Washington Law Review Volume 95 Number 1 3-2020 The Trauma of Trump's Family Separation and Child Detention Actions: A Children's Rights Perspective Jonathan Todres Georgia State University, [email protected] Daniela Villamizar Fink [email protected] Follow this and additional works at: https://digitalcommons.law.uw.edu/wlr Part of the Family Law Commons, Human Rights Law Commons, Immigration Law Commons, and the Juvenile Law Commons Recommended Citation Jonathan Todres & Daniela Villamizar Fink, The Trauma of Trump's Family Separation and Child Detention Actions: A Children's Rights Perspective, 95 Wash. L. Rev. 377 (2020). Available at: https://digitalcommons.law.uw.edu/wlr/vol95/iss1/13 This Article is brought to you for free and open access by the Law Reviews and Journals at UW Law Digital Commons. It has been accepted for inclusion in Washington Law Review by an authorized editor of UW Law Digital Commons. For more information, please contact [email protected]. 14 Todres.docx (Do Not Delete) 4/28/20 6:44 PM THE TRAUMA OF TRUMP’S FAMILY SEPARATION AND CHILD DETENTION ACTIONS: A CHILDREN’S RIGHTS PERSPECTIVE Jonathan Todres* & Daniela Villamizar Fink** Abstract: In April 2018, the Trump Administration publicly announced a new zero- tolerance policy for illegal entries at the U.S. border. This action kicked off a waVe of family separations that made headlines and drew criticism from around the globe. Despite resounding condemnation of these actions, the Trump Administration defended its family separation policy as a “tough deterrent.” At least 2,600 families were torn apart in the ensuing months. And subsequent reports—from both the goVernment and others—have detailed widespread abuses of and substandard conditions for children held in detention centers. The consequences of these separations and the maltreatment of children in detention are pronounced. The trauma that children haVe endured potentially has lifelong ramifications. This Article proVides an in- depth, children’s rights-based analysis of the Trump Administration’s family separation and child detention policies and actions. A children’s rights perspectiVe offers several critical insights. First, children’s rights are rooted in a legal mandate. Second, examining the Trump Administration’s actions from a children’s rights perspectiVe reVeals the breadth of rights violations occurring. This more nuanced understanding of the events can help in devising appropriate strategies to respond to such Violations. Third, a children’s rights perspectiVe helps place the Trump Administration’s actions in their historical context to better understand the gravity of these actions. Children’s rights law is as close to universally accepted as any human rights law, and thus any departures from such widely embraced standards are particularly reVealing. Finally, the authors discuss the implications of this children’s rights assessment, urging action on several fronts to address this harm and prevent Violations of children’s rights in the future. * Jonathan Todres is Distinguished University Professor and Professor of Law at Georgia State UniVersity College of Law. This Article benefited from feedback receiVed at The Intersection of Immigration Law and Health Policy symposium at Indiana UniVersity McKinney School of Law and at the American Society of Law, Medicine and Ethics 2019 Health Law Professors Conference in Chicago, IL. Thank you to Seema Mohapatra and Nicolas Terry, whose inVitation to present at the Indiana UniVersity symposium gaVe us the initial impetus for this Article. We are grateful to Warren Binford and Emily TorstVeit Ngara for their helpful comments on earlier drafts, to Monica Laredo Ruiz (GSU College of Law, 2019) for her outstanding research assistance, and to Amanda Roy (GSU College of Law, 2020) for her editorial assistance. Finally, our thanks to the Washington Law Review editors and staff, and in particular to Jenny Aronson, Kylie Fisher, Kingsly McConnell, and Malori McGill. They improVed our Article and made the production process a pleasure. The research in this Article coVers eVents through October 2019. * Daniela Villamizar Fink is an attorney with Kuck Baxter Immigration, LLC, where she practices immigration law. 377 14 Todres.docx (Do Not Delete) 4/28/20 6:44 PM 378 WASHINGTON LAW REVIEW [Vol. 95:377 INTRODUCTION ....................................................................... 379 I. TRUMP ADMINISTRATION’S FAMILY SEPARATION ACTION .................................................. 382 A. Apprehension and Separation .................................... 388 B. Detention .................................................................... 391 C. Reunification .............................................................. 395 II. THE TRAUMA OF SEPARATION ................................. 398 A. Degrading Treatment ................................................. 398 B. DeVelopmental Harm ................................................. 403 III. A CHILDREN’S RIGHTS LAW PERSPECTIVE ........... 408 A. General Principles ...................................................... 410 B. Apprehension and Separation .................................... 412 C. Detention .................................................................... 414 D. Reunification .............................................................. 416 E. Children Seeking Asylum in Immigration Court ....... 418 IV. NEXT STEPS .................................................................... 419 A. The CRC as Historical Lesson and Current AdVocacy Tool ........................................................... 419 B. Addressing Immediate Harms while Building a Better Future ........................................................... 422 1. As Citizens ........................................................... 423 2. As Attorneys ........................................................ 424 3. As Law Professors ............................................... 425 4. As Members of a Community .............................. 426 CONCLUSION ............................................................................ 427 14 Todres.docx (Do Not Delete) 4/28/20 6:44 PM 2020] THE TRAUMA OF FAMILY SEPARATION 379 “Please, Mom, communicate. Please, Mom. I hope that you’re OK and remember, you are the best thing in my life.” –– Girl detained in a shelter in South Texas1 “At Ursula, we are kept in a cage. It is very crowded, with about 50 boys and young men ranging in age from about 5 to 20 years old. There is no room to move without stepping over the others. We were not giVen a mat to sleep on, so we had to sleep on the cold, concrete floor. The lights are on all the time. We were both very cold last night. I did not get any sleep, I stayed up worried about my nephew and making sure he was safe.” –– Seventeen-year-old boy detained at a border patrol station with his eight-year-old nephew2 INTRODUCTION In June 2019, before the United States Court of Appeals for the Ninth Circuit, the Trump Administration argued that haVing detained children sleep on concrete floors or failing to proVide them with basic necessities such as soap and toothbrushes did not Violate the law.3 Specifically, the Trump Administration contended that such basic necessities were not necessarily included in the requirement that the government provide “safe and sanitary” facilities.4 The combination of the fact that the U.S. government is holding children, including infants and toddlers, in squalid, overcrowded conditions in border patrol stations and detention centers,5 and openly arguing in federal court that it is acceptable to do so, prompts the question: how did we get here? The seeds of these Trump Administration policies and actions date back to at least 2017, as detailed in a confidential Trump Administration draft memo that was leaked to 1. Dan Barry et al., Cleaning Toilets, Following Rules: A Migrant Child’s Days in Detention, N.Y. TIMES (July 14, 2018), https://www.nytimes.com/2018/07/14/us/migrant-children-shelters.html [https://perma.cc/592M-R9NT]. 2. Declaration of E. at 1, Flores V. Sessions, No. 2:85-CV-04544 DMG (AGRx) (C.D. Cal. June 26, 2019). 3. Meagan Flynn, Detained Migrant Children Got No Toothbrush, No Soap, No Sleep. It’s No Problem, Government Argues, TEX. TRIB. (June 21, 2019, 8:00 AM), https://www.texastribune.org/2019/06/21/detained-migrant-children-no-toothbrush-no-soap/ [https://perma.cc/JF32-ARGP]. 4. Order Re Plaintiffs’ Motion to Enforce and Appoint a Special Monitor [201, 202] at 13, Flores v. Sessions, No. 2:85-CV-04544 DMG (AGRx), slip op. (C.D. Cal. June 27, 2017) (order granting in part and denying in part plaintiffs’ motion to enforce agreement), https://www.aila.org/File/Related/14111359v.pdf [https://perma.cc/S4XQ-G75M]. 5. Caitlin Dickerson, ‘There is a Stench’: Soiled Clothes and No Baths for Migrant Children at a Texas Center, N.Y. TIMES (June 21, 2019), https://www.nytimes.com/2019/06/21/us/migrant- children-border-soap.html [https://perma.cc/6RXY-DAZ7]. 14 Todres.docx (Do Not Delete) 4/28/20 6:44 PM 380 WASHINGTON LAW REVIEW [Vol. 95:377 Senator Jeff Merkley, which outlined a breadth of immigration-related strategies under consideration, including family separations.6 The official family separation policy was not declared publicly until months later. On April 6, 2018, then Attorney General Jeff Sessions announced the new zero-tolerance policy for illegal entries at the U.S. border.7 This action kicked off a wave of family separations that made headlines and drew criticism from around