My car broke down. I couldn’t get childcare. I forgot it was today.
As a domestic relations mediator, I’m used to excuses. The reasons why people don’t show up for their court-ordered sessions. My assistant and I confirm with folks via email and phone in the weeks and days before appointments, making sure they know where they are going, how much it costs, and when the appointment is scheduled. And still the appointed hour can come and go. I wait ten minutes with the other person, typically an exasperated co-parent whose body language telegraphs this is just what I expected. Then I call the no-show’s cellphone, listen to the excuse, explain that I’ll have to issue a report for the judge, and listen to more excuses. Or leave a voicemail that is never returned.
But lately, among a certain population, a new pattern is emerging. When I call, they answer right away. After the dog-ate-my-homework excuses, a question comes up. “Can we just do it over the phone?”
That population is immigrants. And although I do not ask, it often turns out they’re undocumented. And the reason their “car broke down” is that they were afraid to come to the courthouse. There’s good reason for this fear. ICE explicitly targets courthouses as locations to arrest undocumented folks. Public records enable ICE to know exactly who will be showing up, where, and when. It’s a highly accurate strategy.
Why do undocumented immigrants show up to court? To get restraining orders. Negotiate parenting plans. Modify child support. Fight evictions. Register vehicles. Defend against criminal charges. The 14th Amendment gives all persons present on US soil equal protection under law, and in 1982 the Supreme Court held that this rule applies to undocumented immigrants too. Every person physically present in this country has an equal constitutional right to walk through the courthouse door and ask a judge to protect their kids from abuse, or to seek child support for kids who are often American citizens. To allow ICE to target courthouses literally bars the doors of justice to entire families. This is why several state court judges have objected to these ICE tactics, and lawsuits have been filed. But ICE, driven by Trump’s anti-immigrant frenzy, remains undeterred.
And a frenzy it is. The official White House website calls MS-13 gang members “animals.” Presidential tweets decry immigrant “infestation”. Apologists argue that these epithets are meant to dehumanize only some immigrants and not others; but from a rhetorical standpoint it’s a poetic device called synechdoche, in which the part stands for the whole. Anyway, that debate is now moot. Our government has now progressed from verbal to physical dehumanization in its treatment of immigrants – criminals or not — by separating parents from children, depriving them of sleep, clean water, decent food, and adequate sanitation — conditions now well-documented in camps operated under the “zero-tolerance” policy. Guards respond to detainee complaints with brutalizing scorn. Our president’s willingness to treat people worse than properly cared-for animals, as a brazen instrument of policy, conveys the profoundest nonverbal message of all.
One might think that, with the family separation nightmare on the border now declared over, the human rights crisis has passed. But zero-tolerance enforcement still separates families within the US every day, in ways large and small. A parent in mediation recently argued to me that the kids’ mom should no longer have parenting time solely because she was undocumented: “What if she gets picked up?” the father argued. “Where would the kids be then?” A year ago such arguments would be dismissed as unconstitutional, and I’m hoping they would be on those grounds. But the father’s practical concern is also legitimate; parents who live as fugitives cannot be maximally effective co-parents to their kids.
Hannah Arendt describes how totalitarianism progresses stepwise: “the Nazis started their extermination of the Jews by first depriving them of all legal status … and had carefully tested the ground and found out to their satisfaction that no country would claim these people before the right to live was challenged.” It is possible that our president intends to go no further in violating the constitution he once swore to defend, now that he has stripped immigrants of their rights to equal enjoyment of family relationships and access to justice. But it is also possible that we are in a ground-testing phase. The direction and momentum of recent events do not bode well.
But even if we descend no further, it must be faced that some among us now live under an increasingly totalitarian form of government. Those bearing the weight of unfreedom may be among our families, friends and acquaintances; or they may merely be those who mow our lawns, harvest our food, frame and roof our houses, plump the pillows of our business trips, and call “housekeeping” as we check out.
Either way, the rest of us may now grapple with the question of what interpersonal obligations we owe to offset the injustices that increasingly surround us – or if we will even choose to see them. For me, the least I can do is to stop making assumptions about the excuses I hear from mediation no-shows — to stop pretending that I can distinguish negligence from fear.