Lee Gelernt: Protecting Immigrant Children Transcript


(Lee Gelernt)

One family that I talked to, the 4-year-old was separated for a few months. But the mother says the child was still asking after they were reunited, “Are the men going to come and take me away again?” I think that’s likely to be repeated over and over again.

(Sandy Santana)

I’m Sandy Santana, Executive Director of Children’s Rights. I was honored to sit down with Lee Gelernt from the ACLU and talk about his work on the government’s family separation policy. Lee told me that in 25 years of doing this work, he’s never seen a policy this cruel. When Lee talks about the thousands of children and families separated, you can feel the passion and drive he brought to stopping this policy and making sure it never happens again. I hope you enjoy our conversation.


I’m here with Lee Gelernt, Deputy Director of the ACLU Immigrants’ Rights Project, and the person who really shouldered the burden of reuniting families who were separated at the border. And first, from a grateful Children’s Rights—and, really, a grateful nation—thank you. Thank you for doing that work.


Thank you for having me. And thank you for everything you’ve done in this issue. I’m sure we’ll get into that more.


Absolutely. So let me take you back to February of this year. That’s when you brought the Ms. L v. ICE case, before this issue was really on the national radar. When did you first become aware that children were being separated from their families at the border at a big scale?


Last fall, about a year ago, we started hearing that there may be families separated. And then what happened was the administration had a few high-profile interviews with CNN, the New York Times, and the Washington Post, and they said, “We’re considering enacting a formal policy of separating families at the border.” And everyone sort of went to sleep on it because they said, “Well, they’re only considering it. That means they’re probably not doing it.”

But we started hearing over the fall and through the holidays that it was actually happening on the ground, and there were advocates who were following it and who had been telling us that it appears to be happening. We then started hearing even more reports in January.

In February I heard about a woman from the Congo, who goes by Ms. L in our lawsuit and became the lead plaintiff. She had been separated from her then 6-year-old child for about 4 months. I went out to visit her in a detention center on the border in San Diego, and I heard her story. She had lost an enormous amount of weight, hadn’t been sleeping, was distraught. She told me that she had come from the Congo and that she’d had a harrowing journey with her 6-year-old daughter, through 10 countries, often walking barefoot for miles and miles, eating out of garbage cans and begging for money. Finally, they got to the U.S.-Mexico border in San Diego and applied for asylum.

Critically, she did not cross the border illegally. That’s the narrative that’s been put out by the administration, that they only took children if the parent crossed the border illegally. She presented herself lawfully and said, “I’d like to apply for asylum for me and my daughter.” She in fact passed the initial asylum screening. She was housed with her daughter in a motel, a makeshift detention center motel for 4 days—this is all her recounting the story to me—and she then was brought to immigration offices and at that point, this was on the 4th day, they said that the daughter needed to come into an adjacent room. The mother was handcuffed, and the mother described hearing her daughter screaming, “Mom, don’t let them take me away! They’re taking me away!”

The daughter was hysterical and screaming, and the mother was just helpless. She didn’t find out where the daughter had gone for 4 days, hadn’t spoken to the daughter for 4 days. They took the daughter all the way to Chicago. Again, the daughter was only 6. She finally got to speak to her daughter on the 4th day. Needless to say, they were hysterical. Every 10 days or so, she got to speak to her daughter for a few minutes.

They had already been separated for 4 months. The daughter celebrated her 7th birthday all alone in a Chicago facility. And although we knew that there were likely hundreds of families that had been separated at that point, this was late February, we decided that we needed to bring a lawsuit immediately for this woman because she was in such bad shape. We needed a few more weeks to build the national class action, and as you all know from doing major class actions, that takes time. So we brought the suit initially on her behalf, and then took a few more weeks to make it a national class action. But ultimately, she became the lead plaintiff in the national class action.

At the time we filed the lawsuit, in the beginning of March, we believed that there were 400 to 500 families that had already been separated, an enormous number. But ultimately what we saw was that thousands would get separated. When we had oral argument at the beginning of May, the New York Times had reported that there were 700 families who had been separated. By the time we won the case, which was the end of June and received the national class injunction, there were roughly 3000 families who had been separated. There were a lot of advocates doing work. We supplied the litigation piece.

I think what everyone saw over time was that the issue became an enormous public issue, that there was public outcry from all corners. And I think that’s one of the things the administration underestimated, that there would be an outcry from not just Democrats and Liberals, but from Conservatives and Republicans who said, “Wait. Wait. We don’t agree with the ALCU on all fronts in the immigration area, but this is just a step too far.”

We saw babies 4 months, 5 months being dragged from their parents and sent to government facilities, thousands of young children being taken away, spending months and months in government facilities. The stories were absolutely horrible.

When we started litigating, I made 2 principle calls when we knew we were going to bring the lawsuit. One was to doctors through the American Pediatrics Association because we knew we were going to need to show the trauma that separating these families was going to cause, and likely, permanent trauma. We put in roughly 10 affidavits from doctors all across the country dealing with trauma, explaining that you are going to potentially harm these children for the rest of their lives.

The other call I made was to Children’s Rights. What I explained to Children’s Rights—and they of course had been hearing about the issue—but what I explained to them was that because in the immigration area the rights of noncitizens, especially at the border, are not always the same as citizens.

We were going to need to make a very forceful showing that these noncitizens should enjoy constitutional right. We needed to give the court a clear sense of what would happen in the normal context with citizens, and then we would have to argue that that should be extended to non-citizens. What I needed from Children’s Rights was their expertise, but also their clout with other children’s groups to organize an amicus brief on behalf of dozens of national children’s rights groups.

And fortunately, Children’s Rights jumped in, wrote a fantastic brief explaining that you can never take a child away from a parent unless the parent has been shown through some process to be a danger to that child or in some way unfit. And so, Children’s Rights wrote a fantastic brief, but as importantly were able to get all the major children’s rights groups to sign on to that brief.

That brief ended up being a critical part of the litigation because the judge recognized that was the Trump Administration was doing here was so far afield from best practices in the child welfare area that the government needed an enormously powerful justification to do this. When the government couldn’t come forward with it, that’s when we were able to win the case.


We were, obviously, enormously proud to partner with you in that endeavor and in this cause. As a parent, I know you feel this. You don’t have to be a parent to feel this very viscerally but when you have children, you understand what separation means.


I would say in my 25 years plus of doing this work, that this is the worst practice I’ve seen. I’ve seen a lot of bad practices, and so have you. The Washington Post described it early on as just gratuitous cruelty, and I think that’s absolutely right.

To the extent the administration thought it was going to deter families from coming, that was absolutely wrong. The families are making life and death decisions to leave their country—otherwise they’re going to be tortured or killed, and so they’re going to come anyway.

When I would meet with families, I would ask them: “So if you had only known that your child was going to be taken away when you got here, would you have come anyway?” They invariably through up their arms and shrugged, asking, “What choice did I have? It would’ve been worse to stay.”

Even if it were a deterrent, it was so inhumane. You brought up your own children. I think for me as well, having 2 boys, I could not get that out of my mind: how unbearable it would have been to see my boys dragged away. They’re already traumatized from coming to another country, and being dragged away, helpless, sent to some unknown place, and me not knowing how they were doing and having no power to help them.


One thing that was clear to us, and I’m sure it was clear to you, is that when reunification was ordered and Judge Sabraw ordered reunification, there was really no plan that the federal government had put in place. Fits and starts, but not a very well-oiled machine, and to the detriment of children’s health. What is the state of play now? How has that progressed? We’ve been following the numbers—where are we now?


I think you’re absolutely right. What seems to be clear and what startled I think the judge and startled me as well—you know, my wife says I’m just naive and I should’ve understood it—is that the government really didn’t have a plan. Not only that, but they weren’t actually keeping track of where the families were going. The judge at one point said that the U.S. government keeps better track of property than they have of these families.

The government could not piece together where all the families were, so it took forever to get the families reunified. We are now in the range of about 300 or so families that haven’t been reunited. We are extremely pleased that roughly 2200 parents of children have been reunited. There are more to go, but it’s just taken way too long.

As the medical community predicted, every day that the children are separated is causing them trauma. For them to be separated for so many months, there’s going to be a feeling, among some circles, “Well, all the families are reunited, the problem is over.” But in some ways, the problem is just starting for these families, the trauma that’s set in.

In one family that I talked to, the 4-year-old was separated for a few months. But the mother says the child was still asking after they were reunited, “Are the men going to come and take me away again?” I think that’s likely to be repeated over and over again in family households.

The other dynamic we’re seeing, which the medical community also predicted, is that the relationship between parent and child has been completely distorted. A lot of children now are angry and resentful toward their parents because they’re too young to understand their parents couldn’t stop it. They were literally watching their parents as the children were being dragged away. They were begging with their eyes for their parents to stop, and the parents were helpless to stop them being dragged away.

The kids are just asking, “Mommy, Daddy, why didn’t you stop these men from doing this to me? Why didn’t you come get me? Is it because you don’t love me? Why did you not try harder?” And not being old enough to understand. We’re seeing a lot of resentment from the children once they’re reunited. As horrible as this sounds, there are some children that were so young when they were taken away for months they don’t even recognize their parents when they come back. This is a horrendous situation, and it’s ongoing.

The unfortunate thing is that even after the judge said the policy was brutal, offensive, and unconstitutional, you would’ve hoped the administration would have said, “Okay, we made a mistake, we’ll do everything we can to fix it.” But every step of this litigation, they have fought us.

At one point, they said to the judge: Your Honor, we don’t think we can pay for all the children to be reunited with their parents. We may have to ask the parents to pay to be reunited with their children.

But the government had enough money and resources to take the children away and fly them all over the country. The judge, fortunately, put his foot down.

At another point the government said: We’ve deported about 400 parents without their children. We don’t know where all those parents are. The ACLU should find those parents.

The judge said, Absolutely not. You created this mess; you bear ultimate responsibility. The ACLU and its partners will help you find these children if you give them the information, but you are not washing your hands.

But it’s at every step this has happened, where the government has tried to wash their hands of it. At some points the government has even gone so far as to say, Your Honor, we’re very proud of the efforts we’ve made to reunify. As if this was some natural disaster and the government has jumped in to help.


They created it.


They created it. Absolutely.


One of the difficult things about that is on the one hand, the government’s responsible. But the advocacy knows the effect of this trauma and the need to reunify these parents as quickly as possible with their children and those who have been deported.

I read the following quote, and I thought it was funny. It was about you in Guatemala, and it said: “A rumpled New York lawyer in khakis and a pin-striped shirt standing incongruously in the shaded Plaza Central of Chimaltenango, Guatemala.” I thought it was funny, but it shows the efforts the advocacy community and the ACLU is making on its own to reunify.


For sure, when this all started happening, I did not anticipate that I would be in Guatemala. The rumpled was probably right. It was a long day.


You had no socks on at a hearing. I read about that.


In fairness to me, I always had socks on, but this case has really blown up. The first hearing we had—not the first, the first hearing we had was when we argued the merits of the case and ultimately won. But after we won, the judge said: I want everyone to come to San Diego to talk about the plan to reunify the children now that I’ve ordered that.

And I went out there for a Friday hearing. I went out late Thursday for a hearing Friday morning, and I was supposed to take the red eye back Friday night. The judge said: No, I want to see everyone back Monday. And then he said: No, I want to see everyone back Wednesday.

We were very pleased with it because we felt like the only way to get all this done was for the judge to have really a hands-on role. But I had brought clothes only for one night. I ended up being out there for two weeks and going to the store and continuously to buy more socks and underwear. So I always managed to have clean socks in court—beyond that, I’m not disclosing.

But I felt in my heart, from having done this work for a long time, this was going to be a big deal. And I was saying it to people in the beginning, but I couldn’t really get through to people the magnitude of it. And then I think at one point it sort of blew up and then became the issue in the country.

I think it’s probably a combination of a lot of things. The numbers were increasing. I think some of the people’s stories got out. There was the children crying on the tape, there were families being profiled. As you know, doing this work, there’s the abstract policy and sometimes you’ll convince people with those arguments. But ultimately it’s putting a human face on it. Until you put a human face on it, people don’t care.

Once we were able to put a human face on it, people came from everywhere opposing it and were repulsed by what was going on, that 4-month-old and 5-month-old kids were being dragged away.

If there can be a legacy from this case, I’m hopeful it can be that people won’t turn away from these issues. I argued the first Muslim ban case in Brooklyn, the first day after it was enacted. There was enormous outcry. Everyone thought it was going to last forever, but it didn’t of course. There’s too many issues going on, and the energy it takes to sustain that.

But I also think that was slightly different than this, because I think the lines split more ideological with the travel ban. But what I was pleased about, and what the administration was hoping would happen, is everyone got re-engaged with family separation.

My hope is that now people stay vigilant and say, wait. There may be macro immigration policy issues that we don’t agree with the ACLU or other groups on, but there are certain things we don’t want being done in our name, the public’s name. I’m hoping people stay vigilant because this is not going to be the last horrific policy we see from this administration. If that can be the legacy of this case, that there’s sustained vigilance from the American public, that will be important.


Lee Gelernt, we are all so grateful to you for all your work. I know how difficult it is to read the stories of children and families who have experienced trauma, and even more difficult to interact with those families where their lives are falling apart. We’re so grateful to you for doing that.


Thank you, Sandy, and thank you for all your help on the case and for all the great work that Children’s Rights does.


And we look forward to honoring you for your work on October 16 at our annual benefit.


Looking forward to it. I’m flattered.


Thanks again for listening. That was Lee Gelernt, Deputy Director of the ACLU Immigrants’ Rights Project. And don’t forget to follow Children’s Rights on Facebook, Twitter, and Instagram. Until next time.

Donate today to protect our nation’s children