Shocking the Conscience: Justice Department versus the Health of Immigrant Women and Children

In April, the U.S. Justice Department announced that it would criminally prosecute migrants who had been apprehended after crossing the U.S.-Mexico. border. An immediate consequence of this announcement, explained in detail here, is the separation of children from their parents.

Rather than being allowed to stay with their children in an immigrant detention center while awaiting a hearing on deportation before an immigration judge, adults are being sent to federal jail to await a hearing before a federal judge, with the potential of serving time in federal prison prior to deportation. Once their parents are in the federal jail system, children are rendered “unaccompanied minors”–even though they crossed the border with their parents–and put into the custody of the Office of Refugee Resettlement, under the Department of Health and Human Services. This separates parents and children administratively as well as physically.

Professional societies such as the American Psychiatric Association and the American Academy of Pediatrics have issued statements opposing family separation, based on evidence that it risks immediate and lasting harms to children. Prior to this move by the Justice Department, public health experts and immigrant health advocates had drawn attention to other public health consequences of the Trump administration’s immigration enforcement priorities. These include the health-related dangers to children who fear a parent’s detention and deportation, adverse effects on learning, and health risks to parents who fear deportation and to families who forgo health-related public benefits to which they may be entitled out of fear of scrutiny of immigration status.

The official aim of the family separation protocol is to deter unauthorized border crossings. Its moral shock, regardless of one’s position on immigration, is that doing damage to children is central to its implementation. As journalist Masha Gessen has explained, threatening or harming children is a tactic that should have no place in a democracy’s public policy. Even if this policy is rethought and rescinded, children will have suffered avoidable harm.

[Update: Ethicists petition President Donald J. Trump, Attorney General Jeff Sessions, and Secretary of Homeland Security Kristjen Nielsen to end the policy of separating children from their parents. See the petition here.]

In another Justice Department move with public health implications, Attorney General Jeff Sessions yesterday overturned an historic 2014 federal Immigration Court ruling that recognized the asylum claims of women subjected to violence in domestic relationships. The 2014 ruling concerned a woman from Guatemala who with her three children had fled a physically and sexually violent marriage, seeking asylum in the U.S. This ruling upheld her asylum claim in accordance with longstanding international criteria, grounded in the 1951 Convention on Refugees. It recognized the respondent’s credible fear of persecution as a member of a group– namely, women in relationships–unable to prevent or leave situations of life-threatening violence or to rely on state protection. In arguing that U.S. would no longer recognize fear of domestic violence or gang violence as grounds for asylum, the attorney general has framed domestic violence as “private behavior.” This reasoning ignores well-known structural factors, such as local violence, weak or corrupt public systems, and cultural perceptions, which often undermine the interests of less-powerful groups and make it impossible for people targeted for violence to remain free, alive, and confident of legal protection in the society where they live.

This ruling has repercussions regionally, especially for women in Central America for whom the U.S. may be the safest haven from continuing local threats and lack of protection, and internationally, as it contradicts decades-long efforts to recognize gender-based violence as a form of persecution that calls for structural responses, including refuge. It should also be troubling to American citizens, as it suggests a deeply retrogressive characterization of violence within relationships as a “private” matter.

Nancy Berlinger is a research scholar at The Hastings Center and a June 2018 resident at the Bellagio Center of the Rockefeller Foundation, where she is working on a book project on migrants as social citizens. She codirects The Hastings Center’s Undocumented Patients project, a knowledge hub on health care access for unauthorized migrants and mixed status families in the United States. Rachel Zacharias, a project manager and research assistant at The Hastings Center, provided background research.

This post was orig­i­nally pub­lished in The Hastings Center’s Bioethics Forum.  Please click here to access the orig­i­nal post online.