BORDER ENFORCEMENT AS STATECREATED DANGER

[...]the separation of parents and children pursuant to Trump's "Zero Tolerance" policy inflicted potentially life-altering consequences for children, given the reality that early childhood trauma can permanently impact developing brains.17 Moreover, we know that many asylum seekers who fled their home countries in search of safety were forced to wait in Mexico or returned to Northern Triangle nations where they were kidnapped and even killed.18 Thousands more suffered other serious harm, including physical abuse, rape, disease, and the lasting trauma of experiencing and witnessing this harm.19 These risks persist as migrants continue to seek safety at the southern border20 and America continues efforts to thwart this migration, harming countless people in the process.21 The tragic fire at an overcrowded Mexican detention facility that killed 38 migrants on March 27, 2023, is a further illustration of U.S. policy's role in contributing to deadly harm for migrants seeking safety in the United States.22 Such actions are patently inconsistent with the United States' international and domestic refugee law obligations.23 That law, however, does not adequately name or always respond to such harm. Without much success, advocates have long advanced broader constitutional theories to account for the harm inflicted by U.S. border policies.26 Recently, however, a court recognized that such theories may have a role to play in reckoning with the harm inflicted at the border-a development constitutional law scholars described as "groundbreaking. "27 28 Specifically, following the termination of the Trump Administration's so-called "Zero Tolerance" family separation policy and the reunification of families, the United States District Court for the Central District of California in J.P. v. Sessions,^ ordered federal immigration agencies to provide families with evidence-based and trauma-informed mental health services to remediate the government's violation of their substantive due process rights. The judge did so even though the vast majority of the roughly 4,000 class member parents whom the administration separated from their children were already released from custody and had been reunified with their children because of a nationwide injunction.29 In ordering further remedies, the court relied upon the state-created danger theory of substantive due process protection.30 That doctrine is often understood solely as an exception to the longstanding principle that the Con