Immigrant rights advocates led by Witness at the Border released an open letter on January 17, Dr. Martin Luther King Jr. Day, urging the Biden administration to honor his memory by upholding the rights of migrant victims of family separation to full reparations and restorative justice. They argue these steps should include the creation of a truth commission to investigate and document serious human rights crimes on both sides of the border. This is especially appropriate, as well, amid ongoing observances of Black History Month.
The Interagency Task Force on the Reunification of Families created by President Joe Biden’s February 2021 executive order is a necessary but sorely insufficient step toward broader remedies that correspond to Trump-era cases of family separation. The administration’s duty to take these steps is being drastically undermined by its current policies.
The Trump administration’s policies of family separation were clearly unconstitutional, violating fundamental rights of family integrity and substantive due process. They also included practices which violated the U.S.’s obligations pursuant to international law. These acts were equivalent to torture and forced disappearances, according to leading legal and clinical experts.
Such practices have been defined as “crimes against humanity” pursuant to Article 7 of the Rome Statute of the International Criminal Court. All victims of human rights crimes of this kind are entitled to just and adequate remedies. International crimes of this order of magnitude trigger state duties to fully redress victims’ rights to truth, justice, and to material and symbolic forms of reparation, as well as guarantees of non-repetition, according to internationally recognized standards.
No administration, and no public official has the “discretion” or “option” to promote or implement policies that are unconstitutional and/or which violate international human rights standards. This is especially so, as in the cases of family separation during the Trump era, where the acts at issue (forced disappearances and torture) rise to the level of “crimes against humanity.”
Thus, it is especially appropriate that the Biden administration take full measures to respect, protect, and fulfill victims’ rights to memory, justice, full reparations and restorative justice in Dr. King’s memory. His universalist commitment to human rights, as well as his foundational commitment to restorative justice and reparations in compensation for historical crimes against people of African descent in the U.S. underscore the urgent need to honor these principles not only in the context of anti-Black racial injustice, but also in the context of crimes against humanity on the border.
The Biden administration should also take urgently needed remedial steps within this latter context because of the persistent disproportionate impact of U.S. immigration policy and border policy on communities of color. Family separation, and the continued use of Title 42 and the “Remain in Mexico” policy as pretexts for the negation of the right to seek asylum, reflect these continuing legacies today, with the active complicity (and thus ultimate responsibility) of both U.S. and Mexican authorities.
Historical Origins and Continuing Legacies of Family Separation
Racism and xenophobia have been the intertwined, guiding threads of U.S. border and immigration policies since their origin. This includes the genesis of forcible processes of family separation in the African slave trade and African slavery, and in the genocidal policies imposed within the framework of European settler-colonialism against Indigenous communities throughout North America.
These culminated in compulsory residential or boarding schools for Indigenous children and continuing abuses within the framework of family and child welfare systems, the administration of orphanages, and adoptions. The overall objective of these policies, as in Canada and Australia under similar circumstances, was to “assimilate” these children by destroying their identities. Trump-era family separation policies shared crucial features of these longstanding genocidal practices.
Mass deportation of persons of Mexican origin in the 1930s and 1950s reproduced these destructive mechanisms of family separation through practices of detention and deportation, which have reappeared with the recent mass deportations of Haitians carried out by the Biden administration in the last few months. Similar practices which resulted in involuntary separation of families were engaged in during the period of internment of persons of Japanese origin between 1942 and 1945. The Trump administration’s family separation policies embodied all of the most regressive, convergent characteristics of these oppressive practices.
These legacies are articulated in the large numbers of migrants of African descent and of Indigenous origin who were among the victims of the Trump administration’s family separation policies, as reflected in the lead plaintiff in the paradigmatic Ms. L case (an asylum seeker originally from the Democratic Republic of the Congo), and in two of three named plaintiff families in the Wilbur P.G. case (asylum seekers of Maya Mam Indigenous origin from Guatemala), among others.
Biden Administration Policies
The Biden administration has recently announced its decision to withdraw from global settlement negotiations regarding pending family separation cases and to litigate each of these individually. More than 5,500 children and families who were victims of Trump-era policies may be affected by this decision. This includes many who were seeking to exercise their internationally recognized rights to seek asylum and were in effect punished for this by being subjected to both the forcible separation of their families and to detention under inhumane conditions, pursuant to Trump’s “zero tolerance” policy, and more recently through mechanisms such as Title 42 and the Remain in Mexico policy.
The administration has “denounced the prior practice of separating children from their families at the U.S.-Mexico border” and “condemn[ed] the human tragedy” that ensued. But it has also argued, unconscionably, that the decision to separate and detain these families and others fell within the federal government’s “reasonable” range of discretion as to its choices in immigration policy.
The Biden administration cannot have it both ways. The practical effect of its position would prevent further proceedings and trials in these pending cases, and the denial of the full compensation to which these victims are entitled. This compounds the original injustices that led to the case filings, and further exacerbates the suffering and victimization of these families and children.
The Biden administration has also argued that Trump’s family separation and detention policies were lawfully executed, and thus, justify immunity for those who implemented these deliberate acts of cruelty. This in practice would likely result in impunity for Trump officials who were responsible for the massive suffering inflicted on thousands of migrants between June 2017 and June 2018. This also leaves the door open for future administrations to opt again to enact these kinds of criminal policies.
Forced Disappearances and Torture
As plaintiffs have alleged in the complaint filed in Wilbur P.G., et al v. U.S. in the U.S. District Court for the Northern District of California, families subjected to the Trump administration’s family separation policies were often held in separate, distant facilities that were unknown to them, and were denied the right to communicate with their fellow family members. This reproduces the kinds of paradigmatic conditions which have been defined as constitutive of “enforced disappearances,” pursuant to international human rights law and international criminal law:
When the government separated these families, the Plaintiff children were 6, 11, and 13 years old. The children did not know why they had been separated from their parents. The parents did not know why they had been separated from their children. None of the Plaintiffs knew whether they would ever be reunited with their families, and at various times, Plaintiffs believed that they might be deported from the United States alone, without their accompanying family member. All suffered from extreme emotional distress at the point in time when the government forcibly separated them, went on to endure additional weeks of sustained emotional distress during their forced separation, and then continued to experience lasting emotional distress even after they were reunified. This suffering was the intentional purpose of the Policy.” (para. 4, p. 3 of the complaint)
Gerald Gray, a psychotherapist and clinical social worker who specializes in treating victims of torture and co-founder of the renowned Center for Justice and Accountability, noted the following in the first text published in the U.S. (shortly followed by others published internationally), which argued that Trump’s policy of family separation must be understood as involving acts of forced disappearance and torture:
What is happening with the … separation of children from parents or other caretakers is one form of forced disappearance — in this case, the kidnapping of two parties instead of one. Even if the parent or caretaker knows enough of the prison staffs’ language (presumably usually English), they don’t really know most of the time where the children are, who is responsible for them and whether they care, how the childrens’ health is, and if and when they will ever see the children again.
For the children, the separation is even worse — are the parents or caretakers alive? What are the guards in the prisons saying in a new language? What does “Chicago” mean? How can they survive bullying or sexual predation? And of course, if and when will they ever again see their families or caretakers? An adult may sometimes temporarily have a rough idea of the location of a childrens’ prison, but without language, constant contact, and all the education required to understand geography, children have an impossible task. For the reader here, look at the clinical literature on the outcome of kidnapping or holding children as hostages.”
These arguments are developed in further detail in the amicus brief in the D.J.C.V, et al v. U.S. case submitted on behalf of Stanford University’s Human Rights in Trauma Mental Health program, whose co-founders include Gray and Beth Van Schaack.
All of this suffering was compounded for families of Indigenous origin who spoke neither English nor Spanish proficiently and were systematically denied necessary attention and services in their native Indigenous languages. This included children from involuntarily separated families detained under inhumane conditions in abusive settings, such as the Tornillo, Texas, and Homestead, Florida, migrant youth detention camps.
As of November 2018, a Guatemalan consular official estimated that approximately 40 percent of the thousands of children unjustly held at Tornillo were of Guatemalan, mostly Indigenous origin. Many of these children had their origins in Guatemala’s poorest and most marginalized Indigenous communities, which bore the brunt of the U.S.-backed genocide targeting these regions during Guatemala’s civil war between 1960 and 1996. Forced migration from these communities today is in effect the continuation of the same kinds of structural injustices, which led to genocide and resulted in massive, forced displacement and exile during that period.
A member of Witness at the Border’s leadership team was able to confirm at this time that the Guatemalan children he interviewed were of Indigenous origin, in need of appropriate services in their own languages, and suffering deeply because of their mistreatment by U.S. officials and the precarious conditions which characterized their confinement. Within less than a month, two Indigenous Guatemalan migrant children, aged seven and eight, died in the custody of the Border Patrol in El Paso, Texas, due to the deliberate neglect of their urgent medical needs in confinement.
The position that the Biden administration has taken in its recent filings in the family separation cases is the predictable result of its failure to settle the claims of thousands of victims of the criminal policies during the Trump era.
We must stand with the children and families who were victims of these crimes to demand full measures of accountability, reparations and restorative justice for all human rights violations related to the forced separation and detention of migrant families, regardless of the administration which is responsible. The Biden administration’s current approach amounts to active complicity with the continuing effects of these extraordinarily serious violations.
The Biden administration has the moral, ethical, and legal obligation to fully redress all of the injuries and suffering inflicted by these criminal policies. This must be undertaken through a comprehensive program of restorative, transitional justice, consistent with the international standards that are referenced above.
This goes way beyond the limited mandate of the Interagency Task Force on the Reunification of Families. What is needed, in addition, is a full-fledged transitional justice process including a truth commission empowered to investigate and document serious human rights crimes on both sides of the border, and to make recommendations for needed reparations and measures of restorative justice, consistent with international standards.
This commission’s mandate must include not only family separation, but also the continued deployment of Title 42 and the Remain in Mexico policy, and the mass deportations of Haitians, among other specific instances, as well as their historical origins and contemporary implications. It must also include human rights crimes attributable to U.S. policy that have unfolded on Mexican territory and beyond, as part of the extraterritorial impact of policies, such as “prevention through deterrence.”
This is the Biden administration’s duty, pursuant to both U.S and international law.