The ACLU attorney who fights to reunite migrant families

Lee Gelernt is deputy director of the American Civil Liberties Union’s national Immigrants’ Rights Project. As the lead attorney on efforts to reunite migrant families separated by the Trump administration and in blocking the first version of the Muslim travel ban, he’s a familiar face in court.

Mr. Gelernt is based at the ACLU’s office in New York. On a visit to Boston, he talked about the ongoing efforts to track down and reunite thousands of families that were separated at the U.S.-Mexico border. Under a “zero tolerance policy,” which ended last summer, adults were prosecuted for crossing the border and their children were dispersed to shelters across the country. The ACLU successfully sued to halt the practice in a U.S. District Court in San Diego.

Since Donald Trump took office, “I’ve had maybe a week of vacation,” says Mr. Gelernt, who is also an adjunct professor at Columbia Law School. Still, he adds, it’s nothing compared with the levels of stress experienced by migrants coming to the United States.

The interview has been edited for clarity and length.

You won a District Court injunction in 2018 to stop family separations. Where do we stand on that issue, and what is the treatment of families arriving now at the border who want to claim asylum?

I would say there are four big buckets. One has to do with the 3,000 people who have been reported separated to us, and whether any of the parents who were deported without their children are going to be allowed to return. We believe they were coerced or misled into giving up their own asylum rights. So these are families where the children are here in the U.S. and the parent is abroad.

The government said they would relook at these cases. They rejected all the cases we submitted. So we are likely to go to court very soon to see whether any of those parents can come back and get a chance to apply for asylum.

There is another bucket that’s backward-looking, and that’s because [the Department of Health and Human Services] revealed that there may be thousands more families that were separated.

So these separations preceded the zero tolerance announcement in the spring of 2018.

The government said, ... these are separations that occurred before the court injunction. The government is saying ... these are families that were separated before, but also the child was released; we got the child to a sponsor. ... [Editor’s note: After Mr. Gelernt’s interview, news reports came out that the Trump administration has so far identified more than 1,700 children who might have been separated before the zero tolerance policy. These cases have been forwarded to U.S. Customs and Border Protection for further review.]

And then once we find [the families], we’ll have to figure out what their situation is. It could be that ... some have been able to reunite. It could be that some of the parents are in Central America – I suspect a lot – and they felt it’s too dangerous for their kid to come back. It could be that some of the parents want their kids to come back but haven’t been able to get them back. ...

The third bucket is when you asked about what’s going on now. Since the court’s injunction, the government has said they’ve separated roughly 400 people ... and we suspect that’s an undercount. The government is taking the position that each of these 400 is consistent with the court’s order because all the court said is you can’t systematically separate for no reason – but you can still separate if there’s evidence in an individual case that the parent is a danger to the child.

And of course everyone agrees: You see a parent beating the child, right, you take the child away. But what we’re finding out is that they’re separating [families] because they alleged that the person might have been a member of a gang, or have a traffic violation, or some minor crime that doesn’t reflect at all on the parents’ ability to raise their kid. So we’ll be back in court. ...

And the fourth thing is the post-reunification, how can we get help for these children. They are suffering immeasurably from the trauma of the separation, as are the parents, particularly the young parents. And so now one of the things we’re working on is how can we get medical help, pro bono.

You were just talking about the different groups, and in many cases we have children in the U.S. and their parents were deported. Finding those deported parents, that must be a huge task.

The first time around ... the government said ... we can’t go look for [deported parents]. And so finally we got exasperated. I said, ‘The ACLU will find them, with NGO partners and a law firm.’ [Then] we fought with the government for information. At first they gave us this vague information. ... We then kept fighting with them and they said, well, we do have phone numbers. We were just blown away that they actually were sitting on phone numbers!

We finally got the phone numbers and what we did is just every day, for hours and hours and hours, call the parents and try and reach them. ... Eventually we reached them, and then we had a call with the child’s advocate – or attorney if they had one – and figured out on a rolling basis [how to proceed]. ...

It was an enormous task, and we’ve just now finished. We started back in August. ... That’s how big a task it was. Now we’re looking at starting up again [to trace the new batch of separated parents.] We suspect many of them are in Central America and were deported without their kids and also probably didn’t get a meaningful [asylum screening]. And what we’re seeing is a lot of the indigenous people had no understanding of what was happening.

How many cases against this administration have you defended in court?

Me personally? It’s a lot ... like 20 or so I’ve personally been arguing in court. The ACLU national office has now filed, just on immigration, I believe it’s 85 lawsuits against Trump. And that’s not including ACLU affiliates.

So what’s your strike rate?

We are winning most of the cases. I think that’s been one of the pleasant things, to see this system work. The courts have pushed back. Who knows what cases will percolate up to the Supreme Court. We’ll see what happens there.

Recently Vice President Mike Pence called for an end to nationwide injunctions by district judges, calling them judicial overreach. So do you worry, given the makeup of the Supreme Court, that it could side with him on this issue?

I worry about everything! But I think the nationwide injunction is an issue that’s going to be tackled sooner or later by the Supreme Court. I think if it means we bring additional lawsuits and we don’t bring them as one national but as regional [suits], I think that’ll be fine. We will still be able to prevail, I think. But we’ll see what the Supreme Court ultimately does about it.

Assuming there’s going to be no legislative reform of immigration law, what is the new normal in immigration policy?

What ultimately asylum laws will look like and immigration laws generally, I think remains to be seen with the outcome of the litigation. ...

I don’t think there’s been a week in the last two years where there hasn’t been some major issue on the table that I’ve had to work on. I can’t remember a time when it’s been this constant. I’m glad I’m in a place like the ACLU where I actually can try and push back.