Lee Gelernt on a Major Victory for Immigrant Families (ep. 2)

June 28, 2018
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Lee Gelernt has been fighting Trump’s family separation policy since early this year, months before it became the subject of national outrage. Thousands of children remain separated from their parents, despite the president’s executive order purporting to end the practice. Just hours before taping this interview, a federal judge issued a decision calling for the government to take immediate action to unify these families. Lee discusses the future of this policy and the consequences of the Supreme Court’s Muslim ban ruling on immigration policy broadly.

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LEE ROWLAND
[00:00:04] I'm Lee Rowland. And this is At Liberty, from the ACLU — the podcast that explores the biggest civil rights and civil liberties issues of our day.

[00:00:21] In the past few weeks the treatment of immigrant families at the U.S. border has dominated the public conversation. Under a new zero tolerance policy, the government has arrested thousands of people crossing the U.S. border, including those seeking asylum, and separated them from their children. In response to national outrage, the president signed an executive order supposedly ending family separation. We are taping this episode on Wednesday, June 27, and on Tuesday, yesterday, there were two major court decisions. First, the Supreme Court upheld President Trump’s travel ban against people from certain Muslim countries.

[00:01:36] And late last night, a federal court in California issued a ruling in a case brought by the ACLU ordering the government to immediately reunite families currently separated by the government. Today we have with us Lee Gelernt — Lee is lead counsel in this case called Ms. L versus ICE. It's a constitutional challenge to the government's practice of separating immigrant families at the border that was filed earlier this year. Lee's also the Deputy Director of the ACLU Immigrants’ Rights Project. He's worked on immigration and national security issues at the ACLU since 1992. He's here to help us explain this court decision and what's next for families at the border. Lee, thank you so much for being here.

LEE GELERNT
Thanks for having me.

LEE R.
[00:02:20] Especially on what I assume is about four and half minutes of sleep.

LEE G.
That’s right [laughs].

LEE R.
Well we know you run well on fumes, so thanks. Let's start with the ruling that you've got the family separation lawsuit last night.

LEE G.
[00:01:53] Yeah. It's an enormous victory a complete victory. Every child that’s been separated -— and now we think there's in excess of two thousand kids, kids as young as one years old, two years old — have to be reunited within thirty days. And if you're under five within fourteen days. And every parent needs to speak to their child within ten days. You'd think that every parent would know where their child is being held. They don't, so we even had to ask for that and no more separations going forward notwithstanding President Trump’s executive order. We believe that separations will continue. We asked the judge to stop separations going forward and to reunite these kids. It's just been going on too long. The harm is, is becoming devastating on the ground. And we are so thankful the judge said “I'm going to help these kids,” and set hard deadlines.

LEE R.
[00:02:42] Is this ruling going to apply to all kids that are currently being held without their families in detention?

LEE G.
It will be. You know, the kids who have been separated were kids at the border. It doesn't apply to kids who were separated at the interior. But we're not aware of any such kids. So this essentially... what's been in the public are the kids who've been separated at the border, in excess of two thousand kids. And it applies to all these kids. It's nationwide.

LEE R.
OK. So I've been hearing some horror stories about people who have no leads on where their kids are. Defense attorneys, immigration authorities, who have been trying to get information.

LEE G.
Right. You know as you said I've been here a long time at the ACLU. I've been doing this work for 25 plus years. This is the most horrific practice I've seen in all that time. And there I think there's two things going on. One is just the harm that comes from the separation. This is going to cause deep-seated and likely permanent trauma. I just visited one of our families in our lawsuit who finally got reunited — two boys, four and ten years old. They were separated for months. The little four year old boy just keeps asking his mother every night: “Are they going to come and take me away again?” The other thing that's going on on the ground is that families don't even know where their kids are. It's remarkable. The kids are taken away. Sometimes it takes weeks or a month for the parent to even learn where the child is, to even speak to the child. One of our plaintiffs told us that she got up the nerve to ask where her child was and the government person just said Chicago and walked away. She told me she didn't know whether Chicago was a person, a place, or an agency.

LEE R.
And do you know, from what you’ve found out in the lawsuit, and what you’ve heard from folks on the border: Does the government actually know where all these children are?

LEE G.
[00:04:28] They say they do. We'll see whether they do. I think what's most likely is that one agency may know where all the parents are, and another agency may know where all the kids are but they have no good tracking system. And what we ultimately said to the judge was, “Look we don't think the government has a plan to reunite. They need to be forced into coming up with a plan. And we don't frankly care what the mechanics are of that plan, just get them to do it.” And everyone saying this is an enormous task, it is, but we don't think it's an insurmountable task. When the United States government, with all its resources, puts its mind to something and is told they have to do something we absolutely think they can do it. It's a matter of prioritizing these little kids. That's what was not happening. Now the court has said: Enough is enough, get these children back to their parents. We think the government can do that now that they're going to be forced to. And they also can turn to the help of thousands of thousands of volunteers who’ve been coming out and saying we want to help all the nonprofit groups and agencies. There's no question in my mind that they can do it if they want to. They just have not been prioritizing these little kids.

LEE R.
[00:05:40] One of the more striking passages in the court’s opinion was noting that the government seems to be able to keep track of people's money, and wallets, and personal belongings better than they could of their own flesh and blood children. I think that's really striking, and it made me think as a reader: The government manages items everyday, right, not to just people on the border, but people in custody, people who are incarcerated. It seems frankly astounding that this system of removing thousands of kids from families could have ever begun without that basic tracking in place. Do you have a sense of how this arose?

LEE G.
I think they were much more concerned with the punitive aspect of it, and removing the kids, and not really worried about the reunification part. So they rushed in to do the punitive part and they just decided you know let's do it whether we have a plan in place or not. They really weren't concerned about the reunification, and had there not been a lawsuit and had there not been public outcry, I think these kids would have just languished in government facilities for months and months. Perhaps they would have been sent to foster homes. It is really a bad situation. I mean... And one of the things I want to stress is that there has been public outcry in the last month or so and that has been an amazing thing. And there's been a lot of focus on the attorney general's announcement of the zero tolerance policy. But all that did is actually formalize the policy and increase the numbers.

[00:07:08] But we fought our lawsuit back in February because what we had heard is that it was happening in practice: that hundreds and hundreds of kids were being separated. But the public's attention was deflected away because the administration kept saying, “We're considering a policy, we're considering a policy.” So everyone thought, OK that means they're not doing it until they actually enact a formal policy. We fought our lawsuit before it became a big deal because we knew from advocates on the ground that it was happening. Then the attorney general, three days after our hearing, announced there was a formal policy and the numbers increased, and thankfully the public outcry got louder and louder. But this has been happening for a while unfortunately.

LEE R.
You mentioned this as a punitive policy. It is true that Trump and others in the administration have insisted that family separation is necessary to deter immigrants from taking advantage of our lax immigration and asylum laws. What do you think of that claim?

LEE G.
I think two things. I think the first thing is if you ask any law enforcement official — in immigration or otherwise — they would tell you it's simply not an effective deterrent. I mean one of the things I do is ask all these moms when I meet them, “Would you have come anyway if you knew your child was going to be taken away?” And they basically just throw up their arms and say, “SThis has been the most horrible experience of my life, having my child taken away. But I just think I would have had to come anyway because what choice did I have? I was facing danger, potential torture, death in my own country. My child was. I just had to come.” So I think what most people would tell you who study this is it's not actually a deterrent.

The other thing I would say is, even if it were a deterrent, at some point we need to just say, look, there were a lot of things we could do that might deter people. But just as a civilized society we don't do them. And one of the things we don't do is tear little children away from their parents. And I always felt when I started this lawsuit that this was an issue that was going to resonate beyond the normal immigration debate lines, and that it was going to resonate with both Democrats and Republicans, liberals and conservatives. Because I think, basically, the American people say, we may not agree with you on all immigration policy, and we may have disputes about larger macro questions on immigration policy, but on this issue the Trump administration has just gone too far, making these little children negotiating pawns, doing this kind of damage to little kids. I don't think you need to be a parent to say, “Wait, enough's enough.”

LEE R.
[00:09:47] You said you brought this lawsuit in February, before this was formalized as a public policy. How did you find out about it, and how did you get clients to challenge this policy?

LEE G.
There are amazing advocates on the ground who go into these detention centers every day, and they had begun telling people in the mid fall to late fall, “There are separations occurring.” And we had been hearing a steady drumbeat of more and more separation, so we began looking into it, doing research. And finally, someone said there is a Congolese mom who is in jail in San Diego by herself. And I said I'm getting on a plane to go see her. And I went out there, and at that point we had heard that there were enough separations to be thinking about a national class action. But it was still a few weeks away from being able to file it, putting it together.

[00:10:38] I went out there, and I met with her, and she was just so distraught — gaunt from not eating, not sleeping — and told me the story of what happened: that she had fled violence she was likely going to be killed in the Congo; took her 6 year old daughter and they fled the Congo through 10 countries all by themselves; made it all the way here after four months sleeping outside for days on end, some days not eating. They finally made it to the U.S. border. They presented themselves legally at the border. They didn't cross. They presented themselves legally, which, you know — just to stop for a second — the administration keeps saying if you don't want your child taken don't cross the border illegally. This is a family that's stopped at the border and presented themselves at the border in San Diego and said, “We need protection.” They had learned a little bit of Spanish on their journey through Central America at the end, and they said, “We need protection.”

The guards took them and put them in like a makeshift motel detention center for four days. The mom passed her initial asylum screening. On the fourth day, the child was asked to come into an adjacent room. The child was brought into the adjacent room. The mother was handcuffed and said you're going to go to prison here in San Diego. She then heard her little girl screaming at the top of her lungs, “Mommy don't let them take me away. Don't let them take me away.” They whisked her away to Chicago. They didn't tell the mother for four days where the child had been taken. She was able to speak to her daughter for maybe ten to fifteen minutes every ten days or so. She had no idea where Chicago was, why her child had been taken, what was going on.

[00:12:17] She was all by herself. We went out to meet with her and said, “Do you want to help getting your daughter back?” She said yes. I got her an individual asylum lawyer to handle her case in immigration court, and on the plane back I just decided, we can't wait to help this woman until we have another ten days or so to file a national class action. So the initial suit was filed at the end of February just on her behalf, to get her back together with her child. It just seemed like it was too much damage being done to her and her child. And when we filed the lawsuit, we asked that it be expedited. The government came in remarkably and said, “Oh we took the child away to Chicago for the past four months for the child's best interests.” And we said, “Oh really? Why's that?” And they said, “Oh, well, the mother could, could have been a smuggler.” And we said, “Wait. The little girl is screaming and begging not to be taken away from her mother. It should have been clear.” And the judge... and the government said, “Well, she didn't have her papers.” And we said, “Well of course, many asylum seekers don't have their papers by the time they reach the U.S.” And the judge finally just said to them, “Hey, what about a DNA test? Takes two seconds, it's a swab these days.” So, of course, at that point the government had to do the DNA test. And of course it was the mother.

[00:13:30] So they reunited the child and the mother, and I was there when they were reunited in Chicago — a nonprofit shelter took them in. And it was just the rawest emotion I've ever seen. Because it wasn't just the four months of separation. It was that they were from a little village in the Congo. They didn't know what was going on — they had no reason to believe that they would ever see each other again. And that emotion, that hug… I have never seen anything like it. And from then, we filed the national class action because there were just so many of these mothers. I mean this was an important first test case. But we said, we obviously can't stop there's hundreds and hundreds of mothers and now there's two thousand mothers. Some of the kids are eighteen months, one year.

[00:14:15] Another one of our clients, the little boy, was eighteen months. They made the mother put him in a car seat. The little boy is screaming. They make the mother close the door, they don't let her comfort the little boy. And then like anybody who has a young kid that age, or can remember that, the little boy is conditioned to looking at his mother through the window to see whether she's coming around to drive the car. That's what the the little boy is conditioned... and all of a sudden the car starts pulling away, and he's looking at his mother just standing there, and his eyes just become so wide. And the mother is in tears, and they're just driving off. And it's happening hundreds and hundreds of times a week just like that. It is so devastating. And when we filed the class action we said to the judge, we need these children to be promptly reunified, and we need the separations to stop going forward.

LEE R.
And how long ago was this now?

LEE G.
We filed the class action in March. It took a while to brief it. We had a hearing on May 4. And interestingly, getting to your punitive point, everyone knew that the government was doing this as a punitive measure to deter people from coming into this country, or to give up their asylum claims. The idea from the administration was, if word gets out around the world that we're going to take your child, maybe you won't come here. Well, interestingly, the judge was very pointed in his questioning and he said to the government lawyer, “So are you doing this to deter families from coming here? Because if you are isn't that unconstitutional? And isn't it true that General Kelly and others have been saying this in the press?” And the government lawyer would not admit it was for deterrence. The government had been talking very tough in the public but when it came time to answer the question in court, they started shifting retroactive rationales… “Well some parents don't have papers,” the government said. Well what about DNA tests? And it just went on and on like that.

[00:16:06] But after a while, the harm was so great, the numbers were so great, we had an emergency telephonic conference call with the judge last Friday. And I basically pleaded with the judge, and said, “Your Honor, I think the time has come to set hard deadlines. The harm is just too great. You're the only one who can really stop this. The president is not really going to stop and his executive order does not even talk about reunifying the children. Congress doesn't appear to be willing to step in.” And I think the judge acted in the best traditions of the federal courts. You know not to sort of be too lofty, but I think, you know, at some level that's why we have this system. I mean the framers set up this system where federal courts would have lifetime tenure and they could act for the vulnerable, notwithstanding whatever the political pressures are on them. And he finally said, look I do need to set a deadline, because I can't let any children continue to be harmed this way.

LEE R.
That trauma happens every single day.

LEE G.
Exactly. And we, you know, we basically... I just said to him point blank, “Your honor, every night there are little kids going to sleep in this country wondering if they're ever going to see their parents again. That cannot happen in the United States. We asked you for prompt reunification in the beginning, we thought that was the correct thing. But now, we really need Your Honor to set concrete deadlines. And fortunately last night he did: thirty days to reunite every kid; for kids under five, within two weeks. And within ten days, every parent needs to be able to speak to their child. You know, we are so grateful and I think there are going to be real tears of joy in the detention centers around the country when the parents and children start to learn that they're finally going to see each other again.

LEE R.
And other people get that hug that you got to witness.

LEE G.
Exactly exactly.

LEE R.
Do you think the government’s going to appeal this ruling?

LEE G.
In most of my cases over the years I think I have a fairly good sense of what the government's going to do. I would say I'm genuinely not sure how the government's going to react. I think the spectrum is pretty broad. I think they could appeal immediately and ask for an immediate stay from the Court of Appeals and say we just can't comply with this thirty day deadline. And I guess the most extreme version of that is the court of appeals says “no stay.” And they actually go during the summer to the Supreme Court. On the other end of the spectrum is of course they say, we recognize these children are going to be harmed. We're going to do everything we can to reunify. Somewhere in the middle I suspect it could be them going back to the District Court after two weeks and say we just can't meet the deadline. Can you extend them. We will need to monitor this on the ground. It will take all of the volunteers and advocacy groups to make sure the government's complying.

LEE R.
[00:18:55] What was the effect of that executive order? And did you view it as a positive development? Or not?

LEE G.
I think my answer is yes or no. And let me explain. The positive development is that, for the first time in this administration, we have pushed the president back and he has had to renege on something. And I think that's an enormous development. And I think it's lessons learned over the eighteen months that public outcry really is the thing.

LEE R.
I guess, but did it stick? You know that’s one of the reasons I was interested in the appeal, because he had the executive order, which seemed like a response to public outrage. But then of course he went back on Twitter, seemingly angry, to say, you know, “No due process for anybody!”

LEE G.
Oh, I don't want to suggest that the president himself is not going to be out there still pushing anti-immigrant… But I do believe that he actually was forced to sign an executive order was an enormous step. But on the concrete level, we didn't believe the executive order was going to do what we needed. So we believed that the executive order had too many express loopholes in it, and that it would not stop family separation going forward, and that's why we said to the judge, “We still need an injunction to stop separations going forward.” He gave us that. But what we also pointed out is the executive order said nothing, nothing about reunifying the two thousand children who had already been separated. So in that respect, we absolutely still need an injunction. The judge agreed and gave us the injunction. \

LEE R.
[00:20:25] The executive order, as you mentioned, says nothing about reunifying the kids who are separated, and seems to take a more incarceration-forward approach — that is, to keep families detained together. Are there constitutional limits on that?

LEE G.
Yeah, I mean, so we will push back very hard — with public outcry in the courts — if the government just says, “OK, you want everyone together? All we're going to do is create all these enormous family prisons and indiscriminately detain families.” Our view is the Constitution requires both adults and children to be released if they're not a flight risk or a danger. So if what we see now are large family prisons for immigrants we will certainly push back. We want to get these kids with their parents immediately. That's the next stage. If we see that happening.

LEE R.
When you talk about that policy of incarcerating people together, are you talking about all folks who cross the border? Or are we talking about asylum seekers specifically?

LEE G.
We are talking about everyone. I think the asylum seekers, the judge pointed out, have particularly strong claims to staying. But we're talking about everyone. We don't think that anybody should be detained if they're not a flight risk or a danger. And we certainly don't think anybody should lose their child regardless of whether they're seeking asylum or have some other basis for staying in the country.

LEE R.
One major development recently was that Attorney General Sessions announced that he would no longer permit, as grounds for asylum, claims of domestic violence or gang violence. Can you tell us a little bit about the landscape of asylum and how that has affected it and how it will affect asylum seekers?

LEE G.
Right. I mean that was an extremely unfortunate decision. The attorney general has taken it upon himself to start issuing decisions, notwithstanding years and years of judicial decisions by immigration judges and the Board of Immigration Appeals slowly figuring out asylum law which is very complicated.

[00:22:17] The one thing I want to stress to people is, notwithstanding the attorney general's decision, he did ultimately — because he had to — leave the legal framework in place. So we are encouraging people to still raise asylum claims based on gang violence or domestic violence. We still believe immigration judges can grant those claims. What the attorney general is essentially trying to do is bully the immigration judges and Board of Immigration Appeals to denying all those claims, notwithstanding the fact that the legal framework remains there. But it's a very unfortunate decision. We hope that we will get it overturned. In the meantime people need to push back on the ground and develop their factual record to show why they're entitled to asylum.

LEE R.
Do you have a sense, over time, of how this administration's approach to immigration to asylum differs? You've been at the ACLU through, I think, four presidents now. Can you give us a sense of some big picture takeaways about the Trump administration?

LEE G.
You're really dating me Lee. [laughs]

LEE R.
Like a fine wine! [laughs]

LEE G.
Yeah. This is the worst I've ever seen, you know, by far. It's a constant attack on immigrants. And it's both what they're actually doing as a practical matter, and it's the rhetoric of constantly trying to dehumanize the immigrant population and make everyone think of immigrants as just MS 13 members. And I constantly have to remind people, put away those soundbites and just think about the immigrant you know — the parent in your kid's school, the immigrant you work with, the immigrant in your neighborhood. It is very dangerous if we start dehumanizing the population because then almost anything can happen.

I think I think the separation of children and parents is sort of a little snapshot into how punitive this administration's willing to be. This claim that they're only going after hardened criminals and national security threats could not be more untrue. They are going after everyone -— families who have lived here for years and years, been paying their taxes, their kids are U.S. citizens. It is just an attack on immigrants straight across like nothing we've seen.

LEE R.
[00:24:25] Is the family separation policy, which we now know is a formal policy, something that you’ve seen before in your immigration work?

LEE G.
No. It is unprecedented. And the administration tried to say for a while, other administrations have done it. But everyone beat them back on it and just said that's simply untrue, and it is. This is unprecedented. I mean, we were concerned with how many deportations were occurring under prior administrations, including the Obama administration. But there was never anything like this. You know when the administration thought, we’re so clever we're going to take children away — every administration has known that that is something they could do if they really want to be inhumane and punitive. And every administration, Republican or Democrat, has said we're not going to do that. That's just too inhumane. I think this administration, the scale of the build up — going after people, the raids, the the targeting of non-criminals — it's just unprecedented compared to other administrations. There is real fear in immigrant communities. There is fear at schools, parents fearful of bringing their kids to school. It's just a constant attack. And I think it's, you know, ultimately political scapegoating.

LEE R.
The idea of this administration targeting certain groups is probably a nice segue to the other court decision that came down yesterday, an issue you’ve also been involved in, which is the travel ban that President Trump signed barring entry by residents of predominantly Muslim countries. Can you tell us a little bit about that decision?

LEE G.
[00:25:56] Yeah. That is an unfortunate decision. And the sort of the up and down of the day — I mean those of us who do civil rights work are used to this, sort of the ups and downs. This was a day in which there was a real low and a real high: Earlier in the day we got the travel ban decision and later at night we got the family separation positive decision. I think what's striking about it is that pretty much everyone knows as a matter of common sense what the president was saying and trying to do: that he was trying to keep Muslims out of the country. He didn't really even hide it. But the opinion goes to such great lengths to suggest no, that's not really what motivated it. That disconnect between the opinion and what people know as a matter of common sense is so stark that I think that's what lay people probably are having trouble getting their hands around. You know from our standpoint I think it's going to have enormous practical consequences for families who are not going to be able to reunite here in the U.S., for people who are not going to come here to work. But I think there's also the sort of emotional, symbolic aspect to it. We had been hearing from our clients for so long a feeling that they were going to be unwelcome in the United States under President Trump. And then to have the Supreme Court bless it is just so unfortunate.

[00:27:19] Chief Justice Roberts went out of his way to talk about Korematsu — the interning of the Japanese during World War II and that decision that upheld it — saying, “Well that decision was wrong and it was shown in the court of history.” But the hardest thing, I think, is to recognize in real-time that something's wrong. I think years...When years go by we're going to look back at this decision say the administration never really had a serious national security rationale. It was always about playing to a political base. You know, that's some solace that the court of history will condemn this opinion, but right now there are a lot of people who are going to suffer.

LEE R.
Will the decision on the travel ban have any impact more broadly on President Trump’s authority over the immigration law?

LEE G.
Going into the travel ban what made it hard is that the Supreme Court had consistently said the executive branch gets a lot of deference in the area of immigration and national security. I think that we will be able to cabin this, but I think that's going to be the big question going forward: is this seen as the Supreme Court saying that lower courts should not give hard scrutiny to immigration policy? Or whether they will look at this, to some extent, as a one off, and continue to scrutinize immigration decisions. My own feeling is that the court was saying you can continue to scrutinize immigration decisions, especially where it's solely domestic. I hope that the lower courts will continue to do it.

[00:28:50] I mean that's been one of the really heartening things since the administration came in: that the courts have pushed back. Congress has not pushed back against the administration, but that the courts have stood up. I mean, when I argued the first challenge to that travel ban — that was one day after it was enacted and eight days after the president was inaugurated — and I always tell people that one of the things that I found amazing, even after being a lawyer for this long and especially when I talk to young lawyers and law students, is that there really wasn't any question that a single federal judge in our country could stop the president of the United States from doing this.

That night in Brooklyn, I heard… I asked her, “Can you please block the travel ban?” And she did. People quibbled over, should she have blocked it nationwide, should she have waited a day or so. But no one really, except maybe a few fringe people, ever suggested that the federal courts in our country can't step in and play that role. And people forget, I mean especially in the immigration area, these immigrants are coming from countries where that would be unheard of — that a federal judge could stop the president of their country. And som, in that sense, we ultimately lost in the Supreme Court, but the fact that we have this court system, and the lower courts have been pushing back, especially immigration area, I think this is something that people should be proud of and continue to use the courts.

LEE R.
[00:30:19] So your silver lining is we still have the rule of law in this country.

LEE G.
I think we do. I think there are bad spots, and I think yesterday's decision from the Supreme Court is, you know, a disappointing step. But I do think the courts are functioning and ready to play their role. And I think the decision out of San Diego last night is a perfect example. This was a hot button issue. But this judge said: These children are being traumatized, they are vulnerable. No one else can help them. I am a federal judge empowered to enforce the Constitution and I'm going to do it.

LEE R.
Lee thank you so much for talking to us today.

LEE G.
Thank you for having me on.

LEE R.
Congrats on the decision today.

LEE G.
Thank you.

LEE R.
[00:31:08] You’ve been listening to At Liberty. This is Lee Rowland, we’ll talk to you next week.

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