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Excerpted From: Gabriel Sáenz, America's Second-class Children: An Examination of President Trump's Immigration Policies on Migrant Children and Inquiry on Justice Through the Catholic Perspective, 22 Scholar: St. Mary's Law Review on Race and Social Justice 143 (2020) (Student Comment) (369 Footnotes) (Full Document)


GabrielSáenzIt is not difficult to judge a nation--just look at how they treat their weak and vulnerable. Above all, children are in the most vulnerable class. In the United States, like in most developed nations, long gone are the days when children were legally allowed to be abused and exploited. As a global community, we praise those who value and protect children and condemn those who violate the standards we have set forth. We have rediscovered the objective truth that children are to be loved, protected, nurtured, encouraged to learn, and allowed to grow into healthy adults. This antiquated principle has been affirmed and expounded by world leaders and the majority of democratic nations. Likewise, modern medical and psychiatric professionals agree, children have special vulnerabilities and must be dealt with compassion and care. This common consensus manifests itself in our law. The most powerful legal voice comes from the Supreme Court of the United States. In J.D.B. v. North Carolina, for example, the Supreme Court held that children are not “miniature adults,” and that the behavior and perceptions of children differ from adults. The culmination of these truth statements provide us with a healthy and shared point of reference--what I call the “Just Standard”-- on which we base our convictions, laws, policies, and actions relating to children.

As a nation, we find ourselves at a crossroad; do we afford migrant children with the same standards as our own? Due to violence and poverty, thousands of Central American children are fleeing their homes to seek refuge in the United States. Many are unaccompanied. Alone, these children will either try to cross without inspection, or seek asylum or other immigration protections in our overburdened and inept immigration system.

How do we respond? Especially when the root of many of their country's problems were created by us, after years of exploitative American interference. I propose that at the macro-level, there are ultimately two competing responses to this crisis--each stemming from different ideologies that have battled each other since time immemorial. One stands on the solid, objective foundation of the Just Standard. The other stands firmly in mid-air--baseless subjective biases. I argue that we should build the structure of our legal and moral response on the objective foundation of the Just Standard. Alas, our current response towards immigrant children stands on the opposite. We have separated immigrant children from their families, confined them for undetermined amounts of time, left them unrepresented in our courts, and failed to keep them safe. We took funds from the few programs designed to help immigrant children and attacked the laws designed to protect them. Our actions have been unjust. The figurehead and strongest voice for this opposing standard is the current President Donald Trump. I call this competing ideology the “Malignant Standard.”

In 2016, Donald Trump was elected as the forty-fifth president of the United States. His administration quickly manifested its xenophobic ideals through its immigration policies. These policies hurt immigrant children the most. They resulted in violations of children's rights, abuse, and deaths of immigrant children. Even in the face of such overwhelming agreement on the objective distinctiveness and vulnerabilities of all children, the Trump Administration refuses immigrant children the same rights and protection afforded to all children under our Just Standard and negligently and vehemently “continues to double down on its efforts to attack immigrant children.” The United States applies the Just Standard when a child is American and applies the Malignant Standard when the child is not. I argue that, unless we combat this double standard, we will witness the creation of a second-class of children--those who are refused children's rights and protections based on where they were born.

An attack on one child is an attack on all. Therefore, it is our duty to address this unjust double-standard. In that spirit, I write this comment. Here, I will carefully: (i) present and describe what I call the Malignant Standard, which is spearheading our current immigration policies; (ii) rebuke it with what I refer to as the Just Standard, which I mostly support with case law that alludes to a universal law or natural law that children are special, valued, merit our protection and above all are equal; (iii) and lastly, use the Catholic perspective and natural law to support the Just Standard. In short, this is an endeavor to bring to light the correct standard on which to base the edifice of our moral and legal response-- the Just Standard. I am the first to admit this is a lot to cover in such a short comment. Nevertheless, as the eldest son of a single immigrant mother, it is my duty to initiate the conversation, and I hope this humble attempt encourages a perhaps brighter mind to one day carry the baton of these ideas across the finish line.

I critique my country because I love it. Though we need to take a hard look in the mirror regarding how we treat our most vulnerable and weak, the ground is ripe for good deeds and, with solidarity and hard work, great changes can come.

[. . .]

How do we treat our most vulnerable? Currently, Trump's Administration is creating a second-class of children. He continues to sow seeds of mistrust by continuing to set policy and laws that run counter to established truths. His administration weakens the use of child-accommodating and child-friendly practices, contrary to the guidance from the Supreme Court that holds that children are unique and vulnerable and must be treated accordingly. Memos from his administration tell immigration judges to be more skeptical of the children before them, to not treat all children alike and discredit findings of best interest for the children. That same memo from Marybeth Keller, the Chief Immigration Judge, warns immigration judges to beware of children who have been coached to lie and push for voluntary departure, even when not desired or understood by the child. The Malignant Standard is in full force.

However, we need not surrender. We already have the building blocks to establish and codify a universal Just Standard that will protect all children, regardless of immigration status, and is rooted in the strong foundation of Natural Law. Together, we can ensure Justice for thousands of immigrant children. For we do not have an illegal immigration problem but a humanitarian crisis. I believe it is time for the greatest nation in the world--the United States of America--to become that beacon of light for the world again.

St. Mary's University School of Law, J.D., expected May 2020; Texas State University, B.A., Political Science, Minor, Honors Studies, December 2016; Tarrant County College, Associate of Science, May 2014.

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