In May 2018, senior immigration officials in the Trump Administration announced a “zero tolerance” policy for border apprehensions. As then–Attorney General Jeff Sessions stated: “If you cross this border unlawfully, then we will prosecute you. It’s that simple. . . . If you are smuggling a child, then we will prosecute you and that child will be separated from you as required by law.”
This policy, of course, assumes the thing that officials have to prove: that an adult’s child companion is merely a ruse and not the recipient of guardianship. For migrants detained at the border seeking asylum, immigration officials began charging immigrants with child smuggling, thereby transforming a humanitarian and public-spirited case into a criminal and national security one.
An outcry followed. Predictably, immigrant rights advocates objected,
but so did a slew of elected and former officials across the political spectrum,
as well as the Chief Executive Officer of the Chamber of Commerce.
From this chorus of critics, a common message emerged: This is not who we are.
As time passed, a number of commentators began putting this most recent chapter of family separation in historical context showing how government officials have tolerated if not encouraged the disruption of family life among communities of color throughout much of country’s past.
This Essay builds on this impulse but sets out to show that the past is not the past. Even a cursory glance at our broader immigration system shows that this is exactly who we are. Put more precisely, a great deal of our immigration system thwarts or frustrates the ability of migrants to remain or reunite with their family members.
In this Essay, I argue that our immigration system is pervasively organized around principles of family separation. To make this case, I borrow the insights of scholars writing within the traditions of the humanities and social sciences who have developed the concept of “slow death” or “slow violence.”
Focused primarily on health-related harms, these scholars use the notion of slow death to capture harms that vulnerable communities experience but cannot always identify or explain. Acts of slow violence stand apart from acts of “spectacular” violence, the harms of which are immediately discernible. To use somewhat reductive examples, while the destruction wrought by military invasions like the 1991 Gulf War can be assessed in terms of body counts, the leukemia and infertility linked to the use of uranium-depleted bombs are not so easily assessed or quantified, and certainly not immediately.
Similarly, few would find controversial the notion that natural disasters like Hurricane Maria demand attention and resources to help console and support the lives that might have been lost and ruined. But as days passed into weeks and months, debates about the adequacy of the federal response in Puerto Rico morphed into a discussion over how much “excess” loss and ruin could be fairly attributed to Hurricane Maria.
In other words, the realities of space and time combined with political realities and cognitive limitations can make it hard for members of the public to appreciate the full range of harms flowing from points of relative consensus.
In the immigration context, the recent outrage directed at family separation at the border stems from a broader principle on which there is some degree of consensus, namely that our modern admissions system should be committed to principles of family reunification — the opposite, and the rule to the exception, of family separation.
But a holistic examination of the broader immigration system shows that the exception of family separations operates much more like the rule in at least four respects. First, while federal admissions policy does give preference to family-based relationships, extended wait times for immigrant visas leave many migrants waiting for years, sometimes decades, for a visa to become eligible.
Second, the harsh enforcement of immigration laws within the interior of the United States most obviously impacts mixed-status families through detention and removal policies, which isolate and expel noncitizens, leaving citizen and other authorized family members behind. For those unauthorized migrants not swept into the removal pipeline, border enforcement policy counterintuitively worsens this problem by raising the costs of leaving the United States. Many unauthorized migrants who might otherwise be inclined to leave—either to return home or to visit deported family members—choose to stay for fear that they won’t be able to reenter at the later date. Thus, enforcement policies leave many noncitizens and their family members marooned in the United States.
Third, limited opportunities to adjust status further exacerbate this dynamic. While marriage to a United States citizen remains a viable option for many unauthorized migrants who have overstayed their visas to obtain a green card, this process largely excludes those who have surreptitiously crossed a border. The vast majority of surreptitious border entrants are racialized as Latinx. By contrast, the majority of unauthorized Asian Americans and Africans—the second and third largest racial groups with unauthorized migrants—are visa overstayers, which means that adjustment of status remains a viable option to them in a way that it is not for unauthorized Latinxs. Allocating the benefit of adjustment of status in this way creates disparate impact harms thereby leaving many migrants left out of a process that is ostensibly designed to keep married couples together.
Fourth and finally, anti-money laundering laws impose what can feel at times like arbitrary limitations on the ability of migrants to remit wages—the vast majority of which go to family members. Residents of some countries, such as Somalia, are completely excluded from the transnational remittance market for reasons related to money laundering policies. But even residents of other countries without these concerns, such as Mexico or El Salvador, suffer from exorbitant transaction costs associated with remittances from the United States, leaving many migrants in the United States helpless to support family members abroad.
Theorizing our immigration system in terms of slow death helps us reconceptualize the types of separations that impact and shape immigrant lives. Some forms of separation are virtually indistinguishable from those that attach at the border. Detention and deportation, for example, create anguish through geographic and physical separation, which closely resembles the kinds of harms that border apprehension exacts upon families. Other types of separation, such as extended visa wait times, capture different types of harms visited upon immigrant families. Allowing mixed status couples to remain physically together but without meaningful opportunities to harmonize legal status denies them the “good life” that we assume flows automatically from the threshold decision to get married. Similarly, constraining remittance flows illuminates the importance of economic expressions of affinity within family life.
Slow death scholars seek to put things in their proper context, but not just for the sake of descriptive clarity. Much of this scholarship rests on an activist foundation. Pollution exacts on the poor the types of harms that unfold slowly and that fail to capture the broader public’s attention until the health of those who have been harmed becomes irreversibly compromised. The challenge for environmentalists, therefore, is “to convert into dramatic form urgent issues that unfold too slowly to qualify as breaking news—issues like climate change and species extinction that threaten in slow motion.”
In the immigration arena, a clearer understanding of family separation can help broaden and better coordinate advocacy efforts across multiple contexts. With the “zero tolerance” policy currently enjoined by the federal courts and being reevaluated by the President, we might be tempted to believe that our moral obligation to address the harms of family separation has been discharged. But the reality is that the crisis at the border comprises a part of a continuum of family separation harms. Reconceptualizing family separation in terms of slow death shows that these are half measures designed to contain the spectacle of separating asylum seekers from their children at the border. A full commitment to eradicating or reducing the harms of family separation demands a more holistic approach that reforms the entire immigration apparatus.
I should also provide an important caveat. As a motif, family separation has defined large swathes of our nation’s history. To state the obvious, the United States has a long history of dehumanizing nonwhite populations, and separating and breaking apart families has often operated as a tool for dehumanization. The enslavement of Black Americans,
the eradication of the first Americans,
and the internment of Japanese Americans
stand as just a few notorious examples of the law operating to keep those families apart. All of these stories could be retold in terms of family separation. And while there is value in situating modern immigration policy within the broader historical sweep of white supremacy,
that is not the aim of this Essay. My primary interest is in giving the current political moment some context, which in turn might shape our understandings of which types of political action demand the most attention.
Part I summarizes the slow death paradigm. Part II then applies that paradigm to the rules governing our immigration system. Here, I show how migrants are waiting, marooned, left out, and helpless in our immigration system. While several immigration scholars have already drawn attention to the ways that our laws promote both reunification and separation principles, these treatments have largely focused on discrete parts of our immigration system with a particular focus on admissions and to a lesser extent on enforcement. My goal here is to draw a fuller and more comprehensive picture of the role that family separation plays in our immigration system as a regulatory consequence, which means discussing not just admission and enforcement policies but also synthesizing adjustment of status and remittance policies. Broadening the discussion in this way shows how a wide array of laws work together to create conditions of hopelessness and suffering for millions of migrants residing in the United States.
Part III revisits the example of family separation at the border. Here, I note that much of the discourse in this setting has revolved around crisis, individual choice, and flourishing. These framing choices allow migrants and their advocates to reframe discussions of immigrant detention on more favorable terms. Still, as I explain, one consequence of framing border detentions in terms of this type of spectacle is obscuring the larger reality of family separation. To be clear, my intent is not to discount the benefits created by these frames nor to diminish efforts undertaken by these migrants and their allies to reduce human suffering. My main point is to highlight that these benefits come with real costs, especially in terms of making it more difficult to engage in and seriously consider structural types of reform that might alleviate human suffering throughout our immigration system.
One final point: Although this Essay borrows heavily from the humanities, focusing on pragmatic solutions reveals the comparative advantage that legal scholarship offers. Pulitzer Prize–winning writer Viet Nguyen observes that while humanists can tell “powerful stories about individual people,” the telling of the story without more “[doesn’t] change the conditions that produce those refugees in the first place.”
Legal scholarship and lawmaking offers a chance to fill in the “more.” Thus, in Part IV, I address how the slow death concept might be translated into a useful intervention against a broader array of family separation harms than is currently being captured by border detentions. Central to this effort is creating discursive space for migrants themselves to describe the nature and importance of how family separation has affected their lives. Our goal should be not only to mitigate and remediate the harms of family separation produced by the Trump Administration, but also to alleviate the everyday suffering that defines immigrant lives and which flow from the pains of waiting, being marooned, left out, and helpless.