The World Doesn't Work That Way, but It Could

by Yxta Maya Murray

  Jesse Franzblau, “Newly Released Memo Reveals Secretary of Homeland Security Signed Off on Family Separation Policy,” Open the Government, September 24, 2018, https://www.openthegovernment.org/newly-released-memo-reveals-secretary-of-homeland-security-signed-off-on-family-separation-policy/ (“The memo states that DHS could ‘permissibly direct the separation of parents or legal guardians and minors held in immigration detention so that the parent or legal guardian can be prosecuted.’ It outlines three options for implementing ‘zero tolerance,’ the policy of increased prosecution of immigration violations. Of these, it recommends ‘Option 3,’ referring for prosecution all adults crossing the border without authorization, ‘including those presenting with a family unit,’ as the ‘most effective.’”).

  Ms. L. v. U.S. Immigration & Customs Enf’t (“ICE”), 310 F. Supp. 3d 1133, 1145–46 (S.D. Cal. 2018), modified, 330 F.R.D. 284 (S.D. Cal. 2019) (“A practice of this sort implemented in this way is likely to be ‘so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience,’ Lewis, 523 U.S. at 847 n.8, 118 S.Ct. 1708, interferes with rights ‘implicit in the concept of ordered liberty[,]’ Rochin v. Cal., 342 U.S. 165, 169, 72 S.Ct. 205, 96 L.Ed. 183 (1952) (quoting Palko v. State of Conn., 302 U.S. 319, 325, 58 S.Ct. 149, 82 L.Ed. 288 (1937)), and is so ‘brutal’ and ‘offensive’ that it [does] not comport with traditional ideas of fair play and decency.” Breithaupt v. Abram, 352 U.S. 432, 435, 77 S.Ct. 408, 1 L.Ed.2d 448 (1957).).

  Trafficking Victims Protection and Reauthorization Act, 8 U.S.C.A. § 1232 (b)(3) (West): (“Except in the case of exceptional circumstances, any department or agency of the Federal Government that has an unaccompanied alien child in custody shall transfer the custody of such child to the Secretary of Health and Human Services not later than 72 hours after determining that such child is an unaccompanied alien child.”)

  Mrs. L., 310 F. Supp. 3d at 1138 n.3 (“The TVPRA provides that ‘the care and custody of all unaccompanied alien children, including responsibility for their detention, where appropriate, shall be the responsibility of HHS and its sub-agency, ORR. 8 U.S.C. § 1232(b)(1).’”).

  Second Amended Class Action Complaint and Petition for a Writ of Habeas Corpus in J.E.C.M. v. Lloyd, Case No.1:18-CV-903-LMB, Eastern District Court of Virginia, filed 8/16/18, at page 18, para. 46, https://www.justice4all.org/wp-content/uploads/2018/11/JECM-Second-Am-Compl.pdf:

  Beginning when a child comes into ORR custody, the agency’s online guide provides that ORR may place him or her in one of three levels of care based on an assessment of the level of security risk and harm to self or others that the child poses: (i) “shelter care” is the least restrictive custodial setting; (ii) “staff secure” is the intermediate level; and (iii) “secure” care is the most restrictive level. Secure facilities are like juvenile jails; there are only three such facilities in use nationwide, one in California and two in Virginia: SVJC in Staunton where B.G.S.S. is detained, and NOVA in Alexandria, where J.E.C.M. was detained. Staff-secure facilities, while not using locked pods or cells, are still very restrictive in that children’s movement inside the unit is controlled; children are not permitted to leave the facility except to attend court; outdoor recreation is limited to one hour a day in a fenced in area; and there is a higher staff-to-child ratio than in shelter units. Shelter-level placements, while less restrictive than staff-secure or secure custody, are nonetheless much more restrictive than a home environment. Children are not permitted to move between rooms or up and down the stairs without staff permission; external doors are locked; children are deprived of human touch and even prevented from hugging a sibling, and time outdoors is limited.

  David V. Aguilar, Chief, U.S. Border Patrol, “Memorandum/Hold Rooms and Short Term Custody,” June 28, 2008, graphs 6.8–6.11, https://www.openthegovernment.org/wp-content/uploads/other-files/CBP%20CBP-2018-070727_Redacted.pdf (“Meals. Detainees will be provided snacks and juice every four hours. . . . Potable drinking water will be available to detainees. . . . Restrooms will be available to detainees. Detainees using the restrooms will have access to toilet items; such as soap, toilet paper, and sanitary napkins. Families with small children will also have access to diapers and wipes. . . . Bedding. Detainees requiring bedding will be given clean bedding.”).

  Zero Tolerance

  8 U.S.C.A. § 1325 (a) (West) (“Any alien who (1) enters or attempts to enter the United States at any time or place other than as designated by immigration officers, or (2) eludes examination or inspection by immigration officers, or (3) attempts to enter or obtains entry to the United States by a willfully false or misleading representation or the willful concealment of a material fact, shall, for the first commission of any such offense, be fined under Title 18 or imprisoned not more than 6 months, or both, and, for a subsequent commission of any such offense, be fined under Title 18, or imprisoned not more than 2 years, or both.”).

  Jeff Sessions, “Zero-Tolerance for Offenses under 8 U.S.C. § 1325(a),” Office of the Attorney General, April 6, 2018, https://www.justice.gov/opa/press-release/file/1049751/download.

  Julia Preston, “Detention Center Presented as Deterrent to Border Crossings,” New York Times, December 15, 2014, https://www.nytimes.com/2014/12/16/us/homeland-security-chief-opens-largest-immigration-detention-center-in-us.html (“The 50-acre center in Dilley, 85 miles northeast of Laredo, will hold up to 2,400 migrants who have illegally crossed the border and is especially designed to hold women and their children. . . . About 480 women and children will be housed here while a much larger, permanent facility is built next door, officials said.”).

  Catherine Powers, “I Spent 5 Days at a Family Detention Center. I’m Still Haunted by What I Saw,” HuffPost, August 23, 2018, https://www.huffpost.com/entry/family-detention-center-border_n_5b7c2673e4b0a5b1febf3abf (“The women I worked with at the South Texas Family Residential Center in Dilley had been separated from their children for up to two and a half months because of a policy instituted by the Trump administration in April 2018, under which families were targeted for detention and separation in an attempt to dissuade others from embarking on similar journeys. . . . Most [of the women] had been raped, tormented, threatened or beaten (and in many cases, all of the above) in their countries (predominantly Honduras and Guatemala).”).

  Emma Platoff, “Report: Toddler Died after Contracting Infection at ICE Family Detention Facility,” Texas Tribune, August 27, 2018, https://www.texastribune.org/2018/08/27/toddler-died-ICE-custody-vice-news-dilley/ (“Yazmin Juárez told the news outlet in a story published Monday evening that she and her daughter, Mariee, crossed the border from Guatemala in March and were soon sent to an ICE family detention center in Dilley. There, according to the story, 18-month-old Mariee developed an infection and respiratory symptoms that ultimately led to her death. She died of viral pneumonitis six weeks after being released from the facility, VICE reported. She would have turned two this month.”).

  Cf. Alice Sperri, “At Largest Ice Detention Center in the Country, Guards Called Attempted Suicides ‘Failures,’” Intercept, October 11, 2018, https://theintercept.com/2018/10/11/adelanto-ice-detention-center-abuse/ (“‘I’ve seen a few attempted suicides using the braided sheets by the vents and then the guards laugh at them and call them “suicide failures” once they’re back from medical,’ one detainee told inspectors.”).

  Human Rights First, “Credible Fear: A Screening Mechanism in Expedited Removal,” February 2018, https://www.humanrightsfirst.org/sites/default/files/Credible_Fear_Feb_2018.pdf (“The number of positive credible fear decisions fell sharply after the lesson plan was issued—from 78 percent in February 2017 down to a low of 68 percent in June 2017. The pass rates until September 2017, the latest date for which we have data, remained lower than their respective 2016 rates.”).

  Toni Briscoe, “Chicago Shelter, Sessions Sued after 2 Brazilian Boys Separated from Parents at Border Transferred Here,” Chicago Tribune, June 20, 2019, https://www.chicagotribune.c
om/news/ct-met-heartland-alliance-children-shelter-20180621-story.html (“The Heartland Alliance confirmed this week that some of the children separated from their parents are staying at its Chicago shelters.”).

  Cf. David Cortez, “I Asked Latinos Why They Joined Immigration Law Enforcement. Now I’m Urging Them to Leave,” USA Today, July 3, 2019, https://www.usatoday.com/story/opinion/voices/2019/07/03/latino-border-patrol-ice-agents-immigration-column/1619511001/ (“Latinos make up more than 50% of Border Patrol agents and 24% of ICE agents, the most recent publicly available numbers I found. I wanted to understand what possesses Latinos to work for agencies that round up or deport neighbors and family members from the very communities they call home. How do Latinos do this to their own people, I asked. Is it self-hatred? A denial of ethnic identity? Or do they think that being party to the state’s exclusionary machinery cements, in a way, their own individual claims to belonging as Americans—to whiteness? In one interview after another over the span of 13 months, the answer became clear: It’s not any of these. For Latino agents, it’s about the money.”).

  Josh Chafetz and David E. Pozen, “How Constitutional Norms Break Down,” UCLA Law Review 65 (2018): 1435 (“Norm destruction occurs when a norm is flouted or repudiated and, in consequence, ceases to exist, at least for a while. . . . Norm decomposition occurs when a norm is interpreted or applied in ways that are held out as compliant but that, over time, substantially alter or reduce whatever regulative force the norm previously possessed.”).

  Jennifer Nou, “Civil Servant Disobedience,” Chicago-Kent Law Review 94 (2019): 352–53 (“Civil servants have historically held a strong sense of ‘role perception,’ backed by powerful norms regarding appropriate institutional behavior. These norms have included respect for politically appointed superiors and the need to channel dissent through appropriate internal channels. One defining characteristic of the Trump presidency, however, has been its willingness to undermine long held norms coupled with its open hostility to the civil service.”).

  Affording Congress an Opportunity to Address Family Separation Immigration, Section (1), issued on June 20, 2018, available at https://go.ksbar.org/2MzAEcN (“It is also the policy of this Administration to maintain family unity, including by detaining alien families together where appropriate and consistent with law and available resources. It is unfortunate that Congress’s failure to act and court orders have put the Administration in the position of separating alien families to effectively enforce the law.”).

  Walmart

  Philip Bump, “Trump Keeps Framing the El Paso Shooting as His Side against His Opponents’,” Washington Post, August 7, 2019, https://www.washingtonpost.com/politics/2019/08/07/trump-keeps-framing-el-paso-shooting-his-side-against-his-opponents/ (“‘I am concerned about the rise of any group of hate,’ Trump replied. ‘I don’t like it, any group of hate, whether it’s white supremacy, whether it’s any other kind of supremacy, whether it’s antifa, whether it’s any group of hate, I am very concerned about it, and I’ll do something about it.’”).

  The Overton Window

  Miranda Green, “Watchdog Faults EPA Response to Lead Paint Hazards,” The Hill, September 9, 2019, https://thehill.com/policy/energy-environment/460558-watchdog-finds-epa-not-taking-measurable-action-on-lead-based-paint (“The Environmental Protection Agency (EPA) is not effectively using a rule meant to protect against exposure to lead-based paint, an agency watchdog found. The EPA’s Office of the Inspector General found, in a report released Monday, that the agency’s Lead Action Plan, which is meant to curb children’s exposure to lead, lacked measurable outcomes.”).

  Timothy McClaughlin, “The Weird, Dark History of 8chan,” Wired, August 6, 2019, https://www.wired.com/story/the-weird-dark-history-8chan/ (“The El Paso shooter posted an anti-immigration manifesto on 8chan minutes before he opened fire on people in a WalMart not far from the US-Mexico border.”).

  The World Doesn’t Work That Way, but It Could

  “250 Children Living under Inhumane Conditions at Texas Border Facility, Doctors and Attorneys Say,” CBS News, June 21, 2019, https://www.cbsnews.com/news/children-at-border-facility-children-living-inhumane-conditions-texas-border-facility-doctors-attorneys-say/ (“Doctors and attorneys say hundreds of young people are living under inhumane conditions at a border control station in Clint, Texas. They say they found about 250 infants, children and teens locked up for weeks without adequate food, water and sanitation.”).

  Acknowledgments

  The author thanks and remembers Fred MacMurray, Thelma Diaz Quinn, Maggie MacMurray, Maria Adastik, Walter Adastik, Clark Whitehorn, Sara Hendricksen, Lisa Teasley, Medaya Ocher, Tom Lutz, Boris Dralyuk, the Ucross Foundation, Ellie Duke, Sacha Idell, David Wanczyk, Professor Barbara Babcock, Brad Morrow, Pam Madsen, Anne Austin Pearce, Nikki A. Greene, Cara Tomlinson, Ashley Robinson, Mika Taylor, Leah Reid, Carolyn Monastra, Mark Ritchie, Taylor Ho Bynum, Cyndi Reed, Tracy Y. Kikut, Sharon Dynak, Donna Mines, Cindy Brooks, Carly Fraysier, Gordy, Mike Latham, William Belcher, Mel Smith, Shelly Stoner, Allen Smith, Kel Harris, Marty Jelly, Loyola Law School, Colin Goward, Marina Castañeda, Liz Luk, Chris Jarvis, Elizabeth Baldwin, Ryan Botev, Professor Victor Gold, Professor Deborah Weissman, Professor Kathleen Kim, Professor David Leonard, Susan Leonard, Professor Justin Levitt, Dean Michael Waterstone, Professor Lauren Willis, the Los Angeles Youth Network/Youth Emerging Stronger, Maceo Montoya, Patricia Santana, Babs Brown, and my dearest Andrew Brown.

  The author would like to thank the journals that published some of these stories before they were assembled into this collection. “After Maria” was published in Conjunctions: Earth Elegies 30 (Fall 2019); “Paradise” appeared in The Southern Review (Summer 2020); “Miss USA 2015” appeared in New Ohio Review (Spring 2020); “Abundance” appeared in Contra Viento (Fall 2019); “The Prisoner’s Dilemma” was featured in the Los Angeles Review of Books (September 2016) under the title “Zillow Listing of 1329 E 3rd St, Los Angeles, CA 90033”; and “Draft of a Letter of Recommendation to the Honorable Alex Kozinski, Which I Guess I’m Not Going to Send Now” appeared in the Michigan Journal of Gender & Law (2018).

  About the Author

  YXTA MAYA MURRAY is an art critic, author, and law professor at Loyola Law School in Los Angeles. She has won a Whiting Writer’s Award and an Art Writer’s Grant. She was a finalist for the ASME Fiction Award in 2019. She is the author of Locas, What It Takes to Get to Vegas, among other books, and her work has also been published in Artforum, Aperture, Ploughshares, Conjunction, the Georgia Review, Guernica, the Los Angeles Review of Books, and other magazines.