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.
