The Zero Tolerance Migration Policy: Two Moral Objections

| June 20, 2018
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Child at a U.S. Customs and Border Protection facility, 2014. Photo credit: Eddie Perez CC

Ethical debates about migration concern a number of reasonable disagreements over whether—and the extent to which—political communities have the right to enforce their borders. What is hardly ever in doubt, even among those who support the “right to exclude” (at least those who defend the right on moral terms), is that there are limits to a political community’s exercise of this right: states cannot use force against those seeking asylum or basic human rights protection, and some means of policing borders are morally unacceptable.1

Although I am skeptical of arguments in defense of the right to exclude, here, I will assume that a convincing argument can be given. On this assumption, I will evaluate the Trump administration’s current zero-tolerance migration policy, which entails the separation of migrant children from their parents.2 I raise two moral objections to the policy, though this is certainly not an exhaustive list. First, I argue that the policy interferes with the United States’ duties to foreigners suffering human rights deprivations. Secondly, I argue that the policy—subjecting children to trauma as a means of deterrence—is an impermissible means of enforcing what may be an otherwise legitimate goal. The ends do not always justify the means, especially when children are involved.

In the last six weeks, at least 2,000 children—100 under the age of four—have been separated from their parents and placed in detention centers.3 This separation can be abrupt: in one news report a Honduran woman revealed that her baby was taken away from her while she breast-fed.4 The conditions inside some facilities are grim. In one, a converted Wal-Mart in McAllen, Texas, children are “plac[ed] 20 or more in a concrete-floor cage and provid[ed] foil blankets, thin mattress pads, bottled water and food.”5 One report describes how a 16-year-old girl in custody was responsible for changing the diapers of an unrelated infant.6 The President of the American Academy of Pediatrics reported seeing a more child-friendly facility than some of the worst depictions, though she noted that she was told facility workers were unable to physically comfort the children.7 The children are supposed to be detained for less than 72 hours, but reports suggest the agency is not always able to release children within this time frame.8 It is unclear whether this is due difficulty finding relatives with whom the children can be placed or simply an over-burdened agency.

The administration responded to these reports with denials,9 with disturbing—and anti-constitutional—Biblical justifications for enforcing the law (which is not really a law),10 by shifting the blame to Democrats,11 and by claiming that, while not ideal, the policy is needed as a deterrent. The latter is the most consistent justification for the policy. In May, Attorney General Jeff Sessions defended the policy of family separation by saying, “If you don’t want your child to be separated, then don’t bring them across the border illegally. It’s not our fault that somebody does that.”12 Similarly, Chief of Staff John Kelly said, “A big name of the game is deterrence…The children will be taken care of—put into foster care or whatever—but the big point is they elected to come illegally into the United States, and this is a technique that no one hopes will be used extensively or for very long.”13

Among the many objections to this policy is that, in trying to deter unauthorized migration, the administration is shirking the United States’ duty to asylum seekers and those whose human rights are not fulfilled in their country of origin. States, or more accurately their citizens, have basic moral duties to those who are persecuted. Many of these moral duties have been codified in international or regional refugee law, however imperfectly these are enforced.14 Whether one justifies the relevant laws and conventions as a duty of mutual aid, humanitarianism, or simply basic human decency, it is hard to deny that a state should be a refuge when suffering arrives on its doorsteps.15

And yet the administration’s response to those seeking asylum is to prosecute them for illegal entry, since the administration is prosecuting anyone who enters illegally.16 The administration wants asylum seekers to present themselves “at authorized ports of entry,” and it claims not to prosecute and separate asylum seekers who abide by this requirement. Even if true—though there is at least one case of an asylum seeker who presented herself appropriately and nonetheless was separated from her child17—this in itself is an unlawful and unreasonable demand. Punishing asylum seekers for illegal entry is breach of Article 31 of Refugee Convention and Protocol.18 Plus, many asylum seekers are suspicious of government officials. They have fled governments that either directly persecuted them or allowed others to do so, and there are good reasons for asylum seekers to be suspicious of U.S. Border Patrol specifically. Agents have turned away asylum seekers or ignored their petitions.19 Further, Attorney General Sessions announced last month he would make it harder for asylum claims to be successful by limiting the acceptable reasons for asylum. Departing from an Obama Administration policy, victims of domestic abuse and gang violence are no longer eligible for asylum.20 For these people, the only way they may be able to receive protection in the United States is through unlawful entry.

Even if some parents would not qualify for asylum, and the United States has a right to control its borders, it is not the case that this right can be enforced at any cost. Among others, José Jorge Mendoza and Sarah Fine have both challenged the moral legitimacy of migration regimes by pointing out the way they have been unjustly implemented and enforced. They raise grave concerns about the permissibility of policies that, in practice, have highly unjust implications.21 In the current case, what is most troubling about the administration’s response is the way it uses the intentional infliction of suffering on children as a way to exercise its presumptively legitimate right to exclude.

Among the groups objecting to the policy, the separate detention of children has been widely condemned by mental health professionals. The American Psychological Association criticized the policy in a late-May press release,22 and a circulating petition objecting to the policy has already been signed by over 9,300 mental health professionals. In a Washington Post op-ed, two psychologists made a convincing case that the infliction of suffering on children amounts to torture.23 As the petition points out, “Not only is the terror these children experience at the border not temporary, these children have no way of knowing if and when they are ever going to see their parents again.” For these children, the separation and detention is likely to be one of many traumatic events they have experienced on their journey, and trauma can have long-lasting effects on children. The National Child Traumatic Stress Network states that children who experience complex trauma (that is, “exposure to multiple traumatic events”) can experience long-term physical, cognitive, emotional, and relational consequences.24

Even if some of the effects of trauma are treatable over time, there is no way the administration can guarantee mental healthcare will be provided. Further, the subsequent instability in the lives of these children is likely to hinder their recovery. More fundamentally, there is simply no justification for the U.S. government to inflict this type of suffering on children when there are alternatives to doing so.

The way that children are being targeted as deterrents brings to mind Ursula Le Guin’s haunting short story “The Ones Who Walk Away from Omelas.” In the story, the happiness of a nearly-idyllic city depends upon the suffering of a child whose fate is known by all residents. The child is kept in a basement away from sunlight in abhorrent conditions. Some residents visit the child, and when they do they are “shocked and sickened.” These visitors,

would like to do something for the child. But there is nothing they can do. If the child were brought up into the sunlight out of that vile place, if it were cleaned and fed and comforted, that would be a good thing, indeed; but if it were done, in that day and hour all the prosperity and beauty and delight of Omelas would wither and be destroyed. Those are the terms. To exchange all the goodness and grace of every life in Omelas for that single, small improvement: to throw away the happiness of thousands for the chance of the happiness of one: that would be to let guilt within the walls indeed.25

The title, “Those Who Walk Away from Omelas,” refers to the residents who simply cannot bear knowing their happiness comes at the expense of extreme suffering: they decide to leave Omelas. On one reading, the moral of the story is that that there are some positive ends that come at too high a cost.

The responses available to Americans, fortunately, are not as limited as those facing the citizens of Omelas. Americans need not decide between living with this injustice or walking away, and the wellbeing of America does not depend upon the suffering of children. Even if we concede that the right to exclude can be justified and that migration controls make Americans better off—though the evidence here is not clear—some policies simply go too far. Americans must decide which migration policies are most compatible with their moral commitments, and they must condemn policies that are needlessly cruel.

 

Notes

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  1. Michael Blake, in an article defending a state’s right to exclude, concludes, “We can only justify the coercive force of the border if we use it against people whose rights are adequately protected in their current homes. To use it elsewhere seems simply to use force to defend an illegitimate status quo; this is morally impermissible regardless of how just our foreign policy might otherwise be.” See Michael Blake, “Immigration, Jurisdiction, and Exclusion,” Philosophy & Public Affairs 41, no. 2 (March 1, 2013): 126.
  2. Here, I follow an example set by Joseph Carens in Joseph Carens, The Ethics of Immigration (Oxford University Press, 2013). In the first half of the book, Carens takes the exclusionary view as a given, but identifies moral constraints on the exercise of the right.
  3. Bill Chappell and Jessica Taylor, “Defiant Homeland Security Secretary Defends Family Separations,” NPR, June 18, 2018, https://www.npr.org/2018/06/18/620972542/we-do-not-have-a-policy-of-separating-families-dhs-secretary-nielsen-says.
  4. Ed Lavandera, Jason Morris, and Darran Simon, “Zero-Tolerance Immigration Policy Leads to Surge in Family Separations, Lawyer Says – CNN,” CNN, June 14, 2018, https://www.cnn.com/2018/06/12/us/immigration-separated-children-southern-border/index.html.
  5. Sean Sullivan, “‘Zero-Tolerance Policy Means Zero Humanity:’ Democrats Decry Trump Immigration Policy after Tour of Detention Center,” Washington Post, June 17, 2018, https://www.washingtonpost.com/politics/zero-tolerance-policy-means-zero-humanity-democrats-decry-trump-immigration-policy-after-tour-of-detention-center/2018/06/17/bbf68b2c-7248-11e8-9780-b1dd6a09b549_story.html.
  6. “Hundreds of Children Wait in Border Patrol Facility in Texas,” AP News, accessed June 19, 2018, https://www.apnews.com/9794de32d39d4c6f89fbefaea3780769.
  7. Audie Cornish, “Pediatric Doctor Says She’s Worried About Trauma Migrant Children Are Experiencing,” NPR, June 18, 2018, https://www.npr.org/2018/06/18/621127175/pediatric-doctor-says-shes-worried-about-trauma-migrant-children-are-experiencin.
  8. Julia Ainsley and Courtney Kube, “Hundreds of Migrant Kids Separated from Parents Are Stuck at Border,” NBC News, June 5, 2015, https://www.nbcnews.com/news/us-news/hundreds-migrant-kids-separated-parents-are-stuck-border-stations-n878696.
  9. “DHS Sec. Kirstjen Nielsen Denies Family Separation Policy Exists, Blames Media,” CBS News, June 18, 2018, https://www.cbsnews.com/news/dhs-sec-kirstjen-nielsen-denies-family-separation-policy-exists-blames-media/.
  10. Julie Zauzmer and Keith McMillan, “Sessions Cites Bible Passage Used to Defend Slavery in Defense of Separating Immigrant Families,” Washington Post, June 25, 2015, sec. Acts of Faith, https://www.washingtonpost.com/news/acts-of-faith/wp/2018/06/14/jeff-sessions-points-to-the-bible-in-defense-of-separating-immigrant-families/.
  11. Katie Rogers and Sheryl Gay Stolberg, “Trump Resisting a Growing Wrath for Separating Migrant Families,” New York Times, June 18, 2018, https://www.nytimes.com/2018/06/18/us/politics/trump-immigration-germany-merkel.html.
  12. Chappell and Taylor, “Defiant Homeland Security Secretary Defends Family Separations.”
  13. Julie Hirschfeld Davis and Michael D. Shear, “How Trump Came to Enforce a Practice of Separating Migrant Families,” The New York Times, June 18, 2018, sec. U.S., https://www.nytimes.com/2018/06/16/us/politics/family-separation-trump.html.
  14. The key legal document governing the treatment of refugees is the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol. 145 states are party to the Convention and 146 to the Protocol. States are obligated to harmonize their domestic law with its provisions.
  15. For instance, Michael Walzer argues that the duty to refugees is grounded in the principle of mutual aid; Matthew Lister as a means of fulfilling the principle of humanitarianism. See Matthew Lister, “Who Are Refugees?,” Law and Philosophy 32, no. 5 (September 1, 2013): 645–71; Michael Walzer, Spheres Of Justice: A Defense Of Pluralism And Equality (Basic Books, 2008). David Miller has argued that the presence of an asylum seeker imposes a special duty on the state toward that person given the control the state now has over the individual’s fate. See David Miller, Strangers in Our Midst (Harvard University Press, 2016).
  16. Camila Domonoske and Richard Gonzales, “What We Know: Family Separation And ‘Zero Tolerance’ At The Border,” NPR.Org, June 19, 2018, https://www.npr.org/2018/06/19/621065383/what-we-know-family-separation-and-zero-tolerance-at-the-border.
  17. Erik Larson, “Judge Calls Trump’s Border Separations of Children `Brutal’,” Bloomberg, June 6, 2018, https://www.bloomberg.com/news/articles/2018-06-07/aclu-suit-over-child-separations-at-border-may-proceed-judge.
  18. Article 31.1 of the Refugee Convention states that, “The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.
  19. Debbie Nathan, “Desperate Asylum-Seekers Are Being Turned Away by U.S. Border Agents Claiming There’s ‘No Room,’” The Intercept (blog), June 16, 2018, https://theintercept.com/2018/06/16/immigration-border-asylum-central-america/. See also Human Rights Watch, “‘You Don’t Have Rights Here:’ US Border Screening and Returns of Central Americans to Risk of Serious Harm,” 2014.
  20. Katie Benner and Caitlin Dickerson, “Sessions Says Domestic and Gang Violence Are Not Grounds for Asylum,” The New York Times, June 12, 2018, sec. U.S., https://www.nytimes.com/2018/06/11/us/politics/sessions-domestic-violence-asylum.html.
  21. José Jorge Mendoza, “Discrimination and the Presumptive Rights of Immigrants,” Critical Philosophy of Race 2, no. 1 (2014): 68–83; Sarah Fine, “Immigration and Discrimination,” in Migration in Political Theory: The Ethics of Movement and Membership, ed. Sarah Fine, and Lea Ypi (New York: Oxford University Press, 2016), 125–50.
  22. Jessica Henderson Daniel, Ph.D., “Statement of APA President Regarding the Traumatic Effects of Separating Immigrant Families,” American Psychological Association, May 29, 2018, http://www.apa.org/news/press/releases/2018/05/separating-immigrant-families.aspx.
  23. Jaana Juvonen and Jennifer Silvers, “Separating Children from Parents at the Border Isn’t Just Cruel. It’s Torture. – The Washington Post,” Washington Post, May 15, 2018, https://www.washingtonpost.com/news/posteverything/wp/2018/05/15/separating-children-from-parents-at-the-border-isnt-just-cruel-its-torture/.
  24. Sarah Peterson, “Complex Trauma,” Text, The National Child Traumatic Stress Network, January 25, 2018, https://www.nctsn.org/what-is-child-trauma/trauma-types/complex-trauma.
  25. Ursula K. Le Guin, “The Ones Who Walk Away from Omelas,” in The Wind’s Twelve Quarters: A Story (New York: HarperCollins, 2017), 275–84.

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