Immigration lawyers are dealing with a lot right now: large caseloads, court challenges, regulations in dispute. One of the most significant things in flux is the Flores settlement agreement, the 1997 consent decree that has governed the conditions under which migrant children can be detained. Among other things, a 2015 interpretation of that agreement calls on the government to release children into family custody or a licensed program after 20 days. On August 21, the Trump administration announced a rule change to Flores that would lift the 20-day cap and expand family detention.
Nineteen states and the District of Columbia have challenged the change in court, and it must still be reviewed by U.S. District Judge Dolly M. Gee, in California, before it goes into effect. For lawyers working with detained migrants, the result is profound uncertainty. One of those lawyers is Hardy Vieux, who leads the legal work of Human Rights First, an advocacy group that provides legal representation to asylum seekers. I spoke with him about his work, the Flores agreement, and what happens next. This interview has been edited and condensed for clarity.
Lizzie O’Leary: Where do things stand now? A bunch of states challenged the regulation change, and they are waiting on the judge. Does that affect how you all plan what you’re going to do, and the way you represent clients?
Hardy Vieux: No, we still are going to push forward with what we’ve been doing, because we don’t know what the court will do. The advice that we’re giving our clients is to brace themselves.
We’re going to see a lot more people detained for longer periods of time in facilities that are not licensed, and significant physical- and mental-health ramifications for the children that we serve. One thing that we might want to do, to the extent that we can, will be to provide more psychosocial services to our minor clients.
O’Leary: A lot of reports the public has gotten about conditions in U.S. Customs and Border Protection (CBP) and Department of Homeland Security (DHS) facilities have been from Flores monitors. If Flores essentially goes away, what rights will attorneys have to visit those facilities, and what will people in the outside world be able to know about them?
Vieux: I suspect nothing. I imagine that the government could say, if Flores goes away, “That was the reason you could get access to them. But now we don’t have to give you access.” We’ve gone on tours before—the government will give us a tour [of a facility]—so maybe that will continue, but that’s ad hoc. That’s random, and the government certainly has no obligation to give us those tours. So I suspect we’ll get far less information. We’ll be living in darkness, and we’ll just have to guess as to what happens in the facilities or hear from our clients. Oftentimes we’re going to [find out information] when it’s too late for us to actually act, or to put pressure on the administration. It’s going to be a world of darkness.
O’Leary: The administration says that this rule change will deter families from bringing children with them. Based on what you’ve seen, does that hold true?
Vieux: No. These families are fleeing persecution, and the reason that they’re making this dangerous journey to the United States and risking their lives, and their children’s lives, is because things back home are far worse for them. They are, in many cases, facing death and significant physical harm. They’re going this route because they feel like they have no other choice. I can’t imagine what we could do to deter someone, or how I would be deterred if I was facing death. I would probably embark on that same journey with my children and simply pray, because my assumption, my hope, my belief, is that what’s on the other side is better than the hell that I’m currently living in.
O’Leary: The Trump administration would say that Congress is not acting and needs to do so. What do you say to that?
Vieux: I would certainly make the argument that there is a lot to be said for comprehensive immigration reform. But what the Trump administration is doing is, one, legislating by fiat. They’re arrogating onto themselves rights that Congress did not give them. And, second, the rule of law be damned. A lot of the policies that we’re seeing from this administration have nothing to do with respecting people’s rights. It’s simply seeking to marginalize and demonize. And it’s marginalizing and demonizing in a way that we think is really destructive to the norms that we’ve respected in this country, which is to embrace those who are fleeing something far worse in their homeland, and to give them a process by which they could lawfully make their case and stay here.
We’ve thrown all of that out in the name of simply demonizing people, most of whom tend to be brown and black people.
O’Leary: What should be done? Because people will say, “There are thousands of people at the southern border who are trying to leave Central America.” What should happen?
Vieux: Well, maybe for starters, we should try to address some of the root causes in Central America and engage with those governments and see how we might be supportive of them so that they can re-engage with the rule of law. As far as those who get here, there are processes in place. We probably need a lot more resources, like more immigration judges, for example. But there are processes in place to ferret out a meaningful claim from a frivolous one. And so we should pour more resources into those existing processes.
Instead, I think what we’re doing is we’re just sort of taking an eraser through the law books and just getting rid of whatever it is that we don’t like.
O’Leary: Child detention, and family detention for that matter, has gone in and out of varying levels of public consciousness for the past year. What do you think the public is missing as they try to follow along with what’s happening?
Vieux: These children are innocent, and their parents also. They’re not criminals. They’re not people who are coming here to commit bad acts. They are leaving a situation that is untenable. And what we’re doing is simply turning them away and sending them back to harm. And that’s not in our best tradition.
Now, I know that there have been times, like Japanese internment, that we’ve done things that are not within the keeping of our norms. But for the most part what we’re doing here doesn’t speak to our highest values and traditions. And there are ways that we can set up processes and systems by which we can screen people and allow those with an asylum claim to stay here and become viable, productive members of our society.
O’Leary: I’m curious, on a personal level; you’re Haitian American. Do you see this in a different lens, do you think, than some of your colleagues?
Vieux: It certainly hits home in a way for me that is personal. I won’t say that my colleagues aren’t equally committed to this work, even if we don’t have the same background. But for me, it does feel personal at times, because I know that were it not for this country’s willingness to embrace my family, I wouldn’t be here. I wouldn’t be able to practice law, and I believe I’ve contributed to this country. It’s really hard for me to watch our country turn away so many people who would love to be Americans and give to this country and contribute. Instead we’re just using them as pawns, in what’s usually a destructive, mean political narrative. That saddens me.