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Karen Tumlin
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Karen Tumlin
Director and Founder, Justice Action Center
Karen Tumlin is an attorney and the director and founder of the Justice Action Network, an advocacy group for immigrants and their families.
This interview was conducted by FRONTLINE’s Michael Kirk on July 19, 2019. It has been edited for clarity and length.
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So help me understand around the time—it’s 2013.The Gang of Eight bill has moved its way toward the Congress.…It seems like there might be real movement going on.Give me a sense of what the vibe was in the Republican Party at that time about immigration.
Well, this will probably not surprise you that I’m not a card-carrying member of the Republican Party given my work.However, I will say that for me, as someone who focuses on immigration, 2013 was a hopeful period.We were a year past the implementation of the DACA [Deferred Action for Childhood Arrivals] program, where we were expecting close to a million immigrant young people to be able to come forward and have protection from deportation, work lawfully in the United States, and where there seemed to be an awakening among Republicans that realized that the country is fundamentally changing; that if they were going to continue to alienate Latino voters, the future looked bleak for them.
That’s right.But there were, at the time, three people—the United States Senator Jeff Sessions; Steve Bannon; and Sessions’ communications director, Stephen Miller—who did not share that view of the political landscape in America.Tell me about them.
Certainly.I mean, first of all, former Senator Jeff Sessions, former attorney general, is no one to be trifled with.Incredibly smart political actor.But in 2013, if our lens is only focused there, I viewed him as a far extreme of the anti-immigrant movement.Yes, he was a senator; yes, he was in a powerful committee; yes, he would push hearings, you know, to defund DACA and other things.But I didn’t view him as the groundswell of action for the right.That all changed.But in 2013, he was a smart and wise and powerful individual on the far right and anti-immigrant flank, but he didn’t seem to have a huge band following him.
He had a formidable, in a certain way, office around him.Who was populating his staff at that time?
I don’t know all the ins and outs of his staff at that time, but I’ve come to know some of them: obviously Miller, who we all know; Gene Hamilton, who has, of course, ascended into more powerful positions in the Trump administration.A woman named Danielle Cutrona was also in his office.Perhaps not reporting to him directly, but on the committee certainly, is a woman named Dimple Shah, who also features prominently in the Trump administration on immigration matters.
And so when you look at that cast of characters, they’re not just folks interested in immigration.These are individuals who, you know, like me as an immigration lawyer, know the federal Immigration and Nationality Act, know how it works and knows its structure.Gene Hamilton, in particular, worked in what’s called the Office of Chief Counsel in Atlanta.That means he was in immigration court day in and day out, using the Immigration and Nationality Act to deport immigrants.
Miller, Bannon, and Sessions
So he had powerful people around him.Let’s spend just one more minute on Miller.Who is Stephen Miller, and what did he bring to the party?
Oh, he is a true believer.I mean, I think that the way I view Stephen Miller, and obviously as someone who strenuously disagrees with his worldview, he has a worldview.It’s focused, it’s sharp, and it’s extremely anti-immigrant.I would also say, you know, from where I sit, it’s a white-supremacist worldview.He brought that clarity to certain actions and policy choices.
And between the two of them, and Gene Hamilton and the two women you mentioned, what kind of a force?I mean, my sense is they were sort of weird outliers in the Senate and other places, but as time moves on, they become something else.So take me across that arc.
Sure. I mean, in 2013, they’re, again,—it’s an important Senate committee, to be sure.But we’re under a president who has just made the most inspiring, the most hopeful immigration change that most of us have ever seen in our lifetime.And yes, they were kind of screaming in the wind about this desire to take the country very much backwards to a very, again, to a white-supremacist state, to very much a lockdown on immigration with no humanity, you know.
Today, whatever polls you read, DACA, or the Deferred Action for Childhood Arrivals program, is 80-something or 86% popular, no matter what folks’ political persuasion is.Nothing in the United States is that popular.This cast of characters was holding hearings and over and over trying to defund the program and end the program in 2013.That’s a pretty aggressive stance.
… The front page of Breitbart is regularly—Bannon’s Breitbart—is regularly pushing anti-immigration perspectives.Tell me about that.
Well, I would say, again, from where I sit, I think that many folks who are pro-immigration believe that immigration is integral to the United States, want to see humane immigration reforms.I think we were a little asleep at the wheel.I do not think that we were paying enough attention to the traction that Bannon’s Breitbart was getting and where it was being read, frankly.We thought, oh, that’s some small segment of the United States; that’s a small, kind of angry group of older white men.Well, that is not what we all learned come the election of 2016.
So who was reading Breitbart at that time?Who was listening to Sessions and Miller on Bannon’s radio show or podcast?
Well, frankly, a lot of women who look like me, right?White women, certainly, were reading that.I think, you know, my own personal take is folks who did not see that they or their families were getting ahead in the current economy or United States—I think that when you look across the country and you see, “Oh, technology—welcome to Silicon Valley,” and all of these other things, and you think, “Gosh, it’s really hard; I don’t know if my kids are going to be able to buy a house; I don’t seem to be getting ahead or putting away money for retirement,” I think that those folks are more drawn to a reductionist view of what could help them, or, better put, who allegedly is hurting them.
So these three, four people, the Sessions’ group, the Breitbart group, set out on a quest to change the fundamentals of the GOP establishment.They go after [House Majority Leader] Eric Cantor in an election in Virginia, and they beat him and put themselves on everybody’s radar.Can you tell me the effect?Did you feel the shuddering, the aftereffects?
It was absolutely a wakeup call.People were, again, in the immigrants’ rights movement, were laser-focused immediately on whoa, what just happened in Virginia?What does it mean?And, importantly, what will it take in order to get traction and support for the opposite — for a candidate who kind of stands on the truth of no, immigrants aren’t hurting you; immigrants are what is making this country great; immigrants are helping to contribute to an economy that continues to propel and provide jobs and opportunities?
And I think that was the real soul searching is, first of all, it was a scary result.But secondly, there was a reckoning of the pro-immigration movement did not yet have the power to field a candidate that was going to be strong in their support for immigration.
The Trump Campaign and Transition
When Trump comes down that escalator and talks about Mexican rapists, what did you think?
I thought that was such a low moment for our country.I naively thought that anyone who spoke in that kind of racist language could not be elected.I was offended, and I was embarrassed, particularly towards my Mexican American friends and colleagues.
Were you surprised that it resonated with the base?His ratings go—he goes to Laredo, [Texas], the next day; his ratings are up and climbing.
No, logically I was not surprised.Using completely false criminality themes for immigration is like the go-to for anti-immigrants.We talk a lot about how immigration is fact-resistant.I can tell you all day long, I can quote you all the statistics that it is U.S.-born and actually also white men who are committing crimes at higher levels.It’s not foreign-born.
But what resonates, as it has against African American men as well, this myth of criminality, particularly of Latino men, has always had traction here in this country tied to our deep racism.So no, I wasn’t surprised, because logically I knew that.But this language, the president saying something like, “When Mexico sends their people, they’re not sending their best; they’re sending criminals and rapists,” is so vile I was surprised that that didn’t trigger some kind of boundary with the American population.We’re beyond this.
He wins.
He wins on that.
And he forms a government, and the people we talked about find themselves inside the government.Help me understand where they all land.
Ooh, lots of places.So if you look at the team that was supporting Sen. Sessions, so first of all, Sen. Sessions lands, I think, precisely where he wants to land: attorney general of the United States.So—and I will talk about causing a tremor.When that was being rumored, I thought to myself, oh, we’re in real trouble.The attorney general oversees, obviously, the Department of Justice, but importantly, immigration is federal in this country.Very little that states can do about it.Immigration courts sit underneath the Department of Justice.That’s where they sit.
So the power that the attorney general has in ways that people can kind of understand to chart the course for immigration, and then also in ways that are more hidden but exist, like certifying cases to yourself and deciding them, is tremendous.So that alone is just a massive, massive change in how immigration is going to be run, to have that person who, one, is so knowledgeable about the immigration system, and two, has staked out a far-right flank.
And then you have folks like Gene Hamilton, who initially becomes, essentially, the head of the Trump transition team on immigration.And what that means is—and he testifies to this in a deposition I did with him—he is the person referring nominee after nominee to the U.S. Department of Homeland Security, to the U.S. Citizenship and Immigration Service[s], to the U.S. Immigration and Customs Enforcement office.All the positions that matter for immigration are then being funneled through someone who is an acolyte of Jeff Sessions and, again, spent his formative years as a new lawyer prosecuting deportation cases in the Atlanta court system.
Gene Hamilton
… What’s his life story?
You know, interesting.Obviously, smart, smart man who—you know, I asked him, “Why did you want to go to law school?”He said, “Well, my first job was”—and obviously I’m paraphrasing—“was in the landscape-constructing industry, and I thought law seemed a lot more interesting.”And so I, of course, wanted to know, “Well, were you always interested in immigration?,” to which he said, “No, not when I went in, but I did an internship”—and I don’t remember if it was his first or second summer—“at the Miami Immigration Detention Center at Krome.”Krome has a very checkered past for being very abusive detention conditions.
And that kind of starts him on his trajectory and interest in immigration.And ultimately he graduates—and this is nothing to shake a stick at—and joins the Honors Program for federal employees and does many prestigious rotations at the Department of Homeland Security and Immigration and Customs Enforcement and then ultimately takes this job I’ve described in the Atlanta court system, which is, by the way, notoriously one of the most difficult court systems to get any relief if you’re an immigrant and an asylum seeker.
So what’s his—what’s the barest way you can describe what his position is on immigration?
Incredibly restrictionist.And what I experienced—and again, I’m largely drawing my conclusions based on the work I know he’s done, and from a multi-hour deposition where I was asking him a lot of questions—I would say that he—I have heard him describe taking major positions without a real regard for the impact on the human lives.
Harsh words.
Yeah.
He’s like the best-kept secret.I don’t read about him; I don’t know about him; I’ve never seen a picture of him. Why?
Because he’s super-smart ....
What I have seen him say is—and again, this is in the context of describing his own role in the termination of the DACA program, and I asked him what I thought was an innocuous question, something to the effect of, “Would you describe the termination of DACA as a significant change, a significant policy change?”And he started to object with me: “Well, what do you mean ‘significant’?"And I went for the low-hanging fruit.I said, “Change that would have a life-altering effect on a large number of people in the United States.”
And that was a concept that he was fighting with me about: “What do you mean, ‘life-altering’?Life and death?”And I said, “No, life-changing or having a major change in educational or work opportunities.”And again, the response was something like, “Well, I don’t know every educational law across the different states,” and something about how that might be a benefit that DACA young people were not entitled to.
And what I took from that was a callousness, you know.What I want, even for folks that I don’t agree with, if they are sitting in the United States government, and they are penning memorandums to make huge changes to federal law that impact over half a million people, I want them to have thought about those consequences on those humans.And that’s what jarred me.And frankly, it’s what jarred my plaintiffs who were sitting there with me.
The Dreamers
So we have in a president somebody who a lot of people tell us, when he first became president had said nice things about DACA, was potentially a waffler about DACA, maybe his heart was with the “Dreamers.”Tell me about that.Did you hear that? Did you believe that?
Oh, of course.I was hanging on every word. We were hanging on every word.
What do you mean?
Well, Trump is elected, and there are many things that he campaigned on or that known anti-immigrant organizations such as the Center for Immigration Studies or the Federation for American Immigration Reform had put out their, you know, multi-point points of what they wanted the president to change in his administration.DACA was right up there, you know? Rescinding DACA.And the folks that Trump was surrounding himself had made it very clear they thought DACA should be rescinded.
So, you know, just to take you back to that time period, the depression levels among some young people with DACA were so terrifying at that point, right?They woke up to post-Election Day where they thought the thing that had given them safety, the thing that had allowed them to provide for their parents, the thing that allowed them to work in their chosen profession, was going to vanish.
And so sure, we were—everything was with bated breath, every move, every word that Trump said on DACA.And when he said, “The Dreamers don’t have to worry; my heart is with them,” or something like that, we thought, oh, well, maybe there’s hope.And then time started to move.We had the Muslim ban.That was a lot to deal with.But there was no memo on DACA.Months went by, and, more importantly, DACA approvals kept coming out.People kept applying, and this administration was approving them.
And so we started to get a little bit lulled into this sense of “Well, surely if people at the Department of Justice thought that the program was unlawful, they wouldn’t keep granting it.”And the president is saying some nice things, and maybe he’s really claimed his stake on immigration changes elsewhere, and he’s taken a lot of heat on the Muslim ban.Maybe, just maybe, DACA will stay.
Ah, but it wasn’t to be.
No, it wasn’t.
So, on Sept. 5, Attorney General Sessions speaks and says, “Basically, that’s it for DACA.”How did he find himself, from what you can tell, sitting there doing that piece of business?
Well, I think there’s a handy answer to that.We just discussed that the president, who is willing to say things like, “Islam hates us; I will implement a Muslim ban,” or, “I believe that Mexicans are criminals and rapists,” was not willing to say, “I think the DACA program is horrible.”President Trump has never said that.Or President Trump has never even said: “I just think the DACA program is a bad use of our resources.I think we should put our resources somewhere else in immigration.I think we should attract high-skilled labor.I think we should attract business.”He’s never said that, either.
He has said he has a heart for DACA recipients and they shouldn’t worry.So when the decision was made to end the program, they needed a different reason.It couldn’t be that it was a bad policy idea, so they had to look for something that only the attorney general could seemingly provide: the notion that the program must be unlawful.And so that’s why I believe the attorney general was trotted out to be that spokesperson, because anything else would have resulted in political accountability to the president for a program that is 86% popular, about three times more popular than how apple pie polls.
But so you said “they.”Who’s the “they” that’s pushing to end DACA, that has that kind of clout, that kind of maneuverability inside the administration at that moment?
Well, you know, we don’t totally know, unfortunately, because a lot of the kind of discovery and evidence building that was happening in the cases, including the case I’m part of, challenging the termination of DACA, was cut off kind of midstream.But we know some things from that.We know who was in the room where it happened.So we know that there were a couple of meetings, including a meeting in the Roosevelt Room.We know that that cast of characters included Stephen Miller, former [DHS] Secretary [John] Kelly, former [DHS] Secretary [Kirstjen] Nielsen, Gene Hamilton and some other individuals.
We also know that there was a memo that circulated in advance of Sept. 5 that was primarily authored by Gene Hamilton to terminate the program.And then, I think critically, we know that a lot of this sprung into action after a letter from Attorney General Ken Paxton in Texas and other attorney generals [sic] setting Sept. 5 as the date by which if the Trump administration didn’t end DACA, they were going to sue.
Ending DACA
Let’s go to the Roosevelt Room meeting for just a moment.Take me in there.What’s up? Who’s there?What are they talking about?
They’re talking about whether they should end DACA.They’re talking about it in response to this letter from the Texas-led attorney general coalition.You know, we know a bit about the cast of characters that I named—Gene Hamilton, Kelly, Miller.There are some others whose names I’m not remembering right now.But interestingly, right, you have Homeland Security officials and you also have communications officials in that room for the White House, not just the agency.So you’ve got a White House agency decision.
We know that there was an agenda.We don’t have a copy of it.We know that there may have been some other options for how exactly DACA was ended.We do not know if that included what would be called clawing back active DACA, meaning not just saying we’re going to end DACA and people who have it currently will be allowed to expire, but we will rescind those.
And we know that there were discussions after Texas sent their threat letter with the attorney general’s staff and with Gene Hamilton to try to get a sense of what would satisfy Texas so they would not sue.
Any sense that there was collusion, cooperation?I know “collusion” is a sort of toxic word, but cooperation between or maybe even a wink and a nod from the Justice Department, the attorney general of the United States, and Ken Paxton over sending that letter?
Well, here’s what we know.We know that before that letter was sent, key Trump administration officials, including Gene Hamilton, met with staff from Ken Paxton’s office, including to do a border tour and to discuss immigration matters.Whether they discussed the termination of DACA is not entirely clear.
We know that after the letter is sent, Gene Hamilton picks up the phone and talks to a gentleman named Michael Toth to, in Mr. Hamilton’s own words, get a sense, you know, at the staffer-to-staffer level of what exactly it would take to get Texas to stand down.That’s quite graphic.
Now, at the same time, there’s a whole ’nother set of attorney generals, right?There are something like 22 attorney generals, including D.C., that have gone on record and have expressed their view that DACA should not be terminated.A coalition of them led by my home state [California’s] attorney general [Xavier] Becerra had also submitted a letter around this time.But yet, no one meets with them.
… So where are you when you—do you watch the attorney general on television make the announcement?
Yes.
Say what happened.
So we heard it was coming.It had been, I don’t know, maybe it was a week, maybe it was two weeks where kind of leaks were coming out that it may be over, that DACA may be ended.And so, you know, I did what I like to do.I was preparing a lawsuit with my partners.At the time I worked for the National Immigration Law Center, and with our co-counsel at the Yale Law School and Make the Road New York, we said, “Well, we’ll just have to find a way to challenge this in court.”And the morning that it was coming, I got dressed.I put on a dress, and over it I put a “United We Dream” t-shirt.I took a photo of myself and sent it to one of my friends who has DACA and sent her love and hugs and said: “You know, we’ll be ready if this happens.We will prepare the lawsuit.”And then I watched with my work colleagues, and I certainly cried.
Because?
Because like many people in this country, I have friends and loved ones who have DACA.And the hope that the program has brought, the changes that it has made, I have had the privilege to see firsthand.You know, again, like many people in this country, I’m the daughter of an immigrant mom.And for me, immigration is something I’m proud of, and DACA and the organizing done by DACA youth has been the most inspiring thing I’ve witnessed as an adult.
And this idea that the program was being ended in some kind of political knife fight where no one was actually taking accountability or willing to say, “I don’t think this program is good for the country,” no one says that.But instead, there was this finger pointing, “Oh, it must be unlawful,” in a way that, you know, as a lawyer, I can say, lacked in evidence.It was devastating; it was sad.And it was also a sense— you know, at this point we’ve lived through the Muslim ban, right, and the way in which that made Muslim Americans feel attacked and the rise in hate crimes that we saw after that, and I just thought, oh, my goodness, what are we in for?Is nothing safe? Are no immigrants in this country safe?
… The blowback on Rachel Maddow, MSNBC, CNN, Joe Scarborough, it’s pretty substantial, and the president, who likes to watch this every morning, sees it.He has a meeting with [then-House Minority Leader Nancy] Pelosi and [Senate Minority Leader Chuck] Schumer where he sort of seems to take it back and sends a tweet out that says, “I love the ‘Dreamers.’”
That happened.
What are you thinking?
I’m thinking, wow, Mr. President, keep talking, because it shows, again, that there [was] no valid basis to rescind this program.And our law requires that when the federal government acts and does something that affects well over half a million people that there is a very low floor above which they have to clear.They have to show that their action was not arbitrary and capricious.And that kind of ping-ponging and those kinds of statements only further build the case that there was no valid justification to end this program.
Is it the next month that you depose Gene Hamilton, October?
Yes, October.
So give me the genesis of him in a chair, with you on the other side of the table.
Well, I had the great fortune to work with a very smart young lawyer named Josh Rosenthal, and we were on expedited discovery.Discovery is when you get to depose the other side, but a short time window, and the consequences were high.Remember, at this point we only have a couple of months before the program is ending.There is, in fact, a deadline in October for people to renew.
And we were being cautious.We didn’t think it made any sense to say, “We want to depose Jared Kushner; we want to depose a sitting Cabinet chief.”You know, that’s very hard to do under U.S. law; there are protections.But we wanted to figure out who was in the room where it happened, who was really instrumental in making this policy change.
So I asked this very bright young man to take a look at some org charts and see if he could figure out who might really be a true believer that DACA was unlawful.And he pitched a few names, none of whom we really knew.“… This guy Hamilton, look at the chairs he sat in.He was in immigration court, and then he ended up working for Sen. Sessions, and then he was in the Trump transition.Maybe he knows something.”So I thought, you know what? That sounds good; let’s see.So we send the notice to depose Gene Hamilton, and basically, immediately, the other side starts fighting with us and says: “No, no, no.You can’t depose him. He’s too high ranking of an official.”And we’re thinking to ourselves, oh, Josh was probably on to something here.Why are they fighting with us?
At the time, other cases have asked to depose Cabinet-level officials.Like, we didn’t do that.So we go many rounds of a court fight, including one where the magistrate judge pulls out the DHS organizational chart and starts to count off all the names like above where Gene Hamilton sits and says: “No, this is not what the doctrine to protect high-level officials is for.You may depose him.”
By the way, Hamilton is obviously more important than where he sits on the organizational chart.
He sure is.
In what sense?
I mean, I think he’s a really smart individual.I think that he’s a really smart and savvy individual.He knows the immigration law, and I also think he appears to be someone who knows how to operate in different circles, right?He was at DHS; he was on the transition team; he went to the Department of Justice.I think Hamilton may be one of those folks who knows how to get things done in Washington.
Take me to the deposition.Just set it up for me and bring me into the room.
Sure. Wow, it was a big room.So the deposition is in a large room.The room gets so big with attorneys who want to be in it that we have to, you know, borrow someone else’s conference room.There are, by this point, at least—let’s see, probably five lawsuits filed.There’s a set of lawsuits filed in California, including the state of California, including the University of California system, including a county.There’s our lawsuit filed in Brooklyn.And by this point, 18 states and D.C. have filed their own lawsuit in that same court.So all—counsel from all those cases are flanking the table.
How many?
Oh…
Twenty?
More.
More than 20?
More than 20.We have folding tables kind of put together.Plus, Hamilton’s lawyers are there, too.Plus, obviously, in a deposition you have somebody who’s transcribing the words, and this was so fancy, we had a video deposition as well.And the great thing for me is I get to be off-screen.I ask the questions, so I’m the detached voice, but only the deponent is in the screen.
What was his aspect as he came in and sat down, as you get started?
Completely professional, absolutely, you know, lovely.Didn’t seem overtly nervous.Had a nice Starbucks beverage.I should add that also in the room were—and sitting to my left and in my peripheral vision were two of my plaintiffs, individual DACA recipients.Antonio [Alarcon] and Martín [Vidal], the lead plaintiff, were in the room.They very much wanted to be there.Martín, at least, has aspirations now to go to law school, and they wanted to be present.
What were you hoping would happen as a result of the deposition?
I was hoping that we would learn more about who was critical and key in making the decision to terminate DACA.I was hoping we would learn when, how the administration responded to the Texas threat level.And I was hoping we would learn what kind of debate raged.Were there other options?Did anybody say, “No, let’s keep it,” or, “Let’s claw back the active DACA grants”?I wanted to know more about was there more than one option on the table.
And?
I didn’t really learn all that.There were a lot of objections.Actually, what we learned was different, right?I learned in ways that I found surprising that Gene Hamilton was at the center of it all.There was a moment in the deposition where—and so remember, I’m the lawyer who’s speaking, but I’ve got all these lawyers with me on my team, and I’m getting a lot of Post-it notes.Lawyers love Post-it notes, especially when they can’t talk.So they’re passing Post-it notes along the table.My colleague Josh is screening them, and the ones that he thinks are meritorious, he’s giving to me.
And at some point, he gives me one, and he says—and it says, “Ask him if he wrote the memo to end DACA.”And I thought, oh, well, yeah, maybe he did.And so I asked him that almost on a whim, to which he says: “Yes.Yes, I did.”And that was a moment of change, when I realized, whoa, this man maybe wasn’t the driving force, but was certainly a driving force for ending this program.So that surprised me.
And then what we talked about earlier, the fact—I was literally floored that someone with his professionalism, with his brain power, would kind of, you know, in a lawyerly way, fight with me about whether ending DACA was a significant change and whether it was life-altering or life-changing for DACA recipients.I found that so surprising and the most powerful moment of that deposition.
And then it stops.
And then it stops.I didn’t even get a Post-it note for this, so that fight about whether we could depose Hamilton didn’t stop.We won it on several fronts, but the United States government kept challenging it.And again, my colleague taps me on the shoulder and said: “Karen, I think we just got a court order about the deposition. What do we do?”And I said, “We go off the record.”
So very, you know, somewhat abruptly, I say: “I’m really sorry.We need to go off the record right now.”Everything gets turned off, and I tell the counsel: “Guys, I think we all have to look at our phones.I think we just got a court order on this.”And then a long discussion ensues about whether the depo was shut down and when it would resume and all of that.And ultimately, we all agree that we have to shut it down.
And your feeling?
I was disappointed, obviously, because Mr. Hamilton had turned out to be such an important witness.He had the knowledge, absolutely; he had the knowledge of the discussions.He was the one on the phone to the Texas attorney general’s office after that threat letter.He was the one who primarily wrote the memo.And he had some things he was willing to share with us.So I had a lot more questions I wanted to ask him.
I was relieved in a way, because the deposition was brutal.My plaintiffs described what it felt like for them the moment they realized that they were facing the man who wrote the memo that was going to radically alter their lives.So I was relieved to be out of that environmental pressure cooker, or emotional pressure cooker, rather.And I thought we would get to go back again and ask more questions.
… You know, the president, who’s, as you’ve described, is kind of on again/off again even about this issue, even at this time, right, finds himself in a meeting on the 9th of January with [Sen.] Dianne Feinstein and others, and invites the television cameras in for a kind of reality-TV moment about all of this.Have you seen that video, and your thoughts?Again, here we go again.You’re sitting somewhere watching the thing you care the most about as part of the “Art of the Deal” by the president of the United States.
Yeah, I mean, I have had far too many kind of palm-to-forehead-slapping incidents in this administration.But what I would say kind of about that moment and the many others like it is it is actually very sad for me, as someone who cares so deeply about immigration, believes in its strengths, to have seen the mockery that the president has made of it, right?This is not a reality-TV show.My experience in my own personal life and of my loved ones is people do not immigrate just for fun, right?People immigrate to be with their families.They immigrate for educational opportunities they can’t have.Critically, they immigrate to save their own lives and that of their children.And so there’s no humor to me in these moments that make you wonder, what is going on with our democracy?And critically, you know, I guess there was some point earlier in my career when I wished immigration as an issue was getting more attention.I no longer wish that to be true. Not this attention.
… A lot of people thought the very first day [of the administration DACA would be rescinded] that’s what he said in the campaign trail.The very first day, right, or somebody said it in here, “DACA.”
DACA.
“Going to do it.”Everybody’s holding their breath. It doesn’t happen.That’s what we’re talking about.
Yeah, it doesn’t happen.We’re holding our breath, certainly, right?I have a court hearing on the inauguration, and that kind of felt good.Felt like I was doing something positive.And we’re holding our breath, and then the rumors come of the first executive-order signing, and that’s the Muslim ban.And come that Friday, we’re all so overwhelmed with the Muslim ban.It is the first one; it’s implemented immediately.We’re in court that Saturday morning.And the protests come. The people are mad.Folks are—and no one could have predicted that.We were predicting some kind of Muslim ban; we were preparing a lawsuit.But no one predicted, from Dulles to Atlanta to JFK to you name it, the outpouring of support at airports, and the real neighbor-to-neighbor protests against the Muslim ban.And I think that cooled a little bit the next, most aggressive immigration actions.The next ones we then see are very important, the interior enforcement and border enforcement executive orders that kick off this enormous debate between state and federal government around the role of local law enforcement and immigration.But then we start to get lulled into this feeling that maybe DACA gets to stay.
Zero Tolerance
… Just the last area.I mean, in 2018, when Sessions comes out and announces what he calls a “zero tolerance” policy, what is he doing there?How is he using the role as attorney general, and what’s the implication of that statement?
Oh, man.Never in my wildest legal dreams did I think that 8 U.S.C. 1325 would become a phrase that people knew what it was.When Sessions announces the zero tolerance policy, what he is doing is taking a rather archaic part of the Immigration and Nationality code, which is 8 U.S.C. 1325, and saying that in certain sectors of the border, every single person who crosses, no matter if they’re single adult or a family unit, will be prosecuted under that.It is a misdemeanor offense or a felony offense for repeated entries.
What that means practically, however, is if you are prosecuted under a federal statute, you have to transfer from Border Patrol custody, which is a civil enforcement agency, to U.S. Bureau of Prisons custody, which is criminal.And U.S. Bureau of Prisons custody is not set up to hold your children.And so by driving that prosecution intentionally, he’s mandating separation of children regardless of age, regardless of whether they have another caregiver who’s not being prosecuted.
And then the other thing that he’s doing, and this, I think, again, as a lawyer, I find this abhorrent—our attorney general is our top law enforcement officer.We have to have law enforcement that uses discretion.Discretion means you don’t prosecute everything in the world because you can.You prosecute what is wise, humane, protects our country and does good.
A policy to have zero tolerance and to prosecute for the status-based offense of entering the country, even if you were fleeing death, and without regard to the child abuse and permanent mental suffering you are bringing on parents and children, is so far below what we should expect of an attorney general.
My last question.So would Sessions have known that announcing zero tolerance … would lead to family separation?
Without a doubt.Without a doubt he absolutely knew, and I believe intended that in announcing zero tolerance, it would be leading to a family separation policy.There is no question that he knew the Bureau of Prisons would not hold children and the children would be left behind.
They are sending a message.
They have now told us over and over again that their intention was to deter and that their intention was to deter other immigrants by evoking this harm on individuals.And I will simply note that under the convention against torture, which is part of the United States’ law, that fits the definition of torture.
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