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‘The System is Broken.’ New Documentary Filmmakers on How Immigration Courts Hurt Immigrants

In the new documentary Guerrilla Habeas, filmmakers Emma Wall and Betsy Hershey advance an urgent argument about immigration courts: they function differently and apart from the American judicial system, often to the detriment of immigrants themselves.

The documentary centers on the lives of two lawyers, Sarah Gillman and Gregory Copeland, who founded the Rapid Defense Network, an organization that provided legal representation to undocumented immigrants who faced deportation. The documentary follows Gillman and Copeland from 2019 to 2021 during the Trump Administration and into COVID-19, as they employed an unusual legal strategy to defend their clients within the flawed immigration court system.

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Unlike defendants in the federal court system, undocumented immigrants in immigration court proceedings are not entitled to legal representation, and there are no limitations on how much time they can be held in custody. The judges who preside over immigration court cases are an extension of the Department of Justice—they are not a part of the judicial branch of government, they are a part of the executive branch, which sets the immigration enforcement rules. Immigrant advocates interviewed by Wall and Hershey argue that structure prevents the judges from being impartial.

“Everything gets sucked into the executive branch,” Sarah Rogerson, a professor at Albany Law School, says in the film. “You have the Department of Homeland Security handling visas and immigration enforcement, but immigration judges are within the Department of Justice, they are part of the deportation mechanism, they are not independent.”

In order to get around this structural barrier and save their clients from deportation, lawyers Gillman and Copeland use the rule of habeas corpus, the constitutional right to have a case heard before a judge, to move their clients’ cases into federal court where a judge may decide to halt a deportation.

Guerrilla Habeas, the latest installment of the documentary series The Turning Point, co-produced by TIME Studios, airs Sunday, Feb. 5th at 10 pm ET on MSNBC, and streaming on Peacock.

Ahead of the documentary’s release, TIME talked with filmmakers Wall and Hershey about what inspired them to create the film and what they learned about U.S. immigration enforcement.

This interview has been edited for length and clarity.

TIME: What led to immigration courts becoming the subject of your documentary?

Wall: In that moment of 2018-2019, we’d had the Muslim ban, we had the zero tolerance policy separating children at the border. The problems in the immigration system, and at that moment, felt so big that it was like—I think like so many people—I think we felt outraged, heartbroken, and just kind of helpless. And then I saw on social media this friend of mine [Copeland] who was posting this work that he was doing and the success that he was having. And I just thought, okay, you know, let’s go talk to him.

I felt like we were kind of piggybacking on these two lawyers who weren’t helpless, who weren’t hopeless, who had found this way to fight against the system that was really effective. They found a way to move these cases from the immigration court system into the federal court system. And we were by no means immigration experts, and it was so shocking to us what we were learning along the way.

Hershey: The film kind of swept us away into the story. We felt so shocked to find out about so many of the harsh realities of the system, and we felt like people needed to know.

What was it about these two lawyers in particular that set them apart to you?

Wall: They found this way to kind of prevent deportations at the very last moment and buy time by using these founding principles of habeas corpus. And they were winning cases in circumstances where a lot of other lawyers that we spoke to were like, these are hopeless cases. So it felt really inspiring to see people who were like, No, we’re not going to give up because the stakes are too high.

Hershey: It was like guerrilla warfare-style tactics, like throwing anything that they could at these cases. They were willing to stop at nothing. They were just coming up with every creative solution they could.

The lawyers also seem to struggle a lot personally. Can you describe what they go through?

Hershey: [It was] shocking to see two people work tirelessly. They didn’t have the support that they needed, they didn’t have funding, they had to spend all this time trying to just get reimbursed for what they were spending. During making the film we realized how important it is in our society to help the people that are helping others.

Since you started this reporting in 2019, so much has changed in immigration enforcement and border policy. What are your takeaways having this front row seat to seeing how it’s done?

Hershey: I think one of the key takeaways for me is that it doesn’t matter who is in charge, who is our president, if this system that we have is broken the way it is. One of our key messages is that the system is broken. And until we fix that, then it doesn’t matter who is in charge of government.

Wall: One of the journalists says in our film that the silver lining of the Trump Administration is people have started realizing, learning this system has been here. My takeaway is we need to chisel away at these individual infringements and just be relentlessly working towards a more just system, especially as we look ahead. This is a global issue, this is not an American story. For us, it’s like a case study of things we’re seeing all over the world.

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