Once again, lawyers are on the front lines of the battles over US immigration policy. This summer, when a new Trump administration policy led to between 2,500 and 3,000 children being separated from their parents at US borders, the move stirred up a firestorm of controversy while attorneys raced to provide legal representation to both parents and children. Among the most ambitious pro bono endeavors to address the crisis have been projects spearheaded by Emily Goldberg ’01, pro bono counsel at Paul, Weiss, Rifkind, Wharton & Garrison.

Emily Goldberg ‘01In June, Paul, Weiss sent a team to Texas to help represent detained parents and find their children. Meanwhile, in New York—where many of the youngest children have been housed—Goldberg has organized a large-scale, multi-firm effort to reunite separated families. “It’s not just an immigration issue. It’s really emblematic of the threat to the rule of law that we’re seeing right now and the importance of lawyers’ getting involved to protect it….” Goldberg says, explaining why her firm took action. “[The policy] represents a recklessness with enforcing the law that is deeply disturbing, especially given that the primary victims were children.”

Trump’s “zero tolerance” policy aimed for prosecution of virtually all adult migrants apprehended at the US border; as a result, thousands of children were separated from parents who were detained by US Immigration and Customs Enforcement (ICE). Although a federal district court in the Southern District of California ordered the government to reunite families, ICE and the US Department of Health and Human Services had difficulty accounting for all the children and parents.

Paul, Weiss began by taking on individual representations in court cases aimed at restoring children to their parents. Recognizing the sheer scale of the problem, Goldberg reached out to contacts in the legal services community, spreading the word that the firm wanted to do more. On June 29, Catholic Charities of New York, which was working to help the hundreds of kids who were being housed in New York City, sent Goldberg a list of 185 such children who didn’t know where their parents were.

Catholic Charities of New York provides legal services for all unaccompanied minors who are detained by the Office of Refugee Resettlement in the New York City metropolitan area. Often, a child will be detained at the southern border, and sent to shelters around the country while the government looks for adult relatives in the country who can assume care and custody of the child. “On average, that process takes about 57 days,” says Anthony Enriquez ’13, director of the Unaccompanied Minors Program at Catholic Charities. “During that time, Catholic Charities provides every single child residing at the shelter with a Know-Your-Rights presentation, explaining their rights under New York State law, federal law, and give them individual legal screenings. And for some of these kids in the New York City area, Catholic Charities becomes the attorney of record for the kids during deportation proceedings.”

In 2017, Catholic Charities began seeing more and more cases in which children were sent to shelters as unaccompanied minors but, when interviewed, explained that they had actually come to the country with family members from whom they had been separated. After the announcement of the “zero tolerance” policy, Enriquez observed a dramatic upswing in the number of these cases. “It went from a dozen or so of these cases to 200 at one time, and it was at that point that we said, ‘This is bigger than us.’” In addition to sending cases to Paul, Weiss, Catholic Charities also reached out to a consortium of immigration organizations in New York City, including the Legal Aid Society, The Door, Central American Legal Assistance, Make the Road New York, and the Safe Passage Project.

Meanwhile at Paul, Weiss, Goldberg rallied other lawyers from the private sector who wanted to help. Ultimately, Goldberg recruited seven other firms—Cleary Gottlieb Steen & Hamilton; Davis Polk & Wardwell; Debevoise & Plimpton; Dentons; Gibson, Dunn & Crutcher; Simpson Thacher & Bartlett; and Skadden, Arps, Slate, Meagher & Flom—to assist in the monumental task of tracking down the children’s parents.

“It was a really fruitful, really great collaboration—the best of what can happen between dedicated public interest lawyers who have the expertise and the knowledge and can identify the problem very quickly and dedicated firm lawyers who have the staff who can stay there till three in the morning to get it done,” Enriquez says.

“Some of these children were pre-verbal,” says Goldberg. “They couldn’t speak. Some of these children were so young that they might not know their parents’ names, or they might only know their parents’ first names. This was the challenge that we faced.” Goldberg recalls coming close to tears when she sorted by age the children in the list (which eventually included roughly 250 names) and realized how many of them were babies.

The project started with basic fact-finding; participants first had to review case notes from interviews with the children to glean all existing information on the parents. But subsequent steps required considerable legal expertise, since parents were transferred among three different agencies after being taken into custody. “The lawyers needed to be involved because we understand the various aspects of the system, how immigrants were interacting with the system at different points,” Goldberg says. After utilizing multiple databases and speaking with federal public defenders and Criminal Justice Act attorneys to find detainees, the team created protocols for checking in with successfully located parents and a system for tracking them so they wouldn’t be lost a second time. To date, the parents of about 130 children have been found with the help of approximately 80 attorneys.

Steven Herzog ’87, counsel in Paul, Weiss’s Litigation Department, has focused primarily on the individual representation side of the firm’s recent endeavors—specifically, the M.G.U. et al. v. Nielsen et al. case in the US District Court for the District of Columbia, which ultimately resulted in the reunion of three parents with their children. Herzog is also advising Catholic Charities on how best to reunite children with their parents and is working with the American Civil Liberties Union on a brief for advocates representing parents being prosecuted for illegal entry.

Before the family separation issue erupted, Herzog had spent more than a year on efforts to challenge the Trump administration’s earlier immigration policies, in particular through his involvement in International Refugee Assistance Project v. Trump, in which the US Court of Appeals for the Fourth Circuit upheld an injunction against the second iteration of the travel ban. Immigration-related litigation is a shift from his earlier pro bono efforts, which consisted predominantly of death penalty litigation. For Herzog, both immigration and death penalty issues boil down to fundamental questions of civil rights in areas where he considers the government’s actions to be “both immoral and unconstitutional.” And for those at the center of the legal battles, he adds, the dilemma couldn’t be starker.

“Do they want their children sent back to Honduras or Guatemala or wherever they are now, to a situation that may be dangerous?” Herzog says. “Or would they prefer to be separated from their child, as horrible as that is, because they think the alternative is worse? And is there a relative in the US who can help out? These are really gut-wrenching life choices that people have to make because of the situations they’re in.”

Goldberg and her colleagues recognize that the release and reunification of children and parents is just the beginning of addressing the present crisis. She’s recently launched a  collaboration involving two dozen law firms—and counting—to provide short-term legal assistance to families post-release. “We’re seeing this as a moment to catch them and provide a safety net, so we’re building a network of pro bono attorneys throughout the country,” she explains.

Although Goldberg and Herzog graduated from NYU Law more than a decade apart, both took the Civil Rights Clinic with Clinical Professor of Law Claudia Angelos (co-taught by Clinical Professor of Law Laura Sager in Herzog’s time). They both identify the clinic as a formative experience that helped cement their commitment to pro bono work. Another alumna of the clinic, Audra Soloway ’01, is a Paul, Weiss partner who has also been deeply involved in recent pro bono efforts.

“NYU does have a unique role, I think, in motivating lawyers that it trains to do civil rights and public interest work,” says Herzog.

Posted August 14, 2018; Updated September 5, 2018