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51 Colum. Hum. Rts. L. Rev. 430 (2019-2020)
The Law against Family Separation

handle is hein.journals/colhr51 and id is 430 raw text is: THE LAW AGAINST FAMILY SEPARATION Carrie F. Cordero, Heidi Li Feldman, Chimbne I. Keitner* ABSTRACT This Article offers the first comprehensive assessment of how domestic and international law limits the U.S. government's ability to separate foreign children from the adults accompanying them when they seek to enter the United States. As early as March 6, 2017, then- Secretary of Homeland Security John Kelly told CNN's Wolf Blitzer that he was considering separating families at the border as a deterrent to illegal immigration as part of a zero tolerance policy whereby the Trump administration intended the strictest enforcement of immigration law against those migrants coming to the U.S. southern border. Kelly did not say upon what legal basis the administration could lawfully separate families at the border as a component of its immigration policies. Whatever the merits of maximal prosecution of adults unlawfully crossing the border, adopting this policy did not convert family separation into a lawful byproduct of the arrest of an adult. To the contrary, domestic and international law militates strongly against the lawfulness of family separation as a tool for immigration deterrence, yielding liability for the state and for individuals who implement family separation in this setting. Both litigation and Congressional action can and should play a role in addressing the Trump administration's use of family * Carrie F. Cordero is the Robert M. Gates Senior Fellow, Center for a New American Security and Adjunct Professor of Law, Georgetown University Law Center; Heidi Li Feldman is Professor of Law and (by courtesy) Associate Professor of Philosophy, Georgetown University Law Center; Chimene I. 1eitner is the Alfred & Hanna Fromm Professor of International & Comparative Law, UC Hastings Law. The authors thank Sam Cutler and Emilie Jones for research assistance and helpful comments, and additional subject matter experts for review and feedback on drafts of this article. The authors also thank Kathleen Ritter for her work on seeing the article through the publication process. This collaboration was made possible by support from the Center for a New American Security, Georgetown University Law Center, UC Hastings Law and The William and Flora Hewlett Foundation.

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