Justifying Family Separation: Constructing the Criminal Alien and the Alien Mother

55 Wake Forest Law Review 1037 (2020)

50 Pages Posted: 26 May 2020 Last revised: 7 Sep 2021

Date Written: March 31, 2020


The marriage of discourse and law can reframe whole
areas of law into or out of public view, centering some, like
crimmigration, and rendering others, like asylum, wholly
invisible. This Article analyzes the intercourse between
public discourse and law that undergirded the 2018 family
separation policy. This intercourse enabled the
criminalization of noncitizen parents, paving the way for the
notion that the state could step in to displace the “criminal
alien” as a more competent parent—as parens patriae. These
two developments frame family separation not as an
unavoidable collateral consequence of border enforcement,
but rather as traditional state functions: punishing offenders
and caring for the vulnerable. This dual framework
constructed of discourse and law—crimmigration and parens
patriae—pushed formerly robust legal frameworks—asylum
or discretionary forbearance from exclusion—out of sight and
out of reach. By the same means, this discursive framework
erased family relationships in racialized and gendered ways.
This Article’s analysis holds promise, beyond family
separation, for greater understanding of how targeted
discourse contributes to the impotence of inclusive areas of
humanitarian law like asylum.

Keywords: immigration, family separation, discursive, crimmigration, parens patriae, asylum, racialization, gendered

Suggested Citation

Stumpf, Juliet P., Justifying Family Separation: Constructing the Criminal Alien and the Alien Mother (March 31, 2020). 55 Wake Forest Law Review 1037 (2020), Available at SSRN: https://ssrn.com/abstract=3587315

Juliet P. Stumpf (Contact Author)

Lewis & Clark Law School ( email )

10015 S.W. Terwilliger Blvd.
Portland, OR 97219
United States

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