Why Is This Happening? The fight for asylum with Bridget Cambria and Tobias Barrington Wolff: podcast and transcript

Chris Hayes speaks with immigration lawyer Bridget Cambria and law professor Tobias Barrington Wolff about how Trump's COVID-19 policies impact immigrants.
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By Why Is This Happening?

As the coronavirus pandemic spreads, we know that there are marginalized groups that are exposed. Those migrants seeking asylum at the southern border are one of those exposed groups, and face even more danger in part due to the Trump administration’s immigration policies. These are policies that are intended to close off the country and deter those who are lawfully seeking asylum.

This conversation with Bridget Cambria and Tobias Barrington Wolff about this administration’s policies and the case of a particular family that they represent was recorded prior to the heights of the pandemic that we now live in. It illustrates the hardships that asylum seekers face against a system that is actively working against them, and it is evidence of why they are now more vulnerable than ever.

Note: This is a rough transcript — please excuse any typos.

BRIDGET CAMBRIA: These battles, they're not about the immigration process. This is about what rights do immigrants have? And the administration believes that an immigrant has no rights. No constitutional rights, no rights to even have a case heard in a court. This is about-are they human beings or are they individuals we can do whatever we want with?

CHRIS HAYES: Hello and welcome to "Why is This Happening?" with me, your host, Chris Hayes. If my voice sounds roomier today, which is the echo in the background, it's because I am not in a professional podcast studio as per usual. Instead, I am in a secret, remote location known as the COVID-19 den. Many of us are in that same situation. It's more than likely when you're listening to this in your ear holes that's where you find yourself. I hope everyone out there is staying safe as is practicable and not losing their minds and navigating the nine million different log-ins for their kid's distance learning, which was our morning this morning. Just setting up your five year-old's Zoom account and their Zearn account and their Kids A-Z account and their Google Classroom account.

Look, Tiffany and I have gone back and forth on this; about what the mission of this podcast is in this strange moment. I think we are probably going to start focusing more on coronavirus stuff, but we had some stuff we recorded before all this happened and today's, I think, is quite relevant because of the following: we know that the way this virus is moving through society, there are marginalized populations that are the most exposed to the risk. Homeless folks, people in homeless shelters, incarcerated people in prison and jails. We already have really gnarly stories about an outbreak in Rikers here in New York City and immigrants in detention, particularly in ICE detention facilities. ICE has been extremely stingy with data and slow to change their habits and practices and probably have succeeded in spreading the virus all around the country because they keep apprehending people and then funneling them through various different facilities around the U.S.

Today's conversation is about immigrants and it's actually about immigrants who don't even get into the U.S. because over the last year or so, the Trump administration has instituted a suite of policies that has, essentially ... I think the best way to think about it is turned Mexico into the wall. The wall isn't really there. They're not really building a wall. What they have done is they've turned the country of Mexico into America's wall. There's a policy called MPP, Migrant Protection protocols, which is deeply Orwellian because it does not protect migrants. In fact, it exposes them, as you'll hear in this conversation, to tremendous hardship and danger. And this has now been going on for tens of thousands of people and their plight takes on added acuity during this time because they are now subject to the spread of the virus and they have no protection. Many of them are living on the streets or they're in mass shelters.

So this is the story both how the Trump administration has gone about closing off the country to people seeking lawful asylum and also one particular family's story. And my guests today are two lawyers who have worked on this particular family's story and can talk about the individual aspects of it as well as the policy aspects. Bridget Cambria is the executive director of ALDEA, which is the People's Justice Center. She's an immigration attorney with the law firm Cambria and Kline and she's also joined by Tobias Barrington Wolff, who's the Jefferson Barnes Fordham professor of law at the University of Pennsylvania Law School.

And the last thing I'll say here, if you're listening to this as you're watching the news and the numbers tick up and the insanity of this current moment in which all of life from three weeks ago seems unrecognizable, is that the same grim social logic of who is on the outside and who's on the inside, who's marginalized and exposed and who isn't, pertain to before the virus hit and is now being exacerbated by that. And these are the stories of just a few of those people.

CHRIS HAYES: Let's start with this. One of the things ... I forgot who said this, but someone said recently about US immigration policy under the Trump administration, having to do with asylum seekers at the southern border. They said, "Trump got his wall and it's the country of Mexico. That he has turned Mexico into the wall through a policy Orwellianly called The Migration Protection Protocols." Tobias, can you just talk a little bit about what MPP is?

TOBIAS WOLFF: Sure. And I'm going to defer to Bridget on some of the on-the-ground details, which she knows a lot better than I do. But MPP attempts to do is to force people who are coming to the United States presenting themselves at the border as lawful asylum applicants- instead of remaining the United States during the pendency of their asylum claims, either in detention facilities or released on recognizance subject to monitoring and accountability that would require them to show up for their asylum hearings, which of course the overwhelming majority of people do. And instead, what it does is to force them back across the border into Mexico. And most of these ... almost all of these asylum applicants have no relationship with Mexico. They have no family or resources in Mexico and many of them wind up being homeless and in desperate circumstances and vulnerable to trafficking and vulnerable to harm and exploitation and all kinds of really serious ways.

If I can offer some critical commentary, I think one of the purposes of the program is to terrorize people and to make people so afraid of coming to the United States to present asylum claims that they choose not to do so in the first place.

CHRIS HAYES: Bridget, can you talk about what it means for these populations that are coming from Central America seeking asylum, ending up at the border and now finding themselves essentially thrust back into Mexico along border towns where they have essentially nothing? The clothes on their back, whatever the cash they've been able to carry and nothing else.

BRIDGET CAMBRIA: I can tell you that for the families, about 50,000+ people who have been forced to remain in Mexico while trying to lawfully seek asylum, their lives are absolute hell. Most of them live on the street or in shelters where they're not allowed to remain for a long period of time. The wait periods for them to be heard in an immigration court are upwards of one year. And at that point, they have no stable living, they have no safe living, they have no support from the Mexican government, and the majority of these people are children. And what we've seen is large-scale violence and targeting of Central American asylum seekers in Mexico who are trying to seek asylum in the United States, which is their legal right.

And what the United States has done is, in fact, create a giant detention center in Mexico. It is their prison. And we have about 50,000+ detainees. In the United States, we now have more than 50,000 detainees on the Mexican border trying to seek asylum. It's a wide scale increase of the detention population and it involves the most vulnerable of us. It involves families, it involves women, it involves very young children, and they're desperate. And they're just desperate for protection and they're desperate to seek what they're lawfully entitled to, which is the opportunity to lawfully seek asylum in the United States.

CHRIS HAYES: Just to follow up on something you said, Bridget, there are several news reports about people who present at the border for asylum are then kept in Mexico under this MPP protocol who have been targeted for robbery, kidnapping and even murder. I mean, they are essentially sitting ducks there, right?

BRIDGET CAMBRIA: That's correct. Colleagues of mine have had clients who have been murdered in Mexico. They have clients who have been raped in Mexico. They have children who have been kidnapped, fathers who have been ransomed. It's the worst violence that you could imagine. And they're doing this for simply the opportunity to seek protection in the United States and their desperation, the violence that they're fleeing is so bad that they're willing to take that risk. And what we've done is not only have we taken that vulnerable population that is already at risk, but we've suggested them to exploitation on the border. These people are sitting ducks for traffickers. These people are sitting ducks for cartels that are willing to exploit them. These are people who are ransomed for thousands of dollars from family members in the United States and no one is helping them.

Instead, they're just subject to this policy which, when you began you stated that this is Trump's wall. It's one of many legal pieces that this administration has put forth to bar people from seeking asylum in the United States. It's one of many different hurdles that the government has enacted to prevent people from applying for asylum in the United States. And the reason that they're preventing families, they're preventing Central Americans from applying for asylum is because they lawfully have that right and they can win their cases and that terrifies this administration that they have a lawful way to seek refuge in this country and the right to remain in this country.

CHRIS HAYES: There's been a remarkable onslaught of policies that have been administratively issued through the Department of Homeland Security, which contains the vast immigration bureaucracy of the country. It's been filtered down. None of this is statutory changes. It's not that Congress has passed and the president has signed a big whole scale revision to asylum law. They have just done a huge array of things inside the executive branch to essentially create this condition, Bridget, you just talked about. How have they done that legally?

BRIDGET CAMBRIA: They've just done it. They believe that their executive power allows them to do anything that they want in immigration policy. So, they've enacted two asylum bans. They've enacted a transit ban, which says if you cross through any country before you come to the United States, you're banned from asylum. That's not in any statute or law anywhere. Those are administrative policies. They've enacted three Muslim bans. They've enacted these migrant protection protocols. They've enacted a program called HARP and PACER, which subject women, men and children to expedited removal while sitting in an ICE box under the custody of Customs and Border Protection. And they've also changed the policies for expedited removal within the United States, which is used against families who are detained in family detention centers.

In every facet of immigration policy, the administration has made it extremely difficult for people to seek asylum, especially if they're coming from Central America, and that doesn't even account for the actual legal changes that they have made within asylum laws, themselves, by taking their authority in the executive and arbitrarily changing cases, which have been decided as recently as a year ago. The attorney general has taken cases that he wants to change and changed them unilaterally, trying to take the right for people who are victims of domestic violence, their right to seek asylum. People who are fleeing gang violence, their right to seek asylum. And he's done it unilaterally without going through Congress and without seeking any kind of lawful change to the laws.

CHRIS HAYES: Immigration law is a crazily complex area that I find every time that I have to report on it I quickly get very confused. But one top line that we've seen in a variety of cases is that there is a fair amount of executive latitude in immigration. Tobias, what have the courts done in response to this onslaught? We've seen in other areas in which the Trump administration was extremely aggressive in administrative actions. They've been brushed back quite a bit, sometimes because of sloppiness, sometimes because of sheer bad faith and lying, as in the Census case. But they do seem to have had a fair amount of success in the total onslaught they've undertaken on immigration law.

TOBIAS WOLFF: Yeah, one of the most disheartening decisions from the Supreme Court in the immigration space was in response to the final version of the anti-Muslim immigration order, the travel ban, that went up to the Supreme Court. And the court issued this decision that quite explicitly said, "We have to judge this policy based on the powers that are possessed by the presidency and the deference owed to the office of the presidency and not based on our view of this particular president." In slightly less explicit language, the court said exactly that. And Justice Sonia Sotomayor wrote a very sharp dissent in that case in which she took the unusual step of describing the current occupant of the presidency by name in explaining the things that he had said and the steps that he had taken that indicated a really ugly and biased purpose behind this policy.

And there's a constitutional scholar whom you're acquainted with who has written a lot about presidential speech and its relationship to intent when the government passes biased policies. And that work bares a lot on what the Supreme Court was not willing to look at here. The court took the most conservative possible approach to that set of questions.

In the set of claims that we actually wound up litigating in front of the third circuit that bore on some jurisdictional issues, the court has been a little bit more in the middle when it comes to the question of what types of claims can come into federal court in the first place, which is a lot of what we wound up litigating in front of the third circuit in this case. But when it comes to actually reviewing the substance of what the administration is doing on immigration, it has so far not given a lot of reason for hope that they will take a hard and careful look at what these people are doing.

CHRIS HAYES: You just mentioned a specific case that the two of you have been working on litigating and I want to talk about that case right after we take this quick break. You have clients who you have been litigating on behalf of. Bridget, maybe you can just tell me the story of your clients.

BRIDGET CAMBRIA: Well, for the last five years I've been part of an organization called ALDEA, the People's Justice Center. And our mission has been to universally represent every family whose detained in immigration detention in the state of Pennsylvania. And that encompasses by and large a place called the Berks County Residential Center, which is a family detention center and most people don't know that it's here. It holds 96 beds and it holds mothers, fathers and their children and it holds them for indefinite periods of time. It's the only facility in the United States of America that will do that.

CHRIS HAYES: So this is family detention for immigrant families in Pennsylvania, 96 beds and you said they can hold them indefinitely. My understanding is that there's a consent decree called the Flores decision that traces back years and that has been fought, there've been battles in both the Obama administration and now the Trump administration that essentially caps, that provides a kind of time limit for family detention under that civil lawsuit, which was then settled with a consent decree. Does that not apply to Berks?

BRIDGET CAMBRIA: Oh, it absolutely does. And in the five years that I've been there, we've sued in the Flores settlement more than three times. The longest child detained in Pennsylvania was detained for 707 days with his mother and currently the family that we represent right now, Mia and her father have been detained for 254 days. Now, those detention periods are unlawful and in each of the times that we sued under the settlement, we were successful because their detention for that period of time is unlawful, but you have to hold the government accountable and expect that they will follow the laws. And I'm sure that we all have seen in this administration, it's difficult to have those who are in charge of immigration enforcement actually follow their own laws.

CHRIS HAYES: So what you're saying, just so that I understand, you have a client named Mia and her father, which country are they from?

BRIDGET CAMBRIA: They're from Guatemala.

CHRIS HAYES: They're from Guatemala and where were they detained originally?

BRIDGET CAMBRIA: They were actually first detained along the Southern border of the United States in California where they entered without inspection. They were then taken into custody in an ICE box where they were held for more than a week in a room that has a cinder-block floor that was very cold. There's very little to eat, there's very little sanitation. It's very difficult for children to be there, they were there for about seven days. At which point they were told that they were going to be returned to Mexico and they were, and they were returned to Mexico for a period of two months before they were allowed to see an immigration judge, during which point they were homeless for much of the time, they were in the streets of Mexico, they were threatened by Mexican authorities. They slept out in the street or in a park and at one point were taken in by a good Samaritan until their court hearing.

CHRIS HAYES: Just into their house, into the good Samaritan's house?

BRIDGET CAMBRIA: That's correct.

CHRIS HAYES: Wow.

BRIDGET CAMBRIA: It was in Tijuana.

CHRIS HAYES: It was in Tijuana. So just a Mexican citizen, just out of compassion said “you're on the street, come stay with me.”

BRIDGET CAMBRIA: That's correct. And if you would see this family, you might understand why the ... It's a father and a daughter and fathers in Mexico have a very difficult time finding shelter because a lot of shelters only want to take women or children. It was a father and his daughter and his daughter is an extremely tiny, tiny girl. I could see, seeing them on the street crying wanting to take them into my home and that's sort of what happened, but it's not a permanent solution. So when they went to court, which was two months after they were thrown into Mexico, they begged the court to allow them to enter the United States.

They were not allowed to enter the United States and this father, through desperation, did anything he could so that his daughter would not be returned to Mexico. And what he did was he waived all of his rights, he gave up all of his rights. And what happened after that is they were taken into custody by ICE and brought to Pennsylvania for removal. So they were brought literally from the state of California to the state of Pennsylvania to get on a plane to go to Guatemala.

CHRIS HAYES: So they have an asylum claim and I want to talk about the substance of that claim. They make a long trip from Guatemala, which of course is both expensive and treacherous and dangerous. They arrive at the Southern border where they are apprehended. They are then returned to Mexico through this new policy, the return to Mexico policy. They spend two months essentially homeless or a large chunk of that homeless on the streets of Tijuana. They are taken in by a good Samaritan there, they finally get an immigration judge and date and what happens there is that in desperation and not be sent back to Mexico, the father waives his rights to his asylum claim.

BRIDGET CAMBRIA: And his daughters.

CHRIS HAYES: And his daughters, at which point ICE says, okay, now you're going to be deported.

BRIDGET CAMBRIA: And that's the goal of the MPP program.

CHRIS HAYES: It's what they're trying to do, right?

BRIDGET CAMBRIA: Exactly.

CHRIS HAYES: They want to make it so painful, so difficult and so awful for people with asylum claims that they rescind their asylum claims so they could be deported under the law and never have to be dealt with again.

BRIDGET CAMBRIA: Exactly.

CHRIS HAYES: And up until this point they had not had any legal representation at all.

BRIDGET CAMBRIA: None.

Honduran migrants wait in line to plead their asylum cases at the El Caparral border crossing in Tijuana, Mexico on March 2, 2020.Sandy Huffaker / Getty Images

CHRIS HAYES: What is the substance of the asylum claim?

BRIDGET CAMBRIA: They are asylum seekers basically fleeing religious persecution. I can't get into the details, the facts of what their actual claim is, but it is an evangelical family, staunchly evangelical. They are from a red zone in Guatemala, and what that means is it's a part of Guatemala that's actually absent of any government authority. It's currently under a state of siege in Guatemala, meaning that the military is in control. It's kind of like martial law in the area where they are from. This young girl was not able to go to school, they weren't able to go to church. Their family was subjected to different types of violence while participating in their church.

They're fleeing religious persecution and the father is a staunch advocate that his daughter should be free to be able to walk on a street and go to school and not be afraid that they will be shot. This little girl had seen many incidents of violence and heard many incidents of violence to the point where she jumps when she hears loud noises and lots of their close friends have actually been gunned down in the area where they lived. And it got to the point where they decided that it was time to leave.

CHRIS HAYES: So the father waives the rights to pursue the asylum claim desperate to avoid being sent back to Mexico, which was horrible. He and his daughter are then transferred to this family detention center in Pennsylvania and they then sit there for how long?

BRIDGET CAMBRIA: They've been detained for 254 days. What had happened was when they got to this detention center, we provide universal representation. So we meet every family that we can there and evaluate their case. And in talking with this family, it was very clear immediately that the reason that they gave up their case was not because they did not want to seek asylum, it was that they felt they had no choice in order to preserve the life of this little girl. So we filed an appeal of that initial determination, that initial waiver of his rights and the appeal was granted because the court determined that the due process rights of this father were violated, that he was not aware or had competent understanding of the proceedings he was in and that the waiver that he made was not knowing or intelligent based on the circumstances involving his daughter.

CHRIS HAYES: One of the things that crops up here is that the outcomes for people that are seeking asylum who have representation versus those who don't is enormous and when you have an administration that doesn't want to grant asylum and have sent that message down through the bureaucracy, has changed some of the actual criteria for granting it, they really don't want people to lawyer up, right Tobias? Like one of the big policy objectives here is just to keep the lawyers away from people trying to pursue their legal rights to asylum.

TOBIAS WOLFF: There's no question about that and what's more in all kinds of ways that are usually hard to document and that are documented in this case, this administration is just acting in bad faith at the very least. And sometimes in defiance of the authority of courts in their attempts to harm these families and the sequence of events that this family went through after they got representation from Bridget and her organization and after they started winning some success in their quest to reopen their case is extraordinary.

One of the steps that the immigration courts took after hearing a proper presentation of these claims and the reasons why the waiver of these rights should not foreclose their asylum claims, is that they issued a stay that said, okay, we're going to look at these claims and you cannot remove this family back to Guatemala. And the government said, well, it doesn't say that we can't send them back to Mexico, it only says we can't send them back to Guatemala, so we're going to stick them on a plane with no notice to council and we're going to send them back to Mexico again. And that's what they tried to do.

CHRIS HAYES: Wait, what?

TOBIAS WOLFF: Yeah.

BRIDGET CAMBRIA: That's right.

CHRIS HAYES: Whoa. You successfully win an appeal to essentially rescind the rescission of his legal claims, right? To say, look, he was not fully aware of what he was doing. You win that appeal. There's an injunction issued by the court that says you cannot deport these people to Guatemala, and the government says, fine, we'll send them back to Mexico and they try to put him on a plane?

BRIDGET CAMBRIA: It's almost worse than that. So this was before they had actually won their appeal, just upon filing their appeal, showing the defiance, their defiance of this whole process, within a week of them filing their appeal and receiving a stay from the appeals court, they were taken from the Berks facility under the guise that they were being released from custody.

CHRIS HAYES: That's what they told them?

BRIDGET CAMBRIA: That's what they told them. They even threw a party for the little girl.

CHRIS HAYES: Shut up.

BRIDGET CAMBRIA: They threw a party for the little girl telling her that she was going to go to her mother who lives in New Jersey and instead of doing that, they kidnapped them from this facility, put them on a plane and took them to San Diego, while we ran to court to file emergency petitions to stop them from returning them to Mexico.

CHRIS HAYES: How did you find out that your own clients were being essentially kidnapped by the US government in defiance of a court order?

BRIDGET CAMBRIA: It was actually a very terrifying afternoon because we got a call from the facility of this father and his daughter screaming and crying from a legal visit room because they had called earlier in the day happy and grateful, thanking us for helping them. And they were under the impression that they were leaving custody and we're about to reunite with their family and fight their case and everything was okay. And an hour later they called screaming and crying from an ICE legal visitation room because ICE officials were there, multiple ICE officials were there to physically remove them from that building and to put them on a plane to San Diego.

TOBIAS WOLFF: And I just have to say, because Bridget probably won't say this about herself, she and her colleagues are freaking heroes. They put together an emergency petition in the space of about three hours while this family was literally on the plane back to California that was going to result in them being dumped across the border, homeless to Mexico again, and this little girl being subject to trafficking. She was six years old at the time, she's seven years old now and they succeeded in getting an emergency order from a federal court inside of three hours by putting together an extraordinarily impressive petition, faster than ought to be humanly possible.

And the federal court said, put them back on a plane from California to Pennsylvania, return them to this facility, which is what happened. They got all the way to California, they got put back on another plane. Can only imagine what this is doing to this little girl. She gets put back into this detention facility in Pennsylvania and that petition then gets forwarded and assigned to the federal district judge who started hearing their claims and the basis of these claims was that the MPP program is an illegal program and was being administered in a way which violates the statutory and constitutional and consent decree rights of this family. And they did that in an afternoon and if they hadn't, then this family would have been probably beyond their help.

BRIDGET CAMBRIA: And it's a really important point that the way that we were able to bring this family back was that no child should be treated the way that this child was. And frankly no child under the Flores settlement should ever be sent to Mexico ever. Because the government has obligations to all children and its custody to provide certain things, one of which is not being homeless in Mexico starving and subject to violence. There are certain requirements that we have of every child that comes into contact with an immigration official and they've reneged on those obligations.

CHRIS HAYES: I mean, federal judges generally don't like it when you just disobey their court orders. What happened when you brought this to the judge's attention?

BRIDGET CAMBRIA: I don't know if the judge was upset. I think what the judge did was give us the appropriate process and that's all we were asking for. We were asking for the opportunity to be heard because the point of this intervention by immigration was to stifle our representation and was to get this family to give up and to stop fighting.

CHRIS HAYES: Right. It seems like the goal of all of this policy is keep people away from representation. If they have representation, make it painful and try to essentially whittle down their will to pursue their legal asylum claims that people give up and they go away.

BRIDGET CAMBRIA: That's right. And what the government has resolved to in this case now, because following that, we were successful in their appeal. We were successful in the third circuit eventually with Tobias's wonderful help, is their resolve is detention. They have decided now, well, because you fought and because you won we're just never going to release you.

TOBIAS WOLFF: And I just want to make sure that it's clear, they tried to do this again, right? So we had this federal lawsuit in first, the district court in Philadelphia, and then the third circuit court of appeals and this lawsuit wound up being about whether the federal courts have jurisdiction to hear these challenges to the MPP program. We lost those claims in front of the federal district court and we took an appeal to the third circuit and the whole time that the case was on appeal, we had a negotiated agreement in writing with the U.S. attorney's office in Philadelphia, in the Eastern district of Pennsylvania saying, fine, while the case is pending in front of the third circuit, while the appeal is pending, we won't grab this family and shove them across the border to Mexico again, we'll forbear while this appeal is pending.

CHRIS HAYES: Just to be clear, this is after you have successfully gotten them back from San Diego back to the Berks facility back in Pennsylvania after they tried once to get them out of the country?

TOBIAS WOLFF: Exactly.

CHRIS HAYES: So you win that, you file an emergency stay, you get them to transfer them back. You're now pursuing this legal avenue through the federal courts, which is a narrow jurisdictional question, which is do these people have standing essentially to have their case heard in the federal courts outside the immigration courts, which are located inside DOJ?

TOBIAS WOLFF: Right. It's not a standing issue, but it's close enough. It's a jurisdiction issue. Exactly. And the Flores issue is less about whether the claims can be heard in immigration court versus federal court, but whether they can be heard frankly in federal court at all.

CHRIS HAYES: I see. Okay.

TOBIAS WOLFF: And so that whole process started in late August and September and the government lawyers said, "Fine, while the appeal is pending, we won't try to kick them across the border to Mexico again." And so we brief the case. We argue the case in November. The court gives us a fantastic decision in mid February where the court on almost every claim says, "Yes, the federal courts have the jurisdiction to decide these claims and we're going to send it back to the district court to move forward." And so we thought, "Great." And so then the government lawyers came to Bridget and said, "Well, we only agreed not to kick this family across the border to Mexico while the appeal was pending." Appeal's not pending anymore-

CHRIS HAYES: Because you won.

TOBIAS WOLFF: Because we won. "And so we're giving you notice that we claim the legal right to kick this family across the border of New Mexico at any time and what are you going to do about it?" And they started some conversations and there was a couple of days of grace period and so forth. And we had a mediation with the third circuit and the government wouldn't budge. And their position became that they were willing to separate this father and daughter and maybe send the father back across the border to Mexico, but not the daughter, which of course would just be another way of traumatizing this poor little girl who has now spent about 10 percent of her life in federal detention.

And so we took the extraordinary step of going back to the third circuit with an emergency petition and said, "Look, you need to defend the integrity of your processes in your jurisdiction. They're trying to send this family across the border, which will interfere with our ability to represent them. And what's more is just a flagrant violation of the authority of the order that you just issued, which is an order that says that they should have the opportunity to present these claims in federal court." And the third circuit responded by telling the government that they had, I think, Bridget, it was just a tiny bit more than 24 hours to respond to our briefing, and they put together their response and 24 hours later, I think it was the third circuit issued the emergency order that we requested and said, "This family will not be sent back to Mexico pending further order of this court." And so that was a great victory for this family, but it was a victory that we frankly never should have had to win.

CHRIS HAYES: Well and it also makes you wonder like how, I mean obviously this is ... It's like the old joke about the drunk looking for his keys underneath the streetlight because that's where the light is. This is a case that we can see because these people have representation but there's tons of people without representation who this is probably happening to all the time if they're doing this. If they're trying this with you, obviously very competent and zealous advocates, what do they do with the tens of thousands of people they run through the system with no lawyers?

BRIDGET CAMBRIA: They do everything they can. They use every trick in the book. They're doing what they did to us, to our client who is seven years old. She's seven and the amount of lawyers that they have in court to ensure that this child either stays detained or gets deported or gets put in Mexico, I've never seen so many lawyers.

CHRIS HAYES: And this is not even evaluating the asylum claim.

BRIDGET CAMBRIA: Absolutely not.

CHRIS HAYES: They could just say, "Look, okay, let's just hear the asylum claim on the merits," but they don't want that.

BRIDGET CAMBRIA: Exactly, and it's very important to understand that these battles, they're not about the immigration process. This is about what rights do immigrants have and the administration believes that an immigrant has no rights, no constitutional rights, no rights to even have a case heard in a court. This is about are they human beings or are they individuals we can do whatever we want with? And it's the position of the government right now that every immigrant in our system has zero constitutional rights and it's a great example.

This girl, Mia, seven years old, has been in litigation for 10 percent of her life and has been detained for 10% of her life and she knows that she won a court case two weeks ago. She knows that and she's seven years old. Having that conversation with her was absolutely ridiculous because when I told her that she had won a case, she jumped out of her seat screaming and cheering and what did she win? She won jurisdiction, but she's in a detention center screaming and cheering and she told her father at that moment, "You know what, I can do this dad. I can do this. We're going to keep fighting." It's pretty unbelievable.

CHRIS HAYES: So that victory is the one that, Tobias, you were just saying, right? That was the circuit court granting your essentially petition to stop any deportation.

TOBIAS WOLFF: Well, it was granting us the right to have those claims challenging the MPP heard. And the basic position that the government took is that there are these provisions of the immigration statute that say that most claims that have to do with deportation should be heard first by the immigration courts and that the federal courts can only get involved when there's a review of a final decision by the immigration courts. And the problem is that what we're challenging here specifically about MPP is not the disposition of their asylum claims, is not their status as immigrants. It is the abusive treatment that the government is trying to inflict on them while they are in custody and while they are pursuing those claims and if the government can abuse them while they're pursuing their claims and then only after they finish their claims and they seek appellate review, can they say, "Well wait, you weren't supposed to abuse us in the first place."

That's obviously far too late. And one of the things that the appellate court did, the third circuit panel did, which was quite extraordinary, was to frame its decision explicitly around that principle. And the decision sort of frames the question, “If not now, when?” And the court says, "Often the answer is later for immigrants." Often the answer is that you have to package everything in one shot at the federal courts and you only get that shot after you've exhausted your avenues with the immigration courts. But when what you're challenging is the way that the government is treating you while you are here attempting to assert your rights, then it's too late to say you're not allowed to do this until everything is finished in the immigration courts.

CHRIS HAYES: So I want to pursue the question of the underlying case against MPP as being unlawful. Before we do that, I just want to get a sense, maybe Bridget, you can speak to this since you've been doing the work for a while. One of the things that happens in coverage of immigration is that people find much to their horror that some of the terrible things that we do on the immigration policy happened before Trump. I mean the conditions in which migrants had been kept in, the iceboxes had been a fixture on the border for literally decades. How would you characterize the shift? What about this in the Trump years is new and what isn't?

BRIDGET CAMBRIA: Well, I'm going to be very clear that I sued Obama several times for his treatment of children and immigration custody. Family detention began a long time ago, around 2001 in the United States. It expanded in 2014 under the Obama administration, which resulted in three family detention centers in the United States, holding about 3,500 women, men and children. It was the first time that we've ever held children in custody for extreme lengths of time. Those are accompanied children. We have the same problem with unaccompanied children.

We saw that starkly when the images of the Clint facility came out, what was happening to those children, but the shift under the Trump administration is the extreme callousness of the treatment of children in our system. We had rules under the Obama administration that we could enforce. Now they're saying that those rules don't even apply. We had seven children die in immigration custody since the Trump administration came in. That did not happen before. We've had children sitting in for seven to 14 days. During the Clint time, it was upwards of a month. Wow. I mean, these are things that have never happened. In these iceboxes, you are not allowed to be there more than 72 hours and even that is too long.

CHRIS HAYES: Yeah. These are just cinder block outposts usually in very deserted parts of the border... They're not detention facilities. They're just these freezing buildings with a toilet and a sink.

BRIDGET CAMBRIA: Exactly. And the government's job is to immediately upon a child coming into their custody, begin working efforts to release that child to a safe environment. And we stopped doing that. We've gone to tension first, release whenever. That's the difference in this administration, aside from the fact that the deterrence idea has just exploded. We're going to detain everyone. We're going to deter everyone. We're going to change the laws. So the difference between the Obama administration and the Trump administration is it's just worse. It's as if the blueprint was created before, but now we're running full force. It's absolutely horrible. We all saw family separation. It was probably the worst thing that any of us could imagine because we saw those children and thought of our own children. That has not ended. It's just taken a new form of horror and we need to put the spotlight back on what's happening to these kids.

CHRIS HAYES: What do you mean by that? Explain.

BRIDGET CAMBRIA: So we're not separating kids from their parents. Instead, we're sticking them in Mexico. Instead, we're putting-

CHRIS HAYES: With their parents.

BRIDGET CAMBRIA: With their parents. That's correct. We're putting them into programs where they have zero rights, zero access to an attorney. We're putting them in iceboxes for prolonged periods of time. In the Dilley family detention center in Texas, there's a group of 200 women and children who are currently at six months plus of the detention and no one knows they're there. They're suffering the most horrific medical issues because of their prolonged detention. I had to sue with a group of 10 amazing attorneys two weeks ago for a five-year-old with a fractured skull to see a doctor.

CHRIS HAYES: From Dilley?

BRIDGET CAMBRIA: From Dilley. I mean just to see a doctor, we had to go to federal court. I mean, the treatment of children in the immigration system and families specifically is absolutely horrendous and unfortunately it's not on TV anymore. And I'd encourage you, Chris, to keep focusing on it.

CHRIS HAYES: Well, part of that has to do with the successful ... I mean it's interesting you raise that point because we've been talking about this internally. A big part of it is because so much of it is happening in Mexico, it's just harder for us to get the cameras out, right? When they were dealing with migrants by sticking them in these American facilities or underneath essentially a bridge in El Paso or visits that officials made into some of those facilities, we could bring cameras and we can get to them. We can bring cameras into a Juarez shelter, but it has been successful in essentially removing it to the other side of the border in terms of the sort of spotlight.

BRIDGET CAMBRIA: Exactly, or hiding it in centers that they don't allow cameras into.

TOBIAS WOLFF: Another part of this is the debasement of the government in the positions that it's taking in federal court in defense of these policies, right? So this is a harder thing to convey in a way that really lands, but specifically the Flores settlement, the Flores consent decree to protect kids. And as Bridget said, it protects kids in detention conditions of confinement and release. And it should be pretty obvious that it's a violation of a settlement that says that you have to protect the best interest of children if the way that you're going to release a child is to dump them on the street and in a dangerous neighborhood to be homeless. I mean, that should be a no brainer. And the question that we faced in this case was, can a kid who is protected by this settlement go into federal court and protect her rights in the place where she's being detained?

And the settlement says exactly that. The settlement contemplating exactly this eventuality says a kid can go wherever there's "jurisdiction and venue", which basically means wherever is the appropriate convenient place for the lawsuit to be heard. You can go into federal court and sue to enforce your rights. And in arguing against that, the government, the Department of Justice filed a brief in which ... And this was a brief I want to mention, which was signed by Jody Hunt, who is the head of the civil division of the justice department. That doesn't always happen. He put his name to this brief, and in this brief they took the position that a consent decree that binds the United States government that defines the rights and obligations of people in the context of immigration and federal detention, an area where the government is constantly claiming plenary authority. This is an inherently federal set of issues, so forth.

They said, "No, no, no, that doesn't belong in federal court at all. What are you talking about? This is just an agreement. There's no basis for jurisdiction in the federal courts over this agreement." And we laid out very clearly that of course there is. There's 70 years of case law that says that agreements that bind the United States government that deal with inherently federal issues like this are agreements that are governed by federal law.

CHRIS HAYES: This happens all the time. I mean, there's federal consent decrees across the country on things like housing segregation or lawsuits about pollution at superfund sites that are just people are back and forth in front of federal court all the time. Or just people are back and forth in front of federal court all the time. The standard part of the way that a consent decree is essentially refereed.

TOBIAS WOLFF: Well, sure. And usually what happens is that you are going to the court that issued the decree because that's the natural place to bring your lawsuit, right? This is a case where the decree, for obvious reasons, specifically contemplates that people are going to be detained in all kinds of places, so they should go to the federal court where they're detained. And this Department of Justice comes in and says, "No, no, no, there's no jurisdiction in the federal courts." And on that issue, when it was laid out very clearly in the briefs and we had the oral argument in front of the third circuit... I mean, you can't always tell how a panel is thinking about an issue, but they were, I think, I don't want to speak for the judges obviously, but my impression is that they were flabbergasted.

CHRIS HAYES: Your claim right now, the case you're pursuing says that the migration protection protocol, which is the shorthand for this policy of mass removal back to Mexico while people seeking asylum wait for their claims to be moved through immigration courts and be adjudicated, that that itself is unlawful. What's the case for that?

BRIDGET CAMBRIA: Well, the ninth circuit just found that and has issued a stay of the MPP program in anticipation of whether the Supreme Court is going to take cert on that state issue, finding that it's clearly unlawful. And the basis for it being unlawful is that the statute upon which they're relying does not permit for MPP to be applied against those who enter the United States without inspection, one, meaning that they set foot in the United States and request protection, or it's also not allowed to be applied to people who are seeking asylum because there's a separate section under which they are normally apprehended and subject to expedited removal or another process which takes into account their fear. So it makes common sense if you just break it down into what it is really. Think about it. The people that they are sending to Mexico are asylum seekers. You cannot send an asylum seeker under our laws to any place where they will face harm.

CHRIS HAYES: That's the whole point.

BRIDGET CAMBRIA: That's the whole point. The anticipation of the MPP program, the statute in which they rely on, is for people who typically enter the United States through a port of entry. And you just can't tell what their documents are or what status they actually are, and you need a couple moments to figure out, well, do they have a visa? Is their visa good? Do they have a crime or something that we need to take a second to look at? And we sort of hold you in that in status. But if you are an asylum seeker and you have no papers to enter the United States, it is clear what your status is, you are inadmissible to the United States but for your application for asylum.

And what they did is they took this one section of the law that would permit somebody to wait in a contiguous territory to determine what your status to enter the United States is, they took that section and just blew it up to encompass asylum seekers. And there are separate sections that apply to asylum seekers that they're just saying, well, we're just not going to use that section. And the court is like, well, how do you determine what section this person actually belongs in? The government's-

CHRIS HAYES: I see. So they're reclassifying these people, essentially.

BRIDGET CAMBRIA: Exactly.

CHRIS HAYES: I see.

BRIDGET CAMBRIA: And the government's position is, they're whatever classification we say they are.

CHRIS HAYES: I see. So let me ask you this. I'm going to play devil's advocate for a second. So there's an argument that's been made by immigration restrictionists, by people like Stephen Miller and Donald Trump and others who support him, that essentially the asylum laws are being abused, that they were never intended to deal with these kind of mass migrations of folks coming from Central America. That essentially through the grapevine and through folk knowledge, what was being passed down to people in Central America were things to say when presenting yourself at the border, so as to pass your credible fear interview and enter into the pipeline of asylum, and maybe get asylum even though fundamentally what they really were, were economic migrants and they are a category of migrant that the asylum laws are not designed for. What do you say to people who say this is just closing a bunch of loopholes?

BRIDGET CAMBRIA: I think that it doesn't understand the populations we're dealing with. The majority of those who are seeking asylum in the United States currently are from Central America. They're from Honduras, Guatemala and El Salvador. They're south of our border. They have the ability to migrate here. We wouldn't say the same thing if we were talking about people fleeing the Democratic Republic of Congo or Angola or Syria. We know why they're fleeing. The Central American countries that we're talking about are tantamount to war zones, and what's most terrifying about what's going on in those countries right now is that the target of violence in those countries is primarily women and children. And the types of violence that they're facing are the types of violence that you have nightmares about. Finding your child shot dead, finding your child kidnapped or your wife raped. These are the things that they're fleeing.

And it stems from longtime civil wars that took place in those countries, and genocides, with the instance of Guatemala. There was a genocide against the indigenous peoples of Guatemala. And those have affected one generation later and the generation later is now that the guerillas have been replaced by the gangs, but you still have the disparate treatment of these populations in those areas. So are they economic migrants? Do they want to work? Of course. Anyone that goes to any place in any part of the world wants to have a life. But the things that they're fleeing is the right to live and the right to raise their children, the right for their children to go to school without being kidnapped, the right for their wives and their daughters to grow up and not suffer gender-based violence.

I don't think that those are frivolous claims and that's why we have a system of laws in the United States to deal with accepting those people. We have a credible fear process, which screens migrants who come to the border and seek asylum. Now, are they messing around with that process? Absolutely, and I have a separate lawsuit actually for that case as well. But we do have laws that allow each of those people, each of the people that are fleeing Central America from a lawful process to seek asylum. There's nothing wrong with that.

TOBIAS WOLFF: And I want to add one thing to that and if I could, which is even if you credit some of the predicates of the argument that immigration restrictionists make, even if you start from the assumption that you think that people are presenting themselves dishonestly or that they don't have real asylum claims, even if that's what you think is going on, and for all the reasons that Bridget just laid out, I think that's just flat wrong. But even if that's what you think is going on, a civilized nation does not deal with that issue by deliberately brutalizing children.

BRIDGET CAMBRIA: That's correct.

CHRIS HAYES: Right.

TOBIAS WOLFF: And having an explicit policy of trying to terrorize people with a threat that whatever they're suffering in their home country, they're going to suffer worse at the hands of the United States government, and so don't even try. And the fact that the people in this current administration are making these arguments in which they're denying the reality of what these families are experiencing and then inflicting harms on them that should never be inflicted by a government that purports to be a government of laws and that purports to be an advanced democracy, is just astounding to me. And that they can stand up, and I mean, explicitly say we are going to deter them. And what that means is we are going to scare the crap out of them by harming them worse than they think there'll be harmed at home, and that's our response to an imperfect situation at the border, I think is just appalling.

BRIDGET CAMBRIA: And it hasn't worked.

TOBIAS WOLFF: Right.

BRIDGET CAMBRIA: We took their children and it didn't work. These are people fleeing for their lives. If you're fleeing your house on fire, you're going to leave. You're not going to sit in that building and burn.

CHRIS HAYES: This is the truly ghastly logic of deterrence, is that if you are attempting to deter against the kinds of things that people are fleeing in Central America, you need to inflict on them harms and horror equal to what they're fleeing. And so you essentially are in a kind of race to the bottom with cartels. Right?

BRIDGET CAMBRIA: That's right.

CHRIS HAYES: Because what's happening in Central America is horrific beyond words and horrifying and frightening. And so if the idea is you're going to scare the bejesus out of people from coming here, well, they're making a calculation about whether they're going to end up with a bullet in the back of their head or homeless on the streets of Tijuana. And being homeless on the streets in Tijuana is horrible, but it's better than a bullet in the back of your head.

BRIDGET CAMBRIA: And the numbers have not decreased.

CHRIS HAYES: That's really revealing.

BRIDGET CAMBRIA: This month, I believe the numbers have escalated. And this is under the worst policies that you could imagine.

CHRIS HAYES: So final question, and I don't know if either of you feel equipped to answer it, but I'll ask it. I mean, the president of Mexico, López Obrador, is a very known and proud leftist figure, a leftist insurgent who unsuccessfully campaigned for the presidency before he finally won. I think it was the third time he ran. He is a man of the left in just about every way in the way that he has governed in the past. He just invited Evo Morales, who was seeking refuge after he was chased out of Bolivia under extremely legally dubious circumstances. How is it that AMLO, López Obrador, has become the henchman for the Trump campaign of terror against migrants in Mexico?

BRIDGET CAMBRIA: I would say it's about money. I would say that the threat of tariffs and the threat of the United States reneging on its agreements to cooperate with the country has sacrificed the tens of thousands of women and children who are simply seeking the right to live.

CHRIS HAYES: So essentially, the Trump administration has successfully coerced them into this.

BRIDGET CAMBRIA: I don't see any other explanation for it. What other reason would we have for tent cities on our border on the Mexican side?

CHRIS HAYES: Yeah.

BRIDGET CAMBRIA: The Mexican peoples of those communities don't particularly like that tens of thousands of migrants are there, especially because the majority of them don't have family ties there. They don't have resources there. And the Mexican government is not helping them. They're doing whatever they can to make them also give up. But you know what? They're still there because they need to seek asylum. They're there to be protected. That's never going to end.

CHRIS HAYES: Bridget Cambria is the Executive Director of ALDEA, the People's Justice Center. She's an immigration attorney with the law firm Cambria & Kline. And Tobias Barrington Wolff is the Jefferson Barnes Fordham Professor of Law at the University of Pennsylvania Law School. Thank you both so much. That was really, really, really illuminating.

TOBIAS WOLFF: Thank you for having us on, Chris.

BRIDGET CAMBRIA: Thank you, Chris.

CHRIS HAYES: Once again, my great thanks to Bridget Cambria and Tobias Wolff. We'd love to hear your feedback, and particularly right now in this moment, your feedback about what you would like to hear from the show in this strange moment. We have a long list of archives that you can listen to if you're finding yourselves going stir crazy or going on long walks or doing workouts in your kitchen on your TRX, a thing that I did this weekend that maybe you did as well. You can always tweet us with the hashtag #WITHPod. Email us, WITHPod@gmail.com.

"Why Is This Happening?" is presented by MSNBC and NBC News, produced by the "All In" team and features music by Eddie Cooper. You can see more of our work, including links to things we mentioned here, by going to nbcnews.com/whyisthishappening.