In the Trump Era, Practicing Immigration Law is Like ‘Swimming in Molasses’

Veteran attorney Elise Harriger is learning how to lose, but she vows to keep on fighting.

Published on Feb 25, 2020

Elise Harriger is fighting a cold and fatigue as she sits across from me at a Salvadoran restaurant in East Austin. “I’m too old for this,” Harriger says, reaching for one of the half dozen different multivitamins on the table. “I might not be an immigration attorney in a year. I might be working at a cafe or living in Nepal.”

For the past hour, we’ve been talking about how the Trump administration has affected her work directing the legal clinic at Casa Marianella, an Austin immigrant shelter where Harriger and her legal partner assist over 500 people a year. Since sweeping immigration reforms went into effect in 2017, Harriger has grown used to losing more often than not—a feeling shared by immigration lawyers across the United States. Policies like the Remain in Mexico program, which has left almost 60,000 asylum seekers stranded in dangerous border towns, have essentially eliminated asylum at the southern border; lawyers also face a so-called “invisible wall”—delayed processing for visas and a court backlog of one million cases.

Harriger describes herself as an idealist and a person of faith—she has combined her Christian beliefs and law degree to help asylum seekers fleeing horrific violence from all over the globe—but the work takes its toll. “Everything is a nightmare, it’s like swimming in molasses,” Harriger says. “But knowing me, I’m going to keep fighting. I’ve never been good at quitting.”

The Observer spoke to Harriger about the challenges of practicing immigration law under the current administration and the unprecedented cruelty of the Remain in Mexico policy.

You told me that before Donald Trump became president, you had never lost a case.

I had lost a Temporary Protected Status (TPS) case and a few work permits, but I had never lost like a U or a T visa [special visas intended for victims of certain crimes and trafficking] or anything big like that. Now all we do is lose. The thing with immigration is they don’t care. You could write the perfect brief and nobody cares. I could get an affidavit from Jesus Christ himself and they would just throw it in the trash. It still sometimes goes our way but just less often than before. So I’m trying to shift my thinking to not be so dependent on winning, because that is not in my control anymore. I’m trying to remember that it is a big deal for people to have a good attorney who fights for them even if they lose. I know that they wouldn’t have a shot if not for me.

So what makes the difference between winning and losing cases now?

I think across the board, everything is so much more difficult and obstructionist than it used to be. Adjudication times have skyrocketed and immigration judges are under huge amounts of pressure to move cases forward because their performance reviews, and thus compensation, are tied to how quickly they move their docket. And [this administration] basically did away with our ability to do what’s called administrative closure, which is what we used to temporarily pause the case. We have very few tools in our toolbox now to slow the deportation train. By making everything so difficult, it makes it so that attorneys can’t take as many cases. I think from the administration’s perspective, this is probably what they want. We’re just so worn out and so busy with just the crap that’s already been filed, it’s blowing up in our faces, you know?

We see a lot of Africans who have very strong, egregious political cases where they were peaceful demonstrators and they had their arms hacked off or their family disappeared. In general, those should be a slam dunk. But the problem is that now anyone who entered after July 16 is basically banned from asylum [as a result of the transit ban making those who pass through other countries on the way to the United States ineligible]. And they don’t know that. When we do our asylum orientations, we always check their date of entry and then we tell them about the transit ban and they start crying. We also always had a lot of Central American cases, but now they can’t get through Migrant Protection Protocols (MPP). Basically, no one can win asylum right now unless their case has been pending for a long time.

You started the legal clinic at Casa Marianella in 2010. What were some of the challenges in getting it off the ground?

We had no money for anything: case expenses, experts, to pay my future legal partner or me. We had no malpractice insurance. I had to make up all the forms, the policies. [My boss] gave me a room they were using as storage for my office. I worked for free for about two years. But I didn’t see it as a challenge; I just saw it as freedom, a dream come true. I really felt like it was my calling and like I had brought my professional life and my faith in alignment. It made me feel like I was living out my faith in action and just trusting God that it was going to work out. I was making it up. I had no idea what I was doing. I didn’t know if people were going to laugh at me or take me seriously.

You recently went to Matamoros to help asylum seekers being forced to wait in Mexico while their cases are pending. Can you describe what you saw there?

Most of the people we spoke to were there for close to six months or so. The lucky ones were in tents. Volunteer groups are providing for as many people as they can with camping tents, but there’s new people showing up every day. We saw this one family sleeping under black trash bags. People had found these old gas containers and cut them in half and that’s what they were cooking in, just collecting brushwood from around the river. There are babies and toddlers everywhere, sitting next to this super polluted, high traffic road. There’s broken-down, crappy package playpen things with babies in it. They don’t have clean water and there are no mental health services, very few medical services.

Did you think you would ever see anything like that?

Never. It’s shocking. I went with two other long-time immigration attorneys, including a former professor who’s a badass and has been doing this for five decades. She said she never thought it could be this bad all the way around. The three of us walked around in Matamoros just taking turns sobbing. MPP is basically a fabrication. It’s like having a detention center in another country or like Guantanamo Bay.

Going there was quite good for me because it reminded me of why I do this work. It feels like a real privilege to be doing something when things are so atrocious and horribly sad. I’m not able to stop MPP, I’m not able to save all those people, but I can help one person at a time. It’s like the old saying about the starfish: I can’t save all the starfishes, but I can throw them back in the ocean one at a time.

Do you ever feel like you’re on the verge of a breakdown?

I was before. I’m doing much better. I got a therapist in the fall. After I started losing my cases, I got really messed up in the head. I have secondary trauma from what my clients tell me and the only way I can deal with it and then go home and be with my kids is I just have to kind of block it out. I’ve worked in a corporate law firm, but it’s just totally different because your clients are rich and they’re going to be fine. But when you do humanitarian immigration work, especially at Casa [Marianella] where people live on site … a lot of them are like family to me. When I was pregnant, my clients threw me a baby shower and many of them came to my children’s baptisms. And they are not going to be OK if they get deported. Some of them might live, but some of them might not. They’re going to get murdered or raped. What I started thinking was I can’t tell another person that we lost.

This interview has been edited for length and clarity.

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