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Why Is This Happening? Fighting a dehumanizing U.S. immigration system, with Lee Gelernt: podcast & transcript

Chris Hayes speaks with Lee Gelernt, an ACLU attorney who is suing the Trump administration to stop families being separated at the border.
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The Trump administration is forcibly separating immigrant children from their parents, something they are hoping will deter immigrants from entering the country. It's a move that has sparked widespread outrage, protests and lawsuits, with the White House is now attempting to distance itself from its own policy.

How did we get here? Lee Gelernt has worked on immigrants right’s issues with the ACLU since 1992 and is now the lead lawyer suing the Trump administration to stop taking kids away from their parents. In this episode, Gelernt explains how immigration and national security became so conflated, how it connects to 9/11, and describes the trauma these families are going through.


CHRIS HAYES: To put yourself in the head of a mother or father or anyone who’s undertaking this, just consider the scope of what one must be fleeing to do this before you show up at that border.

LEE GELERNT: Exactly and the way these women are being talked as if they’re like they are gunrunners as opposed to people. It’s the most instinct in the world for a parent to be protecting their child.

CHRIS HAYES: To run away from danger with your child to try to get them to safety.

LEE GELERNT: Exactly.

CHRIS HAYES: Hello and welcome to "Why is This Happening" with me your host Chris Hayes. We've got a really special episode of the podcast today that I've been looking forward to, and that we've rushed to get up and out into the world because of its timeliness. Now, that timeliness is somewhat at cross purposes with the original conception of this podcast, which was to take a step back from the fanatic pace of the news cycle, have conversations and interviews about big, thematic arcs that are driving the news.

That's true of what we're going to talk about today, but it's also true that this is something that is very much in the news right now. It's something we've focused on our show, it's something that policymakers have been talking about. It's something that folks in social media have been talking about, and that is the separation of children from their families when apprehended by immigration authorities.

Just I want to make a little note to clarify that that is a distinct issue from another thing which has been in the news, which is this #wherearethechildren. That refers to children who come as what's called unaccompanied minors. These are generally teenagers who are sent to cross the border seeking asylum, or to be reunited with family members without parents. A bunch of those children have been placed in the custody of family members and have not checked back in with the bureaucratic entities that are tasked with monitoring them, and that gave raise to this idea that the bureaucratic entities, in this case, HHS had lost them.

That's not really quite true actually, and in fact, a lot of immigration advocates are really worried about that language because what it pushes for is for the bureaucratic entities in question to go try to grab those kids and put them back into custody, which is not really what you want. The reason you don't want that has to do with this other group of kids, who've been forcibly separated from their parents. These are kids who came with their parents. These are children as young as one year old, five year old, 14 year olds, who came with the parents and were taken away from their parents at the border, or at the port of entry and put into the custody of the office of refugee resettlement, where they're now being warehoused and cared for by the government away from their parents.

That's what's happening right now. And we have been covering this on the show and when we started covering it, second producer Luciano Lopez took a sheet from a testimonial that was included in a class action suit against the government for this practice, and she put it on my desk, it's highlighted. It was the first person recounting of a woman who had come to this country with her child, who had had that child taken from her. As I was reading it, I was thinking to myself, this reads like the literature of a totalitarian government. This reads like a first person dispatch from an authoritarian state. This reads like something from a Sci-Fi novel about some dystopic future.

One of the themes that emerges in that kind of literature is a kind of bureaucratic state that's faceless and incomprehensible. The idea of these kind of like these men with suits or men in uniform who show up and they wield this completely arbitrary power that can crush someone's life. That goes back to the trial of Joseph K. by Kafka, and its an emerging theme in a lot of the soviet literature about the experience of the soviet state that was just completely arbitrary and capricious. It shows up in 1984, just this idea that you're living your life, you're doing something, and then all of a sudden, the state can come in and wrench your life apart, and completely append it.

There's a knock at the door. There's a call that comes in. There's a person who gets out of a car and calls your name, and the next thing you know, you're in handcuffs. That idea of tyranny hanging over people, kind of absurdist tyranny is a really through lining when we think about the kind societies that we aren't, non-free societies, societies under the sway of totalitarian regimes, authoritarian regimes, dictatorships, et cetera. There's another theme that emerges in a lot of literature of these kinds of societies, and it's most obvious in the legendary Sophie's Choice, which is the ability of the state to take children from their parents, to wrench apart a family.

There was a really interesting moment in a great New Yorker piece recently about a apartment complex in Moscow that had been sort of the heart of many of the kind of the upper echelon of the communist party where stolen secret police start going to work during the purges, and kind of one by one disappearing people in the building. There's a scene where a mum's on the staircase. It's like they stall and the secret police come and take her away and they handcuff her as her children watch her being led away, and she says to her children, "Never lose your sense of humor." I've thought about that a lot.

Those two themes are something you just see a lot in portrayals of both actual authoritarian regimes and fictional ones. The reason that I'm talking about them here, the reason I've been thinking a lot about them is because right now our real actual government is doing that. This is something that we have been covering on the show, quite a bit. It's something we've been donating a lot of resources to, and it's the policy of the Trump administration to forcibly separate children from their parents when apprehended at the border.

Oftentimes, people who are coming explicitly seeking asylum. People who are coming and saying, "Look, I am here. Hi, hello. I'm from the Congo, I'm from Brazil. I'm from Mexico. I'm from Honduras. I have come to your shores, I've come to America the land of the free, the home of the brave. I have come to the place that is beneath the shadow of the Statue of Liberty, given you're tired and you're poor. I've come to the place that we think of as open and welcome to those fleeing oppression and tyranny. Fleeing the kinds of places where the knock in the door comes at night. Fleeing the kinds of places where the man gets out of the car and calls your name and whisks you away. Fleeing the kinds of places where a mother and child could be separated by men in uniforms for no reason."

Those people who are coming to our border for that purpose are finding themselves sucked into an authoritarian nightmare by our hands, by our government, by the Trump administration's decision to forcibly separate children from their parents, as they are processed and also prosecuted for illegal border entry. This is something that is abhorrent to the conscious. It's also something that comes at the end link in a chain that goes all the way back to 9/11 and 2001 and a utter transformation in the way this country deals with immigration.

There are two things to keep in your mind when you think about this policy as you're seeing it unfold. One is that this is different than what came before it. It's different in really fundamental and odious ways, and also it's built atop a lot of other stuff that happened under the Bush administration and the Obama administration, now the Trump administration. While very few people have been paying attention, we have built up an infrastructure of immigration enforcement that is increasingly inhumane, that is increasingly the kind of thing you would find in an authoritarian society.

Under our noses, outside of the view of a lot of citizens, we have created this system that looks like something you would read about in dystopic fiction. I wanted to get to the bottom of how we got here. I wanted to figure out how did we get from an immigration system pre-2001, before the Department of Homeland Security that had something called the INS, that had a very different approach to how immigrants were treated, to a situation now in which you've got a U.S. senator standing out a decommissioned Walmart on the border with the windows blacked, trying to get access to children who are in there without the parents because they've been taken away from their parents across the border.

The person to talk to about that, the person who's at the center of the lawsuit over this is a guy named Lee Gelernt. Lee is someone I've known for a while. He was one of the lead attorneys on the ACLU lawsuit against the Muslim ban. I remember, I'll never forget, a few days after Trump was inaugurated seeing him come triumphantly out of a Brooklyn courthouse to announce that they had won the injunction against the Muslim Band, down in federal court in Brooklyn, where I happen to have gone that night, on Saturday night, chilly Saturday night to see what the result would be.

Lee has been practicing with the ACLU since 1992. He's just out of law school, got a job at the ACLU and he's been doing immigrant civil rights work for that organization since then basically. So he has watched the trajectory of the immigration law over that period of time. Right now, he is fighting the government over this policy. It's a policy that the government won't really admit to doing, which is part of what makes this so maddening. They're being very dodgy, but it's a policy the administration has actually been fairly clear about. Jeff Sessions has sort of bragged about it, and John Kelly has said it's a deterrent. He is suing them right now.

By the time you hear my voice talking about this, it's possible that lawsuit will have produced some sort of initial result. But he is really in the weeds of what the kind of system that we've built up now wielded by Donald Trump looks like on the ground.

CHRIS HAYES: I've reported on immigration a fair amount of my journalistic career, and I've had a lot of conversation with immigration lawyers, and it's the most insane area of law. It's totally Kafkaesque, people have these experiences that are just feel like not in a rules-driven democracy. It feels capricious and insane and awful and dehumanizing, just independent of who the president is or whatever. Just the way that the system works just seems really terrible. Is that a fair-

LEE GELERNT: Yeah, I think that's very fair. I think that's a really good way to describe it. Even federal judges say, this is like a worse tax code. The idea that people are going to navigate it by themselves, because as you know, you sometimes are lucky enough to be able to afford a lawyer, but most of the immigrants don't have lawyers and unlike in criminal cases, you don't have a right to government appointed lawyers. So, they're navigating this system that is crazy. Even when we get pro bono assistance from law firms, experienced lawyers are like, "I don't know what's going on here." And they take a look at it. Not only is it so confusing and impossible to navigate if you haven't been doing it your whole career, but so much of it doesn't make sense. So much of it is irrational, that you bring a smart person who just looks at it for the first time and says, "I can't believe these rules. And I can't believe what immigrants are subjected to. It seems like how can they possibly be getting a fair shake?"

LEE GELERNT: Even if you put aside which side you're on, there's so many arbitrary results produced by the system that it's not good, whichever side you're on. It's arbitrary, it's too complex, it's everything, and it needs to be fixed.

CHRIS HAYES: Why? Why is it so bad?

LEE GELERNT: I think part of it may be that for a lot of people, immigration is sort of sight unseen. And so, it doesn't affect them, so people don't have an interest other than the people who are subjected to it in fixing it. It affects a very distinct population. And obviously, immigrants don't have any political clout. If any other law was this bad, you'd see it fixed. But because it affects immigrants and they can't speak out and they're powerless, I think that's probably why. Why it got so complicated is probably a lot of trade-offs over the years. I think even if they're not going to fix the sort of ideological issues, they ought to simplify it and fix it a little just to make it-

CHRIS HAYES: Like a tax code.

LEE GELERNT: Yeah, Exactly. Right. Exactly.

CHRIS HAYES: Although the danger of that is exactly the danger of the tax code, which is that every time they say they're going to simplify the tax code, they don't simplify the tax code. They always make them-

LEE GELERNT: Exactly. I think that's right about immigration as well. They say, "Well, let's fix this." But then once they start tweeting, they fix six other things and then they're all irrationally bumping up into each other.

CHRIS HAYES: The point you made there, that seems like a strong one and one that has struck me in reporting on this is that there's still lack of basic democratic accountability almost by definition. Because the group that's subject definitionaly are not citizens.

LEE GELERNT: Exactly, and therefore can't vote. And so, we can do what we can do in court. But the sort of rules are stacked against us in court for immigrants, because they have reduced constitutional protections. And so, it's hard to win cases in court. We win some, we lose some, but it's harder than winning cases in other areas of civil rights. To me, it's ultimately always been a lot about the media bringing to light certain things like ... So, your show brought to light the family separation issue and you actually did see outrage on both sides of the aisle about it. People probably just didn't know that a one-year-old, a two-year-old. So, you walk down the street in New York, and no one actually thinks that's happening and it's not happening right here in New York. The border might as well be the moon.

LEE GELERNT: At the end of the day, the media needs to shine a light and it's hard to win cases in court for immigrants. It's hard to get legislation passed. But I think there are certain things where if the media show it in the light, it's actually happening, things may change. We know people are going to disagree with us about larger immigration policy issues, and people are reasonably going to differ on certain things. But I do think there's certain things, like the family separation policy that a lot of people, maybe not the far end of the spectrum, but a lot of people can agree with. This is to me seems like the family separation thing, have we completely lost perspective that we're going to make two-year-olds negotiating pawns?

CHRIS HAYES: Let's start in 1992, which is when you start at the ACLU in this area, right? Tell me what the biggest difference was back then, in what you were working on and what the landscape was like?

LEE GELERNT: Well, I think first of all, immigration wasn't as big an issue, right? Now it's on everyone's mind, right? You see it all the time. I got out of law school and I didn't even take immigration and law school. I had no idea that I was going to do immigration. I came from a more general civil rights background. It just wasn't as big an issue, and I sort of fell into it. The biggest difference is the pace wasn't as hectic. And it was all just about sort of what Congress was doing. There were no cities and states going after immigrants, and it wasn't always viewed as sort of a national security issue.

LEE GELERNT: That lasted for a while. And then 9/11 hit, and every time the debate about immigration occurred, it started being discussed as intertwined with national security. Well, the borders being overrun, and who knows of Al-Qaeda is coming in. And then I think the other big changes, cities and states started to get involved. Both passing pro-immigrant measures, but mostly going after immigrants. So, then my workout got so divided between working on sort of straight national security, straight immigration, the intersection, but also having to litigate against cities and states. And so, that's why now it's just sort of blown up into this huge thing.

CHRIS HAYES: Let's talk about 9/11. Look, it doesn't seem unreasonable to me. The worst act of mass murder and the worst attack in the United States history was carried out by immigrants who had come to the country legally through the visa process, specifically for the purpose of carrying out the operation. It doesn't seem unreasonable to look at that and say, "Well, there's some sort of soft underbelly or there's some kind of exposure here we have to deal with." Separate out the sort of reasonable from unreasonable responses to that.

LEE GELERNT: Right. I think you're absolutely right. I've always felt like the issues after 9/11 were really difficult, both morally, ethically, policy wise, legally, and both sides really needed to listen to each other. In my view, what happened was there were steps we needed to take. But then we started demonizing all Muslim immigrants, and people began jumping to conclusions about all Muslims. I think that's where we went wrong.

LEE GELERNT: I think if you talk to a lot of FBI agents, even now they would say that's where the mistake went. We began to assume that any Muslim who was looking at a bridge could be thinking about blowing up that bridge. And so, Muslim men began getting rounded up. I think that's where we went sort of the overboard reaction. What needed to be done was much more specific targeting of national security threats. But what ultimately happened was everyone started assuming all immigrants were bad. Yeah, I just remember after 9/11, I think where we didn't succeed from our standpoint is in humanizing all the Muslim men who got taken away to detention.

LEE GELERNT: One of the reasons I think, in fairness to us that we couldn't do it, is we didn't even know where they were, we couldn't talk to them. Ultimately, the Justice Department released an internal report on its own, two years after 9/11, showing that most of the Muslim men who were rounded up in the US domestically were just based on anonymous tips. There was nothing there. But we ended up having a talk about them just sort of in the aggregate, in an abstract way. Instead of saying, "look, this Muslim man's two-year-old, four-year-old sons are waiting for him to come home every day. Why is any coming home?"

CHRIS HAYES: In some ways, I just want to be clear about what you're discussing, because it's a last chapter in American history. Which is that in the wake of 9-11, in the immediate aftermath, there are thousands, is that true?

LEE GELERNT: Yeah.

CHRIS HAYES: Thousands of Muslim men who are just taken away into custody by the FBI for protective detention. What was the term?

LEE GELERNT: Right. Preventive detention.

CHRIS HAYES: Preventive detention.

LEE GELERNT: Exactly. I think what we felt, and I think the intelligence community probably would say themselves now is that rather than chasing down actual leads, they decided they're going to just sort of get all Muslim immigrants off the street and better safe than sorry. We would never do that if you actually viewed the people in a real human way and say ... It's hard to imagine other groups of people being rounded up like that.

CHRIS HAYES: Then there was a much larger structural change, which the Department of Homeland Security and the change in the structure of American Immigration Enforcement.

LEE GELERNT: Exactly.

CHRIS HAYES: You had INS that no longer existed, it's replaced by ICE, ICE and Customs and Border Patrol. And now they're all put under this new department. What did that do? What did that change due to the way that the laws work in this country?

LEE GELERNT: Yeah, you're exactly right. It made, I think that's sort of an example of everything now in immigration being intertwined with national security. You have the Department of Homeland Security sitting on top of the Immigration Service, and sort of everyone reporting to the Secretary of DHS. And that DHS secretary is normally someone focused on national security than immigration. So, everything about immigration then gets looked through the lens of national security.

LEE GELERNT: That's been a problem because ultimately, some parts as you pointed out of immigration are about national security. We all have to acknowledge that a 9/11 made is acknowledge even more, but a lot of what goes on with immigration, the average immigrant has nothing to do with national security yet, but-

CHRIS HAYES: I mean, the overwhelming majority.

LEE GELERNT: Exactly, exactly.

CHRIS HAYES: It's crazy the percentages of immigrants that come into this country, both through legal and not legal means eggs.

LEE GELERNT: Exactly. I think that's what sometimes gets lost. I know we're going to get this, but on the family separation thing, you have a mother fleeing domestic violence or fleeing gang brutality to her and her son. She's not a national security threat, but everything that happens at the border now gets talked about through that lens.

CHRIS HAYES: Right. Here's a woman who's fleeing gang violence and domestic violence, who wants a better life, who's trying to get her way to safety. And she encounters a system that has been created, as you said, with a national security vision sitting atop it. It almost strikes me, I think about this in terms of like pardons or clemency for governors, they're totally risk averse, right? It's like they're looking at their pardon sheet, their clemency sheet, and they're thinking, "I'm going to let someone out who's going to go do something terrible, right?" Or, "I'm going to let someone else where the Police Union is going to get mad at me at. So, really, what's the bother? what's the upside?"

LEE GELERNT: Exactly.

CHRIS HAYES: And you've got now, it seems to me, an immigration system that almost inevitably institutionally, because it's in the Department of Homeland Security and an immigration rhetoric that has a kind of similar situation, where it's looking at the downside risk, which is like who's the next 9/11 attacker? As opposed to who's the next awesome wonderful person that we can have be an American?

LEE GELERNT: I think right that the bureaucratic incentives have been perverted to the point where people are not recognizing that this country should and always has, I think up till now, really welcome people who were fleeing violence or are going to bring benefits to this country. And now, because it's in the Department of Homeland Security, and because it's been so polarized, that you're absolutely right. This sort of incentives is like it's easier for people in the government to say, "Let's not let them in." It's easier to see the problems than it is to see the benefits, and that's unfortunate.

LEE GELERNT: Right now, we have some women fleeing Ms-13 violence. The President is talking about MS-13 violence all the time. Why wouldn't we welcome that woman who said no to MS-13? When you say no to MS-13 in the Northern Triangle in Central America, they come after you. If that woman stands up to it and says, "I'm not letting my son join," and runs, why wouldn't she be the first person we welcome? But yet, they're still taking those parents' children away.

CHRIS HAYES: So, you got this change of the Department of Homeland Security. And then my understanding is that around 2005, there's a kind of streamlined system that comes together with the Department of Justice to do more kind of mass prosecutions of illegal entry at the border. Here, I think it might be useful to talk about the distinction between civil and criminal law. Because there are some ... If you overstay your visa, so if I come in and I'm a wealthy Russian, and I've got a tourist visa. But I actually want to stay here and work illegal in New York, I'm going to overstay my visa. That's a civil infraction, which is not criminal.

LEE GELERNT: Exactly.

CHRIS HAYES: But if you show up the border and try to sneak across, that can be prosecuted as a criminal infraction.

LEE GELERNT: Right? The first time you cross is a misdemeanor, second times can move it to a felony. But you're right. There's that artificial distinction of the person can overstayed their visa for 10 years and purposely be doing it, but there could be an asylum seeker who has no idea where she's actually supposed to go to present herself to seek asylum, she goes wherever they told her in Mexico points are this is the way to the United States, she can be prosecuted.

LEE GELERNT: The moral difference between those, it's hard to see why one, why you'd prosecute that mother was seeking asylum but the person who overstays their visa, a sophisticated business man. I'm not saying either one should be prosecuted, but you're pointing out an important distinction between what goes on in a civil and criminal, and who actually gets subject to it.

CHRIS HAYES: Well, it also seems like a class distinction. I have been at New York City parties with European experts on rooftops in Bushwick, where everyone's basically there illegally or having overstayed and they're all from wealthy families in Europe, they're sure as hell not crossing the Rio Grande.

LEE GELERNT: Right.

CHRIS HAYES: They're the kinds of people that are have committed the civil infraction as opposed to a desperate mother who has told the MS-13 they can't recruit her son, made the trek across Mexico to the border to seek asylum, and paid a coyote to get across and who is now handcuffed and detained.

LEE GELERNT: Exactly. And so, I think that goes back to the sort of what you were talking about earlier in the program about a lot of the artificial distinctions in immigration law and how its developed. When some of them are historical, some of them are probably intentional and class-based. But you're absolutely right, there's these oddities everywhere, and they have brutal consequences.

CHRIS HAYES: The last part of this story before we get to what's happening now is the unaccompanied minor phenomenon that happened in 2014. What did that do? What was that about, and what did that do to the way that the border's being patrolled and thought about and talked about?

LEE GELERNT: I am not an expert on sort of all the migration patterns from Central America, but I as everyone has said, Central America became brutal. All the clauses are complex, but obviously there were a lot of kids coming in, and there were a lot of kids fleeing gangs. I think it just led more and more to the militarization of the border. The overall feel now of the border has become completely militarized, even in towns and cities where it shouldn't be. I also think there's the impression you ask people in New York based on what they see on the news, that literally there's just fighting at the border everywhere in the border. And you go down there, and it's not really like that.

CHRIS HAYES: What's it like? You just got back from there, what's it like? What is the border like? What are people's misimpressions about what the border's like?

LEE GELERNT: I think people have the impression, they see these little sound bites on TV and they're always showing people running in. The border towns are basically peaceful, most of the border is peaceful. Are there people coming in? Of course. But generally speaking, the border towns are peaceful. El Paso is a nice city. There's a port of entry there. It's a lot of commercial traffic back and forth. Are there areas of the border that are more dangerous, are there people coming in illegally? Of course.

LEE GELERNT: The first time they used to go down to the border, people in New York would say, "Okay, be careful. Be careful when you're at the border." And it's not like that.

CHRIS HAYES: The unaccompanied minors situation presented a real policy challenge for the Obama administration. I'm sort of sympathetic to what they had to do, because it's like, you've got thousands of kids showing up. What are you going to do with them? That's a tough policy problem.

LEE GELERNT: Right.

CHRIS HAYES: If someone says to you, they come, and they say, "We got thousands of kids, thousands of kids showing up at the border every month. They are fleeing terrible conditions, but we don't have the capacity or the processes in place to house thousands of children. And also, it's a really unsafe journey that we have to find a way to kind of not continue to incentivize people to undertake, because it's incredibly risky. Also, we need to treat these kids humanely and process their asylum claims." It just seems like there are a bunch of battling equities there that are tough. But how would you characterize the solutions that the last administration came up with to deal with the problem?

LEE GELERNT: When the numbers get talked about in the aggregate, it does sort of feel overwhelming. But ultimately, the numbers are not as staggering as they've been at other times, I think. I do think we have the capacity at least to give people hearings to see why they're coming. Yeah, and the bed space is tricky. I agree, because the kids need a place to live. I didn't work on housing of the unaccompanied minors, so I can't talk specifically to it. But I do know that I just had a case in the Court of Appeals for the Ninth Circuit about whether immigrants denied asylum at the border can be denied access to the courts.

LEE GELERNT: The government said, "Well, look, there's so many people coming at the border." And we went back and did some historical research and found that one judge in Northern California sat there in 1891 and had 2000 habeas petitions he had to deal with each year.

CHRIS HAYES: So, you're saying that it ... Just give me some context for that number. So, a judge in 1891, you're saying there's a huge flow over the border. 2000 habeas petitions a year means what?

LEE GELERNT: He has to deal with all those 2000 cases. The reason I bring it up is because-

CHRIS HAYES: Compared to what now? What's the-

LEE GELERNT: Oh, it's far less per judge. I don't I don't have the exact figure, but it would be nowhere near to ... Because one of the things that government is arguing is, "Well, how can the federal courts handle this?"

CHRIS HAYES: Oh, I see.

LEE GELERNT: And we were arguing, "Well, habeas corpus doesn't turn on a convenience. And the truth is, if you're really saying this is historically unprecedented, that's not true."

CHRIS HAYES: Just to be clear here, I want to make sure I understand this. The government is ... They're doing these kind of apprehensions of the border and making these kind of judgments about the merits of people's asylum cases in as a sort of snap judgment.

LEE GELERNT: Exactly. Exactly. So, they're now these things called expedited removal hearings. That they're at the border for asylum, and they're just very quick truncated hearings not like the normal immigration proceedings, which we have problems with, but there are at least still hearings. These are just border hearings, very truncated. And you lose, your whole life's at stake. We've said, "Well, traditionally, the right to go to court is protected by habeas corpus." And the government said, "No, you don't have the right to go." It would be the first time in the history of the country that we didn't have access to federal courts for people on our soil. That's what the government's arguments is.

CHRIS HAYES: Really?

LEE GELERNT: Yeah.

CHRIS HAYES: So, right now the government's saying, "We can do these expedited reviews for people we apprehend at the border," Is this a Trump administration thing or does it extend back before?

LEE GELERNT: It unfortunate extends back even before.

CHRIS HAYES: Interesting.

LEE GELERNT: Yeah.

CHRIS HAYES: This is something I want to get into, which is continuity versus change. But so, I want to be clear on this. So, you're saying so even before the Trump administration and the Obama administration, you have an expedited review, we apprehend you at the border, you say you have an asylum claim, and what does that expedited review look like?

LEE GELERNT: It's an asylum officer who does a very quick interview. You're almost never going to have an advocate there. It happens a day or two after you've crossed the border. You already trials, you have no idea what the person wants to hear or not. And so, you're doing it, it's 45 minutes, an hour, and that's because of the translation. It's really only a few questions. Then you get what's called an immigration judge review, not a hearing, which is like a 10-minute review. People lose who clearly should pass. It was meant originally, just as a screening thing, just to see that you had a basic claim. Not to actually adjudicate. Because you don't have time to prepare it, and you're by yourself.

LEE GELERNT: It originally only applied to people right at the border. Now it's being applied to people inside within 100 miles. The Trump administration is talking about playing it anywhere in the country, and that's why it's so important that there be federal court review. Both the Obama administration unfortunately, and now the Trump administration has taken the position that there's no federal court review. And so, that's a very dangerous principle.

CHRIS HAYES: I just want to be clear. You're coming up, and let's go back to our sort of fictional mother from Guatemala, whose son, she refuses to allow her son to join the MS-13. She then faces reprisal, she makes this incredibly dangerous journey up through Central America, through Mexico. She get someone to get her over to the border, she's apprehended by Customs and Border Patrol. Maybe she turns herself in particular because she's seeking asylum. She then has an interview with a sort of case officer who says, "What's your deal? Where are you're from? Why are you here?" And then like a 10-minute hearing. And then they're just like, "Sorry, tough, but we're rejecting your claim." And she has no access to federal courts to appeal that.

LEE GELERNT: Right. The only thing that government's saying you have access to federal courts is if there's literally a mistaken identity. You're Jane Smith and they were looking for ... And so, no matter how illegal the hearing was, no matter how obvious it is that you have a legitimate asylum claim, there's no federal court review. And so, it's an interesting thing to be able to talk to you about it because people aren't really discussing it in the media because it can feel very complex about federal court review, and people's eyes can glaze over. But there's an enormous-

CHRIS HAYES: Don't glaze over podcast listeners. Stay with us. This is important.

LEE GELERNT: Exactly. It's like one of those principles of the framers of the Constitution put in the constitution they called the Suspension Clause, which protects the right of habeas corpus, which just in simple terms means the right to go to court if your liberty's at stake. The government is arguing that habeas corpus does not apply to these immigrants, because they haven't been in the country long enough. I can't tell you how big a principal that is at stake.

CHRIS HAYES: Here's why you said that thing about the eyes glazing over, and it's true. It gets back to the original point about the complexity of immigration law and how hard. It's a challenge for me as a cable news host, I got to say, to cover it for that reason. It's real complex. It's real complicated. The problem is people listen and they say, "Well, just do people really have a right to come to United States?" Is what it sounds like.

LEE GELERNT: Exactly. And you're absolutely right. That's exactly what we get. Well, why do they have these rights if they don't have a right to come to the US? I think part of it is sort of what a Supreme Court justice one said, that a lot of what makes America America, and the freedoms of America is about fair process. And so, we don't say someone has an absolute right to come to the US. But we do say, based on our Constitution, we're going to give you a fair hearing to see if you have that right. And so, some of these people may not have asylum claims that are legitimate, some of them do, some of them may not have a right to come here for family reasons. But we've always sort of in America said, "Unlike other countries, we're going to give you a hearing. We're not going to be like other countries that things are arbitrary and just, the king is going to make the decision or the political despot."

LEE GELERNT: I think that's what we try to say to people is, "These people are coming. And yeah, they don't have an absolute right to come to this country. So, they can't just walk in and say, "I'm here, and I'm going to stay." But we do say under the Constitution that they have a right to a fair hearing." That's we're trying to say in these cases at the border. Is that the asylum officer and the immigration judge who are having these very quick hearings ultimately report to the Attorney General. And so, that's the executive branch making a decision.

LEE GELERNT: What we've always said is one of the great principles about America is a federal court is neutral. The ironic thing about taking away federal court review for immigrants is when you ask immigrants what's one of the great things about America, they can't explain it in sophisticated terms about separation of powers, but they tell you, "Well, in America, you get to see a judge who doesn't work for the same people who are trying to put you in jail." They get that at a visceral level. It's really interesting to hear them say, "Well, don't we get to see a judge? I thought in America, you get to see a judge." Because that's one of the things I always think differentiates us from a lot of the countries they're leaving, is the ability to go before federal court judge.

LEE GELERNT: When people bash federal court judges all the time, but ultimately, it's such an unbelievable thing that they have political independence. People will disagree, did the judge go too far one way or two for this way, but no one disagrees with the principle that they're supposed to be independent. That's what we're trying to say at the border is they don't have a right to come to this country, but they should have a right to fair process and they should have a right to see a federal judge. Especially, when the stakes are so high, their life literally could be at stake.

CHRIS HAYES: Let's talk about this separation. First of all, when did the Trump administration start separating children from their parents?

LEE GELERNT: That's a good question. Because we don't have sort of an exact moment. Because what happened was, Kelly would go on new shows and other people and say, "Look, we're contemplating a policy of deterring families from coming by separating their children. But we're only contemplating the policy." So, everyone sort of relaxed and thought, "Okay, well, the policy is not in place, we don't have to worry about it yet until they announced they have a policy." But what we quickly found out is that there were hundreds and hundreds of kids were being separated. That started, I think, back in the fall, maybe late summer. And then-

CHRIS HAYES: Of 2017.

LEE GELERNT: Yeah, and that it was happening anyway. And so, it was sort of a deflection by saying, "We don't have a policy." But in practice, they were doing it and who cares whether it's called a policy or practice, it was happening. So, it's been happening a long time, and I think just began to get worse and worse. And finally, we began to get word at the ACLU, it's really getting bad and something needs to be done about it.

CHRIS HAYES: You have a lawsuit challenging that.

LEE GELERNT: Right.

CHRIS HAYES: So, what's happening is, again, so let's say I show up with ... Well, maybe you can give me examples from plaintiff of yours.

LEE GELERNT: I think there's sort of two basic scenarios that occur. They're represented by our two plaintiffs. One, the Congolese mom and one a Brazilian mom. The first example is like the Congolese mom. She shows up at a port of entry, a border crossing where the guards are with her little girl and doesn't try to cross. Says, "I'd like to apply for asylum. I just escaped the Congo. Can I apply for asylum?" She had her kid taken away from her for no reason.

CHRIS HAYES: How old is her kid?

LEE GELERNT: Her kid was six when they got there. When she finally got her kid back, the little girl was seven, celebrated seventh birthday in a government facility all by herself in Chicago.

CHRIS HAYES: Come on.

LEE GELERNT: That's one scenario. And if you listen to Secretary Nielsen or the Attorney General, you'd think that the only way you can lose your child is if you cross the border illegally. It's simply not true. And she is not the only one.

CHRIS HAYES: She arrives in LAX, right?

LEE GELERNT: No, she came in Mexico. She came through 10 different countries to get here from the Congo, finally got to our port of entry in San Diego.

CHRIS HAYES: In San Diego, right. She comes in San Diego, and she's got the six-year-old with her. She presents herself, she says, "I'm here, I fled. I've gone through 10 countries to come to the shores of America. Take me in with my six-year-old." I know I'm obsessed with this moment, because it's the thing that I think about is a parent. There's a person that comes and takes a kid?

LEE GELERNT: Yes.

CHRIS HAYES: Men in uniform?

LEE GELERNT: This is what happened. She comes in. This is a long, hard journey from the Congo. She's with a little girl who's made it with her. She gets there, and they say, "Okay." They put them in a makeshift motel for four days. She doesn't really understand what's going on, but she's able to communicate to them and a little bit of Spanish that she's picked up, because she only speaks Lingala from the Congo, and she doesn't really understand what they're saying. They don't give her a hearing yet. They keep her in this makeshift motel for four days. Then one day they say to her on the fourth day, "You're going to come to this immigration office." They bring her to the immigration office, and they say, "You were a little girl has to come in the next room with us."

LEE GELERNT: So, the mother stays behind in that adjacent room. They handcuff the mother and they say, "You're going to stay here at a Detention Center in San Diego." And this is the best she can understand it. She then hears her little girl screaming at the top of her lungs, "Please don't take me away." So, they told a little girl, "You're going away now." And she's screaming, "Mommy. Don't let them take me away. Don't let them take me away." She doesn't hear what's happened to the little girl for four days. They don't tell her why they're taking your way, where she's going. She finally gets to speak to her four days later. She speaks to her maybe once a week for 10 minutes for the next four months.

LEE GELERNT: She has no idea why they've taken her, where she is, the little girl is traumatized. Not only is she traumatized for herself, but she's so worried about her mother. She's asking every day for a mother, "Are you okay, mommy? Are you okay?" The mother is so feeling so powerless, has no idea if she's ever going to see the little girl again. We filed the lawsuit, and the government says, "Well, by the time she got it from the Congo, she no longer had her papers with her." Of course, that happens all the time. Sometimes [inaudible 00:31:36] lose their papers, have them stolen on the way here. The government says, "Well, since she didn't have the papers, we couldn't be sure she was the actual mother. So, we just took the girl away."

LEE GELERNT: We said, "Well, look, the little girl is clinging to the woman. Obviously, she wasn't lying." But why didn't you do a DNA test?" The judge says, "Why don't you do a DNA test. It takes two seconds with a swab now." They do the DNA test, of course it's the mother. The firestorm is then hit because of the lawsuit. They have to reunite them. But then we find out there's hundreds and hundreds. We know there's hundreds. So, we put together a national class action and expand it.

CHRIS HAYES: I guess when it when they go into court and they say, "We didn't think it was the mother." What do we make of that? Are they lying, because they statistically enjoy the authoritarian thrill of listen to a six-year-old girl whale for her mother and ship her off to Chicago? Are they following some weird bureaucratic mandate or incentive? What is going through the minds of these people?

LEE GELERNT: Yeah. I, as the lawyer in the case, I'm not going to comment on those specific things, but I think people ought to ask that question. I would say that it's not individuals who are doing that, who are making those decisions. They're getting directives from above. What I said to the judge at the hearing on May 4, was it used to be that every prior administration did everything they could do to keep the child together. So, they would say, "Let's quickly do a DNA test." But now the director from the Trump administration seems to be, "Let's find any justification, any excuse to separate." And so, I actually think the reason they were separated and the reason all these others are separated is exactly what they used to admit. And now, sometimes admit, sometimes don't, depending on what form there in, is that it's an attempt to deter families from coming here.

LEE GELERNT: When they got to court, and they tried to have this retroactive justification, "Well, we didn't really know was the mother." I think the judge had the same reaction that we had is, really? There was no way to figure it out. And for four months, you sent a little girl away to Chicago rather than taking some steps to figure it out? It just doesn't hold up. That's why I think ultimately, it is this punitive deterrence measure. That's why these retroactive justifications don't really make sense. Because they've never really were the reason.

CHRIS HAYES: Who is the other plaintiff in this case?

LEE GELERNT: The other plaintiff who was representing that national class, represents the other scenario you hear about someone who crossed the border illegally, pled guilty and was arrested. So, she came from Brazil, fled domestic violence, came with her son, and she crossed over the border. Didn't really have any idea-

CHRIS HAYES: In Mexico.

LEE GELERNT: Yes. Didn't really have any idea where she was supposed to cross, but knew someone pointed her this way. And she said as soon as the border patrol agent walked up to her a few feet over the border. She said, "I'd like to get protection to apply for asylum."

CHRIS HAYES: Look, I just want to stop on second, because I think this is an important thing. First of all, domestic violence is a category that you can make an asylum claim on, first of all.

LEE GELERNT: Exactly.

CHRIS HAYES: Second of all, I want everyone to think for a second about this undertaking and about what one would be fleeing to do this. Just put yourself in the head of ... This is not a casual thing. You don't go from the Congo with your six-year-old daughter through 10 countries, drag yourself to a port of entry. You don't go from Brazil and make your way up the entirety of the continent, across an incredibly dangerous and arduous passage, with child in tow, for anything but the most obviously manifest desperate reasons. Just by definition. People don't do that. They migrate to the big city, they'll go other places if they can. It just seems to me like that doesn't mean everyone has an asylum clean automatically. To put yourself in the head of a mother or a father, or anyone who's undertaking this. Just consider the scope of what one must be fleeing to do this before you show up at that border.

LEE GELERNT: Exactly. That's what sort of goes back to this thing I was saying earlier about perspective and proportionality. The weight these women are being talked about as if they're gun runners, as opposed to people. It's the most basic instinct in the world for a parent to be protecting their child.

CHRIS HAYES: To run away from danger with your child, to try to get them to safety.

LEE GELERNT: Exactly. And so, what happened was, is what's now happening with what's called the Zero Tolerance policy of the Attorney General. Rather than saying, "Okay, let's see about your asylum claim, let's see if it's legitimate." The attorney general has said, and this happened even before the Attorney General said it's going to be zero tolerance, "We're going to prosecute you for the misdemeanor of illegal entry." And so, she goes to jail, and she goes only for a few days because it's a misdemeanor, she gets time serve. She sees the federal judge, she pleads guilty, because she thinks she's going to be able her son again, she's released from jail.

LEE GELERNT: In the meantime, the son has been sent all the way off to Chicago. He also went to Chicago, a different facility. She gets out of jail, and what Secretary Nielsen and the Attorney General have said is they give you half the story. They say, "well, we're prosecuting them. And when any parent goes to jail, they necessarily lose their kid." Okay, let's say they really should have a zero-tolerance policy of prosecuting asylum seekers. The question no one ever asks the secretary Attorney General on follow up is, well, when they get out of jail after those few days for the misdemeanor and they go back to immigration custody or pursue their asylum claims, do they then get their kid back? They don't.

LEE GELERNT: This Brazilian mom has been waiting now for more than eight months to get our kid back. She went to immigration for six months in a detention center, passed her initial asylum screening, so she's a bonafide asylum seeker.

CHRIS HAYES: Wait a second, wait a second. They prosecute her.

LEE GELERNT: For a few days.

CHRIS HAYES: They prosecute her, she goes for a few days. She comes back out, her son's been taken away and shipped off to Chicago, thousands of miles from where she is. She then goes into separate detention. How old is the son?

LEE GELERNT: He's 14.

CHRIS HAYES: Okay. So, you got a 14-year-old by himself away from his mom in Chicago.

LEE GELERNT: Right.

CHRIS HAYES: She's now down there. And after all that, she clears the first round of the asylum screening process?

LEE GELERNT: Yes, and she does not get her kid back. So, she spent six months in the immigration detention center, doesn't get her kid back, depressed, fraught. Obviously, she speaks to our kid once in a while, he's going out of his mind. She then gets out on bond about six seven weeks ago, and she's in a nonprofit shelter which says, "Of course, give us the son as well." She still is waiting for her kid to get out. We don't think they should be prosecuting these asylum seekers in any way. But if they are going to do it and they're going to take the kid away for those few days, give the kid back.

CHRIS HAYES: Well, the other thing about it too, is they are choosing to separate. The way that the Obama administration dealt with this to my understanding is what was called family detention, which was messed up in its own way. Believe me, there's tons of investigative pieces about family detention during the Obama administration, it's run often by private contractors. They sure as hell look like camps. You got fences, you've got people in cinderblock rooms. But, but the idea was here's what how we square the circle, which is that we're going to prosecute a lot of these people for illegal entry, but keep them with their child by essentially detaining them together, right?

LEE GELERNT: Right. Not even prosecuting them, just saying, "You're seeking asylum, we're going to put you in a family detention center or we're going to release you." And so, that's-

CHRIS HAYES: Oh, I see. So, they weren't prosecuted. That's an important distinction.

LEE GELERNT: Exactly. The families were not prosecuting. And so, they were sent a family detention centers or released, and that's where we've gotten to, which is so sad. Is we have been saying for so long that, "Look, a family seeking asylum should be released even if they have to be released with an ankle bracelet. They're not a danger. A mother and a four-year-old, don't attain them at all. But if you have to detain them, at least detain them together in family detention." We're now just fighting for family detention together. Because the worst of all is there detained and separate.

CHRIS HAYES: That's really important. So, just the progression here is that the optimal policy is just let them go, and let them -

LEE GELERNT: With supervision, right? Check ins once a week, even if you have to do an ankle bracelet.

CHRIS HAYES: This is what Donald Trump demagogue in the campaign trails called catch and release, right? This outrageous thing where you just you find them, these invaders at the border who are a threat to our lives and then you let them out into the community, when we're talking about a Brazilian mom and a 14-year-old who fled domestic violence across an entire continent.

LEE GELERNT: Exactly. What the studies show is there's a million ways to ensure appearance at the asylum hearing. But it's an easy thing to demagogue. They're flooding our countries, we have no way to control them. And so, now what the Trump administration wants to have happen is the word gets out around the world, if you come here to seek asylum, not only will you be detained, but you will lose your child. The truth is, they're not even going to deter the asylum seekers because like this Brazilian mom has said, "I'm stuck because I can't stay risk my life for my son's life. So, I'm going to have to come anyway as bad as it is. So, we're just going to have to put up with losing our children." So, it's not going to deter any way.

LEE GELERNT: But then the other question is really, there's a million things we could do to deter people. We could take away water from the children. It might deter, but at some point, we have to say we're not going to do anything just to ... Right? There has to be some basic humanity in it.

CHRIS HAYES: Well, and then also the point you just made is that the deterrent is the trip. This is not a hot tub that just sitting there waiting for you to slide into or next to where you're sitting. This is the most arduous kind of risky, horrifying journey that you undertake, that is itself a deterrent, because you don't want to do it. You're doing it for a reason if you're doing it.

LEE GELERNT: Right. I think a lot of parents out there can just think about if they've ever had a move for a job and pull their kid at a school and the kid goes, Chris, "No, all my friends are ..." This is like pulling a six-year-old from the Congo and saying, "We're going to try and make it all the way to the United States." You have to have-

CHRIS HAYES: It's so disgusting. When I think about what we talk about this country as being, what we want this country to be, and when you think about every fictional or documentary portrayal of people fleeing. World War II, people fleeing Soviet Russia, people fleeing dictators, people fleeing the Jim Crow South. The moment of the safety, the warmth, when you've made it. When you've made it, I've been watching in which Canada is the place that people are fleeing to, and there's a character who makes it over the border and she passes out inside a barn in a border town. She's there, and it's safety. It's like, you want to be the country where that's the feeling.

CHRIS HAYES: The idea that you get there and then proceed to have a Kafkaesque quasi-authoritarian Soviet experience of bureaucrats ripping you from your children you never see is such a absolute disgusting betrayal of the vision that we have of the country that we live in.

LEE GELERNT: Yeah. You would ask me rightly, "What was it like at the border?" There's this whole image of just there's these hordes of people coming to hurt us and invade us. And it's just people should come down and see these moms, and they're doing what any mom would do. They're just trying to protect themselves and their kid. It's interesting because now I can't really remember a time when I'm in a federal court and federal judges are really getting emotional. One judge in Boston in a case where they're trying to remove all these people who are seeking asylum and the Trump administration is not giving them hearings and due process. She said, "But didn't we learn our lesson after World War II? She's saying this an open court and you rarely hear federal judges says, "Didn't we learn our lesson when we turn back to St. Louis, back to Germany? Isn't this why we enacted all these refugee laws and asylum laws? Do we really want to have that on our hands?"

LEE GELERNT: A lot of federal judges may have thought that at various times during immigration cases, but I think they're really expressing it now out in the open. It's really interesting.

CHRIS HAYES: Final question for you. This is a lawsuit that by the time people are listening to this, it's possible there'll be a decision, right?

LEE GELERNT: Right. Absolutely.

CHRIS HAYES: Is it in the pellet, is it?

LEE GELERNT: No. We're still at the District Court today.

CHRIS HAYES: You're still at the District Court.

LEE GELERNT: Right. And so, we had the hearing May 4, the government is trying to throw the whole case out, and we're asking for a nationwide preliminary injunction to do two things. To reunite the kids who have been separated and stop the practice going forward. You can never predict when a judge is going to rule, but I suspect we're going to have a decision fairly soon. ND, We're hopeful. We're hopeful.

LEE GELERNT: But the other thing I would just stress is the Trump administration can stop it anytime they want. They don't need a federal judge to tell them to stop it. It's their policy. They've chosen to do it. Hopefully, they see now that people on both sides of the aisle are not in favor of making these little children pawns in this larger immigration battle, and they stop it anyway. but if not, we're hopeful the federal judge puts an end to it.

CHRIS HAYES: Lee Gelernt is a lawyer for the ACLU, where he works on immigration issues, and currently suing the federal government over its policy of separating children from their parents. Thank you, Lee. I really appreciate it.

LEE GELERNT: Thank you, Chris. Thank you so much for having me.

CHRIS HAYES: "Why Is This Happening" is presented by MSNBC and NBC News THINK, produced by the All In team, with music by Eddie Cooper.

CHRIS HAYES: You can get more from "Why Is This Happening" by visiting NBCNews.com/whyisthishappening

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