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Like many of us, I am appalled by the recent separations of parents and children at the U.S.-Mexican border. But what many do not realize is that our immigration laws have separated parents from their children for a long time, through the detention and deportation of parents of U.S. citizen children without regard to the trauma inflicted on their families. The time is long overdue to enact immigration laws that take the best interests of children into account.

According to the Migration Policy Institute, up to half a million parents of American children were deported by the U.S. government between the fiscal years 2009 and 2013. Separations stemming from long-standing detention and deportation practices are more mundane perhaps than the “zero tolerance” policies and practices that have made international news in recent months. But the harm these everyday separations inflict on children is devastating nonetheless.

From 2003-2005, I worked as the Catholic Legal Immigration Network Detention Attorney at Boston College Law School. My students and I, along with a colleague from a local nonprofit, were responsible for giving “Know Your Rights” presentations to the roughly 1,000 immigrants and refugees detained in four local jails. There is no right to a government-appointed lawyer in immigration proceedings, so we also represented as many individuals in Immigration Court as we could. We were the only free lawyers for detainees.

Each day, we received frantic calls from U.S. citizens about their loved ones – lawful permanent residents who had been detained pending deportation proceedings. The callers, usually American wives and mothers, would insist that their husbands could not be deported because they had American children. We’d have to explain that they were mistaken.

Under U.S. law, if you are a non-citizen, it does not matter how long you have lived in the U.S., whether you immigrated legally or as a child, or whether you have a U.S. citizen spouse or children. In 1996, a new law radically broadened the categories of criminal convictions that render deportation essentially automatic. If you are convicted of certain crimes (including theft with a sentence of one year – even if your sentence is suspended), you will be deported and barred from reentering. The harm your deportation might cause your U.S. citizen children is legally irrelevant.

Just as we see severe and unjust racial and ethnic disproportionality in all stages of the U.S. criminal justice system, most of the people deported are also people of color. The overwhelming majority of people we saw in immigration detention were black men; long-term residents who had immigrated to the U.S. legally from Jamaica, Haiti, the Dominican Republic, Cuba and Brazil, had married U.S. citizens, and had U.S. citizen children. Almost all had pled guilty to possession of small amounts of cocaine “with intent to distribute” – often not realizing that a plea deal would make deportation inevitable and separation from their children permanent.

Occasionally, we would meet mothers in detention. These mothers, usually the primary caretakers of their children, faced a difficult choice. They could take their U.S. children back to the countries they had left (including war-torn countries, if they entered as refugees), or leave their children with a relative in the U.S. If they did not succeed in finding a guardian for their children, their children would be placed in foster care.

In addition, there are an estimated 11 million or more people without legal immigration status (“undocumented immigrants”) in the U.S. With no statute of limitations for deportation, any of these individuals can be deported after contributing to their communities for decades, as in the case of the parents given sanctuary in a church in East Lyme, Connecticut. And once again, the harm to U.S. citizen children is irrelevant. (There is one exception, for cases in which the deportation would result in “exceptional and extremely unusual hardship” to a U.S. citizen child, far beyond the ordinary harm stemming from deportation. This is usually reserved for situations in which the American child needs medical care that is not available in his parent’s country of origin.)

I used to teach Immigration and Refugee Law and Policy at Yale. One of my best students moved to the U.S. as a young child; he did not learn he was undocumented until he started applying to college. Unless temporary protections (“DACA”) issued under the Obama Administration remain in place, this young man – like millions of others – will be at risk of deportation. While DACA is a helpful temporary protection for many, it has relatively narrow age and date requirements, leaving all others subject to deportation, regardless of the impact on their children.

Debate and Solutions

Are some of these separations justified in light of other policy goals of the immigration system, such as deterring people from entering unlawfully or deporting people deemed dangerous? Perhaps. One can certainly imagine a much smaller number of cases in which the criminal convictions are so serious and the ties to U.S. citizen children so weak that the parent should be deported. One could also imagine cases in which a U.S. citizen child and her undocumented parents’ connections to the U.S. are so tenuous that it is reasonable to expect the family to return to the parents’ country of origin, assuming the family would not be in danger.

Reasonable people can disagree about where exactly the lines should be drawn. But there is one key element of a humane and rational immigration system that should appeal to all Americans. When determining whether to deport someone, the Department of Homeland Security and the Immigration Court should take into account evidence of the harm to their U.S. citizen children. I do not mean that the interests of the American children should always take precedence, but rather that they should at least be weighed against the government’s interest in deporting the parent. In other words, we should abandon the legal fiction that the interests of children do not matter.

The reason is two-fold. First, it is a principle of our legal system that we do not (generally) punish children for the mistakes of their parents. Second, numerous studies show that the trauma to children of losing a parent to deportation has very serious health, social, educational and economic costs, not only for individual children but also for society at large.

Friends new to these issues are shocked by what is happening at the border. As an American citizen, I too am appalled. But as a former detention attorney, I am not surprised. And I cannot help thinking about my clients and my student – and how none of this feels new to them.

Deportations of parents of U.S. citizen children persist partly because many Americans are not aware of the extent of the problem, and partly because neither non-citizens nor children can vote. But these separations are not inevitable; Congress can change the immigration law, just as it did in 1996. In order for this to happen, American citizens must channel the outrage expressed over separations at the border into political support for immigration reform that protects all U.S. citizen children from the trauma of losing a parent to deportation.

This piece was adapted from an Op Ed in Swissinfo, July 12, 2018.

Alexandra Dufresne worked as a Senior Policy Fellow at Connecticut Voices for Children, served on the board of Integrated Refugee & Immigrant Services (IRIS), taught Immigration, Refugee and Child Law and Policy at Yale, and worked at the Center for Children’s Advocacy before she and her family moved to Switzerland in 2016. There she teaches American law and serves on the Advisory Committee of Asylos, a pan-European network of researchers who document human rights conditions for asylum cases.
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