Excerpted From: Eugene Lee, Recognizing the Right to Family Unity in Immigration Law, 121 Michigan Law Review 677 (February, 2023) (218 Footnotes) (Full Document)


EugeneLeeThe constitutional due process right to family unity is intuitively recognizable yet legally indistinct. The term itself is indeterminate, having gone by other names such as the right to “family integrity” or “familial association.” One Second Circuit judge described the constitutional right of “intimate association” as being “[l]ike the wind that blows where it wills and can be heard, yet no one knows ‘from where it cometh and whither it goeth,”’ concluding, “this constitutional right is real despite the lack of exact knowledge regarding its derivation and contours.” The right gained renewed attention following the Trump Administration's separation of families at the U.S.-Mexico border, leading President Biden to condemn the actions of his predecessor and declare that his administration would “protect family unity.”

Recently, me legal scholars have traced the roots of family separation in practices against enslaved, indigenous, and immigrant populations throughout U.S. history, while others have argued that separating families under a “zero-tolerance” policy violates the Eighth and Thirteenth Amendments. Such broad recognition of family separation as a violation of human decency and civil rights has led some legal advocates to assert a right to family unity even in nonimmigration cases.

The ambiguity of the right to family unity yields advantages and drawbacks. On the one hand, the ubiquity of family makes the importance of the right immediately recognizable. The right to family unity also serves as a conduit through which advocates can draw parallels to other historical injustices and organize against a wide range of policies. For example, many Americans viewed the Trump Administration's “zero-tolerance” policy to deter migrants at the U.S.-Mexico border and President Trump's executive orders banning immigrants from several predominately Muslim countries as a single “family separation policy” despite the differences in type of governmental action and scope.

On the other hand, when legal advocates draw parallels between these types of policies, it can obscure the differences in how governmental action separates families. Worse, such rhetorical flourish can undermine those advocates' credibility. The ubiquity of family can make it difficult to determine what constitutes a family and to develop principles that circumscribe the contexts in which the right to family unity is implicated. Counterintuitively, the fact that most people have families makes some degree of family separation inevitable and, therefore, more easily taken for granted. Professor Stephen Lee aptly describes the separation of families by immigration laws as a “slow death” that “captures the kinds of harms that happen slowly and over time, which can often go overlooked or unnoticed.” The Southern District of California recognized a likely violation of the substantive due process right to family unity when it enjoined the Trump Administration's “zero tolerance” policy, but this is by far the exception and not the rule. Instead, families are routinely separated by immigration laws despite the right to family unity and the principle of family reunification that is supposedly central to our immigration system.

This Note aims to clarify confusion over the right to family unity by providing an overview of immigration cases in which litigants assert this right. It also argues that courts should adopt two recommendations to validate the dignitary interests of immigrant families. Part I offers a history of the right to family unity broadly and specifically within the immigration context. Part II begins by briefly outlining the scope of “family.” It then untangles disagreement surrounding the right to family unity by examining three categories of cases in which the right is often raised: (1) cases considering “exceptional hardship” upon family members, (2) cases involving petitions for a family member's admission into the United States, and (3) cases involving family members in immigration detention. Part III argues that the judiciary should adopt two recommendations for examining the right to family unity in immigration cases. First, courts should separate procedural from substantive due process inquiries in analyzing this right. Second, courts should adopt the “undue burden” standard applied in access to abortion and other family privacy cases. These recommendations will enable courts to safeguard the right to family unity and signal to the legislative and executive branches the constitutional implications of their actions.

[. . .]

The separation of immigrant families did not begin or end with the Trump Administration. While the right to family unity has been recognized in the face of invidious policies, there has been persistent debate over its contours. Following the end of the Trump Administration's “zero tolerance” policy, it is easy to believe the harms of family separation have been fully addressed. Despite the “spectacle” of family separation at the U.S.-Mexico border, the routine separation of families that pervades our immigration system is easily forgotten. Although our immigration system espouses a principle of family reunification, case law demonstrates family separation is not an exception but the rule.

The law must address the dissonance between the legal doctrine surrounding the right to family unity and the normative view that the separation of families is an infringement of a fundamental right. Courts can begin to harmonize this discrepancy by clearly distinguishing between procedural and substantive due process inquiries and by adopting the more nuanced “undue burden” standard for cases involving the substantive right to family unity. If the right to family unity is like the “wind that blows where it wills and can be heard,” a fuller recognition of the right requires courts to give shape to it. The judiciary can make legible the stories of immigrant families by articulating the burdens placed on them. In doing so, the language of these opinions will call the legislative and executive branches to recognize the right to family unity and thereby reexamine the constitutionality of their policies.


J.D. Candidate, May 2023, University of Michigan Law School.