Led the MA Hold against the first Trump Travel Ban
Chair of the American Immigration Lawyers Association of New England
Partner, Demissie & Church
"Why don't we think if somebody works hard and has a job and owns a restaurant for twenty years that all immigrants are like that because that's the more likely scenario."
By Heidi Legg
When President Trump announced the first travel ban on 7 majority-Muslim countries, Susan Church was planning a family weekend with her mother-in-law visiting. Church, Chair of the American Immigration Lawyers Association of New England, secretly hoped Boston would not enforce the ban, only to learn after a few hours on Saturday that people were being detained at Boston’s Logan Airport. She and her associate Heather Yountz threw a plan into action in the arrival hall of Logan and before the night was over, they had a plaintiff, a draft complaint, and US Magistrate Judge Judith Dein by cell phone at the Shubert Theater who was headed into a performance for some Saturday night respite. Church and Yountz set out for court to meet Judge Dein. The rest is history: Massachusetts blocked the first travel ban. That shiny city on a hill has been home to rabble-rousers long before.
As we await the ruling on the second travel ban that is currently being heard in the Fourth Circuit, Church explains how it would land in the Supreme Court, the irreparable damage these bans have done to travel in US, and how she is helping other US immigrants in fear of being split up from their families, detained, and deported. She also sheds light on the executive order she says does more damage, one that makes all immigrants with a ‘final order of removal’ now a ‘priority for removal’. I pressed Church to define why Americans should not fear immigrants in an age of terrorism and shrinking jobs, on how immigrants admitted into the US are vetted, and offer solutions to a crisis that divides our nation into urban vs. rural. Leaving her office, I noticed a small red cape hanging in the corner. She whispered, “It was a recent gift from a friend.”
Where are we on the Trump travel ban?
It's a good day for the interview because today is the day that the Fourth Circuit begins to hear the Virginia travel ban order that promulgated by the International Refugee Assistance Project. They filed a lawsuit in Virginia against the travel ban and won and that case is now on appeal to the Fourth Circuit. This will be the second federal circuit that has heard the case and the way the federal system works is that there's district court – which is the beginning level of all the cases that begin in federal court. If you win or the other side loses, you can appeal to what's called a circuit court and there are eleven circuit courts in the United States. The Ninth Circuit has already ruled that the travel ban is unconstitutional. Now the Fourth Circuit is going to look at whether or not it's unconstitutional. Often when two circuits disagree on the law, the Supreme Court will take up the case to "resolve a split in the circuits." That's what lawyers always talk about.
What happens if it passes in the Fourth? Is the travel ban over?
That's interesting. The Supreme Court likes to take cases where there's a split in the circuit. That's one of the number one criteria for taking a case. A second criterion is whether it is a monumental case. Is it an important case? Does it have much larger ramifications outside of the actual case itself?
Who makes that decision?
The Supreme Court will decide to accept what's called "cert." People will file a cert petition and, ultimately, I'm sure the Trump administration would like to see this case heard in the Supreme Court. But if there's no split in the circuit and the ninety days has passed for the travel ban, I'm not sure that the Supreme Court would even take it up. So, this decision from the fourth circuit will be really important to hear.
If two circuits ban the ban, is it over?
Yes, if the Supreme Court doesn't take it up. They said they needed this ninety days to ‘vet’ the vetting process and to look at what the criteria is for admitting people from these seven countries and that time period's ticking away. I'm hoping that soon enough the courts will say, ‘this is just moot at this point in time. You've had plenty enough time to implement this travel ban, to do what you want, and implement what you want to do by the travel ban. We're done.’
Is that likely?
I think it's a good way to resolve the case at this point. I would rather they resolve it saying, ‘hey, it's unconstitutional’ obviously, but if they don't do that, moot-ness is also a very good way to resolve it. I think we're done here. It was clearly unconstitutional. It was found unconstitutional by almost every single court that looked at it. Courts stood up to this and it's a really defining and important moment in American history that the right course was taken by the courts and they stood up for the values that this country represents and it was great.
Regardless of whether it is seen as constitutional or unconstitutional, has there been irreparable damage to how people are treated at airports?
Absolutely. It's irreparable damage because people from these seven countries are being treated badly when they come in, and then there are other people also being treated badly. For example, there is the head of a really well known civil rights organization in Massachusetts called The Lawyers Committee for Civil Rights and he's been a US citizen since 1996, and he came in recently and was pulled into secondary inspection, which is extremely unusual for a United States citizen. It just doesn't happen and now it's something that they don't think twice about doing. He currently has a lawsuit pending against Donald Trump. He was brought into secondary, separated from his partner. It's reinforced the feeling ‘you don't have any rights coming into this country at the border.’ At the border, they can do whatever they want whenever they want however they want to do it and that's something we need to keep fighting against.
What do you think you can do to improve these conditions?
One of the focuses that I have right now is on detention. One of the most horrific weapons that this administration is using is the vast increase of use of detention and they're no longer detaining what are "bad hombres" – that nonsense that President Trump said that he was focusing on when he was first running for office. They're focusing on US citizen’s spouses who have US citizen children who have no criminal record.
Anybody with what's called a final order of removal is now a ‘priority for removal.’ Under the Obama administration, they were not priorities. A removal order means that they've been in court before and their case ended in court and they were either given voluntary departure and they didn't leave or they lost their case or they didn't get notice of their hearing which is called an "in absentia" order and therefore they were ordered removed. They call it a "final order of removal." That's the new target of this administration and it's sweeping up tons of people with long-term residency in the United States, US citizen family members, lawful permanent resident family members, and the like. We are trying to fight in congress against any additional funding for any extra beds because they don't have the bed space to detain people like this.
Where are they holding these detained people?
In New England you are held in Stratham County Jail in New Hampshire, Plymouth County House of Corrections, Bristol County House of Corrections, or Suffolk County House of Corrections.
How many are being detained right now?
You're talking hundreds, if not thousands of people.
What kind of phone calls are you getting?
Desperate ones. In fact, on Friday actually we got one of these individuals out of jail. Immigration allows for a process for people to obtain their green cards and it's a process where, even if you have a final order of removal, you can still get your green card either living in the United States or not living in the United States by going overseas for a week or two, and then coming back in. Five people in March went to an interview at immigration offices in Lawrence. They started the first part of their three-part procedure to get a green card in the United States because they're married to US citizens. When they showed up, they were arrested at immigration offices in Lawrence. Here they are coming to the government and telling the government that they want to regularize their status and they were all handcuffed and put into jail and not released.
One of them was released after about two weeks because she had three US citizen children and she was married to a US citizen but the other individuals were not released. Detained for two months! We filed a lawsuit on April 27th and ICE eventually agreed to release the last of three of these five individuals we were helping – we still don't know where one of them is and they've likely been deported.
Did they have criminal records?
No. Not the ones we knew about.
One area we're focusing on is to get people a right to a bond hearing because Congress said, ‘no bond for anyone with a final order,’ which is causing all this detention. Our particular client that we had released, pursuant to an agreement with ICE, happened only after filing a habeas corpus petition… which is like a big deal filing, and not something you file every day. It's extremely complex litigation. It requires a very specialized level of knowledge. There are very few members who do this level of litigation and as chair of the American Immigration Lawyers Association, I called a big law firm – Foley Hoag – and I asked them to help prepare the paperwork on this case because this gentleman was married to a US citizen. It's crazy that he can't get bond in a case where he went to the offices trying to get his green card.
What's going on inside the legal community around this?
Our community has come together in a way that is extraordinary. It makes me so proud to be an immigration lawyer. Right after Trump was elected, we started making these ‘Know Your Rights’ presentations to people. I sent out an email to my members and within twenty-four hours hundreds volunteered to go to community centers and conduct these presentations. I had twenty-seven pages of lawyers who agreed to conduct them for free and we have covered 280 locations , reaching over 10,000 participants.
Are they Legal Aid?
No! These are paid lawyers who work for a living and have to bill for every hour and yet they all have volunteered their time. Since we put out that call in November to today, we've had well over 250 of these ‘Know Your Rights’ presentations and actually I get really emotional about it in the way the community responded. People need to know what their rights are when ICE comes to their door.
Where are these hearings?
We're going to mosques and community centers and schools. We've held them at tons of schools. We've held them at churches. I'm doing one at a church on Wednesday night.
If ICE is arbitrarily detaining people, I don't know if the ‘Know Your Rights’ thing is working?
Exactly, right. They have been relying only on the good pro bono efforts of lawyers. I didn't get paid for any of work in the case that we won in court on Friday, and Foley Hoag didn't take a penny for that work and they spent a lot of money. They have to pay for all of their lawyers to put all of these papers together in a huge rush. Dan McFadden is the lawyer who handled that case and he spent hours on the case for free that they don't get compensated! For the travel ban – Mintz Levin - another great large law firm, spent so much time. Not a penny was paid on the first travel ban. Basically, we're stitching stuff together with worn out tools trying to help people in a very difficult situation. There have been tons of people say, ‘I want to help,’ but immigration law is unbelievably complicated. You can't walk into immigration court and know what you're doing. The first day I walked into immigration court, in 1998, I thought my head had exploded because everyone uses terminology and jargon that I had no idea what they were talking about and I had studied and practicing it for six months and I had a supervisor there with me. It's very complicated.
Where's the fight today?
I've been so happy with the way the media has paid attention to this issue, and I think people get energized when they understand what's going on.
Trump calls the media "the evil opposition," yet journalists are trained to ask for the facts and communicate them to the greater public.
The story of these people getting arrested in the Lawrence office went national because people realize there are incredibly lovely, hardworking people whose lives are getting ripped apart. I actually had a conversation today with somebody on Facebook who didn't know that US citizens can be arrested and detained or that people who are married to US citizens can be arrested, detained, and deported. It was news to him and all the people coming to work on behalf of the immigrants has energized immigration attorneys.
Do you worry you will lose momentum and things will normalize?
When the travel ban hit, 1,000 people showed up within an hour and a half of the call for protestors. I don't think we're normalizing and I don't think that we're losing energy. Each time they arrest somebody unfairly or target people unfairly, we will come back at them and we have lawyers and people who want to donate their time to this. We haven't even begun to exhaust the pro bono efforts of these large law firms. No one's giving up, and not only that, we're looking for ways to sue.
In 2012, Obama created what we call the Priority System, which said, ‘if you have a final removal but you don't have a criminal record, we're not going to arrest you. If you have a driving while intoxicated charge, we are going to arrest you.’ They prioritized who was a ‘bad hombre’ and who was not. I don't even agree that many of these people are bad hombres. I mean is this guy who had a DUI fifteen years ago really dangerous to society when he's been working and paying his taxes? No.
So what did the removal of the "final priority" label do?
What happened is an ICE officer would get a call from a local police station and they'd say, ‘I have a person here and they have a federal final order of removal and do you want them?’ and ICE would have to say, ‘no.’ They would have to let them go unless there was a qualifying criminal conviction or unless the order of removal was very recent, meaning since January 2010. But when Trump came into office, one of the executive orders no one ever talks about is the Enforcement & Removal Executive Order and that to me is one of the most damaging executive orders beyond the travel ban because it makes absolutely everyone a priority. It says ‘anyone is a priority if they've ever violated an immigration law.’ Well, coming across the border without a green card means you violated an immigration law. If you overstay your visa, you violated an immigration law. Basically, unless you're in status, you're a priority.
It's like being in a paintball game and trying to hit everything without targeting your response. Everybody's a priority and everybody gets picked up. It means rapists are the same as somebody driving without a license. The same amount of enforcement efforts focused on both of these people and that's a disaster because we don't have the police power or the ICE power to arrest all these people.
The government has long been trying to hire additional border people and they can't because the border officers don't pass the lie detector test. They received additional funding many years ago from the Obama administration to hire additional customs and border protection officers – a particularly vulnerable position for influence by drug dealers and influenced by gangs – and the stipulation was that they all have to pass lie detector tests. Upwards of 60% of them fail the lie detector test.
What do you say to the conservative who fears that without lumping everyone into the “All Priority” catchall, terrorists will slip into this county?
If you look at the history, the government was not able to point to a single credible incident of terrorism of somebody coming in from one of those seven countries. If that were where terrorism is coming from or how terrorism has happened, wouldn't we have examples? We've had enough terrorism in this country that we would have examples.
The only thing that they could point to in the second Muslim ban was a Somali gentleman who grew up in the United States since he was something like two years old and was a naturalized US citizen. The other incident was an Iraqi interpreter, which was not part of the second travel ban. They searched far and wide to find examples of people who committed terrorism from one of these seven countries, and they failed.
How do you quell the fears or resentment of those still afraid of the impact of immigrants?
Since the dawn of time there is a history of ‘the other’, and I think there is a worldwide feeling that people are ‘the others.’ I think you can live in areas of the United States to this day and actually not meet immigrants and not know immigrants and not feel a personal relationship with immigrants, but people in cities don't feel that way anymore because we all know immigrants. We all have friends who are immigrants. I'm married to an immigrant.
You've met more immigrants than most people in your role. What do you see?
Of course, some of my clients are annoying but the vast, vast majority of my clients are incredibly hard working people. They almost always work two or three jobs. Often, my clients in particular, are doing jobs that no one else wants to do. I hate to say that stereotypical phrase but that's what they're doing: they are janitors. They are house cleaners. They run their own cleaning businesses because they don’t have work authorization. They garden. They landscape. They are people who are here escaping incredible violence, violence that would make your mind explode if you really thought about that. That's an everyday occurrence in these countries. These people want to be safe and they want to work hard. That's what they want to do. No one is saying you can't deport gang members but you have to do it with due process. You have to really make sure that if you're deporting somebody, you know they belong to a gang. No one is saying you can't deport people with serious criminal convictions, but that's not who they're targeting today. We're targeting people who are just trying to make a living and stay safe.
One of President Trump’s new targets in the executive orders is a special immigrant juvenile. They're one of those vulnerable populations we have. These are young men and women who come here under the age of eighteen without parents and he wants to try to make sure that we deport all of them. The priorities are askew. If you knew what immigrants really did for this country – if you sat down and you thought about it – you wouldn't ever have the feelings of hatred towards them because we can't exist as a country without immigrants. We are not half the country that we could be without immigrants. My husband came here at a very young age, went to college here, went to law school, got married, and has two US citizen kids. He was the one who filed the electronic lawsuit against the President in Massachusetts. It's such an amazing country that we can have that, that you can do that. It's heartbreaking that we have targeted these people as the problem and they're not the problem.
People not in favor of current immigration hold out examples. They'll choose the Boston Bomber, for example, who was an unaccompanied minor living in Cambridge. How can we make scared Americans feel safe?
I don't know how to make people understand what I know from my work because I think I'm so immersed in it. I've had a lot of conversations with people who I consider reasonable who are unreasonable on immigration, because they live in a world without interaction with immigrants. They just don't understand.
I don't know if you heard the story about the people who were friends with that individual who was recently deported, and all the community members were surprised. They had all voted for Trump and then this gentleman who has lived in the US for twenty years…
The guy with the restaurant? [Juan Carlos Hernandez Pacheco, manager of La Fiesta Mexican Restaurant 100 miles southeast of St. Louis]
Yes, the restaurant manager. The only way I know to make people understand is to immerse each other in our lives, to know these people, to talk to people, to understand where they come from and why they want to be here and to not listen to the one story in the media of the one person who's done something terrible, because you have to think beyond the face. You have to think beyond the court. You have to know them. I don't know about you, but I have a hard time hating anyone once I've met them. Maybe that's just me, but once you know people and you understand them, you realize that they're not that black and white character that the media wants - no offense to you - but that you read in the media because if somebody commits a crime and they happen to be an immigrant, you're going to think everyone's an immigrant who commits crime. Why don't we think if somebody works hard and has a job and owns a restaurant for twenty years that all immigrants are like that because that's the more likely scenario, right?
Well, that is what we call bias. It's something that takes work to change in all of us.
It's bias, but I don't think people remain truly biased when they are immersed in each other’s lives, when they are friends with each other and they know the people who I know. That's what drives me crazy.
Tell me more.
It drives me so crazy about human society. Everything is so complicated. There are so many permutations of people, of lives. ‘El Salvadorians are different from Guatemalans are different from Hondurans are different from Costa Ricans,’ and people look at them and everybody's the same. They're all Central Americans. Immigration law is very complicated. The idea that ‘there's a line for a green card. Get in line’ is bogus. There is no such real line. There's no such situation where someone from Honduras who feels unsafe in their country could legally apply to come to the United States unless they were a relative of a US citizen, a spouse, or had a twenty one year old US citizen child. And even these unaccompanied children that I spoke about earlier, they're not allowed to petition for their parents. So, they may be able to come here but they have a special exemption where if they become a citizen, they can't even petition to come to the United States.
Would you describe the vetting process to get into the US for us?
It's extremely hard. Let's say I have a PhD and I have a field that no one else in the United States can fill. Some of those people, if they find an employer to sponsor them, can come; a very limited number of people with college degrees. There are some small hole-filling jobs that you can come and work. Unless you have that kind of seriously advanced degree and you have a company to sponsor you, there's no way to come to the United States legally unless you have a family member who can petition for you. But those rules are strict as well. For example, it takes about fifteen years to get your brother to come over and your brother can never visit the United States during those fifteen years.
The law is set up to force people to stay in the United States. In the old days in President Reagan's era, people would come and work and they would go back home to Mexico. They would cross the border. They would do their jobs and they would go back home for two/three months and then they'd come back and get another job and go home. There was a lot more free travel at the border. People lived here less. Now, if you go to your home country and you try to come back in, you usually face a ten-year bar on reentry into the United States. No one can do that anymore and it forces people to come and never leave again and then they live without status, without work, without anything and that's a dangerous situation too.
Would you like to change that?
Absolutely. If you're here and you're married to a US citizen, you shouldn't have to go home to your home country and come back in again and face lifetime banishment from your family. There's a process set up to allow you to do it but it's full of potholes and it's very complicated and it expired in 2001, and congress never reset it again. I could spend all day on the things I would like to fix but the reason all this is so complicated and so difficult is because congress loves to play with immigration. They want to go back to the constituents and say, ‘I changed this on immigration. I changed that.’ It's constantly getting changed. There are regulations and statutes and case law and it all intertwines in very complicated ways. To get this one single gentleman released on Friday, we had spent hours drafting the legal papers. Then we filed and then we spent all day in court and at least three hours of the conversation was whether these four lines in the regulations applied to this gentleman or not. It shouldn't be that complicated.
What do you suggest to solve for the undocumented situation?
We almost had this law passed under Bush that if you'd been here five years and you are working hard and have no criminal record, there was a pathway to citizenship. That was one solution.
Another solution is we've got to invest in those countries. Gangs basically rule these countries. The government is almost non-functioning. The gangs are taking over towns and cities. I had one client who came to the United States, left her daughter at home, and worked day and night here for seven years. She worked at one point about eighty-five hours a week, saved everything she had, and then she built a house in El Salvador. She goes back, reunites with her daughter, she's so happy. When she goes to her house that's all built by now, there are ten gang members living inside of her house and she says, "This is my house. You need to get out" and they're like, "we're not getting out," and then they start threatening her and her family members. She ended up having to come back to the United States again.
People actually don't want to be forced to uproot and live in another country. They want to live with their family and their friends and they want to live in a place that speaks their language. Something has to be done to help these countries control the gangs so the government can function so people don't come here. It's a crazy situation and it's particularly bad in Central America because of what happened with the civil wars in the '80s. The violence level, especially in those three countries, is through the roof.
What do you think about those who voted for Trump because they want a wall?
Come on. Where do we begin with that? It's incredibly expensive. There was actually an article in the New York Times over the weekend about how happy the drug dealers are that they're building a wall because the harder you make it for them to get people into the country, the more money they get for the drugs that they bring in. It's the same thing for the smugglers. They'll get people here. They'll go water routes. They'll go through Canada. They've already started going through Canada.
People will come here because their lives are at risk. This is not a laughing matter. It's not a "build a wall, Mexico will pay for it" slogan. It's ‘people have a choice: come to the United States or die.’ People are leaving their young children in the care of relatives because they cannot live safely in their own countries. So, you can build all you want. They're going to find a way to get here and they will.
Given you are a ban-busting GenXer…Can you generalize about our generation?
I don't think we get enough attention because we're doing all the work these days: we're raising the kids and nobody talks about our generation. [Laughs] In the practice of immigration law in Boston there are many Baby Boomers who are very happily working with my generation to pass the torch. They are mentoring. They are teaching us. It's actually a beautiful process, and my generation is mentoring the Millennials. I see them popping up at these great law firms.
Yes, we're doing a lot of the work. I feel like we're doing it a little more silently than the rest of the world but I like the way the generations are working together and that people are passing the torches down and mentoring – at least in my little neck of the world. I'm very proud of us.
Some people are calling you a national hero for mobilizing the ruling against the first travel ban. When you saw the news on TV, what got you down to the airport?
I just couldn't believe this is my country. I am so proud of my country in many ways as an immigration lawyer, because I deal with what other people go through in other countries. I know people get arrested for speaking out in other countries. I know they get tortured. I know women live absolutely incredibly unsafe lives. For all our faults in America, I'm so proud of our country. I'm so amazed at the democracy that we've established and the rule of law that we've lived under. So when I saw the ban announced and enforced in Boston, I felt like it was ripping apart my view of my country.
When I saw Boston pop up on the list of airports enforcing it, my heart sank because in Boston we're lucky to have a pretty reasonable set of customs and border protection officers, and they're generally kind and fair and I had secretly hoped that they weren't going to enforce it here. But when I saw Boston pop up on the list, I was like, "all right. We have to do something." That’s when my associate Heather Yountz and I went down to the airport. I should have been born in the '60s. I've always wanted to be an activist and I became a lawyer dealing with law on a case-by-case basis and it never felt as dramatic and important as being involved in this. It was such a privilege and an honor to be put in that position, and I'm really very grateful.