In the spring of 2018, the Trump administration implemented a “zero tolerance” policy on immigrants and asylum seekers attempting to cross the U.S.-Mexico border by separating families and children. According to a recent report from Amnesty International, over 6,000 people — half of whom are children — were separated from their families at the border between April and August of this year. In response, the ACLU initiated a national class action lawsuit against the administration to stop the practice.
On Oct. 22, Lee Gelernt, the ACLU lawyer who spearheaded the lawsuit, spoke to HLS staff and students about the litigation’s claims and the ongoing efforts to reunite families. The conversation with Gelernt, who is deputy director of the ACLU’s Immigrants’ Rights Project, was sponsored by Harvard Law School’s Office of Clinical and Pro Bono Programs as part of National Pro Bono Week, celebrated at HLS from Oct. 22 to Oct. 27, to highlight the work of outstanding attorneys engaged in critical pro bono legal work in the areas of immigration, civil rights, economic justice and climate change.
Gelernt, who has argued a number of challenges to Trump administration policies, described the case which sought to reunite a mother and daughter who were forced apart and detained separately 2,000 miles away from each other. The pair had been seeking asylum in the U.S. after fleeing violence in the Democratic Republic of Congo.
The lawsuit claimed that Trump’s separation policy violated the Constitution’s due process clause, the asylum statute (which protects asylum seekers), and the government’s own directive to keep families intact. On June 26, federal Judge Dana Sabraw issued an injunction declaring Trump’s separation policy unconstitutional and required the administration to reunite the families.
The administration suggested that the ACLU should use its networks to find the parents, but the judge retorted that it was “100%” the government’s responsibility to find the migrant parents it had separated and deported. The ACLU did organize efforts to help, and prioritized reuniting children 5 and under with their parents. The task was quite daunting, said Gelernt. In September, NPR reported that 304 parents had been deported and remained outside of the U.S. – many of whom were in Guatemala.
Gelernt said the government kept poor records of the individuals they deported, and that they were “sitting on information, including phone numbers, [that they had] that could help find these parents.”
Gelernt traveled to Guatemala to search for some of these parents. “I never expected to be in Guatemala looking for parents.” For those parents that he and other volunteers found, they explained their rights and presented them with a distressing choice: to be reunited with their children or to let them remain in the U.S. to pursue asylum independently. Gelernt said that two-thirds of the parents who were deported let their children remain in the U.S., reasoning that having their children return to their home country was too dangerous.
In his 25 plus years of civil rights work, Gelernt said the family separation policy is worst thing he’s ever seen. “It’s as The Washington Post described it: ‘gratuitous cruelty.’” Being detained is a traumatizing experience in and of itself, especially for a child, Gelernt said, and that trauma was compounded by the fact that these children were being forcibly torn from their parents. In some cases, young children had been separated from their parents for so long, their children no longer recognized them. Judge Sabraw asserted the severe consequences of policy warning that, “For every parent who is not located there will be a permanently orphaned child.”
As heart wrenching as the issue was, Gelernt said, it rallied political unity among conservatives and liberals. Immigration policy is a polarizing issue in Washington, but the public outcry denouncing Trump’s “crackdown” on immigration mobilized politicians from both sides of the aisle to speak out. A poll conducted by the Harvard Center for American Political Studies and Harris found that eighty-eight percent of voters opposed the policy, and said that the families should remain together while their cases move through immigration court.
While the bipartisan calls against inhumane policies helped stop the administration, lasting immigration reform won’t come from this administration any time soon, Gelernt said. Any real, substantive change will have to be through the courts and through large public outcry, as many civil rights victories in the past have occurred. Gelernt noted that the ongoing challenge will be to maintain public scrutiny on the administration’s immigration policies and decisions, and not letting the public lose focus on the issue. He encouraged students to organize, volunteer, and to continue to keep the issue in the public light.
The event was co-sponsored by HLS ACLU, Harvard Law Child and Youth Advocates, the HLS Immigration Project, and the Harvard Immigration and Refugee Clinical Program (HIRC).