STEVE INSKEEP, HOST:
There is not much doubt that the United States is still separating some migrant children from their families when they cross the border; the question is when this happens and whether it's legal. The Trump administration once embraced family separation as a policy that officials explicitly, on the record described as a deterrent to migrants coming to the United States. Under fierce criticism, the administration backed off. Acting Secretary of Homeland Security Kevin McAleenan told a House committee this month that separations today only come to protect children.
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KEVIN MCALEENAN: This is carefully governed by policy and by court order that needs to have a criminal background or issue, as you referenced, potential communicable disease or medical emergency or risk of abuse or neglect from the parent to the child. This is in the interest of the child.
INSKEEP: Lawyers for the American Civil Liberties Union dispute that characterization and say they have found examples of unjustified separations. The organization has now filed a motion in a U.S. district court in San Diego to stop this. Lee Gelernt is the lead ACLU attorney on this case, and he's on the line. Welcome back to the program.
LEE GELERNT: Thank you for having me.
INSKEEP: What does the evidence show is going wrong here?
GELERNT: The evidence shows that more than 900 children have been separated since the court put a halt to this. And this is not evidence that we've gathered; this is evidence that the government has supplied to us through court order. And what we expected to find is only parents who are genuinely a danger to their children are unfit because that's what the court made clear was the narrow, narrow exception. But what we found out was that they're separating for the most minor crimes possible - traffic offenses, in one case a nonviolent theft for $5, disorderly conduct. Just shocking.
And we're talking about little kids - 185 kids under 5. The kids are younger than the first time around. So what we basically see is family separation by another name, under the guise of supposedly protecting the children from dangerous parents. These parents have things like traffic offenses.
INSKEEP: So we should be clear on one thing here - there's a baseline under which some kids would be separated from their parents, and that would be true no matter who is president. It happened under President Obama. It's probably happened under any president as long as there's been immigration law. Some of this would happen. Some of this would happen involving non-migrants, that children would be separated from the parents. So you're not disputing that this could happen legitimately from time to time, right?
GELERNT: That's absolutely right, and so that's a critical point. We came in in Day 1 of this lawsuit and said, look - if the parent is genuinely unfit or genuinely a danger to their child and there's objective evidence, then we of course want the child taken away. That would be true under state law. It'd be true under federal law. And what the judge said is, of course, if the parent is genuinely a danger to the child and there's real objective evidence, then the child should be separated. But that's not what's happening here.
I mean, the government is really making no claim that, as far as we can tell, that this child is in danger because the parent has a traffic offense from years ago. So the question really is, is the government taking the position that any criminal offense by the parent, no matter how long ago, no matter how insignificant, allows them to separate? And that appears to be their position.
INSKEEP: You said this is not your evidence. When you describe a years-old traffic offense leading to a separation of a parent from a child, what is that, a court record?
GELERNT: It's an Excel spreadsheet that the government has to give us by court order with the separations, and we've been getting them roughly every month. And what we noticed was that the numbers were going up month after month and that the reasons for the separation were so insignificant. I mean, we need more information from the government. It's very cryptic. But it is the government's information. The government is supplying the reason for separation.
And sometimes it'll just say criminal history, misdemeanor or even the person wasn't convicted; there was just a charge or an offense or sometimes just an allegation. But it's the government stating their reason for the separation.
INSKEEP: Why do you think the Department of Homeland Security would be doing this?
GELERNT: We hope to find out in court. You know, what we fear is that they're still trying to do separations and just using this - what was supposed to be a very narrow exception laid down by the court and using it as a sort of backdoor way to continue separations. But we'll find out.
INSKEEP: What do you think about people - what would you say, rather, to people who are listening to what you're saying and responding, well, they really shouldn't have had a traffic violation; they shouldn't have stolen five dollars; I feel bad for the family, but they shouldn't have done that?
GELERNT: Right. So, you know, for every type of criminal offense, the criminal justice system punishes you, but we don't take away your children for offenses like that. I mean, can you imagine how many Americans would lose their children if a traffic offense or a disorderly conduct or a misdemeanor theft offense was a basis for taking away your child? And I think the challenge for us now is to make clear that family separation is still ongoing, and we need that public outcry.
INSKEEP: Mr. Gelernt, thanks so much.
GELERNT: Thank you.
INSKEEP: Lee Gelernt is a lawyer with the American Civil Liberties Union. Transcript provided by NPR, Copyright NPR.