Lee Gelernt

In February 2018, Lee Gelernt learned of a Congolese woman in immigration detention near San Diego whose daughter had been taken from her. He arranged for an asylum lawyer and a Lingala interpreter and flew to California to meet her. The mother, identified in the litigation as Ms. L., was barely eating or sleeping. Her daughter was in a government facility in Chicago, roughly two thousand miles away; she turned seven during the separation. They had reached the United States together to seek asylum, but were held by different agencies before their claims had been resolved.

The ACLU filed suit on February 26. Ms. L. was released from detention in March, but her release did not secure her daughter's: the child remained in the Office of Refugee Resettlement's custody. Gelernt later visited Ms. L. at a Chicago shelter and was there on March 16 when the girl arrived. After mother and daughter embraced, Ms. L. pointed toward him, and the child came over to hug him.

The lawyers had already moved to expand the case into a nationwide class action. Another plaintiff, Ms. C., had served twenty-five days for improper entry before returning to immigration detention, still separated from her son. Her claim did not challenge the initial separation during criminal custody. It challenged the government's failure to reunite them after that custody ended. Gelernt and his colleagues sought protection of the parent-child relationship under the Fifth Amendment, while leaving the government able to decide asylum claims and enforce criminal and immigration law.

A Common Claim for Different Families

By June 2018, the government's zero-tolerance prosecution policy had greatly increased the separations. Parents were held by the Department of Homeland Security or in criminal custody, while children who had arrived with them were sent to the Office of Refugee Resettlement as unaccompanied minors. At the June 22 hearing, Gelernt and Bardis Vakili appeared for the families. They asked the court to address a practice shared by the proposed class: separation without a determination that a parent was unfit or dangerous to the child.

On June 26, Judge Dana M. Sabraw certified a class under Federal Rule of Civil Procedure 23(b)(2), which permits a common injunction against conduct affecting a class as a whole. The class covered adult parents detained in immigration custody whose minor children had been separated from them and placed in DHS or ORR custody or ORR foster care, absent an unfitness or danger determination. The initial definition excluded specified criminal-history, communicable-disease, interior-enforcement and executive-order circumstances. The court appointed lawyers from the ACLU Immigrants' Rights Project and the ACLU of San Diego and Imperial Counties as class counsel.

The government stressed its duties to confirm parentage, protect children, prosecute offenses and make lawful detention decisions. Those individual inquiries could continue under the plaintiffs' approach; they did not answer whether the government could keep families apart without a child-safety justification. Certification allowed that common question to be litigated together. A separate order that day addressed the evidence supporting preliminary relief and imposed the reunification requirements.

Ten, Fourteen, Thirty

The preliminary injunction barred DHS from holding covered parents apart from their children unless a parent was unfit, posed a danger, or affirmatively, knowingly and voluntarily declined reunion. A child whose parent was released had to be released to that parent, subject to the same exceptions. Parents still out of contact were to receive telephone access within ten days; children under five were to be reunited within fourteen days, and those five or older within thirty.

Immigration and Customs Enforcement, Customs and Border Protection, the Bureau of Prisons and ORR had to exchange information about the children's locations and well-being. The order also restricted removal of a parent without the child unless the parent affirmatively, knowingly and voluntarily declined reunion or an unfitness or danger determination justified separation. Sabraw retained jurisdiction to enforce these duties through further orders.

The injunction protected family unity without ordering every family released from all custody. Lawful family detention and individual immigration proceedings could continue. Reunification still involved background checks, confirmation of parentage, parent interviews and assessments of fitness and child safety, but the court required those procedures to be streamlined rather than simply applying the slower sponsor-approval process used for children who had arrived without a parent. Through public status conferences and reports, Gelernt and his colleagues could identify missing families, dispute a claimed justification for separation, or seek action on a missed deadline.

Reconstructing the Family Records

Investigators from the Department of Health and Human Services found no integrated system linking HHS and DHS records to identify and track the separated families. The agencies' records followed adults and children through different custodial systems without a reliable shared identifier, leaving the government unable to produce a complete list from a single database.

To assemble the initial list, federal staff searched more than sixty databases, manually reviewed the files of approximately twelve thousand children in ORR care, and asked shelters to identify separated children. That work produced roughly 3,600 possible cases. ORR certified 2,654 children in July 2018; later additions and corrections brought the count to 2,737. Another 946 children had some indication of separation but did not meet all criteria for the July list.

Officials also estimated that thousands of separated children had entered and left ORR care before the June order. Informal spreadsheets and a limited SharePoint tracking system could not establish the full earlier count. Lawyers seeking those families needed records of apprehension, detention, transfers, release to sponsors, criminal proceedings and claimed parentage, together with shelter attestations and contact information.

In his February 2019 congressional testimony, Gelernt described the work of a court-approved steering committee and other organizations trying to locate parents who had already been deported. They searched by telephone and on the ground in Central America, sometimes without basic information the government possessed. He asked Congress to require a full accounting of the children and a reliable tracking system, and to fund medical and other help for families whose distress continued after reunion.

The Services in the Settlement

On December 11, 2023, Sabraw approved the parties' settlement and certified a settlement class covering, by the ACLU's estimate, 4,500 to 5,000 children and their parents. Identification and registration procedures were designed to reach families not yet located, with reunification in the United States and government-funded return for eligible families. The agreement followed arm's-length negotiations and became part of the final judgment.

The government undertook to provide legal consultations, preparation and review of documents, preparation for asylum interviews, interpreters, friend-of-court participation, remote and in-person assistance, and referrals for representation. The agreement also provided behavioral health services, help with medical costs, temporary housing, opportunities to seek parole and work authorization aligned with parole, requests to rescind old removal orders, and reopening of certain asylum claims. Eligibility for a process or service did not guarantee every discretionary immigration decision.

The settlement dismissed the injunctive claims with prejudice and released covered claims for injunctive and declaratory relief while preserving damages claims. It was not an admission of liability and did not prevent federal enforcement consistent with law and the agreement. Future-separation restrictions were to last eight years; the general term was initially six. The court retained authority to enforce the promises, review agreed modifications, resolve pending applications and oversee specified obligations continuing beyond the termination date.

The Justice Department's Legal Access Services for Reunified Families program offers orientations, workshops and referrals for representation to eligible families. The consultations and other legal services promised in the agreement help families seek parole and work authorization, address prior removal orders and pursue reopened asylum claims. When those services were interrupted, Gelernt's team returned to court to enforce the judgment.

Restoring the Lost Time

In 2025, the government terminated its contract with Acacia Center for Justice, interrupting legal services. Sabraw found a breach and ordered restoration. The termination of a separate contract with Seneca Family of Agencies, which provided social services, produced a second breach ruling. Gelernt explained that children whose families lacked legal help faced a renewed risk of separation.

Gelernt and Anand Balakrishnan appeared at the August hearing seeking extensions to replace the time families had lost. The August 25 order added six months to affected service periods and one year to later registration, relief-request, final-services and termination deadlines. It moved the final registration deadline to December 11, 2027, the final services date to December 11, 2028, and the general termination date to December 11, 2030. The court also ordered extension or reinstatement of affected parole and work authorization.

The government argued that the requests were premature, insufficiently tailored to the breaches and beyond the court's authority over parole and work authorization. Sabraw tied the extensions to the interrupted services and the resulting delays in later applications. DHS retained discretion to consider an intervening crime or other evidence that parole was unwarranted in an individual case; the order restored lost time without deciding those applications itself.

Return and Release

At a January 2026 hearing, Gelernt, Daniel Galindo and Natalie Behr appeared for families removed from the United States despite their claimed protections under the settlement. The February 5 order directed the government to return three family units at its own expense; two additional returns had been agreed upon. Applying its earlier wrongful-removal test, the court rejected the government's jurisdictional objections and its contention that one family had left voluntarily. The evidence established unlawful removals that had prevented the families from obtaining settlement benefits.

The lawyers also sought the reasons for other class members' detention. One attorney, Molly Kammien, described repeated unanswered or disconnected calls to a detention facility and the absence of any explanation for her client's custody. The court required the government to provide that information to plaintiffs' counsel, so they could determine whether detention interfered with the families' rights under the agreement.

In June, counsel sought release of seven class members and qualifying additional family members. The government released two after the motion was filed, without explanation. On June 22, Sabraw ordered the remaining five released because the circumstances did not justify revoking their settlement status and their detention obstructed access to its benefits. The misdemeanor conduct discussed in two cases did not establish a criminal-history exclusion under the agreement.

The government contended that each person needed a separate habeas petition in the district of detention, and that 8 U.S.C. § 1252(f)(1) restricted the requested injunction. The court treated the motion as enforcement of the settlement for five identified individuals, not a new classwide restraint on immigration enforcement. It also required prompt explanations when the government detained class members or qualifying relatives, allowing counsel to decide whether to seek relief. These orders enforced promises incorporated into the 2023 judgment; they did not reopen the original constitutional claims.

Gelernt remains deputy director of the ACLU Immigrants' Rights Project and counsel in Ms. L. v. ICE. In 2019, when the government questioned the effort required to identify additional separated children, he told Congress: "It is not sufficient for the agency to say it is not worth the effort, not when children are at stake."