“There’s nothing like walking into a prison and the first thing you hear is a crying baby. Two things that should never go together. Never ever.” These are the words of Human Rights Watch’s Antonio Ginatta after he visited an immigration prison for families. In late 2014, the United States heralded the opening in Dilley, Texas of a 2,400-bed immigration detention center—the largest in the nation—to incarcerate women and children who had unlawfully crossed the U.S. border with Mexico, the majority of whom were fleeing escalated gang and intimate partner violence in Central America. In just one year, the U.S. had increased the detention of immigrant families by over 30-fold. Many of the detained women and children were seeking asylum, a protection for people facing persecution in their home countries that is based on international law. Over half of the detained children were age six or younger.
The response of U.S. officials to the increase of unauthorized arrivals of women traveling with their children was swift and unequivocal. Vice President Joe Biden told the entrants, “[W]e’re going to send the vast majority of you back.” Although advocacy and political pressure softened the Obama Administration’s position over time, the Trump Administration has returned to a hard line on family detention, vowing to increase detention beds for asylum seekers—including families—to 20,000. Today, over 2,000 women and children are detained.
The family detention facilities near the U.S.-Mexico border operate like prisons, with heavy security, limited visitation, body counts, and strict rules and schedules. Detainees sleep eight to a room and have little opportunity for exercise or stimulation. Women report a range of negative effects on their children, including weight loss, inconsolable crying, headaches, nightmares, and aggression. Women have alleged sexual assault and the denial of medical care. Some have tried to take their own lives.
UNIVERSALITY VERSUS TERRITORIALITY
The United States’ detention of children and their mothers raises the issue of human dignity in stark terms, as it overrides humanity’s usual protective stance towards children. But rather than read family detention as exceptional, we should regard it as reflecting a constitutive tension of liberal democracies—a tension between adherence to principles of universal application, like respect of dignity and freedom of movement, and concerns about a country’s self-determination and the practical necessity of maintaining a territorial border. While democracies may need to exclude to exist, this exclusion poses a paradox for democracies. Most insiders have not consented to the social contract and outsiders have no voice in determining the rules of exclusion. Democratic principles thus have little to do with determining who is a member and has a voice. Universality collides with territoriality because the rights and privileges of membership exist only within a bounded community with arbitrary borders.
Democracy’s false claim to the universality of its principles leads some to question the morality of territorial boundaries. The inequality of opportunity that flows from the mere fact of one’s place of birth appears arbitrary and unjustifiable. For others, however, the paradox at the heart of democracy does not compel open borders, a position many reject as utopian and as denying the pluralistic value of bounded, self-governing communities. But the paradox requires that the balance between the competing democratic commitments of self-determination and universality be refigured over time. Outsiders can, and should, become insiders.
REFUGEE LAW AND ITS LIMITS
The law of asylum places limits on the U.S. policy of “send[ing] the vast majority” of the families back. In 2014, Homeland Security Secretary Jeh Johnson chose his words carefully when he tempered his message that the women and children would be deported with the assurance that the U.S. would “adhere to domestic and international law, due process, and the basic principles of charity, decency, and fairness.” Although the Secretary characterized his message as “simple,” his statements belied an underlying tension. If the detained families were entitled to raise legal claims like asylum, what made the Secretary so sure that the families would be deported? Although the government’s initial expectation was that the rule of law would largely be used to send the families back, this prediction was incorrect, as many of the women have compelling asylum claims.
The United States’ message to poor Central American families invoked law to both exclude and protect, and many women and their children will, in fact, prevail in their legal bids for asylum. But a more radical suggestion is that asylum law is not the only way to resolve the tension between sovereignty and universality. If territoriality sometimes gives way to universality, this balance could be struck differently to recognize a fuller range of outsider rights and protections, as discussed below. Not all of the detained women and children qualify for asylum. Poverty and a desire to reunite with family in the U.S. are powerful and understandable drivers of migration.
While broader frames exist, they typically focus on unauthorized entrants already within a country’s borders. Many in the DREAMer movement, which was originally focused on undocumented youth, have expanded their mission to include a wide range of undocumented immigrants. As is typical of claims by outsiders, these movements are defined beyond the bounds of existing domestic law. These movements encourage ruptures in the law, such as amnesties for undocumented people. Human rights norms also recognize limits on sovereignty beyond the principle of asylum. Increasingly, human rights tribunals and bodies have interpreted human rights standards—such as the right to a family—as restricting the sovereign power to deport, at least with respect to immigrants already within a country’s borders.
Law is thus an enforcer of the border, the creator of illegal people and bounded nations. At the same time, the law is malleable and dynamic. It provides opportunities for a more forgiving border through amnesties and expanding conceptions of human rights. The possibilities permit reimagination of the U.S. reaction to the arrival of the Central American families. In a more inclusive society, the families would not be detained or required to meet the standard for asylum. They would be understood as having asserted their human dignity by fleeing violence and poverty, or as simply seeking a better life by exercising their right to move freely. While some amount of border control may be inevitable, the enforcement of territoriality requires neither detention nor the limitation of deportation defenses to asylum.
But the trajectory toward a more open society is far from inevitable. The hard work of realizing this goal falls to politicians, advocates, and immigrants themselves, employing the full range of social, political, and legal strategies. The specter of failure looms large. Any optimism that the U.S. is trending toward a more receptive immigration policy is tempered by the reality that the rebalancing of territoriality and universality sometimes involves regression, even descent into xenophobia. The hostile reaction to the plight of the Central American families, the continued growth of immigration detention, and the rise of Donald Trump to the presidency signals that, for the moment, the U.S. is moving away from a politics of inclusion. Only history will tell whether our iterative attempts to resolve the constitutive tension between universality and territoriality are bending toward more humane border policies.
Professor Sharpless joined the faculty in the Fall of 2009, directs Miami Law’s Immigration Clinic, and teaches immigration law. She researches and writes in the areas of progressive lawyering, feminist theory, and the intersection of immigration and criminal law.
