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President Joe Biden: With the first action today, we're going to work to undo the moral and national shame of the previous administration that literally not figuratively ripped children from the arms of their families, their mothers, and fathers at the border, and with no plan, none whatsoever to reunify the children who're still in custody and their parents.

Brian Lehrer: Presidential Joe Biden as he signed an executive order reversing the Trump administration's family separation policy for migrants seeking asylum or otherwise coming across the Southern border. Later today, the president is expected to sign another order, expanding the number of refugees the US takes in after Trump had reduced that to historic lows. All of this is not getting much news coverage as much as it should because everyone's focusing on what to do about the QAnon Congresswoman Marjorie Taylor Greene, and not that that's not important, but we want to make sure these immigration developments also happening now that affect so many individuals and so many families so personally also get a spotlight today.

The Washington Post reports that more than 5,000 children were separated there at the Southern border in 2017 and 2018 in an attempt to deter other families from coming. The ACLU estimates, at least a thousand of those kids remain separated, though one of the problems is that the number and which children these are remain unclear to the public in part because of obstacles that the Trump administration left. Here's Biden's newly confirmed Homeland Security Secretary Alejandro Mayorkas.

Alejandro Mayorkas: I am a father, I am a husband, I am a son, I am a brother. I have not heard before a pain as acute and heartbreaking as that. It is our commitment to make sure that pain is not felt again.

Brian Lehrer: Now Mayokars, if you haven't focused on him, yet, he himself comes from a refugee family, but his confirmation drew more Republican opposition than any other Biden nominee so far with more than 40 Republicans voting against confirming him. By way of background thought, I would just talk about Mayokars a little bit. Mark Hatfield, who's President and CEO of the Jewish refugee assistance agency, HIAS, wrote this in the Times of Israel the other day about Mayokars who has been on HIAS' board. "His family represents so much of the Jewish narrative in that arc. His mother's Romanian family was caught up in the Nazi onslaught and fled their home for parts entirely unknown. His father, a Cuban Jew of Sephardic origin met and married the European refugee, the two of them starting a family, melding different worlds of Jewish culture. Then that young family was forced to flee yet again, and Ali left Cuba and grew up in Los Angeles, eventually working as a leader in the Obama administration and most recently with us, the Jewish refugee agency, HIAS, to rescue, resettle and welcome other refugees." With me now to talk about Biden's family reunification order and more of his immigration policy is Elora Mukherjee, director of the Immigrant Rights Clinic at the Columbia University Law School here in New York. Ms. Mukherjee thanks so much for coming on. Welcome to WNYC.

Elora Mukherjee: Thank you for having me, Brian.

Brian Lehrer: Could you begin by describing the current state of family separation and reunification, as you understand it for the thousands of children and parents who were separated in 2017 and 2018 before the courts ordered a stop to it.

Elora Mukherjee: There remain, as you say, thousands of children who were separated from their parents. A number of these, hundreds of these children do not know where their parents are. There are 500 plus missing parents who cannot be tracked down. The Biden administration issued an executive order on Tuesday that sets up a task force. The goal of that task force is to reunify families that were separated in 2017, 2018, and onwards. The task force is given the mandate to issue recommendations in about 120 days. The task force is also supposed to identify where the missing parents are and figure out how to prevent this type of national tragedy from happening again.

Brian Lehrer: I gather for the press reports that there are obstacles to doing what you just described as quickly as you and presumably the president would like because of things the Trump administration put in place and left behind. If that's your understanding, can you explain some of that?

Elora Mukherjee: Sure. Well, it is really, really hard to find these missing parents. As a federal court judge found in the Ms. L case, which is the ACLU's litigation, challenging family separations, the federal government failed to make any accounting when separating children from their parents about which baby, which toddler, which young child belongs to which parent. There were no records maintained by the Trump administration about which kids belong to which parents. The Trump administration high-level policymakers subsequently denied that they failed to keep records, but that same finding that was made by the judge was subsequently also made by watchdog agencies, the Office of the Inspector General for the Department of Homeland Security, and the Office of the Inspector General for the Department of Justice.

It is a massive task to try and figure out where these parents are and how to reunite them with their children. That said, there are incredible advocates in the nonprofit space who are trying to track down these parents, literally walking through Central America, going from town to town village to village in an effort to find these missing parents.

Brian Lehrer: Do you have a role in this at the Columbia Law School Immigration Rights Clinic?

Elora Mukherjee: Well, we are not in a position to be doing the on-the-ground work in Central America right now. That said, since 2018, our clinic has been representing families who have been ripped apart by the Trump administration. My first case or clinic's first case on this matter was representation of baby Constantine, the four-month-old baby who was ripped apart from his father, an asylum seeker, when the baby, in his father's arms, approached the US border and went up. The father went up to the Customs and Border Patrol agents and explained that they were fearful of returning to their home country, and they were scared of persecution. They were brought into a Customs and Border Patrol holding station, held in a room for a number of hours, and then baby Constantine was literally ripped apart from his father. It took the father weeks to learn about his baby's whereabouts. It was extremely traumatic and distressing both for baby Constantine and also for his father.

Now, since then, our clinic has continued to do work on behalf of children and families who were separated at the border. We are currently representing children who are in the United States, but whose parents remain in their home countries. Their parents were deported to Central American countries and these children have not seen their parents for years now. They both parents and children, mothers, fathers, and children, even young children remain devastated by these separations.

Brian Lehrer: Listeners if you're just joining us. My guest is Elora Mukherjee director of the Immigrant Rights Clinic at the Columbia University Law School here in New York. We're talking about new initiatives from the Biden administration on families who remain separated after the Trump administration's family separation at the border policy. We'll get into some other Biden immigration policies as we go. He's expected, as I said at the top, to issue a new order on refugees today. We'll talk about that with Elora Mukherjee and we invite your phone calls at 646-435-7280. First priority to anybody with a personal connection to any of these stories. Are you someone who is, or knows a family who was separated under the Trump administration policy?. Are you somebody who is, or knows a refugee or a potential refugee with current refugee admission rates at record lows because of Trump administration policies?

Or anything else you would like to ask about Biden administration, immigration policies, as that's one of the big priorities in his first days. He's doing so much at once, and we're trying to keep our eyes here on the show on all these moving balls on the pandemic, on the economy. Of course, another big thing going on today is the debate in Congress over the Relief Bill and what elements and how big. That's front and center, immigration is front and center, racial justice is front and center, the climate is front and center. All of these things going on, we're centering immigration in our lead segment today, 646-435-7280, 646-435-7280 with Elora Mukherjee.

To follow-up on what you were just saying before I reset there and invited callers, there's more that advocates say need to be done with respect to the separated families. Reading from a Washington Post article here, it says ACLU attorney, Lee Gelernt, the lead lawyer in the family separation lawsuits said the creation of a task force, as the president announced there, was expected. Now more concrete pledges are needed. It goes on to say that, which I"m going to find here in a second, that advocates have emphasized the need, not only to reunite families but also to provide them with protection from deportation and a path to citizenship. When a court ordered the Trump Administration to reunite families in 2018, many reunited parents were not given any legal status, making them immediately deportable and raising the prospect of reseparation. I gather from that, that President Biden has not gone that far so far?

Elora Mukherjee: No, he has not gone that far. The task force is set up to recommend how to proceed, but the executive order so far does not offer pathways to legal status for these children and families. Brian, in addition to what you've mentioned about the need for a path to legalization for these families that have been subjected to among the worst human rights abuses and atrocities in modern American times, there also needs to be additional supports given to these families. Every one of these families, every one of these kids, moms, dads has been traumatized by having their families ripped apart. They need mental health supports.

A federal court last year ordered that a number of these families be offered mental health services. They should also be given some compensation as a token of recognition of the harms intentionally inflicted by the US government on them. I don't think any amount of money damages could ever compensate families in this situation, but a token of financial support would go a long way, both as recognition and an effort to support these families that have been through so much.

Brian Lehrer: Here's a question from a listener on Twitter. Listener Erica writes, "Question for your guest. Why wouldn't the people involved with separating kids from their parents and not keeping records of this be held accountable legally? Isn't there national or international law at play here? Isn't it tantamount to child abuse?"

Elora Mukherjee: Thank you for that. Really great question, Erica. It is a question that is on the minds of many people in America and also internationally. Should those in the Trump administration who created these policies, knowing that they would inflict extraordinary trauma on babies, toddlers, children, and their parents, should they be prosecuted and held accountable? People are asking that question. They're asking if this is tantamount to kidnapping.

I think that there are many in the advocacy community that believe that those at the highest levels of the Trump administration should be prosecuted for these actions that are tantamount to crimes. There are also questions about how far down should, would such prosecutions go? Should the line-level officers who were tasked with ripping babies apart from their moms in cages and separating them and putting them in different cages, should they also be held accountable? How do we deal with complicity in the system from the top to the bottom? There are really hard questions to answer.

Brian Lehrer: Here's another question via Twitter. The tweets are as good as the phone calls today. Listener Captain Critical as Captain Critical goes by on Twitter writes, "My father was listening to Fox last night and Fox is claiming the parents willingly left their children on American side, willingly left their children on the American side of the border so they could be sent to relatives. Any truth to this, or is Fox trying to rewrite history?" Asks Captain Critical.

Elora Mukherjee: Thank you, Captain Critical for your really great question. Once families entered the United States in 2017 during the pilot program that was separating families and then in 2018, pursuant to a nationwide policy to separate families along the Southern border, the parents and the children entered together and were taken apart. That is the policy that the task force set forth in Tuesday's executive order. That's the policy that the Biden administration is trying to address.

Now, as your question about, are there ever instances where parents take their children to the United States and leave their children at the Southern border? I have done work on the Southern side of the border. My students and I have been to Juárez, and we've been to Tijuana, and I represent asylum seekers in Matamoros. In the course of doing that work, I have come across one mother who stayed in Mexico and brought her children to the border country on the US side. She was the exception in the work that I have seen in my time, over the years, working with hundreds and hundreds of asylum-seeking families.

Brian Lehrer: You're saying only one out of the hundreds of asylum-seeking families who you've worked with did that? Only one?

Elora Mukherjee: Oh, that is what I have seen personally in my time. I think that it has happened, but I think it is a tiny fraction of what is happening across the Southern border.

Brian Lehrer: Let me ask you one follow-up to that question. Another thing we hear frequently, did hear from the Trump administration when they were in power, and from some of the supporters of this policy still, that when a child is brought across the border by an adult, the US authorities don't know whether the adult is really the parent or some kind of smuggler who may be abusing the child, or who knows what. It's in the child's interest to separate the child and then ascertain the status. Is any truth to that in your experience.

Elora Mukherjee: Right. I do not want anyone to be abusing or trafficking children into the United States. That is everyone’s worst nightmare. That said, there are mechanisms for dealing with potential smugglers. What I have seen over and over and over in my years of working with children who are seeking asylum and children who end up in US detention facilities, work that I started in January of 2007, what I have seen over and over is that children enter the country with their parent, or they enter the country with an adult caregiver who is tasked with caring for them who has raised them.

I'm thinking right now back to three sisters ages 4, 8, and 12, who I met during the summer of 2019. They were detained at what became a notorious Customs and Border patrol facility in Clint, Texas. They entered the country with their beloved grandmother, their abuelita, and the four of them, after they had entered the United States, they were brought to a cage, a literal cage, where they were crowded in with other female, children, and adults who were all seeking asylum. These girls had tried to cuddle up with their grandma and at 3:00 AM in the morning, their grandma was literally ripped apart from their arms and taken out of that cage. She was pleading with the border patrol agents saying, "Look, I have the papers showing that I am their grandma. I am the one who was supposed to take care of them," but the children, these three sisters, 4, 8, and 12, they were separated from their grandma, brought to a different facility. When I met with the girls, days, weeks later, they had not spoken with their grandma at all. They had no idea where she was, and they had no idea if they would ever see her again.

There are ways to approach this family separation issue from a humanitarian perspective. You can imagine co-locating Office of Refugee Resettlement offices with Department of Homeland security, CBP offices in the same location so that children aren't being ripped apart from their adult caregivers, and appropriate screenings can be put in place to determine whether a child is with a trusted adult caregiver who has a genuine bonafide relationship with them, or if instead, this is a relationship that raises some concern. If it is a relationship that raises some concern, everyone I think would be on board with separating the child from that adult.

Brian Lehrer: But that's not what they were doing?

Elora Mukherjee: That's not what happens in the United States every day.

Brian Lehrer: We'll continue in a minute with Elora Mukherjee, Director of the Immigrant Rights Clinic at the Columbia University Law School. I'm going to ask you a follow-up question as a lawyer, about what entity would be responsible for prosecuting Stephen Miller. This is another question coming from a listener on Twitter, if he could be held criminally liable for the effects on children from this policy. We'll get into Biden's refugee policy executive order expected later today, and more of your phone calls. Stay with us. Brian Lehrer on WNYC.

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Brian Lehrer: Brian Lehrer on WNYC with Elora Mukherjee, Director of the Immigrant Rights Clinic at the Columbia University Law School. Quick follow-up Ms. Mukherjee from listener Erica's question earlier about potential criminal liability for members of the Trump administration for the family separation policy. Follow up also via Twitter from listener Regina who writes, "Please ask your guest what entity would have standing and jurisdiction to prosecute Stephen Miller, for example?" Do you have a specific on that, or are we barking up the wrong tree here with criminal liability as opposed to just changing the policy?

Elora Mukherjee: Well, I think all of your listeners are asking really great questions. The entity that would/could bring criminal charges against those responsible for designing, implementing, executing the family separation policy would be the Department of Justice. The US Department of Justice has jurisdiction to bring criminal charges against federal officers. Now, I want to draw us back to the John Yoo torture memos. As many of your listeners may recall, he had written memos while he was a government lawyer for the office of legal counsel justifying the use of torture, and there were calls to have him prosecuted, but there were never charges brought.

This is a very fraught decision about whether or not criminal charges could/should be brought against the architects and the implementers of the family separation policy. In terms of immediate next steps, as I am working with children and families who remain devastated by the separation that they are still currently experiencing, my top priority is trying to help those families now, trying to reunite these kids with their parents, trying to make sure that once the families are reunited in the United States, that they have some legal status, trying to make sure that these families have access to the mental health supports that they need to try to begin to heal from the trauma, the extraordinary trauma that they have suffered for years now as a result of being separated, and trying to get these families, some measure of financial redress, some support to help them get through these extraordinarily difficult times.

Brian Lehrer: Here's a follow-up question from Debbie in Santa Rosa, California, I think on what you were just saying about being focused on the current conditions of these kids. Debbie, you're on WNYC, hello.

Debbie: Good morning, and thanks for taking my call. I have a quick comment and then I have a question. If the Trump administration insists that they did in fact keep records, then I'm sure we would all like to see them and do something with them. If they can produce those, that would be great. Then the second thing is that the conditions that I've read about that these children were kept under with people that were not trained to care for children and no instruction or teachers, has that been addressed at all? Can we get these kids into a nurturing environment now while we're waiting for them to be hopefully reunited with their families?

Brian Lehrer: What a great and compassionate question. Ms. Mukherjee, do you know?

Elora Mukherjee: The last child who was subject to the family separation policy has been released from federal government custody and has been reunited with his mom. I should clarify, that's the last child in the United States whose mom has now been brought to the United States. I think Debbie, what your question points to is the larger structural problems with detaining children. Children who are seeking asylum, and families were seeking asylum should not be held for prolonged periods of time for any longer than a few days in Customs and Border Patrol custody, or in the custody of Immigrations and Customs enforcement. As your question recognizes, these are enforcement agencies that are not trained in child welfare, not trained in child care, and it is inhumane, inappropriate, unnecessary to detain asylum-seeking children and families. I think it's worth mentioning, that the [crosstalk]--

Brian Lehrer: She's asking, where are these kids now? If there are a thousand children, as the ACLU claims still in this country separated from their parents who we don't know where they are, where are those kids? What's the best practice for taking care of those kids and how close to that are we, if you know?

Elora Mukherjee: Many of these children, the overwhelming number of these children who are in the United States are no longer in federal government care. They have been released to, oftentimes family members or other vetted caregivers who can care for these children until they are reunited with their parents.

Brian Lehrer: How much of the child separation policy was the Obama-Biden administration responsible for starting as we see Biden obviously now in the position of trying to unwind it. That's another thing we heard a lot during Trump. What was going on under Obama-Biden, and how much of any of that would we expect that Biden would keep?

Elora Mukherjee: During the Obama-Biden years, we saw the administration pursue family detention with an aggressiveness not seen before in modern American history. Now that said, the Obama-Biden administration was detaining families together, parents and children, mothers and children primarily were detained together. Children by and large were not ripped apart from their parents. During the Obama-Biden years, a memo was produced saying that it is one strategy for trying to deter refugee children and families, asylum-seeking children and families from coming to the United States. It would be to separate these kids from their parents, and the Obama-Biden administration said, "No, we are not doing that. That is cruel, that is inhumane, that is unAmerican," and that memo was shelved. It was not implemented.

Brian Lehrer: Before you go, I do want to touch on what we're expecting today, which is the President expected to announce a new policy regarding refugees. Are you familiar with that? Are you expecting something in particular, and do you think this is going to be primarily about a number? If you go back to the Reagan administration, the US was admitting hundreds of thousands of refugees per year, at the end of the Obama administration, it was about 100,000. The last number that they had as they were raising it in the last years of the Obama administration, because of the crisis stemming from the Syrian civil war, Trump has taken it down to 15,000, merely. A record low in the modern history of this country. What are you expecting numerically or qualitatively?

Elora Mukherjee: Right, Brian. Thanks for going through those numbers. I think they're really important for everyone to have some context of what's going on, and I will add to the 15,000 number to say that although that is the cap that Trump placed on the refugees that could enter, as of December of last year, fewer than 1000 refugees had actually been processed in American communities. The 15,000 number is misleading. Fewer than 1000 refugees were actually brought to the US.

In terms of what we can expect today, I am not sure that we're going to see a hard number coming from the Biden administration today. During the campaign, President Biden had mentioned the number 125,000 refugees for the first year in office. It is unclear whether that number can actually be processed, given the evisceration, the gutting of the refugee processing system over the past four years, so I anticipate that we're going to see actions to rebuild the refugee processing system, and perhaps an ambitious numerical cap too.

Brian Lehrer: Elora Mukherjee, director of the Immigrant Rights Clinic at the Columbia University Law School, here in New York. So many things to keep our eyes on all at once at the policy level. Listeners, don't get distracted by the politics in Congress and the personality politics in Congress, even though that's important too. There is so much going on in the new administration with respect to climate. We'll talk about that on tonight's national special at eight o'clock. As I mentioned before, there's so much going on with respect to racial justice, there's so much going on with respect to immigration, as we've touched on some of this morning with Elora Mukherjee. Thank you so much for joining us.

Elora Mukherjee: Thank you, Brian.

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