Preet Bharara:

Hey, folks. Preet here. In the last few weeks, there’s been a slew of news and controversy around the Biden administration’s immigration policies. Since last month, thousands of Haitian immigrants have camped in the small Texas border town of Del Rio seeking asylum. Many have been placed in expulsion flights back to Haiti, or some of them processed under immigration laws, according to reports. At the same time, the White House announced it would raise the refugee cap to 125,000. Big questions remain about the way forward and about the Biden administration’s long term approach to immigration. To help make sense of these issues, my CAFE Insider co-host, Joyce Vance, interviewed Lee Gelernt. Gelernt is the Deputy Director of the ACLU’s Immigrants’ Rights Project.

Joyce Vance:

Hey, y’all. Joyce here. Since joining the ACLU in 1992, Lee has argued high profile national security, immigration, and civil rights cases. Perhaps most famously, Lee led the charge against the Trump administration’s immigration policies. He filed the first lawsuit challenging the ban of individuals from certain Muslim majority countries, and he filed a national class action challenge to the administration’s family separation policy. In recent weeks, Lee has been litigating against the Biden administration over its continued use of a Trump era policy, that he explains, use public health laws as an excuse to expel immigrant families at the border. I’m thrilled to have him as a guest on the podcast. Welcome, Lee.

Lee Gelernt:

Thanks for having me.

Joyce Vance:

Really excited about getting a chance to talk with you. Can I jump right into it?

Lee Gelernt:

Absolutely. I’m excited to be here. A big fan of the podcast.

Joyce Vance:

Well, when Vice President Harris was in Guatemala, you tweeted this, “VP in Guatemala, telling people to stay home. Everyone asking whether her message will get through. Better question, why is this administration telling asylum seekers in danger that they can’t seek protection in the US in violation of our moral and legal duty?” I’d sort of like to start there. Can you explain what our moral and legal duty is in the area of immigration?

Lee Gelernt:

I think we have a number of moral and legal duties but that tweet was in respect specifically to asylum. The administration is telling people not to come. We can’t tell people in danger not to come. To begin with, this country said after World War II, “We would never again send people back to danger without an asylum screening, without screening them to see whether they are going to be persecuted, tortured, or killed when returned.” That’s a sea change for this administration, especially following the Trump administration that tell people not to come.

Lee Gelernt:

Beyond that, as a straight legal matter, the law is very clear, people are entitled to an asylum hearing. It doesn’t mean that everyone will ultimately get asylum but they are entitled to and what this administration has done is keep a Trump policy that denies hearings but what the vice president was saying, which was echoing the administration more generally was, don’t even bother trying to come.

Kamala Harris:

I want to be clear to folks in this region who are thinking about making that dangerous trek to the United States-Mexico border, do not come, do not come. If you come to our border, you will be turned back.

Lee Gelernt:

That is really appalling for this administration to be telling people. The other thing I just want to emphasize, because we’re hearing it every day from the administration, particularly now with respect to the Haitians who are under the Del Rio bridge in Texas, is don’t come by irregular means. That is really appalling on a number of levels.

Lee Gelernt:

One is that as a straight legal matter. Asylum seekers are supposed to be able to get a hearing, regardless of how they come. The law could not be clearer. It says whether or not you come at a port of entry. The reason congress passed that statute is very clear. Intuitive is that asylum seekers can’t always find their way to a port of entry. Sometimes cartels bring them to different places along the border. They have to be able to get on safe ground any way they can and then they’re going to get a hearing.

Lee Gelernt:

But the other thing that’s really outrageous about the administration saying that is it’s not as if right now, they are giving people asylum hearings if they come to a port of entry and try to apply legally. It’s absolutely ironic that the administration would be saying, “Oh, don’t come by irregular means,” as if you could come by lawful means. I think we’ll probably get into this, but there’s a policy that the Trump administration enacted called Title 42, that uses the public health laws pretextually to say, “We’re not going to take any asylum seekers now because it’s too dangerous in light of COVID.” We had assumed, hoped the Biden administration would get rid of that policy. They have not, which is why we’re back in court, but that policy stops people from getting a hearing regardless of how they come, even lawfully.

Lee Gelernt:

For the administration to be out there making it seem as if this is just about asylum seekers coming the wrong way, is really, really not right and I think there needs to be more people pushing back. I think the press is not pushing back whenever they hear the administration say, “Well, asylum seekers can’t come by irregular means,” that’s the new catchphrase irregular means. They need to push back and say, “Well, what means can they come by?”

Joyce Vance:

I do want to talk with you about Title 42 and before we get there, can you help by defining some of the terms? What’s the difference between migrants, refugees and asylum seekers? Tell me if I’ve even asked you to define the right terms, is this the baseline we need to understand the law here?

Lee Gelernt:

I think when people use migrants, it just means anybody trying to come to the US generally. Refugees and asylum seekers, I think for the lay person, are essentially the same conceptually. It’s people fleeing danger who are going to be persecuted. The difference is somewhat technical is that refugees apply to come here from abroad and their applications are processed from abroad. We have a cap for how many people we’re going to take as refugees, who are going to get these kinds of refugee visas from abroad.

Lee Gelernt:

Asylum seekers are also people who are fleeing danger, but have to leave their countries immediately. They apply for asylum when they get to the US. That’s really the difference is where they are when they’re applying to come to the US but both categories are about people in danger. Usually, refugees have more time and can apply and asylum seekers have been in danger and have immediately tried to leave their countries and get to the US border.

Joyce Vance:

Is it fair to say immigration law is a little bit confusing? Jargon, like you mentioned, but also all of these different categories of people and rules, which sometimes leads to imprecision and leads to problems like the one you started out by identifying this notion that people don’t understand what the basic rights and what the rules of the road are?

Lee Gelernt:

I think that’s absolutely right. There have been court cases that say that the immigration laws are just a complete morass, that they’re like the tax laws, they’re impossible to understand. I think anybody who practices in immigration law, any federal judge who gets an immigration case, realizes very quickly that it’s a mess. I think some of that in precision, as you said, is playing out in the press. What we’re trying to get through to people is, look, not everyone is allowed to come to the US, but people in danger are entitled to a hearing to show that they’re in danger and even those people will not necessarily be allowed to stay. What we’re trying to explain to people is you must give people who fear persecution or torture in their home countries a hearing.

Joyce Vance:

Putting that focus on it, I think is very helpful and is a good lead into a question I wanted to ask you about the work you do as Deputy Director of the ACLU’s Immigrant Rights Project. What are the kinds of issues and cases that you take on? Does it mostly involve refugees and asylum seekers or does it involve immigration issues more broadly?

Lee Gelernt:

It involves issues more broadly. In fact, what’s interesting is that I have not really worked on asylum issues all that much before the Trump administration. There were other issues that were percolating that involve immigrants in the US, sometimes at the border, but more often than not, immigrants in the United States. The reason that the focus has shifted so much to asylum seekers at the border is because the Trump administration made that a signature issue, tried to make the border a political issue, and very much did make it a political issue, and took such drastic steps to eliminate asylum for people at the southern border, particularly people of color that we were forced into getting involved in these systemic issues.

Joyce Vance:

I saw an interview of you that Samantha Bee did and she called you a heroic freedom nerd.

Samantha Bee:

I talked to one of these heroic freedom nerds about exactly how scared we should be.

Joyce Vance:

Can I use that? Can I call you Lee Gelernt HFN?

Lee Gelernt:

I think that’s fine with me. I think my two sons, one in college and one in high school would certainly endorse the nerd part.

Joyce Vance:

I mean, but there is a certain nerdiness to it, right? To your point, these are sort of high end, jurisdictional issues and then suddenly, you make the transformation to these very nitty-gritty, individual issues of people who suddenly find themselves in our detention system, which is confusing and complicated and can’t figure out how to get their lives back.

Lee Gelernt:

I think you’re hitting on something that’s so important. Maybe right now, I’m sort of talking to law students that I think there are a lot of law students or people going to law school come and say, “While this work is just going to be all high level, big policy issues, and you’re going to be in the press, and we’re just going to talk about these major questions of American policy. As you know, so much of what a lawyer does, for the most part, almost all of it, is just really grinding, nitty-gritty legal issues that are so critical to the outcome. We could spend months and months analyzing a particular statute or working through a set of cases.

Lee Gelernt:

Ultimately, that culminates perhaps a high profile case, but I always try and tell law students and young lawyers that really what you have to be ready for is to do the nitty-gritty legal work and put in long, long hours and maybe at some point in your career, one of these issues will become high profile. As you know, it’s just a lot of nerdy work sitting at your desk, late hours, working through statutes and legal opinions.

Joyce Vance:

Yeah, I totally get that. I spent 25 years prosecuting cases and nobody ever asked me how the grand jury worked until the Trump years.

Lee Gelernt:

Right.

Joyce Vance:

There was a lot of that going around. Heroic freedom nerd, I like that. Hey, Lee, you’ve argued some big cases in court, though. You’ve done the hard work at your desk. You’ve ended up with some of the high profile cases. You’ve argued in the Supreme Court. You’ve argued in the Courts of Appeals. You’ve testified in congress. How do you get ready? I mean, I’m sure that you read the briefs and the case law like we all do, but do you have a special immigration playlist or something that gets you revved up for that stuff?

Lee Gelernt:

Yeah, I do not have a playlist necessarily, although, music can be a good part of it. I think, for me, what I try and do is throughout the case, constantly talk to non-lawyers about the case. I’ve always thought, I had a professor at Columbia when I was there who said, “Make sure that you can belly up to a bar and talk to the person next to you who’s a non-lawyer and explain your case without jargon, and convince that person that your position is the more reasonable one, that has common sense on its side,” that has served me well.

Lee Gelernt:

The ACLU does not do cases where the law is clear. We’re doing law reform cases. If there are five cases directly on point and someone is simply violating the law, that’s not a case we’re going to do it. Someone else can walk into court and say, “Look, Your Honor, there’s five cases directly on point. This person has just chosen to violate the law.” We’re doing law reform cases, which means the law ultimately does not dictate a clear answer and so that we are going to have to convince the court that our position is the better way to move the law.

Lee Gelernt:

I’ve always felt that that has to be at a real intuitive, visceral gut level and has to be the more reasonable position. I tend to feel like talking to too many lawyers about it. They’re too much in the weeds of the case law and too technical, and that talking to lay people is always the best way to prepare, to be able to tell a basic story about your case that’s understandable and that’s intuitive.

Lee Gelernt:

I try and do as much of that as I can, even from before we take the case, is this a case worth taking? Is this a problem that’s a real problem? Is this a problem that is solvable by the courts? Do we have an intuitive, understandable position to take? It doesn’t always mean that we think we’re going to win, but from the moment someone brings me a problem through the oral argument, that’s when on as much as reading the case law and preparing the technical arguments.

Joyce Vance:

You said that it doesn’t always mean you’re going to win the case. Is one of your mottos do the right thing?

Lee Gelernt:

I think that we are, as civil rights lawyers, just have to sometimes bring cases that we’re not going to win necessarily and that can be for a lot of reasons. You may have a client and so you just have to bring the case and the client doesn’t ultimately care that it’s a long shot. It may be their only shot but a lot of times we don’t have a pre-existing client.

Lee Gelernt:

The question is people come to us and say, “Will you bring this class action?” We may know that it’s a long shot, but sometimes you need to bring it because you need to shine a light on the issue and maybe hope that even if we don’t win in court, the legislature will get involved, advocacy, the press will start talking about it and it will push public opinion. There’s just a lot of reasons. That’s one of the more difficult aspects of my job is deciding when to do that because, as you know, one of the things that can happen is, if you bring a high profile case and then you appeal it, you could end up making bad law. That can last for decades, if not, centuries.

Lee Gelernt:

That’s a very tough judgment, whether to bring those cases. You not only have to make that decision by yourself, but then there’s a whole other advocacy community out there that may disagree with you. If you really feel strongly that you’re not going to win, that there’s not going to be a benefit in terms of public education, but that you could make bad law for a long time. Those are tough decisions. Those are very cold blooded decisions sometimes because there are real people in danger at the moment. Whether you bring that case can have serious human dimension to it or not, I think that’s as hard a part of my job as there is, maybe the hardest part is when do you say the long term would not benefit from bringing this case, even though there are people saying, “Please take that one in a million shot and go to court.”

Joyce Vance:

I have enormous empathy for that. You know that in 2011, Alabama passed an anti-immigration law that my office, I was the US Attorney, then that we ended up challenging but one of the big conversations in the run up to that challenge was whether we might not impair longstanding Supreme Court precedent that guaranteed kids who were in grades kindergarten through 12th grade a right to a free public education, without regard to their citizenship status and because of some of the quirks in Alabama’s law, it was possible that that precedent would be called into question.

Joyce Vance:

There was no doubt in my heart that we really wanted to go ahead and challenge what I saw as a horrific unconstitutional law but at the same time, as you say, you have to be fairly cold and calculating about the litigation risk of damaging other rights. You’ve talked about it a little bit and said that it’s a difficult thing to do but can you talk with us about a time that you had to do it and how you make those kinds of decisions?

Lee Gelernt:

I think it truthfully happens constantly. One of the reasons it happens constantly is because there are so many immigrants being subject to different restrictions around the country. At any given moment, there are tens of thousands of immigrants in detention and tens of thousands of immigrants subject to deportation. It is constantly coming up where I will get a call from a family, an individual family and say, “Can you bring this case on our behalf?”

Lee Gelernt:

I will have to look at, strategically, whether strategically bringing the case will hurt other longer term strategic goals. It may not even be long term in the very distant future. It may be something along the lines of we have current litigation going in this one case, that’s not consistent with that strategy but that is a tough call with a family. What we would generally try and do is get that family an individual lawyer and then talk to the individual lawyer about other things that that family might do because often, you can help individual families through advocacy, advocacy with the government, some type of more narrow lawsuit than a major lawsuit.

Joyce Vance:

Do you ever feel like your life would have been easier if you just become a real estate lawyer?

Lee Gelernt:

It might have been easier in some respects but I don’t think I would ever trade the legal life I’ve had. I feel like for as many downs as we’ve had over the 30 years, I feel like we have accomplished a lot. I always try and tell young lawyers, try not to think about winning the biggest case out there all the time. Just to help anybody. I see a lot of young lawyers and a lot of young people get overwhelmed by the issues and say, “Well, what good is it going to be if I get involved? How can I really do anything? These problems are so big. What I try to tell people is the moments you’re going to remember are just helping that one person, that one family and even if you don’t ever do big impact cases, if you help one family, you’re going to remember it the rest of your life, that gratitude.

Lee Gelernt:

One of my biggest cases was challenging the Trump administration’s family separation practice where the administration was literally ripping babies and toddlers out of the arms of parents and taking them away. There were a lot of big moments in that case but I think one moment that just sticks in my mind constantly is I went to Mexico to visit with a father and son who had been separated for five months, they came, fleeing danger. The little boy was, I think eight years old at the time. He was taken from his father for five and a half months. The father was deported without the child. That little child was sent from Texas to New York on his first plane trip, ever without his father, just brutal, brutal circumstances.

Lee Gelernt:

We finally got the family back together for the lawsuit and I went to meet them in Mexico. The father and son sat down with me. We talked and the son was by then 10, and he was very quiet. The father talked to me about the case and what could be done going forward. After we were done, the father got up, left, and the son, I see him sort of summoning up all his courage and he got up the courage and he came over to me just by himself, and put his hand out to shake my hand and said, “Thank you for helping my family. I hope that maybe you can help us more in the future.” I just this think about what that was like for a 10-year-old boy, a strange man to have to, to come over and say that.

Lee Gelernt:

I think it’s those little moments that is really important to keep in mind because I think nowadays, especially with so much social media, so much attention on the issues in your cables, it never used to be that legal issues got this much attention. I think there’s maybe too much focus on only doing the biggest cases and people just, especially with young people need to know that they’re making a difference, even if they’re not solving all the biggest problems, that you can’t get overwhelmed by the size of the problems. Just get involved in any way you can.

Joyce Vance:

I think you’re so right. It’s just those very human moments where, as you say, you’ve just helped anybody that tend to stick in your mind when you’re as old and gray as I’m getting. I think it’s important for young lawyers to know that, to each of the people that you help, and that in some instances I’ve helped, that case is the most important thing that’s happening in their world, maybe that will ever happen in their world.

Lee Gelernt:

Absolutely.

Joyce Vance:

It’s impact litigation to them, right?

Lee Gelernt:

Absolutely. For them, their whole life is at stake. That’s a great way to put it. For them, it is impact litigation.

Joyce Vance:

Well, let’s talk a little bit about Texas. I want to talk with you about Title 42 but before we get there, I wanted to ask you about something that Texas Governor, Greg Abbott, the former Attorney General of Texas, said this morning on Fox News, he said that-

Greg Abbott:

As opposed to catch and release, Texas has imposed a policy where we are going to arrest and jail people who come across the border for trespassing into areas into the state of Texas.

Joyce Vance:

Can he do that?

Lee Gelernt:

We don’t think he can do that. I think there is enormous hypocrisy in Texas when they are claiming that they are concerned about COVID. That’s why they feel like they need to get involved. I mean, I think anybody who has been watching what’s going on for the last year and a half knows that the last thing Texas has been focused on are putting in precautions against COVID.

Lee Gelernt:

We do not think Texas could have its own immigration policy. Some of it will be in the details about what kind of actual policy they pass but as a general matter, the states cannot have their own immigration policy. That’s one of the sort of real changes in my work that’s occurred over the 30 years I’ve been at the ACLU. When I started, almost all our work was against the federal government. That’s where immigration policy came from. Some states had a little bit of immigration going on. The bigger states, California, and those states, but for the most part, most states didn’t have huge immigrant populations and states were not getting involved in immigration policy.

Lee Gelernt:

I think a lot of that started changing after 911. Now, you really see it where some states are passing pro-immigrant measures but I think more importantly, from our standpoint, you have states like Texas and Arizona going out and trying to create their own immigration policies. A lot of our work has had switched from just doing work against the federal government to fighting these state laws. It’s interesting because under the Trump administration, we would be fighting the Trump administration and Texas.

Lee Gelernt:

Then, now, we can see the Biden administration on our side against Texas. We also saw the Obama administration on our side against Texas. I mean, to the point it’s so stark that when I was arguing a few years ago, when the Court of Appeals in the Fifth Circuit, we were challenging a Texas law, one of the judges remarked to the federal government, “I see you switch side. You used to be over there at the table with the ACLU and now you’re over there on the other side with Texas,” but yeah, you’re bringing up a really important point in the immigration world which is now that we are fighting sometimes against the federal government, depending on what the administration is, but constantly against a lot of the red states who are trying to have their own immigration policies.

Joyce Vance:

Just so our listeners are clear, something that the Supreme Court has clearly established as the notion that there’s federal preemption in the area of immigration, and that the supremacy clause prohibits the states from passing laws that are contrary to federal policy, right? Isn’t that what…

Lee Gelernt:

Absolutely.

Joyce Vance:

… Arizona versus the United States in the Supreme Court was all about?

Lee Gelernt:

Absolutely. The states cannot pass laws that are in conflict with federal laws. We’ll see how all this plays out. I think Texas is going to push it as much as they can and we’ll see how much of it ends up in the US Supreme Court and how much the current court starts tinkering with that doctrine.

Joyce Vance:

Of course, the reason that we’re there at all, lets us talk about litigation that you’ve been involved in for the last year, a little bit more than a year now, involving the government’s use of Title 42’s health mechanism to expel migrants. Can you talk a little bit about what’s involved in that litigation?

Lee Gelernt:

Title 42 is just the part of the United States Code where the public health laws exist. That particular provision that the Trump administration used and now the Biden administration has kept of Title 42 is a provision that’s been in existence since 1893. It has never been fought to authorize the expulsion of non-citizens. It’s a public health law that allows testing, quarantine, various kinds of fines if public health laws are violated, but never was it fought to be an immigration power where you could expel people.

Lee Gelernt:

The Trump administration had been trying for the first three years of its administration to stop asylum at the southern border and with a particular focus on stopping Central Americans from coming here to apply for asylum. We had challenged those restrictions with varying degrees of success. For the most part, people were getting some type of hearing. In March of the last year, the Trump administration seized upon COVID as what they viewed as a silver bullet. They could now stop all asylum in the United States by using-

Joyce Vance:

Wait. Are you saying that they weren’t serious, that they were disingenuous and used COVID as an excuse to do something that they’d wanted to do all along?

Lee Gelernt:

Yeah. That’s exactly what I’m saying. Pre-textual use of the public health laws and what they did is enact what became known as the Title 42 policy because it was based on a public health law and it said, it’s too dangerous to allow asylum seekers in. Public health officials pushed back and said, “No, you can safely process asylum seekers. Just take basic mitigation measures.”

Lee Gelernt:

That law lasted until President Biden came in. We had hoped, expected that the Biden administration will get rid of the Title 42 policy. The Biden ministration got rid of it, but only with respect to unaccompanied children. It left it for adults and more importantly, for families, no matter how young the child was, no matter how desperate the family was, they would no longer get an asylum hearing and they could be turned around at the border. It feels like some kind of, it feels a little abstract to people. I think that’s one of the real challenges for us is the border is so sort of out of sight, out of mind but the danger is just gruesome what’s happening.

Lee Gelernt:

We put in enormous effort and we ultimately challenged the Trump administration policy, hope the Biden administration would get rid of it. The Biden administration said, “Hey, the Trump administration decimated the asylum system. Why don’t you talk with us? Give us some time to build it back up. Negotiate with us.” We gave them six months. We put the lawsuit on hold. They still didn’t build up the capacity, take the basic public health mitigation measures that everyone said they should build out to our processing centers, get testing to the border, all of that.

Lee Gelernt:

We went back to court and we ultimately got an injunction a couple of weeks ago, that goes into effect on September 30th. We hope the Biden administration would say, “Okay, a court has said it’s unlawful.” Now, the Biden administration within hours, I got an email from the Department of Justice saying, “We’re appealing. We expect before the 30th to get a ruling from the appeals court.”

Lee Gelernt:

What we show the district court is that this is not some sort of abstract policy that has no real harm. In some areas of the border, two out of every five families are kidnapped. What we’re seeing is literally the United States government pushing families back across a bridge into the hands of cartels. The cartels know the families are going to be pushed back for the bridge. They sit there waiting for the families and kidnapped them for extortion, for ransom. There’s assaults, rapes, kids are being made to do horrific things.

Lee Gelernt:

Our government is literally pushing them back into the hands of the cartels, knows it’s happening and it’s continuing to do it. I think we have been really shocked that the Biden administration has continued to do it. At this point, with vaccines readily available, with testing readily available, with public health officials explaining how mitigation steps can be taken, so that some secrets can be safely processed, we really, I think, are at our wits end to understand what the Biden administration is doing.

Lee Gelernt:

What you saw recently in Del Rio, Texas, under that bridge there were the Haitians seeking asylum and being expelled under Title 42, it finally caught people’s attention because the media had something to show a sort of an image that they could put out there. I think everyone said all of a sudden said, “Wait, this Title 42 policy is really brutal.” We’ve been trying to tell people that for months and months and that’s on us for not doing a good enough job to get people’s attention. It took something like the Haitians under the bridge but tens of thousands of families have been expelled under this policy without a hearing with brutal consequences prior to the Haitian situation.

Lee Gelernt:

The Haitians are just a small subset of the Title 42 problem. We will see whether the Appeals Court agrees with us and does not stay the injunction. It’s at a stay posture, which is jargon for the administration wants to allow the policy to be in effect while the appeal goes forward. If the Appeals Court says that the policy has to stop while we consider it further, then the Biden administration will have a momentous decision to make about whether they go all the way to the Supreme Court to defend the Trump-era policy but the Title 42 policy, just so people are clear, is the most extreme of all the Trump administration, asylum restrictions because there’s no hearing whatsoever. It’s not a delayed hearing. It’s not a hearing that you wait for. In Mexico, it’s not a hearing with a higher burden. It’s no hearing whatsoever. The family is literally just pushed across the border into the waiting arms of cartels.

Joyce Vance:

There’s so much there I want to ask you about but since our theme is legal nerdiness, I’m going to go to legal nerdiness first and ask you a technical question about the appeal. The government has just a limited number of days in which it can file a notice of appeal in a case and if it doesn’t file that notice, then it can’t change its mind down the road and decide to take up an appeal. Do you think that there’s any chance here that this notice of appeal that the government has filed is just prophylactic and that they won’t go ahead and pursue an appeal or do you think the Biden administration is really all in on this Trump policy?

Lee Gelernt:

I think they’re all in and the reason is this, if there was just a prophylactic, they could have filed the notice of appeal and not taken any action. I mean, to begin with they file that within hours of the ruling when, as you know, they have 60 days to file that [inaudible 00:33:10] but the more important point is that they didn’t just appeal, they said that they don’t want the district court’s injunction to take effect so that they can continue this brutal Title 42 policy while the appeal is pending.

Lee Gelernt:

That’s the part that that’s as troubling as anything and we would have hoped they wouldn’t appeal but if they said to us, “We’re going to appeal,” because who knows what we’re going to need to do down the road, we’ll have to decide but instead, they immediately asked the Court of Appeals, do not let this injunction take effect. Allow us to continue expelling families while the appeal goes forward. That’s what’s so troubling about what’s going on. We will know this week whether the appeals court is going to allow them to continue the Title 42 policy. If they do, we’re going to continue to see this horrific harm.

Joyce Vance:

Let me make sure I understand, vaccines are widely available, other people are crossing that same border without the same sort of treatment, and what you’ve described as a Title 42 process where people are being expelled, they’re not being deported, they’re being expelled, which means that they don’t even get a hearing in front of a judge. They don’t get any opportunity at all to make a case for why they should be allowed to remain in the country, right?

Lee Gelernt:

Exactly. That’s what the fight is about is process. Nobody should mistake our view as everyone is entitled to remain in the United States permanently. It’s about getting a hearing, not even allowing people to make their case.

Joyce Vance:

What will the issue on appeal be and what will you try to get the courts to do for your clients?

Lee Gelernt:

The immediate issue on appeal is whether they are going to be allowed to continue this expulsion policy while the merits of the appeal goes forward. On the merits of the appeal, what we have argued is that the public health laws do not authorize the expulsion of individuals. If the government is going to expel an individual, they must do it under the immigration laws, which provide for procedures and in particular, provide procedures for asylum seekers.

Lee Gelernt:

The question will be one of statutory authority. What’s interesting is that the Title 42 law was just before the Supreme Court in the last month or so, in this case called Alabama realtors, where landlords challenged the eviction moratorium that had been enacted under Title 42, which said landlords cannot evict tenants because of the danger of COVID. What the Supreme Court said is, COVID may be dangerous, but that doesn’t authorize the executive branch to use a public health law to take those measures. They said the executive branch is eviction moratorium exceeded statutory authority.

Lee Gelernt:

We are making the same argument that the public health laws do not provide the executive branch with authority to expel individuals. They can quarantine them. They can test them, other basic public health measures but if you want to expel someone, particularly someone in danger, you have to use the immigration laws, which provide for a process. We’ll see what the court of appeals and perhaps the Supreme Court say about whether there is statutory authority or whether they ultimately have a different view about the authority under this public health law, the Title 42 law than they did when it came to landlords.

Joyce Vance:

I’m getting a Title 42 education this year that I had never hoped to receive.

Lee Gelernt:

That’s what’s so interesting about it. You know what? It goes back to our discussion about sort of the technical nerding out of the law. I had never had any dealings with it. The law goes back to 1893. We have been digging through archives to understand the basis for the law, how it’s been used in the past, what it was intended to do. What we found is that, although, it’s been in existence since 1893, it has never been used to expel people. I think it was a Trump administration decision to try and bend the law like this to the ends that they were seeking. What we were really shocked about is that the Biden administration went along with it.

Joyce Vance:

Well, let’s talk a little bit about how far the Trump administration was willing to go to implement the immigration policy it wanted. Why don’t you talk with me about the origin of the family separation policy and the approach the Trump administration took?

Lee Gelernt:

The family separation practice is the worst thing that I’ve ever seen in my 30 years at the ACLU. We began hearing in the fall of 2017, that the Trump administration might be considering taking children from their parents. What the administration thought was, if we take children from their parents and make it so horrific on these families, the families who were here will give up their asylum claims, and the ones who are thinking about coming won’t come because they won’t want to lose their children.

Lee Gelernt:

The administration then went on various shows and said, “No, we’re only considering it.” I think people sort of went to sleep on it for a while but ultimately, in late fall of 2017, we began hearing the children were, in fact, being taken away. It became clear by the holidays and January that families were being separated. We ultimately brought a lawsuit on behalf of a woman who was called Miss L and the lawsuit came from the Congo with her seven-year-old and child had taken away.

Lee Gelernt:

By the time the judge ruled that the policy was unconstitutional, calling it brutal, we found out that there were 2,800 families that have been separated, 2,800 kids that have been separated, some as young as six months old. Ultimately, it was revealed to us through the lawsuit that there were 5,600 children separated, and that the Trump administration was contemplating taking 26,000 children away from their parents, had we not ended the policy.

Lee Gelernt:

Unfortunately, we are still trying to find many of these families to see whether they’ve gotten their kids back because many of the families were deported. The parents were deported without their children. We are trying to get them trauma care relief, asylum, any type of permanent relief and that’s an issue where the by the administration has been, thus far, very good. I want to be clear, there’s a lot of talk about there that Biden administration is no different than the Trump administration. The truth is that on some things like Title 42, they are not different and we find that inexcusable but on other issues, they have been working with us and trying to do the right thing.

Lee Gelernt:

One of those is the family separation practice, trying to remedy the harm that occurred from that. President Biden, in the second presidential debate, talked about it. He ran on the issue. He campaigned on the issue. They have been trying to work with us. We are in negotiations with them to try and do what we can but that is really as brutal as I’ve ever seen a government policy. It’s not just the numbers, there were 5,600 children, that speaks volumes about the devastation and how many of the children were just babies and toddlers but I think it’s, it’s the little stories as we talked about before that just stick in your mind.

Lee Gelernt:

One four-year-old boy from Honduras who needed glasses, and his parents with very modest means scraped together the money to buy him a pair of glasses but then knowing they couldn’t afford a second pair scrape the money together for a pair of glasses cases. When they came to take the little four-year-old boy away, he was begging and screaming, “Please don’t take me away,” and his mother had to just stand there, helpless, couldn’t do anything about it. The little boy is literally begging. They take him away and fortunately, he’s wearing his glasses, but he’s not able to get his glasses’ case. All day long, all the mother would think about is can my little boy see? Will they show him where he can put his glasses that’s safe. If they break, will they get him another pair of glasses?

Lee Gelernt:

Another father said to us that he just asked the government for a few seconds to try and brace his young child for what was going to happen before they took them away. They didn’t give him the time. They just took the little boy away. Other parents described how they just had a wave to their children through a glass window and they weren’t even allowed to hug them to say goodbye, just really brutal stories. An 18-month-old, the mother had to strap the 18-month-old and the car the baby is screaming. They have to close the door. The mother is not allowed in the car and she sees the little baby craning his neck to see his mother as the car pulls away and the mother is just standing there.

Lee Gelernt:

The one silver lining I would say is the revulsion that the American public and really the world, I mean, even the Pope came out and spoke about the policy. How quickly the condemnation is, was once we were able to get the stories out, I think the Trump administration underestimated the American public. I think they had thought they dehumanize the Central American families to such an extent that the American public wouldn’t care if little babies were being taken away. What was clear is that the revulsion spanned the ideological spectrum and maybe not the very, very far right of Trump’s base but I think the revulsion was seen in the Democratic and Republican parties. It was seen liberal and conservative people.

Lee Gelernt:

Laura Bush wrote an op ed in the Washington Post and basically the theme was, “Look, we may not agree with the ACLU on all macro immigration policy but there’s just some things we can’t do.” The challenge for us has been, how do we make people see the horrors of other policies? How do we generate that kind of outrage over other policies like Title 42? I don’t want to suggest that any of the other policies are as egregious as the family separation practice but on the other hand, there is real harm in some of these other policies but it’s very hard given how much is going on in the news, even within immigration, but just generally, to get people’s attention on these issues. We were able to do it with family separation because people had that visceral gut reaction but I think that’s, as advocates, one of the real challenges for us is how do we break through all the news and get people’s attention?

Joyce Vance:

To put a very fine line on it, the cruelty actually was always the intent behind this program, right? Then, Attorney General, Jeff Sessions explicitly thought that if you took people’s kids away and separated families, you would keep more migrants from coming to the United States.

Lee Gelernt:

That’s perfectly said. That was exactly the purpose of the policy, be as cruel as possible, and you’ll deter and what was wrong about that are two things: One is every expert on migration in every administration, prior administration, Democratic or Republican would tell you that people weren’t going to be deterred because they were fleeing for their lives. In fact, when I would talk to mothers about whether they would have come any way had they known that their child was going to be taken from them, they all just sort of threw up their hands and shrugged and said, “What choice did I have? I couldn’t stay and have my child be killed or I might have been killed. We had no choice.” It was never going to be a deterrent and everyone knew that except the Trump administration.

Lee Gelernt:

Even if it were a deterrent, there’s just some things you don’t do as a society. One thing you don’t do is take little children from their parents. It’s the same, in your area, you can increase the crimes, I mean, the penalties for certain crimes to such an extent, but we don’t chop people’s hands off for tax evasion. It’s just there’s just some things that we don’t do, even if they were going to be a deterrent. I think this is one of those areas where even assuming that we’re going to be a deterrent, you just don’t act that cruelly as a society.

Lee Gelernt:

I do think there is a danger that people are already starting to forget about the family separation practice. There’s too much news and people are moving on because what I fear with the Biden ministration is that they will do only the minimal amount and that’s reunify the families who are not yet reunified. I mean, I shouldn’t characterize that as minimal. That is the absolute first and most critical step is to get the parents back with the children but we are asking the Biden administration to do as much more is to give them permanent legal status so that they don’t have to live with this trauma the rest of their life constantly be worried about re-separated and their children being sent back to danger.

Lee Gelernt:

I mean, the United States deliberately abused these families. What some medical professionals call torture, what the American Academy of Pediatrics called just straight out child abuse, I think we owe it to these families to give them some permanency in the United States. I think we will regret it if 20 years, 30 years from now, we look back and say, “We let the politics of the time not allow us to do the right thing.” I think that will be really shameful. That’s one of the hard things about doing this work. I think being in the government is to step out of the swirl of the moment and the politics to the moment and realize 20 years from now, are people going to be saying, are people going to be asking their grandparents, “Wait, you thought these families shouldn’t get permanent relief?” We have to separate some of the most egregious moments out from the politics of the moment.

Preet Bharara:

I hope you found Joyce’s interview with Lee interesting and insightful. To hear the rest of their conversation, sign up to become a CAFE Insider. You can do that at cafe.com/insider, that’s cafe.com/insider.

Preet Bharara:

That’s it for this week. Thanks to Joyce Vance and Lee Gelernt. CAFE Insider is presented by CAFE Studios and the Vox Media Podcast Network. Your hosts are Preet Bharara and Joyce Vance. The executive producer is Tamara Sepper. The senior producer is Adam Waller. The technical director is David Tatasciore. And the CAFE team is Matthew Billy, David Kurlander, Sam Ozer-Staton, Noa Azulai, Nat Weiner, Jake Kaplan, Chris Boylan, and Sean Walsh. Our music is by Andrew Dost. Thank you for being a part of the CAFE Insider community.