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March 13, 2017

Separating Children from their Parents to Deter Other Asylum Seekers is Unlawful and Cruel

By Robyn Barnard and Natasha Arnpriester

Last week Department of Homeland Security (DHS) Secretary John Kelly said he “would do almost anything to deter the people from Central America,” including separating asylum-seeking parents from their children at the southern border. In an interview with CNN, Secretary Kelly said DHS was considering keeping parents in adult immigration detention while placing their children in foster care or releasing them to relatives in the United States.

The arrival of asylum-seeking families at the southern border isn’t a new phenomenon; nor is it a surprising one given the extreme violence in Central America. Numerous studies and news accounts have shown that most of these families are escaping gang conflict and violence against women in order to seek protection in the United States. By turning a blind eye to the humanitarian crisis in Central America, DHS is responding only through the narrow lens of border control, thereby ignoring U.S. human rights and humanitarian obligations, including the best interests of the child and family unity.

Framing the act of seeking asylum as ‘illegal migration’ wrongly suggests that families fleeing threats to their life or freedom are acting illegally. A policy based on deterrence violates U.S. treaty obligations that prohibit penalization (i.e. separating a parent from their child) for seeking asylum. It is also unnecessarily punitive and likely to re-traumatize vulnerable parents and their children. A new report by the Lutheran Immigration and Refugee Service, the Women’s Refugee Commission, and Kids in Need of Defense finds that family separation not only harms children, but also drives women and children further into the hands of traffickers and impedes access to due process, safe repatriation, and reintegration.

The previous administration responded to the Central American refugee crisis by opening massive immigration detention centers to hold families and attempt to deter further arrivals. Not only has this policy of family detention proven both ineffective and inhumane, but the underlying rationale of deterrence was rejected by a federal court. In 2015, a federal judge issued a preliminary injunction prohibiting DHS’s deterrence policy, finding that it raised serious constitutional concerns. 

Similar government efforts were denounced by an act of Congress in 2005. Members of Congress expressed “deep concern” about family separation and directed DHS to cease the policy and release families when possible.  

On March 4, the American Academy of Pediatrics expressed concern about DHS’s consideration of separating families and called the use of vulnerable children “as a tool of law enforcement to deter immigration…harsh and counterproductive.” The group noted that “authorities must exercise caution to ensure that the emotional and physical stress children experience as they seek refuge in the United States is not exacerbated by the additional trauma of being separated from their…parents.” Stating that “[c]hildren are not just little adults,” the AAP stressed the necessity of keeping families together, explaining that at times of “anxiety and stress, children need to be with their parents.” UNICEF also weighed in, calling the proposal “cruel and traumatic.” Similarly, a DHS Advisory Committee concluded in September 2016, that the “separation of families for purposes of immigration enforcement or management…is never in the best interest of children,” and that the “separation of a parent and child should never be used as punishment or…as a means of discouraging the exercise of rights.” 

DHS should reject any policy that would separate children from their parents. It ought to follow the law and keep families together.