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Lee Gelernt: Sockless lawyer packs a punch in ACLU’s family separation lawsuit

Lee Gelernt, the ACLU’s lead attorney in the child separation lawsuits being heard in federal court in San Diego. “I worry about the kids for the rest of their lives,” he said.
(Eduardo Contreras/ The San Diego Union-Tribune)
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Lee Gelernt traveled light. Leaving his New York home in July, the lawyer packed only a single change of clothes.

Since he didn’t intend to be gone more than 48 hours, that seemed sufficient. His schedule: Thursday, fly to San Diego. Friday morning, represent his client at a hearing in the federal courthouse here. Friday night, catch the red-eye home.

That was his plan. Reality?

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“I ended up staying for 12 days,” Gelernt said. “Judge Sabraw, he just kept ordering hearing after hearing.”

For Gelernt, that meant a daily routine of arranging another night’s lodging, changing reservations for his flight home and shopping for fresh socks and briefs.

As deputy director of the American Civil Liberties Union’s Immigrants’ Rights Project, Gelernt is accustomed to taking on controversial causes. He was the lead lawyer arguing against the Trump administration’s travel ban, fighting Texas’ anti-sanctuary city law, advocating for a Mexican teen shot by a U.S. Border Patrol agent while the youth stood in Mexico and the agent in Arizona.

These cases all earned national news coverage, bringing Gelernt almost equal measures of professional acclaim and hate mail. Yet nothing had prepared him for the intense emotions stirred by the lawsuit now playing out in San Diego.

“Of all the cases I’ve ever done,” he said, “this is the one that has resulted in the most unsolicited emails and calls. For awhile, it was the story in the country.”

The case, Ms. L, et. al., vs. U.S. Immigration and Customs Enforcement, et. al., was filed to stop the Trump administration’s practice of separating children and parents at the border.

This unpopular policy — one poll found 88 percent of registered voters were opposed — was halted by President Trump’s June 20 executive order. Yet the case of Ms. L continues in U.S. District Judge Dana Sabraw’s San Diego courtroom, as Gelernt and government lawyers wrestle with the question of how and where to reunite families.

This is an emotional issue, Gelernt said, but it shouldn’t be a partisan one.

“At the end of the day, when you are dealing with children — especially babies and toddlers — it hits people at a visceral level,” he said. “When it comes to children, there should be some common ground.”

No showboating

Clean socks were not an issue Friday, when the case of Ms. L resumed. In recent hearings, Gelernt and several other parties have called into Sabraw’s courtroom and carried on their arguments over the telephone.

This week, there wasn’t much arguing. Sabraw has ordered both sides to look for deported family members, file written progress reports every Monday and Thursday, then attend — in person or by phone — hearings on Friday.

Both Gelernt and Deputy Assistant Attorney General Scott Stewart have been coordinating the shared effort of tracking down parents, including some who had been deported to Guatemala and El Salvador.

“We’ll hear from people who say, ‘We deliver clean water in the countryside in Latin America. Can we help?’ It’s great,” Gelernt said, “that kind of interest.”

The Justice Department’s crackdown at the border resulted in 2,609 children, including 99 under the age of 5, being removed from their parents’ custody. Nearly 2,000 have been returned to their parents, by mid-August, there were still 483 in government custody. The vast majority are waiting to be reunited with parents who have been deported, while some are deemed ineligible for various reasons.

“It appears in the report,” Sabraw said, “that a lot of progress has been made in the last week by both the government and the plaintiffs.”

The hearing was low-key and businesslike. That’s been true of many of the hearings, to the surprise of some observers.

“If they did it my way, I would bring in 25 crying kids,” said Bob Fellmeth, executive director of the University of San Diego’s Children’s Advocacy Institute, which filed an amicus brief supporting the ACLU’s position. “They are not doing what I would do, which is to over-state.”

Playing to the galleries is not Gelernt’s style.

“He’s certainly not a showboat and he’s certainly not flamboyant, but he certainly makes an impression,” said Judy Rabinovich, another ACLU lawyer in this case, “because he is smart and articulate and he gets his point across.”

Born in Brooklyn and raised in Manhattan, Gelernt is the son of an educator and a physician. As a boy, he attended Manhattan Country School. The private K-8 institution’s website says it is dedicated to “progressive education and socioeconomic, racial and ethnic diversity.”

One of the school’s original staffers, Lois Gelernt instilled in her son a sense of social responsibility. A canny competitor — Gelernt, who stands 6-feet tall, played basketball for the Tufts University Jumbos as an undergraduate — he’s aware of his limitations.

“Some games,” he said, “there were two people in the stands.”

With a pro ball career out of the question, Gelernt continued his education. A master’s degree in international relations from the London School of Economics was followed by a law degree at Columbia, where he edited the Law Review’s “Notes and Comments.”

After a year-long fellowship in a San Francisco law firm, he landed at the American Civil Liberties Union headquarters in his home town.

Initially, Gelernt had no particular interest in immigration work. But after 9/11, when Gelernt led several of the ACLU’s national security lawsuits, he had a change of heart.

“I was looking to do work on race and poverty,” he said, “and I saw that immigration is largely about race and poverty.”

It’s also about people. Ms. L, for instance, was the Congolese refugee Gelernt met at the Otay Mesa detention center in February.

“She had been without her 6-year-old daughter for four months at that point,” Gelernt said. “We had planned on filing a national class-action suit, but that was going to take some time. She was in so much distress, we decided to file directly.”

Ms. L’s story

Under President Trump, the Justice Department’s “zero tolerance” approach to immigration means anyone caught attempting to enter the country illegally will be prosecuted criminally. The administration also moved to detain asylum-seekers who follow legal procedures, as Ms. L did.

Citing a U.S. Supreme Court decision that forbids federal authorities from incarcerating immigrant children for longer than 20 days, Attorney General Jeff Sessions announced that children would be quickly removed from their parents’ custody.

“If you don’t like that,” Sessions said in March, “don’t smuggle children over our border.”

That was a significant escalation in the nation’s ongoing immigration debate, said the ACLU’s Rabinovitz.

“It’s really a full-scale attack,” she said. “I think the level of what this policy did is so offensive, it just hit a nerve.”

While not defending the family separations, a spokesman for the Federation for American Immigration Reform (FAIR) said congressional inaction and court rulings have left the administration with only two options.

“One, you allow children to be used as get-out-of-jail-free cards because under court decree you cannot hold a minor for more than 20 days,” said Ira Mehlman, a FAIR spokesman. “Or two, hold the adults separately and place the children with other relatives or adults.

“There are two items on the menu, and both are bad.”

The plaintiff known only as “Ms. L” fled her homeland, the Democratic Republic of Congo, which is wracked by political violence and guerrilla warfare. Helped by Catholic nuns, Ms. L and her daughter, “S.S.,” arrived at the U.S. Port of Entry in San Ysidro on Nov. 1.

An initial interview found Ms. L a good candidate for asylum. But on Nov. 5, she was handcuffed while officers removed S.S.

“She could hear her daughter saying, ‘Mommy, don’t let them take me away!’ again and again,” Gelernt said.

Ms. L had no idea where her daughter was until four days later, when they were allowed to speak over the phone. That’s when she learned the girl’s location: Chicago.

“For her, it might as well have been the moon,” Gelernt said. “She had no idea where Chicago was.”

Wood Chippers

Today, Ms. L has a better grasp of American geography. Gelernt succeeded in reuniting mother and daughter in Chicago, although their fight for asylum continues.

The father of two teenage sons, Gelernt worries that the family separation policy will lead to a life-long sense of vulnerability and betrayal.

“It changes, potentially permanently, the relationship between parent and child,” Gelernt said. “At that age, you think your parent can protect you. But so many of the parents had to stand there helplessly, handcuffed. The children wonder, ‘Why didn’t you stop them from taking me?’

“The child at that age couldn’t understand. My parent not only couldn’t stop this, but let this happen to me.”

The case, which now includes all 2,609 separated children and their parents, “hit Lee very hard,” said Rabinovich.

“It touched a nerve for him as a father. That’s the main thing in his life and to see other parents having children ripped away is something he just couldn’t stomach.”

There’s so much public interest in this case, Gelernt is swamped with interview requests and email. The latter has included plenty of suggestions on how to find the children’s missing parents, as well expletive-studded salvos from critics.

One printable sentence in an angry screed: “CREATURES as STUPID as you should be fed feet first into wood chippers to be ground up into fertilizer!”

Many of Gelernt’s peers, though, applaud his work.

“I’m not a member of the ACLU and disagree with them in some areas,” said the Children’s Advocacy Institute’s Fellmeth. “But I’ve never been prouder of the ACLU.”

“This is an enormously important case. It is the leading lawsuit challenging the illegal and unconscionable Trump administration policy of separating children and parents,” said Erwin Chemerinsky, dean of the University of California, Berkeley, School of Law.

“Lee is doing a terrific job as the lead attorney in the case.”

For his part, Gelernt insists he’s optimistic. “I remain hopeful this is going to get done and all the families will be reunited,” he said. “Whether it’s weeks or months, I don’t know, but I remain hopeful.”

Hopeful, and better prepared. If this case requires another trip to San Diego, he’ll pack a bigger bag.

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