemporary movement against the family, Part II provides critical historical context, asserting that the history of immigration law and policy is one deeply committed to family unity. Although this history is clearly marred by the deeply entrenched legacy of racial and ethnic discrimination and is rooted in principles of male dominance, it is undeniable that family primacy is a fundamental principle in immigration law. Part III then explores immigration law’s precarious intersection with the laws that protect families and children, noting how immigration policies cloaked as national security measures have more recently infringed upon immigrant families’ decision making. The last generation of jurisprudence, though, has embraced a broader fealty to family integrity. This Part also discusses how policies of detaining immigrant families and children and separating immigrant families are in direct contradiction to the law’s established commitment to actions that are in the best interests of children and pursuant to child welfare standards. This discussion then leads to Part IV’s exploration of the recent litigation and advocacy efforts to dismantle the Family Separation Policy. It then predicts that this litigation and movement are harbingers of establishing due process rights of immigrant family integrity. The article concludes with a call to advocates to resist the demeaning, dehumanizing narrative and to push forward in preserving and protecting families.