The Trump Administration Policy of Taking Children From Migrants at the Border is UNCONSTITUTIONAL. Where are Melania and Ivanka?

 

Ivanka Trump Needs to Tell her Father (and Melania Trump needs to tell her husband!) to STOP taking the children of migrants away from their parents at the US border.

The parent-child relationship is a special, protected relationship under both American domestic law (state and federal) and international law such as the Convention on the Rights of the Child which has been signed by just about every country in the world (and ratified by all except for the United States, which, frankly, is inexplicable, inexcusable and bizarre.)

Be that as it may (that America is the only country in the world never to have ratified this convention) under American federal and state law, the courts have been consistent that absent a showing that a parent is unfit, has abandoned the child or has neglected their child, that there is a recognized and protected and fundamental right that parents have to custody of their children.

There have been countless cases on both the state and federal level where this fundamental notion has been upheld in American courts. Under the 5th, and 14th amendments to the Constitution of the United States, this notion is firmly supported. It is also supported under the “life, liberty and pursuit of happiness” clause of the Declaration of Independence.

See cases like Griswold vs Connecticut, Franz v U.S., and Stanley v Illinois which held in part the following:

“the parent-child relationship is an important interest that undeniably warrants deference and, absent a powerful countervailing interest, protection….” A parent’s interest in the companionship, care, custody and management of his or her children rises to a constitutionally secured right, given the centrality of family life as the focus for personal meaning and responsibility. Stanley v. Illinois, 405 US 645, 651; 92 S Ct 1208, (1972).

Refugee migrants, per the Convention Relating to the Status of Refugees, (the United States has only ratified a couple of protocols of this international treaty apparently, and not the treaty itself) are entitled to the same deference as anyone else on American soil and the laws apply equally to them with respect to their parental rights. The Due Process Clause, as well as the Equal Protection Clause of the 14th Amendment apply to these individuals.

The Trump Administration policy of taking children away from parents at the border and incarcerating parents in federal prisons while they await being “processed” seems to violate both domestic and international law. A refugee migrant is not a criminal per se under either domestic or international law yet the Trump Administration is treating these persons as criminals per se.

What is a refugee? According to the Convention relating to the status of refugees, a refugee is:

A person who owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

Are these South American migrants “refugees” or are they trespassers? It is a debate.  These persons would obviously have to be processed in a court of law, or an immigration tribunal and their individual cases should be heard to determine if they are, because of their race, religion, nationality, membership in a particular social group, etc., being “persecuted” in their country of habitual residence.

During this period of time, there ought NOT be a presumption that this person is a “criminal” who should be divested of his or her parental custodial rights! Instead, this person should be given the deference of an asylum seeker and refugee; and even assuming the court ultimately denies asylum for this individual (and thus deems that this person is NOT a refugee), criminalizing the entry into the United States and condoning the extra judicial taking of children from their parents is itself a form of “persecution” that is intolerable to the letter and spirt of both American law and international law – and this needs to stop immediately. The most that should happen is this person is asked to leave with his or her child or children in their custody. This his the right outcome under both American law and international law.

Moreover, as the United States Supreme Court held in Troxel v Granville “the interest of parents in the care, custody and control of their children—is perhaps the oldest of the fundamental liberty interests recognized by this Court.” The parent child relationship is about “liberty” in other words. The notion of “liberty” is the very bedrock of American constitutional jurisprudence – the rock bottom of it. America is nothing and nowhere without this.

Taking children away from their parents when these parents have not yet been adjudicated “criminals” by the courts is to violate this very basic and fundamental liberty right and liberty interest that are clearly recognized under American law, and international law. In short, this Trump Administration policy is UNCONSTITUTIONAL.

Somebody needs to tell Mr Trump to STOP. Immediately.

Ivanka? 

Melania?