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No ICE Arrests in NYC Immigration Courts · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
0:08
Speaker 2: For decades, ICE refrained from making arrests at immigration courts,
0:13
Speaker 2: but that changed under the Trump administration when ICE issued
0:17
Speaker 2: a new policy that allowed agents to arrest non citizens
0:21
Speaker 2: as they were appearing for scheduled hearings in court. The
0:25
Speaker 2: policy led to protests and some ugly scenes at courthouses. Now,
0:30
Speaker 2: a federal judge has ruled that Manhattan courthouses are off
0:34
Speaker 2: limits as far as ICE officers making arrests, except in
0:38
Speaker 2: some limited circumstances. My guest is Leon Fresco, a partner
0:42
Speaker 2: at Holland and Knight and the former head of the
0:44
Speaker 2: Office of Immigration Litigation in the Obama administration. Leon tell
0:48
Speaker 2: us about Judge Castell's order temporary order pending the outcome
0:53
Speaker 2: of litigation that challenges ICE's policy of making arrests at
0:58
Speaker 2: immigration courts.
0:59
Speaker 1: The current state of affairs in New York City is,
1:02
Speaker 1: if you go to one of the immigration court houses
1:06
Speaker 1: in New York City, ICE is not allowed to arrest
1:09
Speaker 1: you unless you either have serious offenses in terms of
1:13
Speaker 1: a criminal history, or you have a final order of removal,
1:17
Speaker 1: or you're a national security or public safety risk, and
1:22
Speaker 1: so this all comes from the idea that people were
1:24
Speaker 1: being deterred from going into immigration court to have their
1:30
Speaker 1: immigration hearings because they were worried that ICE was going
1:33
Speaker 1: to arrest them when they would show up at the
1:36
Speaker 1: immigration court. And the reason they were worried about that
1:39
Speaker 1: is because that was actually happening during the time period
1:42
Speaker 1: where there was concerns about arresting three thousand people a day.
1:48
Speaker 1: Arresting three thousand people a day is not so easy,
1:51
Speaker 1: and so a lot of the places where people were
1:53
Speaker 1: getting arrested were in the places where they were most
1:57
Speaker 1: likely to be, which were at ICE check ins and
2:00
Speaker 1: immigration court. So you knew people were going there, but
2:03
Speaker 1: the point was you didn't want to deter people from
2:06
Speaker 1: going there because those were the key points of the
2:09
Speaker 1: throughput of the immigration system. And so people were stopping
2:14
Speaker 1: attendance of these ICE check ins and of these immigration
2:18
Speaker 1: court hearings because they were like, I don't want to
2:19
Speaker 1: get arrested simply for going to the immigration court. So
2:24
Speaker 1: this judge had originally not wanted to enjoin ICE from
2:29
Speaker 1: arresting people in immigration court because the government had made
2:34
Speaker 1: the argument previously that there was an Ice guidance that
2:39
Speaker 1: was issued on May twenty seven, twenty twenty five, that
2:43
Speaker 1: actually allowed them to do this, so that they had
2:46
Speaker 1: considered the matter, they had reviewed it, they investigated it
2:50
Speaker 1: andt cter on and they said, yes, so according to
2:52
Speaker 1: this memo, we can arrest people at immigration court. And
2:57
Speaker 1: so the judge said, well, look, you had a policy
2:59
Speaker 1: basis for conducting these arrests. I'm not going to enjoin them.
3:02
Speaker 1: But then just recently the Department of Justice actually went
3:07
Speaker 1: back to the court and said to the court, sorry
3:11
Speaker 1: about that. You remember when we told you that we
3:13
Speaker 1: had a memo that considered the need to go to
3:17
Speaker 1: immigration courts and have arrest just kidding. We didn't actually
3:21
Speaker 1: have a memo like that. It didn't actually apply to
3:24
Speaker 1: immigration courts until We're sorry. And so because there was
3:28
Speaker 1: no memo that actually considered this issue, then the judge said, well,
3:32
Speaker 1: then you clearly didn't use your obligations under the Administrative
3:36
Speaker 1: Procedure Act to actually consider this, so I'm not going
3:40
Speaker 1: to let you do this while the case is pending.
3:42
Speaker 1: I think the judge probably more frustrated about how this
3:46
Speaker 1: was done rather than the state of actual law. But
3:50
Speaker 1: because of the sort of. I don't know whether you
3:52
Speaker 1: want to call it a mission or whatever you want
3:54
Speaker 1: to call it. The judge said, no more arrests and
3:57
Speaker 1: immigration courts in New York while this cases pending.
4:01
Speaker 2: Yeah, I mean that was a startling admission by the
4:04
Speaker 2: US Attorney's office in Manhattan, and basically they blamed it
4:08
Speaker 2: on Ice. So the judge said that a revision in
4:12
Speaker 2: his order was needed to correct a clear error and
4:16
Speaker 2: prevent a manifest injustice. Was it a legal error by
4:20
Speaker 2: Ice that caused that to happen?
4:23
Speaker 1: I don't know exactly, but I actually have a theory, June,
4:26
Speaker 1: because I was involved in this for many years at
4:29
Speaker 1: the Department of Justice, and so here's what happens. Ice
4:32
Speaker 1: coordinates extremely well with the Department of Justice when the
4:36
Speaker 1: cases are pretty much in any district outside of New
4:40
Speaker 1: York City, because those are all handled by the Department
4:45
Speaker 1: of Justice Civil Division, Office of Immigration Litigation, where I
4:48
Speaker 1: was head, and so everything could be coordinated. But in
4:52
Speaker 1: New York, it's a joke called the Sovereign District of
4:55
Speaker 1: New York that you don't tell the US attorneys there
4:58
Speaker 1: what to do. They don't listen to anything going on
5:01
Speaker 1: in Washington. They do their own thing. So as a
5:04
Speaker 1: result of that, they have to correspond with ICE, and
5:09
Speaker 1: it's not clear who in ICE start corresponding with a
5:12
Speaker 1: New York person, some random person in DC who's not
5:15
Speaker 1: in the know. And so many times you would see
5:18
Speaker 1: I would call this one of the achilles heels or
5:21
Speaker 1: weaknesses of the entire litigation platform of the Department of
5:27
Speaker 1: Justice is if you suit in New York, you'd have
5:30
Speaker 1: a completely different strategy, case approach. Whatever you're doing in
5:34
Speaker 1: New York doesn't apply anywhere else, and so you almost
5:37
Speaker 1: have these two random, completely different things going on. And
5:41
Speaker 1: so it's very easy in that scenario for the US
5:44
Speaker 1: Attorney's Office in New York to not actually know anything
5:47
Speaker 1: about what's going on in Ice and just be told
5:50
Speaker 1: by some ICE New York person, Oh yeah, this memo
5:52
Speaker 1: covers immigration courts. That's not a surprising scenario.
5:56
Speaker 2: When I hear it to judge was surprised that, yes, well.
6:01
Speaker 1: The judge, your viewers are getting inside knowledge here in
6:04
Speaker 1: terms of very few people understand this disconnect that goes
6:08
Speaker 1: on between New York and the rest of the country.
6:10
Speaker 1: So the judge is not gonna understand why the Department
6:13
Speaker 1: of Justice written large, because that's all the judge knows
6:16
Speaker 1: is this is the Department of Justice doesn't have the
6:19
Speaker 1: correct information. Since this is the government, so the government
6:23
Speaker 1: quote unquote should have the correct information. But as we
6:27
Speaker 1: all know, there's not one government. There's a lot of
6:29
Speaker 1: people in the government, and depending on who you talk
6:32
Speaker 1: to in the government, you might hear something that's not correct.
6:35
Speaker 1: And so while this shouldn't happen, and it's not something trivial,
6:40
Speaker 1: it's something I'm not surprised to hear has occurred, because
6:44
Speaker 1: that's the kind of thing that unless and until one
6:46
Speaker 1: day the US Attorney's Office in New York actually wants
6:50
Speaker 1: to let their immigration cases get handled by the National
6:55
Speaker 1: Civil Division, so that all the immigration cases are handled harmoniously,
6:59
Speaker 1: you're going to get potential situations like this.
7:02
Speaker 2: So the judge handed down the decision on Monday. On Tuesday,
7:06
Speaker 2: Ice violated the order. They arrested a twenty one year
7:10
Speaker 2: old Honduran at twenty six Federal Plaza, which is one
7:13
Speaker 2: of the three immigration courthouses in Manhattan that the judge
7:17
Speaker 2: had ruled were off limits for arrests, and according to
7:21
Speaker 2: The New York Times, a man who worked with the
7:24
Speaker 2: Immigration Assistance Program. Tried to hand the ICE officers a
7:28
Speaker 2: copy of the judge's decision, and they refused to accept it,
7:32
Speaker 2: and one told him that the agency didn't care. I
7:35
Speaker 2: mean open defiance of a court order.
7:38
Speaker 1: Again, I don't want to give excuses. I just want
7:43
Speaker 1: to say sort of how these things work. So a
7:45
Speaker 1: judge issues an order on a Monday, and on a
7:49
Speaker 1: Tuesday there's an arrest. It's not like ICE is some
7:54
Speaker 1: integrated artificial intelligence system where every human being is plugged
7:59
Speaker 1: in and suddenly knows all of America's case law instantaneously
8:05
Speaker 1: when that case law is introduced. So what happens is
8:09
Speaker 1: ICE clearly isn't implementing this memo with sufficient rapidity. And
8:15
Speaker 1: you had an officer who probably on Monday already knew
8:19
Speaker 1: I'm going to arrest this individual, mister Alexander Castillo Nourles
8:24
Speaker 1: because you know, they say that they're a dangerous gang member.
8:27
Speaker 1: Who knows if this is true or not, I don't know,
8:29
Speaker 1: But if they really think they have a dangerous gang
8:32
Speaker 1: member in their sights, all the better for them to
8:34
Speaker 1: arrest this person to make sure that they're not walking around.
8:38
Speaker 1: But it turns out that they don't know the court order.
8:41
Speaker 1: Then the people tell them the court order. The problem
8:44
Speaker 1: from the perspective of the government is just people randomly
8:47
Speaker 1: handing an ice agent a court order. That ice agent
8:50
Speaker 1: isn't an attorney. What they know about the law is
8:53
Speaker 1: sort of what's in their training materials, and so it's
8:57
Speaker 1: very complicated because they're not just going to read a
9:00
Speaker 1: court order and know the significance of what that court
9:03
Speaker 1: order is, what it's telling them to do. So you
9:06
Speaker 1: ended up with this very unfortunate situation, and probably there
9:10
Speaker 1: will be content hearings about it, but just another set
9:13
Speaker 1: of facts of I get how it led to this.
9:17
Speaker 1: It shouldn't have led to this. There's no excuse for it.
9:20
Speaker 1: It's a violation of the court order. But you can
9:23
Speaker 1: understand how until these ice agents, who are not attorneys,
9:28
Speaker 1: who are just people, probably sometimes with only high school educations,
9:33
Speaker 1: are given very specific guidance, you can only do xyz.
9:38
Speaker 1: They continue to operate as they've been operating, and nothing
9:42
Speaker 1: will deter them from their orders until the same person
9:45
Speaker 1: who gave them their prior order gives them a new order.
9:49
Speaker 2: The underlying case here is a suit brought by two
9:52
Speaker 2: new York based nonprofits challenging the Trump administration guidance that
9:59
Speaker 2: broadens the circ circumstances in which civil immigration arrests can
10:03
Speaker 2: be made in or near a courthouse and rolls back
10:06
Speaker 2: Biden error guidance restricting courthouse arrests, and the judge is
10:11
Speaker 2: found that there's a substantial likelihood of showing that the
10:15
Speaker 2: arrest policy is arbitrary and capricious. What's your take on
10:19
Speaker 2: how successful this challenge will be.
10:22
Speaker 1: Well, I think it's going to be tough. These lawsuits
10:25
Speaker 1: have been filed all around the country and nobody's been
10:28
Speaker 1: able to get an injunction that is of any significant
10:32
Speaker 1: umph to it that has really stopped this now. I
10:35
Speaker 1: do think in this case in New York, it may
10:38
Speaker 1: be that given where this administration is right now, where
10:43
Speaker 1: it's not trying to ruffle any more feathers between now
10:45
Speaker 1: and the election and then is sort of gearing up
10:48
Speaker 1: for a post election immigration enforcement roundup, that it may
10:53
Speaker 1: not do anything for now. I could see them just
10:56
Speaker 1: litigating this kind of in a slow track, low profile
11:00
Speaker 1: for now. But I don't think that the statutory scheme
11:06
Speaker 1: dissuades the Department of Homeland Security legally from conducting these arrests.
11:11
Speaker 1: The problem is if people stop showing up the immigration court,
11:16
Speaker 1: at some point the immigration enforcement personnel have to make
11:21
Speaker 1: a decision do they want to start having to enforce
11:23
Speaker 1: all of these what are called in absentia removal orders,
11:27
Speaker 1: which is an order if you don't show up the court,
11:29
Speaker 1: you're like ordered by default to be removed, and then
11:34
Speaker 1: people will litigate these on an individual basis, and all
11:39
Speaker 1: of that takes more time than just getting the actual
11:42
Speaker 1: removal order in the first place, So you almost want
11:45
Speaker 1: to try to figure out is the juice worth the
11:47
Speaker 1: squeeze of these arrests. And I don't know what they're
11:51
Speaker 1: going to decide there, because if they're really focused on
11:53
Speaker 1: an arrest quota, removals be damned or anything else, then
11:58
Speaker 1: they'll keep doing the arrest because this is a way
12:00
Speaker 1: to raise the arrest quota. But if they're really looking
12:04
Speaker 1: at what is the way to get the highest number
12:06
Speaker 1: of completely enforceable, unappealable removal orders, then you wouldn't start
12:11
Speaker 1: arresting people in court because you leave yourself vulnerable to
12:15
Speaker 1: these new process claims.
12:17
Speaker 2: Stay with me Leon Coming up next, the administration spares
12:21
Speaker 2: banks from an immigration crackdown. Remember you can always get
12:25
Speaker 2: the latest legal news by listening to our Bloomberg Law
12:28
Speaker 2: podcast wherever you get your favorite podcasts. I'm June Grosso
12:32
Speaker 2: and this is Bloomberg.
12:36
Speaker 1: You are listening to Bloomberg Law with June Grosso from
12:40
Speaker 1: Bloomberg Radio.
12:43
Speaker 2: New York City is a sanctuary city with policies dating
12:47
Speaker 2: back to the nineteen eighties. The new mayor, Zoran mom Donnie,
12:52
Speaker 2: has tried to fortify New York sanctuary city status. He
12:57
Speaker 2: signed an order blocking Ice from city can spaces without
13:01
Speaker 2: a judicial warrant. He's publicly condemned federal operations at local hospitals.
13:08
Speaker 2: He'd released a know Your Rights video. What effect do
13:12
Speaker 2: those actions have? I've been talking to immigration law expertly
13:15
Speaker 2: on Fresco of Hollanden Knight Leon the Mayor's and immigrant himself,
13:20
Speaker 2: and has been very strong about immigrants' rights and New
13:25
Speaker 2: York's status as a sanctuary city.
13:28
Speaker 1: If you are looking at a chart, it would kind
13:31
Speaker 1: of look like a U shape in the sense that
13:34
Speaker 1: what happens is, yes, if you don't cooperate in any
13:37
Speaker 1: way and you create every possible obstruction with the federal
13:41
Speaker 1: government's immigration enforcement efforts. There will be less removals if
13:46
Speaker 1: the federal government does nothing about it. But if the
13:49
Speaker 1: federal government gets angry with you, so that's the sort
13:51
Speaker 1: of downward slope of the U. But if the federal
13:54
Speaker 1: government at the lowest point of that, you decide, I'm
13:57
Speaker 1: very angry that I'm being impeded in with So what
14:01
Speaker 1: I'm going to do is start sending more agents to
14:03
Speaker 1: New York. And even though the state and the locals
14:06
Speaker 1: will not tell me where the foreign nationals are that
14:09
Speaker 1: do not have status, I'm just going to start looking
14:12
Speaker 1: for them everywhere. Then it'll make things worse. And so
14:16
Speaker 1: that's the determination that the local government has to make,
14:21
Speaker 1: is what do they calculate the federal government to response
14:25
Speaker 1: will be. And if they think that the federal government's
14:28
Speaker 1: response will be one of increased resources, then that makes
14:32
Speaker 1: the problem actually worse. And so you could decide as
14:36
Speaker 1: a different strategy. It's probably one that if I was
14:39
Speaker 1: a mayor. Nobody's ever elected me mayor like them, never
14:41
Speaker 1: run for b But if I was a mayor, what
14:44
Speaker 1: I would try to do is reach an agreement with
14:47
Speaker 1: the ICE enforcement people and says, look, if I'm proactive
14:51
Speaker 1: about giving you criminals. Will you leave everybody else in
14:54
Speaker 1: my city alone and not create a reign of terror?
14:57
Speaker 1: And I say, I will only be very proactive and
15:01
Speaker 1: cooperative and give you all the help you need if
15:03
Speaker 1: you reach this agreement with me. I think there are
15:05
Speaker 1: agreements like that that are there to be had. But
15:09
Speaker 1: I think the problem is politically some people may think, well,
15:12
Speaker 1: that's not sufficient enough. We don't want anyone getting deported.
15:16
Speaker 1: And if you do that, then you end up with
15:18
Speaker 1: the situation where we're in now at New York and
15:21
Speaker 1: in some other places.
15:22
Speaker 2: So let's broaden this from New York. Banking executives were
15:26
Speaker 2: really concerned that the Trump administration would force banks to
15:30
Speaker 2: verify the citizenship of new and existing customers. I mean,
15:34
Speaker 2: there was frantic lobbying. Why were they so afraid of this, Well.
15:39
Speaker 1: The real worry was that there would be essentially just
15:44
Speaker 1: like in the workplace, where you cannot work theoretically. I
15:47
Speaker 1: mean plenty of people work who are undocumented, but theoretically,
15:50
Speaker 1: if you want to work and you are in America,
15:53
Speaker 1: you have to give your employer proof of your immigration status.
15:57
Speaker 1: And what the banks didn't want to have to do
15:59
Speaker 1: is is now take all of the hundreds of millions
16:02
Speaker 1: of accounts they have this was sort of the worst
16:04
Speaker 1: case scenario, and have to figure out the immigration status
16:09
Speaker 1: of every one of their customers. I currently work with
16:11
Speaker 1: banks all the time on various sanctions compliance issues, and
16:15
Speaker 1: even when you're doing this with very small groups of
16:20
Speaker 1: people Cubans or North Koreans or whoever, the amount of
16:24
Speaker 1: different immigration statuses in the world, there's like hundreds of them,
16:29
Speaker 1: and there's a lot of quasie ones where things are
16:31
Speaker 1: pending you don't exactly know what their status is. There's
16:35
Speaker 1: lawsuits every day which put people in and out of
16:38
Speaker 1: status again, and the judge will issue an injunction put
16:41
Speaker 1: them back in status, and the injunction will get removed
16:44
Speaker 1: by the appellate court. And for the banks to have
16:48
Speaker 1: to keep track of all of that would become an
16:51
Speaker 1: incredibly substantial burden on them, There's no doubt about it.
16:56
Speaker 1: They would become like the police, but in the banking realm.
17:00
Speaker 1: And so they did not want that. But there still
17:02
Speaker 1: is an executive order that's out there that is voluntarily
17:07
Speaker 1: asking the banks to get more information on their customers,
17:10
Speaker 1: and so people do wonder will the banks say you
17:14
Speaker 1: know what, let's get out in front of this and
17:16
Speaker 1: let's start debanking people that we know don't have immigration status.
17:20
Speaker 1: And so we're gonna have to wait and see how
17:22
Speaker 1: that works. And then it gets more complicated too, from
17:25
Speaker 1: the standpoint of what if you're a visitor. So a
17:28
Speaker 1: lot of people come here on visitor visas. My favorite
17:31
Speaker 1: ones are the Canadian snowbirds. That's an example that everybody knows.
17:35
Speaker 1: They come from Canada, they're here six months a year,
17:38
Speaker 1: they go to Florida, they go to the early Bird
17:40
Speaker 1: dinner and all of that stuff. And the question is
17:43
Speaker 1: should they have a bank account or not? Because they
17:45
Speaker 1: don't actually have any status that gives them a Social
17:48
Speaker 1: Security number in America. But what's the problem with giving
17:51
Speaker 1: them a bank account. It's great for the bank here,
17:54
Speaker 1: it's great for them, it's great for everybody involved. And
17:57
Speaker 1: there's plenty of people like this who are six month
17:59
Speaker 1: retiring type people and under these kinds of guidances, they
18:03
Speaker 1: wouldn't have an account that they could use. And so
18:07
Speaker 1: the question from the bank's perspective is why should we
18:09
Speaker 1: have to debank all these people? And that's a very
18:13
Speaker 1: complicated thing. And so I don't think the administration wanted
18:15
Speaker 1: to dive too much into this, so they're giving the
18:18
Speaker 1: banks flexibility to figure out what is going to be
18:21
Speaker 1: the best way to make sure that undocumented people don't
18:24
Speaker 1: have access to the banking system. But there's no requirements
18:29
Speaker 1: right now that banks have to dbank undocumented people.
18:32
Speaker 2: Whoever thought I'd hear you say d banking, it's you
18:35
Speaker 2: really not my sector. So now, according to a Bloomberg
18:39
Speaker 2: Law analysis, the Trump administration has issued thousands of fines
18:43
Speaker 2: against immigrants that total more than thirty six billion dollars,
18:47
Speaker 2: not that they've collected that, and it started taking people
18:50
Speaker 2: to court and seizing their tax refunds, garnishing wages. I mean,
18:55
Speaker 2: first of all, what are they finding them for.
18:57
Speaker 1: There are fines and penalties in the system. This is
19:00
Speaker 1: part of again a theme that we've discussed previously, which
19:03
Speaker 1: is that and in its core, immigration law is civil.
19:06
Speaker 1: It's not criminal. There are some things that are criminals.
19:09
Speaker 1: So coming across the border illegally, evading inspection is criminal,
19:14
Speaker 1: and if you get deported, coming back in without permission
19:18
Speaker 1: is criminal. But most immigration law is civil, and so
19:22
Speaker 1: a lot of the violations and the finds and penalties
19:25
Speaker 1: that you would get are civil, So things like overstaying
19:29
Speaker 1: your visa, you can be fine for each day you're
19:32
Speaker 1: here that you've overstayed your visa, so there's a fine
19:36
Speaker 1: for that, or taking if you've been given an order
19:41
Speaker 1: of removal and you don't leave, or an order of
19:43
Speaker 1: voluntary departure and you don't leave, there are fines for that.
19:47
Speaker 1: So what the administration has started doing is it said, well,
19:50
Speaker 1: why did Congress put these finds there, Let's actually start
19:53
Speaker 1: doing it. Let's do something with this congressional authority that
19:57
Speaker 1: was in there. And so they're starting to say, if
20:00
Speaker 1: we know of a human being who's here without status,
20:04
Speaker 1: we're gonna, you know, just go into our databases and
20:09
Speaker 1: just start printing out thousands of these fine letters and
20:13
Speaker 1: send them out and then if we can actually correspond
20:16
Speaker 1: it with tax refunds, then we'll actually not give the
20:19
Speaker 1: tax refund out. And so that's the main thing that's happening.
20:23
Speaker 1: A lot of these fines are being issued, they're not
20:25
Speaker 1: being paid. I had a client who's actually here on
20:29
Speaker 1: what's called a U visa, which is what happens is
20:32
Speaker 1: you're here, you don't have status, but you're the victim
20:34
Speaker 1: of a violent crime. This client was definitely a victim
20:38
Speaker 1: of a violent crime that it's well documented the photographs
20:42
Speaker 1: and everything, and the mental health issues that arose from it,
20:45
Speaker 1: et cetera. But the government didn't really know that, and
20:48
Speaker 1: so they tried to issue her like a million dollar fine.
20:51
Speaker 1: And we had to come in and say, hey, this
20:54
Speaker 1: is a person who's here on a U visa. Do
20:57
Speaker 1: you really think it's appropriate theation of a million dollar fine.
21:00
Speaker 1: They said, no, it's not appropriate, so they took it away.
21:03
Speaker 1: But the point is, so a lot of people are
21:05
Speaker 1: getting set fine notices that they actually wouldn't even apply
21:08
Speaker 1: to them if they really thought about it or had
21:10
Speaker 1: legal counsel telling them. But the idea really is make
21:15
Speaker 1: it harder to be here, make it more potentially scary
21:19
Speaker 1: in the sense that you don't know what the issues
21:21
Speaker 1: are going to be with these fines. And if you
21:24
Speaker 1: actually are ever in a situation where the government would
21:26
Speaker 1: owe you money, such as in the case of a
21:30
Speaker 1: tax refund, then the government doesn't have to pay that money.
21:33
Speaker 2: The Trump administration overhauled the regulations on monetary penalties and
21:38
Speaker 2: they dropped certain requirements and once the regulations were finalized.
21:44
Speaker 2: Total fines are up more than five hundred and fifty
21:46
Speaker 2: percent over the ten thousand Ice had issued before streamlining
21:50
Speaker 2: the process. And it's happened that some immigrants don't even
21:54
Speaker 2: know that they're on the hook until they're hit with
21:57
Speaker 2: a lawsuit or lose a tax refund.
21:59
Speaker 1: It seems like right, because what happens is they used
22:02
Speaker 1: to have to personally serve you or get certified mail
22:06
Speaker 1: swing that you got it, and now that's not required,
22:09
Speaker 1: so this can all be done via THEAI and databases
22:12
Speaker 1: and just printing these things out and sending them out
22:14
Speaker 1: in bulk, and so they're able to issue these fines
22:18
Speaker 1: in bulk, but a lot of times they're not getting
22:20
Speaker 1: to people because these are transient people. They're moving wherever
22:23
Speaker 1: the work is or or they're trying to avoid being detected,
22:28
Speaker 1: or who knows what's happening. But the point is these
22:31
Speaker 1: fines are being sent to a last note address, but
22:34
Speaker 1: they're not getting them to the actual human being. And
22:38
Speaker 1: so it's only like you say, later, whether there's a
22:40
Speaker 1: tax refund or a lawsuit, when the lawsuit has to
22:43
Speaker 1: have personal service, that people then realize that these fines
22:47
Speaker 1: were sent to them.
22:48
Speaker 2: Finally, we've talked before about the migrant detention cases. The
22:53
Speaker 2: appeals courts are divided on this, so divided. The Fifth
22:56
Speaker 2: and the Eighth Circuits have upheld the mandatory detention policy,
23:00
Speaker 2: the Second, sixth, and eleventh have ruled against it, and
23:03
Speaker 2: the Seventh Circuit panel split in three ways. So you'd
23:07
Speaker 2: normally expect that this would then go up to the
23:10
Speaker 2: Supreme Court. But are there reasons why both sides might
23:14
Speaker 2: not want to take the chance of going to the
23:16
Speaker 2: Supreme Court on this issue?
23:18
Speaker 1: Absolutely, and here are the reasons, which is from the
23:21
Speaker 1: government's perspective, immigration is a national issue. And meaning if
23:26
Speaker 1: you have two circuits right now, the Fifth Circuit which
23:29
Speaker 1: includes Texas and Louisiana and Mississippi, and the Eighth Circuit
23:33
Speaker 1: which includes Minnesota and North Dakota, Surrey, I think, and
23:37
Speaker 1: some others that allow you to detain certain people without
23:42
Speaker 1: a bond hearing, and you really want to be able
23:44
Speaker 1: to detain those people, what do you do? You move
23:46
Speaker 1: them to a detention facility in those jurisdictions and then
23:51
Speaker 1: they can't challenge their detention. Now they might say, well,
23:54
Speaker 1: you did that on purpose, and I should still be
23:56
Speaker 1: allowed to have jurisdiction under the law of the other circuit.
24:00
Speaker 1: But in any case, the government may say, look, I
24:03
Speaker 1: don't care. I don't need a nationwide ability to do this,
24:07
Speaker 1: because if I have this in one or two circuits,
24:09
Speaker 1: I can detain whoever I actually really need to detain,
24:13
Speaker 1: and so I'd rather have that authority than lose it altogether.
24:16
Speaker 1: In the Supreme Court. Now, from the advocates perspective, they
24:20
Speaker 1: might say the opposite, which is, look, well, we've got
24:22
Speaker 1: all these great rulings in the Second Circuit and in
24:26
Speaker 1: the Seventh Circuit, and even in the Eleventh which is
24:30
Speaker 1: which is pretty rare. And so from that perspective, you know,
24:34
Speaker 1: ICE can only detain so many people in Texas and
24:38
Speaker 1: in Louisiana, and so they're not gonna be able to
24:40
Speaker 1: detain everybody there. So let's just consolidate all the good
24:43
Speaker 1: circuits that we have in call it today. And they
24:46
Speaker 1: won't do this too much. They might do it a little,
24:48
Speaker 1: but we're very worried, given the makeup of the Supreme Court,
24:51
Speaker 1: what if they can do this nationally. Now I don't
24:55
Speaker 1: think this is tenable as a long term thing. I
24:58
Speaker 1: think it's going to collapse. I'm either one of the
25:01
Speaker 1: litigants is going to need to appeal this to get
25:03
Speaker 1: out of detention because they'll just be detained for way
25:06
Speaker 1: too long, or the government will just say this is untenable.
25:10
Speaker 1: We can't keep sending everybody to Texas or Louisiana or whatever.
25:15
Speaker 1: So I do think it's going to come to a head,
25:17
Speaker 1: but it will be very interesting to see when and how.
25:20
Speaker 2: See how long they can hold out. Thanks so much, Leon,
25:23
Speaker 2: that's Leon Fresco of Honda Knight. There have been some
25:27
Speaker 2: remarkable answers at confirmation hearings to basic questions asked by
25:33
Speaker 2: Senate Democrats of judicial nominees selected by President Trump. Take
25:38
Speaker 2: John Mark, nominated to be a judge for the Southern
25:41
Speaker 2: District of Texas. When questioned by Democratic Senator Chris Coons,
25:46
Speaker 2: he refused to acknowledge that the twenty second Amendment limits
25:50
Speaker 2: a US president from serving more than two elected terms.
25:55
Speaker 3: Mister Mark, is President Trump eligible to run for president
25:58
Speaker 3: again in twenty twenty eight.
26:03
Speaker 4: Senator, Without considering all the facts and looking at everything
26:07
Speaker 4: depending on what the situation is. This to me strikes
26:10
Speaker 4: as more of a hypothetical of something that could.
26:12
Speaker 3: Be not a hypothetical. Has President Trump been elected president twice?
26:16
Speaker 4: President Trump has been certified the president of the United
26:19
Speaker 4: States two times.
26:20
Speaker 3: Is he eligible to run for a third term under
26:22
Speaker 3: our constitution?
26:24
Speaker 4: I would have to review the I need to tell you.
26:27
Speaker 3: The language of the constitutional amendment that makes it clear that, no,
26:30
Speaker 3: he is not eligible to run for the third term.
26:33
Speaker 3: Anybody else brave enough to say that the Constitution of
26:35
Speaker 3: the United States prevents President Trump from seeking a third term.
26:38
Speaker 2: No one was brave enough to say that, and all
26:41
Speaker 2: of Trump's nominees have refused to answer this simple question
26:45
Speaker 2: with a yes or no. Did Donald Trump lose the
26:49
Speaker 2: presidential election in twenty twenty. Instead, the nominees dance around
26:54
Speaker 2: the question, saying things like Joe Biden was certified as
26:59
Speaker 2: the winner of the twenty twenty vote, or that Joe
27:02
Speaker 2: Biden served as president. The nominees also skirret around questions
27:07
Speaker 2: about whether the US capital was attacked on January sixth
27:12
Speaker 2: of twenty twenty one. My guest is an expert in
27:15
Speaker 2: the federal judiciary, Carl Tobias, a professor at the University
27:19
Speaker 2: of Richmond Law School. Is Trump nominating more clear loyalists
27:26
Speaker 2: to the bench in his second term as opposed to
27:29
Speaker 2: his first term. Picks.
27:30
Speaker 5: Well, it depends on which level you're talking about, too.
27:34
Speaker 5: I think the appellate ones everyone believes are more important
27:38
Speaker 5: because there are fewer of them. They make law for
27:41
Speaker 5: all the states in a particular appeals court, and those
27:46
Speaker 5: have been very conservative ideologically. But the dynamic we're seeing
27:52
Speaker 5: that you just alluded to was that a number of them,
27:57
Speaker 5: an increasing number, seemed to be the Trump loyalists, if
28:02
Speaker 5: you will, and often have been his personal attorneys, starting
28:06
Speaker 5: with Bovie, but then a number of others Smith for
28:11
Speaker 5: the A Circuit Missouri, and then Schwartz for the second Circuit,
28:17
Speaker 5: and Flowers for the Sixth Circuit of late and so
28:22
Speaker 5: he's increasingly turning to people whom he has had represent
28:27
Speaker 5: him personally in his litigation.
28:30
Speaker 2: A common thread in all these confirmation hearings is that
28:34
Speaker 2: the nominees refuse to answer whether a yes or no,
28:38
Speaker 2: whether Trump lost the presidential election in twenty twenty.
28:42
Speaker 5: Yes, all of them, I believe, both Upellate and District
28:47
Speaker 5: have refused to provide a straightforward answer as to who
28:52
Speaker 5: won the election, and they say something like the House
28:56
Speaker 5: certified that the winner was Joe Biden or something of
29:01
Speaker 5: that sort, and a similar kind of answer to the
29:03
Speaker 5: January sixth insurrection and attacks at the Capitol.
29:08
Speaker 2: And you had at least one nominee, John Mark refused
29:12
Speaker 2: to acknowledge that the twenty second Amendment prevents a president
29:16
Speaker 2: from running for a third elected term. I mean, that's
29:19
Speaker 2: so basic.
29:20
Speaker 5: Well, you're correct. Most of the nominees have been very
29:23
Speaker 5: reticent to say anything about Trump, and so it shouldn't
29:27
Speaker 5: be surprising, but it is disconcerting. The Democrats are committed
29:31
Speaker 5: to asking the questions, but I think nominees are equally
29:34
Speaker 5: committed to not wanting to cross President Trump.
29:38
Speaker 2: So let's talk about the federal appellate nominees. The latest
29:42
Speaker 2: two he's raising them from the federal judgeships to appellate courts.
29:49
Speaker 5: Yes, they were his district nominees and then district appointees
29:54
Speaker 5: in the eighth and tenth circuits. One Daniel Trainer, was
29:59
Speaker 5: a Dakota district judge and the other is Dan Domenico,
30:07
Speaker 5: who's a district judge in Colorado for the tenth Circuit.
30:10
Speaker 2: I mean, do they stand out as far as what
30:12
Speaker 2: they've done on the district court level?
30:14
Speaker 5: I think they're pretty typical of his district appointees, and
30:21
Speaker 5: they have issued some conservative rulings, but not that many.
30:26
Speaker 5: But I think mostly you appoint district judges for their
30:30
Speaker 5: ability to move the cases. Are they competent? Can they
30:34
Speaker 5: move the cases along? And I think both of those
30:36
Speaker 5: judges have done that and they don't have that many
30:39
Speaker 5: controversial cases.
30:41
Speaker 2: Trainer was one of more than a dozen federal judges
30:45
Speaker 2: who last year wrote a letter promising not to hire
30:49
Speaker 2: law clerks from Columbia over its handling of the student
30:53
Speaker 2: protests on the Israel Hamas War. There was a misconduct
30:57
Speaker 2: complaint filed against him, which was later dismissed. I mean,
31:01
Speaker 2: is that going to be a key question? What do
31:03
Speaker 2: you think the key questions are going to be?
31:06
Speaker 5: I think they'll probably ask them about the rulings that
31:10
Speaker 5: they have had that are controversial. I think that's what
31:13
Speaker 5: they'll probably talk about. It just because they don't have
31:16
Speaker 5: very long records on the district bench.
31:19
Speaker 2: During the first term, the ABA rated ten of his
31:23
Speaker 2: nominees as unqualified, and this term you have at least one.
31:29
Speaker 2: Kathleen Lane, she's nominated to the District Court of Montana.
31:36
Speaker 2: She received an unqualified rating, but it was mainly due
31:40
Speaker 2: to a limited legal experience.
31:43
Speaker 5: Yes, she graduated from law school in twenty seventeen, and
31:47
Speaker 5: the ABA likes to see twelve years of practice experience.
31:52
Speaker 5: She had two federal clerkships and then five or so
31:57
Speaker 5: years practice after that. It was purely based on the
32:02
Speaker 5: lack of experience in the type of cases that she
32:06
Speaker 5: would be deciding in the Montana district. I used to
32:10
Speaker 5: teach out there, so I have a sense of what
32:12
Speaker 5: that docket looks like. It has lots of important public
32:17
Speaker 5: lands issues, which she has worked on some as the
32:21
Speaker 5: I think as deputy solicitor General in Montana. But you
32:26
Speaker 5: have to be able to keep up with the docket,
32:28
Speaker 5: and they have all kinds of cases, and you can
32:31
Speaker 5: imagine in a huge state, big land base, but not
32:35
Speaker 5: many people and long distances between the courthouses, but very
32:40
Speaker 5: experienced judges as colleagues. They will be very generous and
32:44
Speaker 5: will help her if she needs help. But she had
32:47
Speaker 5: only tried I think, one case, and had very little
32:52
Speaker 5: courtroom experience I believe, had not taken depositions, and so
32:58
Speaker 5: there just wasn't the experience there. And the ABA letter
33:02
Speaker 5: was very complimentary of her but just saying there wasn't
33:07
Speaker 5: enough experience to be handling cases as a trial judge
33:11
Speaker 5: in the federal system.
33:13
Speaker 2: So where do the ABA reviews stand. The Republicans don't
33:19
Speaker 2: pay attention to them, the Democrats do. Where do they stand?
33:23
Speaker 1: Well?
33:23
Speaker 5: As I understand that the White House and DJ has
33:26
Speaker 5: instructed the nominees to not even cooperate with the ABA
33:32
Speaker 5: in trying to collect information on them, much less interview them,
33:37
Speaker 5: which is very different from the first term, and so
33:41
Speaker 5: the ABA has essentially been shut out, and so in
33:44
Speaker 5: lots of instances, they just don't have much information except
33:47
Speaker 5: what's in the public record, and so that makes it
33:50
Speaker 5: very difficult. But the ABA, to its credit, has tried
33:55
Speaker 5: to do everything it can to gather information on the
33:58
Speaker 5: particular people, interview lawyers they know in localities, and so
34:03
Speaker 5: I think they have tried to do their best. But
34:06
Speaker 5: on a number of them, they just haven't had enough
34:09
Speaker 5: information to even make a rating.
34:11
Speaker 2: Are there any instances where the ABA rated people unqualified
34:16
Speaker 2: because of their position on Trump issues? I mean, does
34:20
Speaker 2: it go that way the way the Republicans claim?
34:23
Speaker 5: I don't think so, especially talking about as you just
34:26
Speaker 5: brought up in Trump one point oh, there were ten
34:32
Speaker 5: nominees who received not qualified ratings, but I think they
34:36
Speaker 5: were almost exclusively based on their experience, not their ideology.
34:44
Speaker 5: And if you look at those, then eight of them
34:46
Speaker 5: were actually confirmed by the Senate Republican majority and are
34:52
Speaker 5: still serving on the courts. But the ABA was not
34:57
Speaker 5: very partisan about that in any way. They just really
35:00
Speaker 5: didn't have much relevant experience.
35:03
Speaker 2: Tell us about Trump's numbers so far and whether any
35:07
Speaker 2: circuit courts have been flipped.
35:09
Speaker 5: Six people have been confirmed. They're five nominees or future vacancies,
35:15
Speaker 5: and they will probably be confirmed this year. I think
35:18
Speaker 5: they'll try to do that before the midterms if possible,
35:23
Speaker 5: so there'll probably be eleven in his first half term.
35:27
Speaker 5: At that level. At the district level, thirty one have
35:31
Speaker 5: been confirmed, five are on the floor, four have Thursday
35:35
Speaker 5: votes in committee, and four nominated on May twelve, with
35:39
Speaker 5: hearings that will be scheduled probably in June. So that's
35:42
Speaker 5: where we are. But in terms of present vacancies, there
35:47
Speaker 5: are five on the Appeals Court in all future vacancies,
35:50
Speaker 5: and at the district level they're thirty four current ones
35:53
Speaker 5: and seven future ones, so they're a fair number still
35:57
Speaker 5: of vacancies and the number of them don't have nomine.
36:00
Speaker 2: Why aren't they moving as fast as they did in
36:02
Speaker 2: the first term.
36:03
Speaker 5: Well, they just haven't seized on the moment. Probably they
36:08
Speaker 5: have enough time to catch back up. They're not terribly low,
36:13
Speaker 5: but recently it's picked up some. For example, there were
36:17
Speaker 5: six last week nominated. But part of the problem is
36:21
Speaker 5: there's been very little interaction between the White House and
36:24
Speaker 5: states that have one or two Democratic senators, and there's
36:29
Speaker 5: been only two nominees in the recent batch actually had
36:35
Speaker 5: blue state senators, one for Pennsylvania where you have one
36:38
Speaker 5: Democrat and one Republican. So we'll see what Fetterman says
36:42
Speaker 5: about that nominee, and then a second win in Michigan
36:46
Speaker 5: where both senators are Democrats, Peters and Slotkin, and I
36:53
Speaker 5: assume that they will return their blue slips and we'll see.
36:57
Speaker 2: Thanks so much, Carl. That's Professor Tobias of the University
37:01
Speaker 2: of Richmond Law School, and that's it for this edition
37:05
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37:08
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