Abstract
Historically, state practices of family separation have been used against disempowered, marginalized, and otherwise “undesirable” groups of people to correct, exterminate, punish, reform, and profit. Recent family separation efforts by the Trump administration normalize harmful state practices that, in collaboration with private and nonprofit actors, violate migrants’ human and legal rights. These efforts are criminogenic, producing conditions that facilitate crimes against migrant children and families. Ultimately, framing family separation as a form of state-corporate crime holds important implications for crimmigration studies, immigration reform, and understanding crimes of the powerful.
In the spring of 2018, the Trump administration implemented a “zero tolerance” policy of immigration enforcement (Office of Inspector General, 2018). Under the policy, all migrants apprehended at the border without authorization—including those traveling with children and those seeking asylum—would be criminally prosecuted for illegal entry (Southern Poverty Law Center, 2020). Disregarding the previous administration’s reliance on family detention, release on bond, and community supervision, parents charged with illegal entry were separated from their children. Donning the label of “Unaccompanied Alien Children,” or UACs, children were placed in the custody of the Office of Refugee Resettlement (ORR) and sent to resettlement shelters.
The policy was poorly received by the public, challenged in court, and officially ended just 2 months after it began (Garcia, 2019; S. Lee, 2019). It became clear, however, that the U.S. government began separating families as early as 2017 and continued this practice through 2019. It is estimated that over 5,000 children have been separated from their parents as a result of this policy (Soboroff, 2020).
In public, government representatives highlighted the longstanding practice of placing migrant children in temporary custody when parents cannot provide proper care. Separation was characterized as protective, done with children’s best interests in mind (see also, S. Lee, 2019). On its website, ORR maintains the following: In recent days, there has been a great deal of misinformation about the [unaccompanied children] program. This misinformation and the intentional perpetuation of it is a disservice to the hundreds of caseworkers and care providers who are deeply committed to the quality care and safe and speedy placement of the children with appropriate sponsors.
The scope and scale of Trump’s “zero tolerance” policy is still unknown, and literature on recent family separations is nascent. S. Lee (2019) provides one of the most comprehensive analyses of family separation to date, arguing that the U.S. immigration system is “pervasively organized around principles of family separation” (2019, p. 2322). Such principles typically result in “slow violence” that fails to capture public attention (e.g., lengthy visa waits, limited citizenship pathways, and routine deportation). Family separation under the Trump administration, on the other hand, resulted in “spectacular violence” (2019, p. 2322) and was met with “ethical outrage” from across the political spectrum (S. Lee, 2019, p. 2379). While the episodic, “spectacular” harms of recent family separation merit attention, they must be understood in the context of long-term mental, physical, and social effects, as well as the widespread—albeit often overlooked—suffering produced by the U.S. immigration system.
While this analytical framing is useful in that it contextualizes family separation as injurious, claim-worthy, and indicative of ongoing patterns of systemic harm against immigrants, it does not capture the criminality inherent in separations carried out by the Trump administration. Nor does it reflect the ongoing relationships between the state, private corporations, and nonprofits that, in the context of neoliberal migration controls, made family separation possible.
I argue that family separation constitutes state-corporate crime, or harm at the intersection of government and business. In State-Corporate Crime: Wrongdoing at the Intersection of Business and Government, Michalowski and Kramer (2006) warn that: …it is only those with great political or economic power who can, with the stroke of a pen, the utterance of an order, or even a knowing nod of the head send thousands to their deaths or consign millions to lives of unrelenting want and misery. When economic and political powers pursue common interests, the potential for harm is magnified. (p. 1)
Family separation under the Trump administration presents an interesting case of state-corporate crime given the prominent role of nonprofit organizations as perpetrators of harm. This recent family separation involves the collaborative efforts of the Executive Branch, Customs and Border Protection (CBP), Immigration and Customs Enforcement (ICE), private corrections companies, and dozens of non-profit organizations that contract with ORR to care for unaccompanied children. This collection of government, private, and non-profit actors has worked together to benefit—politically and financially—from the abuse, mistreatment, and violation of migrant families. Ultimately, framing family separation as a form of state-corporate crime holds important implications for crimmigration studies, immigration reform, and conceptualizations of crimes of the powerful.
Rules of Family Separation
Family separation, although historically rare, is a routine aspect of immigration enforcement (S. Lee, 2019). Rules governing the custody, care, and treatment of migrant youth predate current family separation practices. These include federal laws (e.g., Immigration and Nationality Act), internal regulations (e.g., ORR Guide: Children Entering the United States Unaccompanied), and legal decisions and settlements (e.g., the Flores Settlement agreement) (Izquierdo, 2020). Migrant youth are deemed UACs (unaccompanied) if they lack legal status, are under the age of 18, and do not have a parent or legal guardian in the U.S. able to provide care and physical custody at the time of apprehension (Stinchcomb & Hershberg, 2014).
Under the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, unaccompanied children from non-contiguous countries are transferred from the Department of Homeland Security (DHS) to the Office of Refugee Resettlement (ORR, 2015b), housed within the Department of Health and Human Services (HHS). The Flores Settlement, established to ensure that minors in immigration custody are treated in a manner appropriate for their age and special needs, requires that minors be transferred to ORR or a family member within 72 hr—with few exceptions—and limits detention of children to 20 days (Stinchcomb, 2020).
In ORR custody, children are placed in one of several detention settings: shelter care, staff-secure care, secure care, short- and long-term foster care or group home, or special needs care facilities (ORR, 2019a). Children are placed “in the least restrictive setting that is in the best interests of the child, taking into consideration danger to self, danger to the community, and risk of flight…and incorporat[ing] child welfare principles” (ORR, 2019b).
Generally, care providers must be state-licensed and comply with Federal Bureau of Investigation (FBI) and Child Protective Services (CPS) background checks (Office of Inspector General, 2019b). During periods of influx, ORR may place unaccompanied children in temporary care facilities outside the normal network of licensed care providers, including in facilities employing individuals who have not undergone background checks (ORR, 2019b). The ORR Director is also permitted to “waive or modify” sections of the background investigation regulation for influx facilities for “good cause” (Office of Inspector General, 2019).
Unaccompanied children are guaranteed access to a host of services while in ORR custody, including: classroom education, health care, mental health services, legal services, recreation, and vocational training (ORR, 2015a). Placement is not considered punishment, and children’s wellbeing is, officially, prioritized. Upon being placed with a care provider, the care provider must “immediately ensure the physical and mental well-being of the child” (ORR, 2015b). This includes ensuring that children: 1) receive food and beverages, as well as bathe or shower within 2 hr of entering the care facility and before interacting with other children; 2) are provided clean clothing and bedding, and personal hygiene items; 3) receive assistance contacting family members if safe; and, 4) receive a complete medical exam within 48 hr (excluding weekends and holidays). Children should also promptly undergo an Initial Intakes Assessment to “obtain information about family members, any immediate medical or mental health concerns, current medications, and any concerns about personal safety that the child may have” (ORR, 2015b). Unaccompanied children should also receive case management services, including free weekly telephone or video contact with a verified family member (Department of Health and Human Services, 2018). ORR is responsible for determining, on a continuous basis, whether or not a child can be reunited with a parent, adult sibling, or other adult family member in the U.S. who is “capable of providing for the child’s physical and mental well-being” (ORR, 2018).
DHS maintains some jurisdiction over unaccompanied children, initiating removal (deportation) proceedings in immigration court. Unaccompanied children have a right to effective assistance of counsel under the Fifth Amendment, but not to indigent defense ( Aguilera-Enriquez v. INS, 1975). The Homeland Security Act of 2002 requires ORR to ensure that unaccompanied children are able to access rights presentations, individual legal screenings, and pro bono providers (ORR, 2015a), but not necessarily receive them. Ultimately, children—and infants—are expected to secure their own attorneys or represent themselves in court (Jewett & Luthra, 2018a).
ORR maintains responsibility for the care of unaccompanied children until they: 1) are reunified with a family member; 2) are ordered deported or permitted to stay by an immigration judge; 3) age out of care at 18 years old and are transferred to Immigration and Customs Enforcement (ICE) custody; 4) or return to their countries of origin. The comprehensive regulations detailed above, which should govern recent family separation efforts, have been routinely broken, challenged, and ignored by the government, corporations, and nonprofits alike, resulting in a combination of legal and illegal harms.
The Realities of Family Separation
Family separation in the name of immigration enforcement is not necessarily criminal. It is possible to imagine limited instances in which periods of separation may, indeed, be in the best interests of children. Family separation as executed by the Trump administration, however, cannot be characterized as such. Instead, it involves the systematic harm of thousands of migrant children and families predicated upon illegal and socially injurious actions at the intersection of the state and nonprofits.
The Trump administration’s family separation policy was officially in place from May to June of 2018. During this time, 2,654 children, some as young as 4 months old, were separated from their parents (American Civil Liberties Union, n.d.). Documented cases reveal the ways that “immigration authorities forcibly removed children from their parents’ arms, removed parents while their children slept, or simply ‘disappeared’ the children while their parents were in court rooms or receiving medical care” (Physicians for Human Rights, 2020, p. 3).
Many separations lasted months (Critchfield, 2019). Family and other potential sponsors—who could be located and whom had not already been deported—were required to undergo immigration background checks. Those lacking legal authorization in the U.S. were denied sponsorship and subject to deportation. Within 6 months, the average length of stay for children in ORR custody tripled from just over 1 month to 3 months (Stinchcomb, 2020). While this practice was restricted by Congress in early 2019, the administration continued arresting potential sponsors through April 2019 (Stinchcomb, 2020).
Separated children were placed in short-term holding facilities overseen by CBP and ICE—including two “temporary emergency influx shelters” and a handful of criminal justice detention facilities with ICE contracts (Bogado et al., 2018)—and over 100 state-certified “shelters” run by nonprofit and private ORR contractors (HHS, 2018). Parents received little, if any, information about their children’s location or wellbeing, a social injury in its own right.
Facilities were quickly overwhelmed and overcrowded, ill-prepared to properly care for the growing number of separated children. ORR faced delays transferring unaccompanied children from short-term CBP and ICE facilities to licensed care providers, with hundreds of children being held in Border Patrol stations beyond the legal 72-hr limit (Ainlsey & Soboroff, 2019). In July 2018, the government’s request for extended detention of children was denied as it was deemed to violate the Flores Settlement (Flynn, 2018). By the summer of 2019, HHS operated at 97% capacity; its designated “red zone” is 90% (Ainsley & Soboroff, 2019). Shortly thereafter, the Trump administration released new regulations allowing for the indefinite detention of children and removal of the requirement that facilities holding migrant children must be state-licensed; the regulations, however, were blocked from taking effect (Kelley-Widmer, 2019).
Despite HHS claims to the contrary, independent reviews by journalists, lawyers, and politicians have found that many children’s facilities failed to meet basic health, hygiene, and safety requirements (Stieb, 2019). Reports—and lawsuits—have exposed children being held in cells with standing room only, sleeping on concrete or outside with nothing but mylar blankets, being given inadequate meals and subjected to enforced dehydration, and being denied soap, toothpaste, and showers—sometimes for weeks (Soboroff & Ainsley, 2019b; Van Schaack, 2018). Some facilities faced flu outbreaks (Silva, 2019). Lawyers who visited one Texas facility described children “wearing dirty clothes covered in mucus or even urine” and teenage mothers in “clothing stained with breast milk” (Silva, 2019). In a Ninth Circuit Court of Appeals hearing challenging such conditions, Sarah Fabian, Department of Justice lawyer, argued that the government was not required to provide children with toothbrushes, soap, or blankets while in detention (Fernandez, 2019).
Proper adult care and supervision was also absent in many facilities (Schultz & Schwab, 2019). Children were frequently left to care for other children, including feeding and changing infants and toddlers (Fetters, 2019; Goodkind, 2019; Soboroff & Ainsley, 2018). Touching between staff and residents is strictly prohibited in most cases, preventing consolatory care, such as hugging emotionally distraught children (Bogado, 2020). Reports of children not being permitted to console one another, including siblings, also surfaced (Phillips, 2018). In some cases, children who disclosed migration-related trauma or displayed feelings of depression to social workers and psychologists were “stepped up” to high security “jail-like” facilities (Kates, 2019; Nilsen, 2018; Stuart, 2018). Children in these facilities were kept in locked jail cells and reported being pepper sprayed and physically assaulted by guards (Desai, Adamson, & Cohen, 2019).
There have been numerous other reports of physical, psychological, and sexual abuse in ORR-contracted children’s shelters and short-term facilities (Gonzales, 2019; Haag, 2019). For example, when teenagers held in a Yuma Border Patrol station complained about the taste of food and water they were given, CBP officers took the mats from their cell and forced them to sleep on the concrete floor (Soboroff & Ainsley, 2019b). In other cases, children were forced to take antidepressants, anti-anxiety, and antipsychotic medications—which are not FDA-approved for children and that have long-term side effects including hallucinations, self-harm, and suicidal ideation—against their will and without their parents’ knowledge or consent (Van Schaack, 2018). Some children were injected with drugs and “tied up in restraint chairs for hours with cowls over their heads,” (Izquierdo, 2020, p. 122). Others were given medication so strong it left them unable to walk (Bogado, 2020).
In July 2018, a federal judge ordered that all children at the Shiloh Treatment Center—a “mobile home complex-turned-child care center” with a government contract to house unaccompanied minors—be relocated after finding that staff illegally signed consent forms authorizing children to be medicated without parents’ knowledge (Bogado et al., 2018). The investigation revealed that Dr. Javier Ruíz-Nazario, acting Shiloh psychiatrist, lost his board certification to treat minors and was named in multiple class-action settlements where children claimed “they were tackled and injected and forced to take pills identified as vitamins that made them dizzy and drowsy” (Bogado, 2018).
Shiloh has a history of harming children. Since 2015, the Texas Department of Health and Human Services has cited Shiloh for 20 separate deficiencies, of which 12 were deemed “high risk” ( Shiloh Treatment Center, Inc. Overview, 2020). Such deficiencies include using a restraint that “obstructs child’s airways or impairs child’s breathing,” “obstructs the caregiver’s view of the child’s face,” or “interferes with the child’s ability to communicate or vocalize distress,” as well as failing to “adhere to the child’s rights to be free of abuse, neglect, and exploitation as defined in Texas Family Code 261.401” (Texas Department of Health and Human Services, 2020). Notably, ORR awarded Shiloh a contract to care for unaccompanied children despite reports that the facility, along with two other residential youth programs created by Shiloh’s founder, Clay Dean Hill, were implicated in multiple instances of abuse dating back to the 1990s, including the asphyxiation deaths of four “hogtied” children, one which was ruled a homicide (Stuart, 2018).
ORR continues to contract care providers with documented histories of abuse, such as Southwest Key Programs, a nonprofit and the largest operator of immigrant shelters in the country (L. Gómez, 2019b; Grabell & Sanders, 2018). For example, in 2018 one Southwest Key employee was charged with molestation of a child, sexual abuse, and aggravated assault (Flynn, 2018). Shortly thereafter, a youth care worker was sentenced to 19 years in prison for sexually abusing seven teenage boys in another Southwest Key shelter (L. Gómez, 2019a).
While there have been relatively few criminal charges against employees at facilities that contract with ORR, the federal government received over 4,500 sexual abuse complaints between 2014 and 2018, with 859 complaints occurring from March through July of 2018 (Haag, 2019). Experts believe that actual abuse outnumbers reports, stressing that migrant children are exceptionally vulnerable to victimization due to their immigration status, English abilities, and lack of access to attorneys (Grabell & Sanders, 2018).
The deaths of children in state custody or shortly upon release indicate further patterns of neglect and inadequate medical treatment. For example, Border Patrol officials admitted that the 2019 death of 16-year-old Carlos Hernandez Vasquez from the H1N1 flu was likely preventable (Moore et al., 2019). Although given Tamiflu by a nurse practitioner on the night of his death, video footage revealed that Hernandez Vasquez was “writhing for at least 25 minutes on the floor and a concrete bench,” eventually dying in a pool of his own blood (Moore et al., 2019). He lay on there for over 4 hr before being discovered by his roommate the next morning; according to the facility’s “subject activity log,” an agent completed three wellness checks during this time (Moore et. al, 2019).
At least four migrant children have died from curable illnesses in custody since 2018—two of these children were separated from their parents at the border (Acevedo, 2019a). In the decade prior to the Trump administration’s “zero tolerance” policy there was not a single child death in federal immigration custody (O’Leary, 2019). At least two children have died from health complications after being released from immigration custody, however, it is unclear how many such deaths have occurred because there is no requirement to track or report them (Flores, 2019; Sacchetti, 2018).
Reuniting Families?
In June 2018, amid public outcry over reports of the abhorrent conditions of family separation, President Trump signed an executive order ending separations except when parents had criminal histories or were being prosecuted for criminal offenses. Despite this, the government used minor offenses—such as parking violations or driving with an expired license—to separate additional migrant families (Aguilera, 2019). In violation of official policy, some families legally seeking asylum at ports of entry were also separated (Office of Inspector General, 2020).
In light of continued separations, Judge Sabraw of the Southern District of California issued a preliminary injunction requiring the government stop separating families and reunite all previously separated children within 1 month (Southern Poverty Law Center, 2020). The government was unable to comply with the injunction, citing inadequate record-keeping that left them unable to locate children and identify their parents (Office of Inspector General, 2019c). As it turned out, CBP software did not link the records of separated children and parents. Instead, the government used Excel spreadsheets and whiteboards to track separated families (Blitzer, 2019).
Over the next year, the government struggled to identify, locate, and reunite as many children and parents as possible. In April 2019, Judge Sabraw granted the government an additional 6 months to identify and reunite the remaining separated children. This task grew larger, however, as reports emerged revealing that family separation was implemented as early as 2017 (Seville & Rappleye, 2018) and that “thousands [more] children may have been separated [from their parents]” (Office of Inspector General, 2019b).
Without a clearly defined period of time during which family separations were carried out or adequate records to track children in its custody, the government admitted to “fac[ing] challenges in identifying separated children” (Office of Inspector General, 2019b). MyHeritage and 23andme, private companies specializing in genetic genealogy, offered to assist with family reunification efforts (Suppe, 2018). Eventually, DNA services from a private contractor were used to identify children and parents (Gomez, 2018, July 5).
The government also faced difficulties returning children to family once identified. When parents or other adult sponsors were approved, children were often transferred through the custody of multiple agencies and various modes of transport before being reunited. In one notable case, children as young as five spent over 24 hr in a parking lot in transport vans operated by BCFS Health and Human Services, a nonprofit government contractor, waiting for ICE processing before they could be reunited with their parents (Soboroff & Ainsley, 2019a). Long waits such as this were not uncommon, and BCFS began using busses with bathrooms, televisions, and air conditioning to transport children for reunification in expectation of delays (Soboroff & Ainsley, 2019a).
Neither President Trump’s executive order nor federal court rulings ended family separations. In July 2019, the ACLU filed a motion claiming that the Trump Administration was still separating children from their parents ( Ms. L. v. ICE, 2019). It is estimated that the total number of children separated from parents since 2017 exceeds 5,000 (Soboroff, 2020). Of these, at least 1,033 children were under 10 and at least 103 children were younger than five (Sosa, 2020). At the time of this writing, all but 27 of the children known to have been separated from their parents have been reunited with their families—in many cases, having been separated for over a year (Aguilera, 2019). It remains unclear how many separated children may have “slipped through the cracks,” excluded from official counts.
Reframing Family Separation and State-Corporate Crime
Framing family separation as state-corporate crime requires a reorientation toward state-corporate crime that accounts for blurred boundaries between states, corporations, and nonprofits. State-corporate crime is typically understood as wrongdoing at the intersection of government and business, including any: illegal or socially injurious actions that result from a mutually reinforcing interaction between (1) policies and/or practices in pursuit of the goals of one or more institutions of political governance and (2) policies and/or practices in pursuit of the goals of one or more institutions of economic production and distribution. (Michalowski & Kramer, 2006, p. 20)
State-initiated crimes occur when private companies employed by government engage in organizational deviance as instructed by, or with tacit approval from, government actors, as with the Space Shuttle Challenger disaster (Michalowski & Kramer, 2006). State-facilitated crimes occur when governments fail to restrain deviant business activities through lack of regulations or enforcement, as with the Exxon Valdez oil spill (Michalowski & Kramer, 2006).
Corporations can also facilitate and initiate crime. For example, illegal or socially injurious actions of the state may be prompted by the voluntary actions of a corporation in the pursuit of shared goals, including economic and political interests (Matthews, 2006). In other instances, governments and corporations may influence one another to engage in deviance based upon assumptions regarding shared ideology or common goals (Barak, 2015; Kauzlarich et al., 2010). Back-and-forth shuffling of elites between positions in business and government promote such ideological exchanges (Barak, 2015), such as when high-ranking government officials retire only to join the boards of Fortune 500 companies or become lobbyists.
Still, many state-corporate crimes escape categorization by criminologists and the public alike given the complex networks uniting parties and enabling deviance in the pursuit of shared interests (Barak, 2015). Tombs (2012) argues that although states and corporations are typically framed as antagonistic, “one facing the other in a battle of opposing wills, one seeking to secure compliance with the law, the other seeking to avoid this” (Tombs, 2012, p. 172), the relationship between states and corporations is one of symbiosis: We should bear in mind a rather important obviousness—namely that the corporation is a creation of the nation-state, and is maintained through an awful lot of state activity. Corporations are…wholly artificial entities whose very existence is provided for, and maintained, through the state via legal institutions and instruments, which in turn are based upon material and ideological supports. (Tombs, 2012, p. 176)
Tombs (2012) argues that symbiosis is particularly criminogenic in the neoliberal context, wherein state goods and services are privatized and deregulation—or regulation favoring capital—expands (see also, Michalowski, 2009). Crime resulting from the symbiotic relationship between states and corporations may also be understood as collaborative, resulting from “mutually reinforcing policies, practices and/or interactions between one or more institutions of political governance and one or more institutions of economic production and distribution in pursuit of shared ideology, interests, or goals” (Barak, 2015, p. 381).
Recent family separation is best described as collaborative state-corporate crime. In this case, government, corporate, and non-profit actors engaged in illegal and socially injurious actions against migrant families in the pursuit of shared ideology and goals—namely, getting “tough on,” and profiting from, immigration.
Literature on nonprofit crime is limited (Archambeault et al., 2015; Eng et al., 2016; Gerard & Weber, 2019), and nonprofits are conspicuously absent from state-corporate crime scholarship. However, some have proposed that NGOs are in a position to combat state-corporate crime (Wonders & Danner, 2006). Perhaps this is because nonprofits are often thought to advocate for the powerless (e.g., convicted criminals, endangered animals, the homeless, the working class, youth, and other traditionally marginalized communities) and wield little power as compared with governments and private corporations.
A body of interdisciplinary scholarship has emerged critiquing the “nonprofit industrial complex,” defined as a “set of symbiotic relationships that link together political and financial technologies of state and owning class proctorship and surveillance over public political intercourse, including…emergent progressive and leftist social movements” (Rodriguez, 2004). The nonprofit industrial complex prevents radical activism, collapsing progressive efforts into “nonantagonistic social service and pro-state reformist initiatives, thereby facilitating functioning of the state and helping to reproduce it” (Mananzala & Spade, 2008, 56). This is evidenced by the adoption of private sector institutional models within nonprofits, such as using job titles like “CEO” and “CFO,” as well as labor practices (Mananzala & Spade, 2008). Related critiques of the nonprofit sector highlight the use of nonprofits to divert large sums of money away from the government and provide tax breaks to wealthy elites, large sums of which are eventually paid out to board members (Ahn, 2007; Kivel, 2007). The existence of many high profile nonprofit scandals and accountability problems (Ebrahim, 2003; Gilkeson, 2007; Greenlee et al., 2007) further suggest the need for additional criminological inquiry into nonprofit harms.
Building upon the work of border criminologists (e.g., M. Lee, 2013; Pallister-Wilkins, 2018; Walters, 2011) and scholars exploring the delivery of social services by NGOs within the criminal justice system (e.g., Garland, 1997; Kaufman, 2015; Maguire, 2012; Tomczak, 2017), Gerard and Weber (2019) highlight the ways that NGOs are coopted in the service of state migration policing and securitization efforts despite humanitarian aims. By the end of the twentieth century, a range of actors and institutions—from landlords and medical professionals to employers and schools—have become extensions of the state security apparatus, subjecting migrants to “simultaneous processes of care and control” (Gerard & Weber, 2019, 269; see also, Walters, 2011). NGOs, in particular, “are now entangled in the production and enforcement of legal and ‘symbolic’ borders” (Gerard & Weber, 2019, 267). The pair conclude that “the prevailing assumption that the non-state actor is a positive transformative force” merits serious interrogation and “raises new challenges for NGOs in their delivery of services to asylum seekers” (Gerard & Weber, 2019, 268).
There is much to be gained by exploring criminal relationships between the state and nonprofits. After all, nonprofits are simply tax-exempt corporations. Some nonprofits have economic, political, and social capital rivaling private companies in size and scope. Even small nonprofits may find themselves in relative positions of power or in the position to facilitate—or mask—the harms of more powerful private or government actors, as the case of family separation under the Trump administration demonstrates.
Profiting From Family Separation
The collaborative harms of family separation result from mutually reinforcing policies, practices, and interactions between the U.S. government and private and non-profit contractors in the pursuit of shared ideology, interests, and goals. Family separation under the “zero tolerance” policy is just one in a series of Trump administration attempts to “get tough on immigration.” Separating families at the border sends a clear message to potential migrants and the public. As Jeff Sessions said in June 2018, “If people don’t want to be separated from their children, they should not bring them [to the border]…we’ve got to get this message out. You’re not given immunity” (Critchfield, 2019). Certainly, the use of restrictive immigration practices and rhetoric in the service of personal or political gain is neither unique to the Trump administration nor the United States, but is deeply embedded in the construction of borders and sovereignty in the context of globalization (Bosworth, 2008; Michalowski, 2007; Wonders, 2008). Yet, immigration efforts and discourse of the Trump administration—from labeling MS-13 as “animals” to the “Muslim Ban” to remarks about “shithole countries”—has been particularly egregious (Chang, 2018; Gomez, 2018; Léon & Barak, 2019; Woodhouse, 2018).
Deterrence and politics aside, family separation had the potential to be quite lucrative. “Zero tolerance” meant an increase in the number of adults and children in immigration custody and a corresponding increase in demand for beds, food, healthcare, security, transportation, and other services. Put simply: CBP, ICE, and ORR contractors stood to profit financially.
The privatization—and profitability—of immigration enforcement and related services has garnered significant scholarly attention of late (e.g., Ackerman et al., 2014; Chacón, 2017; Gilman & Romero, 2018), however, the role non-profits play in immigration enforcement has been largely ignored. While private contractors participated in family separation, nonprofits that contract with ORR to care for unaccompanied children played a crucial role without which family separation might not have been possible.
ORR took over care responsibilities for unaccompanied migrant children in 2003 after the dismantling of the Immigration and Naturalization Service (INS). The initial UAC program budget was $34 million (Department of Health and Human Services, 2004). A decade later, its budget was $868 million (Department of Health and Human Services, 2015). By 2018, the budget reached $1.3 billion (Office of Legislative Affairs and Budget, 2020). As of 2018, the government has paid over $9 billion to ORR contractors for the care of migrant children (Stewart, 2018). In 2020, the White House requested—and received—an additional $2 billion in contingency funds to be used over a 3-year period “to ensure HHS is able to meet the legal and programmatic requirements involved in the UAC Program during periods of high referrals” (Office of Legislative Affairs and Budget, 2020).
Over the years, ORR has granted multimillion and even billion dollar UAC contracts to non-profits with known histories of abuse and negligence, as well as failure to comply with police investigations, ORR regulations, and stipulations of the Flores Settlement. With the exception of a handful of temporary emergency shelters and juvenile detention centers, nearly all of the 102 child care facilities and foster programs that contract with ORR as part of its unaccompanied alien children (UAC) program are nonprofits (for complete spreadsheet see Barak, 2020; see also, Bogado, 2018). Contractors vary in capacity and services, with some caring for as few as 15 migrant children at a time while others—like the infamous Casa Padre, a former Walmart-turned-shelter—house hundreds at once.
Many ORR contractors are multimillion dollar enterprises. For example, Southwest Key Programs, a 501c3 nonprofit and one of the largest of the ORR contractors, has been paid more than $1.3 billion for shelters and other services since it began participating in the UAC program (Grabell & Sanders, 2018). In FY 2017, it reported total revenue exceeding $400 million dollars. Its reported expenses included the multimillion dollar salaries of several company VPs, COO, and CFO, as well as $3,562,172 paid to CEO and President, Juan Sánchez (Southwest Keys Program Inc, Form 990, 2017–2018). Notably, Sánchez’s salary more than doubled from 2016 to 2018, the period during which the Trump administration began separating families.
Children’s Village, another UAC nonprofit contractor and one of the oldest nonprofit child welfare organizations in the U.S., reported revenues of $86 million in FY 2017–2018 (Children’s Village, Form 990, 2017–2018). The same year, Children’s Village CEO and President, Jeremy C. Kohomban, was paid $464,896 (Children’s Village, Form 990, 2017–2018). Children’s Village also has a problematic past, including sexual abuse lawsuits dating back to the 1970s and a 2013 incident in which a therapist was accused of stomping on a child’s face (Bogado, 2020). It has been cited by the government for numerous violations, including being unsanitary, failing to meet requirements for the care and release of children, and misusing $3 million in government funds (Bogado, 2020).
Some ORR contractors operate through a series of related private and nonprofit companies, making it difficult to disentangle the scale of their operations and scope of their finances. For example, KidsPeace Corporation, a 501c3 that contracts with ORR to care for migrant children, lists a web of eight related nonprofit businesses on its Form 990 filing (KidsPeace Corporation, Form 990, 2014). Other ORR facilities close and reemerge with new names, as was the case with the Shiloh Treatment Center, which has been awarded over $25 million in ORR contracts since 2013 (Bogado et al., 2018) and is associated with a web of more than a dozen active and inactive private and nonprofit companies ( Shiloh Treatment Center, Inc. Overview, 2020). Among these are: Daystar Residential Inc, where 15-year-old Latasha Bush died of complications from asphyxia and was ruled a homicide; Shiloh Treatment Center California, Inc., which lost its 501c3 status in 2003; and, Behavioral Training Research, Inc., the site of another child death ruled an accident.
In the midst of family separation, as traditional ORR migrant care providers reached and exceeded capacity, a number of Border Patrol stations with short-term detention facilities were used to house migrant children for longer periods than is typical. In some cases, additional services were provided at these sites by private contractors. For example, the Weslaco Border Patrol station where Hernandez Vazquez died in his cell was staffed with contract EMT medics provided by Loyal Source Government Services, which, at the time, was in the midst of a hiring rush to fulfill its $47 million DHS contract (Moore et al., 2019).
Temporary influx shelters also emerged. Temporary shelters are exempt from some ORR requirements and are run by a combination of government agencies and private contractors. Temporary influx shelters can be just as lucrative as traditional childcare facilities. While the average costs of housing a migrant child in a permanent ORR facility or a privately contracted ICE detention center runs $256 and $298 per night, respectively, the cost to house a child in a temporary shelter is more than twice as much, averaging $775 a night (Ainsely, 2018).
Temporary shelters rely heavily upon contractors to supply security, air conditioning, medical workers and other needs (Ainsley, 2018). In the rush to construct shelters, standard protocols may be overlooked and laws may be violated. In one notable case, a temporary shelter hired over 1,000 employees without conducting required criminal background checks (Ainsley, 2018). In other cases, shelter staff have been found drunk on the job or have reportedly engaged in sexual abuse, assault, and harassment of child detainees (Ainsley, 2018).
Certainly, not all ORR contractors engage in explicit or intentional harm of children. Still, the harms of family separation are not merely the result of a few “bad” actors—they are systemic. While such harms predate recent family separation efforts (Elliott, 2016; S. Lee, 2019), these efforts have exacerbated them (Ramkhelawan, 2019). Family separation as carried out by the Trump administration is criminal and criminogenic. It directly harms, and facilitates crimes against, migrant children and families. By contracting with ORR, private and nonprofit foster programs, residential treatment facilities, and shelters are inherently complicit in what the American Pediatrics Association, Physicians for Human Rights, and legal scholars have deemed child torture.
Conclusion
The lasting effects of trauma experienced by separated migrant children and parents are still unknown. Research on family separation in other contexts indicates that damages caused by periods of separation may be irreparable (Lewis, 2019). Forced separation severely harms children’s emotional growth and cognitive development and is associated with an increased risk of developing anxiety, depression, and suicidal thoughts among parents (ACLU, 2019). Izquierdo (2020) has argued that unaccompanied children are at risk of dual traumatization as both immigrant children and children in foster care, including anxiety, depression, PTSD, and other mental health disorders.
In a 2019 report by the HHS Office of Inspector General, it was noted that ORR facilities have “struggled to address the mental health needs of children who had experienced intense trauma” including “being unexpectedly separated from their parents as a result of U.S. immigration policies” (2019b). Moreover, the report found that: …separated children exhibited more fear, feelings of abandonment, and post-traumatic stress than did children who were not separated [from parents, but still in ORR care]. Separated children experienced heightened feelings of anxiety and loss as a result of their unexpected separation from their parents after their arrival in the United States. For example, some separated children expressed acute grief that caused them to cry inconsolably. (Office of Inspector General, 2019a) …nearly everyone interviewed exhibited symptoms and behaviors consistent with trauma and its effects: being confused and upset, constantly worried, crying a lot, having sleeping difficulties, not eating well, having nightmares, being preoccupied, having severely depressed moods, overwhelming symptoms of anxiety, and physiological manifestations of panic and despair (racing heart, shortness of breath, and headings), feeling “pure agony” and hopelessness, feeling emotional and mental anguish, and being “incredibly despondent”…children exhibited reactions that included regression in age-appropriate behaviors, crying, not eating, having nightmares and other sleeping difficulties, loss of developmental milestones, as well as clinging to parents and feeling scared following reunification with their parents. (2020, p. 4)
Family separation as practiced by the Trump administration “rises to the level of torture” as defined by the United Nations Convention Against Torture, consisting of an act that causes severe physical or mental suffering that is carried out by a state official or with state consent or acquiescence to intentionally in order to coerce, punish, intimidate, or discriminate (Physicians for Human Rights, 2020, p. 5). Physicians for Human Rights contends that the government engaged in temporary enforced disappearances to intentionally “[cause] severe pain and suffering, in order to punish, coerce, and intimidate Central American asylum seekers to give up their asylum claims, in a discriminatory manner” (2020, p. 5).
Yet, in 2020, the government is still separating families, offering those apprehended at the border the “choice” to remain in family detention or give their children over to ORR custody (Aguilera, 2020). This is in spite of a global pandemic and a federal judge having ordered the release of all migrant children from detention on three separate times since March 2020 (Beggin, 2020). The ACLU has also filed suit for the release of both detained children and adults, noting the unprecedented risks that COVID-19 poses to those held in detention; the lawsuit is pending.
Other lawsuits seek to hold the government responsible for the myriad harms of family separation. For example, in August 2019, two asylum-seeking fathers who were separated from their children filed a suit claiming that government intentionally inflicted long-term physical and psychological damage upon thousands of families (Critchfield, 2019). A month later, a group of asylum-seeking mothers separated from their children filed suit for compensatory damages from the U.S. government for the intentional infliction of emotional distress and negligence (Acevedo, 2019b). In October 2019, the ACLU filed a federal lawsuit seeking damages for families that experienced separation at the border, citing violations of the Fourth Amendment (unreasonable seizure of children), the Fifth Amendment (fundamental right to family integrity, right to a hearing, and right to adequate health care), and equal protection prohibiting discrimination on the basis of race, ethnicity, or national origin (A.I.I.L. v. Sessions).
Pending lawsuits aside, there has been widespread immunity for those involved. This is despite the fact that officials were repeatedly warned that family separation would be deeply problematic prior to its implementation (Blitzer, 2019; Soboroff, 2020). In some cases, officials who oversaw family separation have joined the private sector or were given other high-ranking government positions and responsibilities. For example, former DHS Secretary General, John Kelly, joined the board of Caliburn International, a company that operates migrant shelters (Soboroff, 2020). Others, like Chad Wolf, acting U.S. Secretary of Homeland Security, have since been tasked with overseeing the government’s response to the COVID-19 pandemic (Soboroff, 2020). It is unclear when, if at all, those responsible for the lasting harms of family separation will be held accountable.
Ultimately, understanding family separation—and other immigration controls—not only as forms of state crime (Léon & Barak, 2019), but as forms of state-corporate crime, is central to the pursuit of just immigration policy. So, too, is recognizing the symbiotic relationships between states and corporations—be they for-profits or nonprofits—that facilitate “systematic, routine production of crimes and harm” (Tombs, 2012, p. 170). Partnerships between governments and nonprofits are just as likely to expand the state security apparatus as they are to promote humanitarian borders or facilitate fair and equitable treatment of immigrants (Gerard & Weber, 2019).
The realities of family separation as implemented by the Trump Administration cannot be justified as necessary for the protection of children or enhancement of national security. Instead, family separation highlights the lengths to which government, corporations, and nonprofits will go in the name of mutually reinforcing self-interests. The participation of nonprofit and social welfare agencies in state-corporate crime, as in the case of family separation explored here, masks and normalizes harm. Removing the false sense of security afforded by the term “nonprofit” reveals a new layer of state-corporate crime and expands our knowledge of crimes of the powerful.
Footnotes
Acknowledgment
I would like to thank Dr. Belen Lowrey-Kinberg for her thoughtful feedback on this paper and my research assistant, Terrence Gourlay, for helping me compile nonprofit tax records for over 100 government contractors.
Declaration of Conflicting Interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.