Excerpted From: Raquel E. Aldana, Taming Immigration Trauma, 44 Cardozo Law Review 387 (December, 2022) (597 Footnotes) (Full Document)


RaquelAldanaIn recent years, the cruelty of U.S. borders has been on full display. On April 6, 2018, for example, the Trump administration announced a “zero tolerance” policy. Under the policy, the U.S. government pressed criminal charges against all adult migrants attempting to enter the United States anywhere other than at an official port of entry. The policy resulted in widespread family separation. A review conducted by the Biden administration in June 2021 found that from July 2017 through January 2021, 5,636 family separations occurred, 3,913 of which were directly related to the “zero tolerance” policy. The review also revealed that while 1,800 families had since been unified, it had no records of family unification for the remaining 2,100 families; as well, 400 children had been sent back to their country of origin. Mental health experts have documented the enormous trauma children especially have been forced to endure under these practices, with ill effects likely to last well into adulthood. Although the government rescinded the “zero tolerance” policy following public outcry, family separations continue on a less widespread basis. The cruelty of U.S. borders in recent years is not unprecedented. Examples of dark periods of U.S. immigration law include racist bans against Asians; the Cold War's cruel expulsion of a wide net of long-time permanent residents treated as communists; interdiction practices mostly waged against Haitian asylum seekers; the arbitrary denial of asylum protections to Central Americans escaping U.S. funded wars in the 1980s; the harsh treatment of Muslims post- 9/11; and more recently, the shutting down of the border to asylum seekers through policies like the Migrant Protection Protocols and Title 42.

This Article considers the ways in which the United States has sought to limit the trauma wielded by borders and immigration law enforcement. The focus is solely on the actions of the federal government, including Congress, executive agencies, and the U.S. Supreme Court. In recent decades, local governments have played an increasingly significant role in the regulation of immigrants, acting both to improve or worsen the treatment of immigrants. However, the core of immigration law enforcement--the exclusion at the border or expulsion of migrants from the United States--still remains today as a largely federal project. In this arena, the taming of immigration trauma has been a slow process that, if traced, would resemble a complex roller coaster with sharp highs and lows as well as swift reversals. Much of the explanation for this rests in federal immigration law's plenary power doctrine, whose combination of limited judicial review and placement of vast powers in the hands of the political branches has rendered progress to humanize borders volatile. In general, these gains have been influenced by important constitutionally-grounded judicial doctrines embedded in the plenary power and largely rests in the Fifth Amendment's substantive and procedural due process rights. Mostly these doctrines have influenced the interpretation of immigration statutes in favor of immigration petitioners or inspired immigration reforms that have created important forms of relief--albeit discretionary--against deportation, increased due process for certain immigrants, or imposed limits over certain detention practices.

Taming trauma wielded by borders is not unlike the taming of war. The entire project may appear folly given the inevitability of human suffering in immigration enforcement. Exclusion and deportation can separate families, return persons to nations where their lives or liberties are threatened, or expel them from home to places they have never known. These considerations alone provide compelling reasons to abolish borders. This paper, however, presupposes the persistence of borders, at least in the foreseeable future. And for as long as borders remain, how the United States enforces them can and should be more humane. Two important principles should guide this process. First, the United States should recognize that borders' impacts are as severe as other forms of punishment, especially when the means to enforce the immigration power have become indistinguishable from criminal enforcement. To prevent entry or effectuate deportation, the United States often arrests and incarcerates foreign nationals in great numbers and for lengthy periods. The privatization of some aspects of immigration enforcement, namely detention, has also thrust this project into the darker side of profit-making. This should translate to greater due process and mechanisms of accountability than we currently recognize over immigration law. Second, human trauma should guide immigration policy toward meaningful inclusion. Over time, and only after significant reckoning over the travesty of shutting our borders to human suffering, the United States has opened borders to embrace certain experiences of trauma as grounds for welcoming immigrants and has shown mercy to permit immigrants to stay when family and communal bonds in the United States are strong. Yet, the discretionary nature of these central efforts to humanize borders has not translated to sustaining gains. Borders are still open and shut at the whims of xenophobia and nationalistic tendencies to blame the “other” during difficult sociopolitical and economic crises. Moreover, the lack of basic due process protections in immigration law and punitive enforcement practices function as significant barriers that undermine substantially the very efforts to expand immigration's inclusion.

Part I of this Article documents the progression and ebbs and flows of efforts to humanize borders and immigration enforcement through the imposition of constitutional limits on the plenary power doctrine. Section I.A focuses on the Fifth Amendment and traces how notions of liberty in the context of immigration have yielded limited but important substantive and procedural rights for immigrants. Section I.B focuses on how the framing of immigration law's enforcement as punishment--when this has occurred--has at times tamed the trauma of immigration enforcement by alleviating some of its harshness. Part II of this Article turns to the national political responses by Congress and the immigration agencies that have both embraced liberty concepts to constrain the immigration power and pushed back to assert their power when they have deemed it necessary or desirable.

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The status quo of restrictive borders and tough border enforcement is not working. Despite efforts by nations to erect physical walls, shift borders through bilateral immigration enforcement agreements or interdiction practices, or restrict legal migration, migration flows, especially forced migration, are on the rise. This is hardly surprising: climate change, persistent civil wars, generalized violence, and extreme forms of poverty render these barriers permeable to the waves of people whose desperation at home thrusts them often into even greater peril. Data shows a rise in migrants falling prey to human trafficking; deaths at sea; and murder, rape, or kidnappings by drug lords, all for the remote hope that if they reach their destination, life will be better for them and their families. One haunting story details the cruel death by suffocation of fifty-three migrants, including children, left abandoned by their human smugglers in an overheated trailer in San Antonio, Texas on June 27, 2022. In 2021 alone, 650 migrants died while trying to reach the United States through the U.S.-Mexico border, making it the deadliest year on record for the border. Yet, a cruel myth fuels the status quo: that deterrence through suffering, whether at the hands of private actors, or worse, at the hands of immigration enforcers, will somehow stop people from migrating. In the case of irregular migration, at least, this myth is just not panning out, as it ignores that forced migration is a type of risk-reduction strategy: “as difficult as it might be, forced migration takes place once staying at home has become the worst choice.”

This Article has documented century-long efforts by the United States to humanize our border. In the end, law has been insufficient in taming immigration law's enforcement. A looming reason for this is the persistence of the plenary power doctrine in immigration law. At a minimum, this doctrine must end. At this time, this prospect appears elusive. The trend of the current U.S. Supreme Court's immigration rulings to rely on strict textualism is eroding even the few limits imposed on the doctrine by past precedent. But historically, the end of the plenary power doctrine has seemed more real, and the future may write a different story. The constitutionalization of the immigration power alone, however, will not guarantee greater humanity toward immigrants. A sobering reminder of this is the criminal justice system. Over five decades of the procedural due process revolution in favor of criminal defendants have most certainly not ended the cruelty of prisons. However, the premise of this Article is that gains in immigration law--such as the right to counsel, the right to a hearing and to judicial review, the right to bail, and ex post facto protections, to name a few--bring with them the potential to improve the terrible plight of immigrants who are punished, mistreated, and discarded without regard to their humanity and human rights.

Martin Luther King Jr., Professor of Law, UC Davis School of Law, King Hall.