Abstract
Excerpted From: S. Lisa Washington, Fammigration Web, 103 Boston University Law Review 117 (February 2023) (375 Footnotes) (Full Document)
The more you consider all the ways the child welfare system parallels and intersects with the criminal punishment system, the more it looks like one integrated state apparatus ... a giant carceral web. --Dorothy Roberts
Professor Dorothy Roberts's observation brings to bear the expansive nature of the criminal legal system and the extension of its logic to other carceral systems. Roberts argues that for marginalized parents, state intervention presents as “a giant carceral web.” Drawing on this framework, this Article provides the first theoretical account of family regulation system and immigration enforcement system interconnectedness.
Outside of the family regulation system context, there is a robust literature on the overlaps of family law and the immigration system. While there are many family court proceedings that deserve a deeper analysis of immigration system interconnectedness, this Article focuses on one of the most coercive forms of state intervention into families: child neglect and abuse proceedings, which regularly include an investigation, family surveillance, and possibly family separation.
In this Article, I use the term “fammigration” to describe how this interconnectedness produces feedback effects that bolster punitive interventions and outcomes in both the family regulation and immigration systems, ultimately creating what I call a web. The term “fammigration” borrows from the much-discussed intersections of the criminal legal and immigration systems known as “crimmigration.” Some scholars have discussed how criminal convictions exacerbate the risk of negative immigration outcomes. Others have discussed the expansion of migration criminalization and the “hyperpolicing” of immigrant communities. Some scholars discuss the integration of immigration enforcement into state and local policing practices. Many authors have highlighted defense attorneys' responsibility to advise their clients about potential immigration and other consequences of a criminal conviction. In Padilla v. Kentucky, the Supreme Court prominently acknowledged the interconnectedness of the criminal legal system and deportation proceedings. As this Article will show, for noncitizens, the risks extend beyond criminal convictions, the criminal legal system, its tools, and its institutional structures.
Although the exact number of noncitizen families impacted by the family regulation system remains unclear, the existing literature suggests that thousands of families are affected. About 5.5 million children in the United States, 8% of all children in the country, live with at least one undocumented parent. While most children with noncitizen parents live in California, Texas, New York, Florida, Illinois, or New Jersey, the numbers have increased in all states since 1990. A survey conducted by Professor Nina Rabin in the Arizona Pima County Juvenile Court System suggests that many noncitizen and mixed-status families are “caught in the intersecting systems of immigration and child welfare.” Another study concludes that 8.6% of children in families under family regulation investigation had parents who were born outside of the United States.
While practitioners and advocates are increasingly discussing the impacts of fammigration, scholarship has not fully caught up. Too often, siloed thinking prevents the identification of system interconnectedness. To be sure, a microscopic focus on one system can be appropriate. But it is equally important to uncover the ways systems intersect, converge, and create feedback effects. The interplay between the family regulation and immigration systems produces intersystemic harms through the marking and subordination of noncitizen and mixed-status families. Professor Kimberlé Crenshaw has long emphasized the importance of identifying how system overlaps subordinate women of color. For example, Crenshaw observed that “structural intersectionality” leaves immigrant women of color particularly vulnerable to “double subordination.”
As a public defender in New York City, I represented many parents who became ensnared in multiple systems. After 2017, the overlap of the family regulation and immigration systems became central to my practice. U.S. Immigration and Customs Enforcement (“ICE”) arrests in courthouses, including in family court, increased dramatically. Colleagues in our immigration practice made referrals to our family defense practice with questions about family court findings after learning that immigration officials and judges would use them to deny immigration relief. We learned that even temporary orders of protection issued in family court were accessible to federal immigration officers for up to five years. In some instances, ICE targeted individuals who went to family court to obtain a temporary order of protection against an abusive partner. At that time, Child Protective Services (“CPS”) in New York claimed that they would not share case information with immigration officials, but family court records containing deeply private and detailed information remained accessible to the federal government and were used to deny immigration relief and facilitate the deportation of noncitizen parents.
The interconnectedness of the family regulation and immigration systems is best described as a web. An action in one system may trigger movement in the other, creating feedback effects and facilitating deeper connections. These *124 impacts are not always intentional or obvious and may be difficult to foresee. The mere existence of a family regulation case, charging document, or temporary order of protection creates entry points for the immigration system, while the substantive family court record--produced throughout the life of a case--is used to legitimize negative immigration consequences. By obtaining family regulation records, immigration officials make use of the family regulation system's coercive nature and ability to gather detailed information from parents. On the flip side, negative immigration outcomes can later impact a parent's ability to maintain their parental rights in family court. In this way, the fammigration web subordinates and separates noncitizen and mixed-status families.
Immigration and criminal legal scholars have paid close attention to the impact of criminal law on immigration proceedings. But the fammigration web remains undertheorized, in part, because the family regulation system is commonly perceived as substantially less damaging than criminal punishment. Those not directly impacted by the family regulation system commonly understand it as a system geared towards rehabilitation and child safety. State actors reject the notion that the family regulation system is punitive and facilitates the separation of immigrant families. As a growing body of scholarship points out, the family regulation system not only intersects with but also mirrors the criminal legal system. An even closer look reveals the deep connections between family regulation and immigration.
This Article maps the fammigration web by first identifying select nodes in the web. It argues that these nodes produce specific risks for noncitizen and mixed-status families in immigration proceedings and also create feedback effects in the family regulation system. From an immigration perspective, the family regulation system operates as a space of information gathering and distribution. For example, once records are produced and become part of the family court record, federal immigration authorities may request and obtain them--even when the record is sealed--to use against noncitizen families in immigration proceedings. Orders of protection are important examples of family regulation and immigration system convergence. When an order of protection is issued in family court, it is uploaded into a state database. From there, the information is sent to a Federal Bureau of Investigation database which federal immigration officials retain access to for five years--even if the order is ultimately vacated and the allegations underlying the order are never adjudicated. Special Immigrant Juvenile Status (“SIJS”) findings are another central, but undertheorized, point of convergence. While scholarship has rightly focused on the discriminatory nature of, and the difficulty in obtaining, SIJS findings, it has not sufficiently problematized the ways SIJS findings, meant to protect vulnerable children, rely on a system that is coercive and punitive.
Professor Stephen Lee observes that the U.S. immigration system is “pervasively organized around principles of family separation.” This Article argues that the family regulation system facilitates this project, while championing the narrative that it aims to keep immigrant families together. In policy statements, child welfare agencies themselves frequently note the intersections of child welfare and immigration and purport to serve immigrant families. The laws and policies of many states explicitly address the goal of keeping immigrant families together whenever possible.
The interconnectedness of family regulation and immigration bolsters both systems and marks and subordinates immigrant families. This Article argues that the labeling of parents by the family regulation system assists immigration officials with the selection of targets and the justification of such targeting. Indeed, the labeling of parents as “bad” by the family regulation system both provides an organizing tool for immigration enforcement and helps legitimize harsh immigration enforcement against certain parents. In this way, the labeling of parents as neglectful can have long-lasting impacts for noncitizen parents' ability to get relief in immigration proceedings, even when the allegations are never adjudicated and ultimately dismissed in family court. The immigration system's reliance on discretion and subjective “good moral character” makes it particularly susceptible to biased family regulation determinations. On the flip side, deportation and detention expand the family regulation system's opportunities to intervene in and separate families. Some courts compare deportation to incarceration to justify the termination of a noncitizen's parental rights.
Scholarship has addressed aspects of overlap between family regulation and immigration. This Article adds to this conversation by: one, providing the first theoretical account of family regulation and immigration enforcement interconnectedness; two, showing how this convergence produces or exacerbates marginalization; and three, situating fammigration in ongoing discussions about shrinking carceral systems and offering concrete ways to sever threads and shrink the fammigration web. This Article also contributes to the growing body of scholarship criticizing “criminal law exceptionalism” and “immigration exceptionalism.”
This Article proceeds in four parts. Part I introduces the concept of fammigration. It builds on the conceptualization of the relationship between the criminal legal and immigration systems as crimmigration. Part I then discusses how the mainstream narrative of the family regulation system as protector of child safety and family integrity is fundamentally at odds with the system's practice of racialized surveillance of marginalized families, including *128 noncitizens. Part II unearths some of the nodes in the fammigration web. The focus there is on five central ways family regulation proceedings impact current and future immigration proceedings: temporary orders of protection, background checks and fingerprinting, pretrial admissions, neglect and abuse findings, and SIJS findings. Part III identifies how the convergence discussed in Part II bolsters both the criminal legal and immigration systems and furthers marginalization by marking and subordinating parents. Part IV offers ways to expand knowledge of, sever threads of, and shrink the fammigration web. To dismantle carceral logics, we must identify how they are produced across systems. The fammigration web will not be disentangled easily. And yet--building on calls to shrink the criminal legal system--this Article proposes a starting point.
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The relationship between the family regulation and immigration systems is best described as a web. An action in one system may trigger movement in the other, creating feedback effects, and ultimately even deeper connections. The mere existence of a family regulation case, charging document, or temporary order of protection creates entry points for the immigration system, while the substantive family court record--produced throughout the life of a case--is used to legitimize negative immigration consequences. By obtaining family regulation records, immigration officials make use of the family regulation system's coercive nature and ability to gather detailed information from parents. On the flip side, negative immigration outcomes can later impact a parent's ability to maintain their parental rights in family court. Together, both systems engage in family separation and further subordinate already marginalized families. To be clear, this is not an issue of intentional cooperation between systems. While there are documented instances of CPS reports to ICE, this Article examined the structures that create the fammigration web.
Mitigating the effects of the connections between the family regulation and immigration systems will require at least three things. One, establishing an epistemology of system convergence. Two, severing the threads of the web wherever possible. And three, shrinking the family regulation system. The mapping of the fammigration web in this Article does not purport to be a comprehensive or fixed account of the carceral web. Instead, it is meant to be generative for future scholarship. For example, future scholarship should closely track the ways narratives are produced in one part of the web and reproduced or used in other parts to establish a more comprehensive epistemology of knowledge production in and across systems.
Scholars, advocates, and directly impacted people have called for the abolition of the family regulation and the immigration systems. Against this backdrop, fammigration is ripe for a close examination of broader resistance strategies. Roberts puts forth cross-movement strategies to address “multiple forms of systemic injustice.” Cross-movement organizing recognizes the intertwined nature of systems, embraces collective resistance responses, and interrogates solutions outside of carceral punishment. Future scholarship can draw on the relationship between cross-movement organizing and resistance lawyering to understand and dismantle the carceral web.
Assistant Professor of Law, Brooklyn Law School. For helpful comments and feedback,
