Brooklyn Law Review


Anita Sinha


Family separation is a practice rooted in US history. In order to comprehensively examine the most recent execution of separating children from their parents under the Trump Administration’s “zero tolerance” policy, we need to follow and understand this history. That is what this Article does. Examining the separation histories of enslaved, Indigenous, and immigrant families, it offers critical context of a reoccurring practice that has had devastating effects largely on communities of color, and across generations. By contextualizing the separation of migrant families crossing the US-Mexico border under zero tolerance, this Article identifies narratives that consistently rely on xenophobia and racism to justify a practice that otherwise is extreme in its inhumanity. These justification narratives are juxtaposed with counterstories that resist and challenge the separation of families, including by humanizing those impacted and articulating the profound harm it causes to children, parents, and communities. These stories have been told through first-hand narratives, Congressional testimonies, statistical studies, media reports, and facts and allegations in lawsuits. Systemic change, however, has been elusive. In the case of Indigenous family separation, legislation enacted to cease the practice failed to bring about substantial change and has been diluted by persistent legal challenges. Historical family separation practices against enslaved and immigrant families have been replaced with systems that separate families for prolonged times or permanently. These include the present-day US criminal legal and immigration systems, where the government separates children from their parents on a substantial scale as a collateral consequence of mass incarceration and widespread detention and deportation, with little to no scrutiny. The zero tolerance policy combined deliberate with collateral family separation, as its overall objective was to deter migration but by deliberately separating migrant families to accomplish this goal. The advocacy to put an end to the policy was impressive in its rapid response, historical breadth, and numerical scope. The outrage that ended zero tolerance, however, has not extended to the persisting and pervasive separation of families in the US immigration system generally, and in the US criminal legal system. In an effort to understand why, this Article details the histories of family separation in the United States, identifying the justifications and counternarratives that contributed to their execution, and to their end. In doing so, it highlights reoccurring themes in the justifications for separating children from their parents and, often, communities. It posits that narratives describing the harm caused by separating families are a powerful element of putting the practices to an end. These narratives, however, have emerged successfully in specific socio-political contexts that rendered them compelling enough to overcome the justifications for specific family separation policies throughout US history. The opportunity for narratives to challenge in any significant way how the US immigration and criminal legal systems carry on a practice that constitutes modern family separation has yet to transpire. History shows us that the counterstories urging the valuation of family integrity need to be aligned with a societal will to challenge systems that, through racialized justifications, separate mostly marginalized children from their parents.