To understand Trump's family separations, we must understand how Obama set the stage

Leanne Purdum is an Assistant Professor at Drake University in Iowa with a PhD in Geography from the University of Georgia. As a scholar she is broadly interested in law and power, with a focus on US immigration policing and critical approaches to humanitarianism. Her dissertation research stems from volunteer work as a legal advocate in the South Texas Family Residential Center, a “family” detention center in Dilley, Texas.

In the summer of 2018, the Trump Administration’s “zero tolerance” family separation policy grabbed global media attention. After President Trump issued an executive order making the criminal prosecution of immigration offenses a “high priority”, US Customs and Border Protection directed officers to prioritize prosecutions of unauthorized migrants crossing the border. Adults charged with criminal immigration violations are placed in the custody of the US Marshals Service while awaiting trial. However, children cannot legally be detained in these facilities. The Department of Justice (DOJ) rationalized taking children from their parents as a necessary deterrent to migrants who crossed the border without permission. However, statistics show that the DOJ targeted parents with children for these discretionary prosecutions, as compared to adults without children. Children were also separated from parents who crossed legally through official ports of entry. Horrific stories emerged of immigration officers pulling children from their parents, rendering at least 5,400 children “unaccompanied” in a matter of weeks. These included stories of officers ripping children from their parent’s arms, with some being told the lie that their children would be adopted “by families they didn’t know” and would never be seen again. Much of the public discourse around family separations focused on the cruel whims of the Trump administration, as the number of children who were taken in a brief timeframe drew international attention to the president.

In my recently published article in Geopolitics, I re-frame the discussion about family separation away from Trump and towards broader attempts of federal administrations to control migrant families. I argue that although the Obama administration did not implement a large-scale policy of family separations at the border, the arguments for the Trump era separations were developed as the Obama administration defended its ability to detain children with their parents in family detention centers. While the DHS calls these detention facilities “family residential centers”, advocates for migrant children call them “baby jails”. These advocates have brought decades of litigation challenging the DHS on their compliance with the 1997 Flores Settlement Agreement, which requires immigration agencies detaining children to meet specific standards of care. Although the settlement pre-dates family detention centers, my work analyzes some of the Obama and Trump era lawsuits to enforce Flores in family detention. These lawsuits, including Flores V. Johnson 2015 and Flores V. Holder 2015, are significant for studies of immigrant detention because they took place during a resurgence and expansion of family detention in the US, and during a key court decision in which a judge rejected DHS’ ability to detain children throughout the entirety of the legal process. I follow Lauren Martin’s work arguing that family detention gives DHS the power to control parents and children in spaces that (arguably) resolve the “contradictions between mandatory detention of parents and [DHS’s] inability to detain children in penal facilities”. As advocates challenged this detention power in the courts, the Obama administration threatened to separate children.

It is true that family separation is not new to the Trump and Obama administrations. However, we can only fully understand the Trump era zero tolerance policy in relation to the ongoing legal struggle over family detention that was taking place during the Obama administration. In the lawsuits I discuss in my article, the Obama administration’s DHS clearly threatened to separate children if family detention centers were not allowed by the Judge.

In 2015, as the administration defended family detention in the courts, they claimed that only detention could keep families together. They stated that DHS had only 3 options when parents with children were apprehended: “(1) keep the family together by placing the family members at an appropriate residential facility … (2) separate the family … or (3) provide the family with a Notice to Appear for removal proceedings” (emphasis added). Here, the administration documented and foreshadowed the option of separating children if their enforcement goals of detaining families were not allowed by the courts.

In their threats to separate children, the Obama administration also referenced a time-limit won by advocates. In 2015, a federal judge limited the time the government could detain children in family detention centers to a maximum of 20 days, severely hampering the DHS’s power to detain migrant families. In defense of the two family detention centers in Texas, DHS argued that immigration officers would “be forced to separate [children from parents]” if the Flores Settlement, especially the recently ruled 20-day limit on family detention, made them unable to detain parents with their children for prolonged periods. The Trump administration would later refer to this ruling as when the “court ruled to prevent the Government from detaining families together”. The decision did not prohibit detention altogether, only limiting the time to 20 days. However, prolonged family detention has been a key goal of federal administrations since family detention began.

 At the time of the zero tolerance policy, I was conducting my dissertation research in south Texas, volunteering with the Dilley Pro Bono Project as a legal assistant. The project worked with mothers and their children detained in the South Texas Family Residential Center (STFRC) in Dilley, Texas. I recall the effects of this 20-day limit decision while volunteering there. Teams monitored the dates a mother and children crossed the border into the United States and were apprehended by Border Patrol, counting forward to the 20 days deadline when the child should legally be released, per the lawsuit. Immigrant rights groups lauded the 20-day decision, yet lawyers for the migrant children were wary of how this judgement would be interpreted by immigration officials. Advocates anticipated that DHS would separate children if they couldn’t have prolonged detention power. The Obama administration began discussing family separation, and did separate children. However, the Trump administration came in ready to follow through with the large-scale separations that the Obama administration had continually threatened.

My work builds on the long history of state-sanctioned child kidnapping, described by  Laura Briggs as a “strategy for terrorizing people”. And while it is true that the Trump administration’s zero tolerance policy was meant to terrorize migrants, focusing solely on Trump ignores important factors of the policy’s connection to family detention. It is key to understand that it was, in part, a reaction by administrations against the legal restrictions set forth by the Flores settlement, which immigration enforcement agencies perceived as thwarting their control over migrant families.

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