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No More Racial Profiling by ICE in Los Angeles · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
0:08
Speaker 2: Los Angeles has been a hotspot for the Trump administration's
0:12
Speaker 2: immigration efforts, with accusations that ICE agents were using racial
0:17
Speaker 2: profiling and other illegal tactics.
0:21
Speaker 3: The mask men in unmarked cars, no license plate, no
0:25
Speaker 3: real uniforms, jumping out of cars with rifles, and snatching
0:29
Speaker 3: people off the street, leading a lot of people to
0:33
Speaker 3: think maybe kidnappings were taking place.
0:36
Speaker 2: That was Mayor Karen Bass on ABC's This Week. A
0:40
Speaker 2: federal judge found last month that there was a quote
0:43
Speaker 2: mountain of evidence that ICE agents tactics were violating the Constitution.
0:49
Speaker 2: She issued an order barring agents in LA from stopping
0:53
Speaker 2: and questioning people on the basis of race or ethnicity,
0:57
Speaker 2: speaking Spanish or English with an accent, the type of
1:01
Speaker 2: work they do, or their presence at a particular location
1:06
Speaker 2: like a car wash, a tow yard, or an agricultural site,
1:10
Speaker 2: and the Ninth Circuit Court of Appeals has unanimously backed
1:14
Speaker 2: that order, leaving the ball in the administration's court. My
1:18
Speaker 2: guest is an expert in immigration law. Leon Fresco, a
1:21
Speaker 2: partnered Holland and Knight. Leon explained what the district judge
1:25
Speaker 2: ordered in the LA case.
1:27
Speaker 1: Well, the original case involved the challenge to something that
1:31
Speaker 1: was called Operation at Large, which was a federal immigration
1:34
Speaker 1: enforcement initiative in Los Angeles. There were these ICE contact
1:39
Speaker 1: teams targeting locations such as car washes and home depots
1:44
Speaker 1: and other places believed to employ undocumented workers. And there
1:48
Speaker 1: was a lawsuit claiming that these roving patrols detained individuals
1:53
Speaker 1: without reasonable suspicion, violating the Fourth Amendment, and the District
1:58
Speaker 1: Court at health on Julia Lae Eaven that the plaintiffs
2:01
Speaker 1: were likely to succeed improving unconstitutional seizures. So the judge
2:07
Speaker 1: restricted federal agents from conducting these ICE rays and stops
2:11
Speaker 1: without a reasonable suspicion. So what that means is that
2:17
Speaker 1: instead of walking around and trying to say this person
2:21
Speaker 1: looks like somebody that's not here legally, which has a
2:25
Speaker 1: sort of dubious application that people get worried about because
2:29
Speaker 1: they say, well, how are you making those decisions? What
2:32
Speaker 1: they're trying to do is convert ICE back into a
2:36
Speaker 1: list sort of agency where it says, we know today
2:40
Speaker 1: we're going to go after person one, person two, person three,
2:43
Speaker 1: person four, person five, and then they go and they
2:46
Speaker 1: look for these people because they know they're here undocumented,
2:50
Speaker 1: rather than just grabbing people in the middle of the street.
2:53
Speaker 1: And so that's really the end goal of this lawsuit.
2:57
Speaker 1: And so yes, there are times where they'll still be
3:00
Speaker 1: able to pick people up because they'll have a reasonable
3:02
Speaker 1: subspicion for another reason other than they're on a list.
3:06
Speaker 1: But mostly this limits ICE to this sort of list
3:09
Speaker 1: based enforcement.
3:10
Speaker 2: And what was the government's argument at the Ninth Circuit when.
3:15
Speaker 1: The government appealed, They said two things. They said, first
3:18
Speaker 1: of all, that the organizational plaintiffs and the case didn't
3:22
Speaker 1: even have standing to bring the case, because organizational plaintiffs
3:26
Speaker 1: were the ones bringing the case, you know, because if
3:28
Speaker 1: you have an individual plane, if it's hard because you say, well,
3:32
Speaker 1: what are the odds that you particularly are going to
3:34
Speaker 1: be grabbed by Ice, so you don't really have standing
3:37
Speaker 1: to make the claim. So instead there were these organizational
3:40
Speaker 1: planiffs who brought the case. And they also said that
3:45
Speaker 1: in general they weren't violating the Fourth Amendment because they
3:49
Speaker 1: have the ability and then the right to enforce immigration law.
3:53
Speaker 1: They have the right to question anybody about their lawful
3:57
Speaker 1: presence in the United states at any times what the
4:00
Speaker 1: statue permits them to do. The Ninth Circuit said two things. First,
4:05
Speaker 1: that the organizational planets had standing because they showed that
4:09
Speaker 1: these kind of roving patrols forced them to divert their
4:12
Speaker 1: resources from instead of carrying out other missions of supporting immigrants'
4:17
Speaker 1: rights in the community, they had to move to divert
4:19
Speaker 1: the resources into dealing with these enforcement actions. So that
4:23
Speaker 1: was the standing issue, and they said there was standing.
4:26
Speaker 1: But they also said that with regard to these claims
4:29
Speaker 1: about reasonable suspicion and force Amendment violations caused by ICE
4:35
Speaker 1: officers roving around looking for people, they said that yes,
4:38
Speaker 1: that does also seem to have a likelihood of success
4:42
Speaker 1: enough that they would not say the District Court's ruling
4:45
Speaker 1: it was a three zero decision, and so the court
4:49
Speaker 1: basically allowed almost all of the ruling to take place,
4:52
Speaker 1: except there was one line in the injunction that prevented
4:56
Speaker 1: ICE from even asking individuals about their immigration reasonable suspicion.
5:02
Speaker 1: That was say, they were allowed to still do that.
5:06
Speaker 1: That was considered overbroad and problematic in terms of enforcement
5:10
Speaker 1: and constitutional interpretation, but the rest of the injunction was
5:15
Speaker 1: allowed to continue.
5:17
Speaker 2: So the judge rule that ICE can't attain people based
5:21
Speaker 2: on their apparent race or ethnicity, So speaking Spanish or
5:26
Speaker 2: accented English, or being at locations such as home depot
5:31
Speaker 2: parking lots, what does constitute reasonable suspicion?
5:35
Speaker 1: Then the main thing that people who file this lawsuit
5:40
Speaker 1: basically are trying to limit ICE is to say you
5:44
Speaker 1: have to have some sort of knowledge of the person
5:46
Speaker 1: you're looking for and of their immigration status before you
5:50
Speaker 1: go looking for those individuals. So, for instance, if you're
5:55
Speaker 1: at an immigration court, then you'll know if somebody has
5:57
Speaker 1: that status or not, so then you can pay them
6:00
Speaker 1: up after or if again, you're working off a list
6:03
Speaker 1: of people who have lost their status that you know
6:06
Speaker 1: from the Department of Homeland Security databases and you're going
6:09
Speaker 1: to pick up those people at their work or at
6:11
Speaker 1: their homes, you then have reasonable suspicion and you can
6:14
Speaker 1: do that. And what the decision also allows is so,
6:17
Speaker 1: for instance, let's say there's twenty undocumented people at a
6:22
Speaker 1: work site that they know about because they have it
6:24
Speaker 1: in their database, then they can ask, Okay, well, what
6:27
Speaker 1: about the other people at this work site? I want
6:30
Speaker 1: to see the paperwork for them, because then there's a
6:32
Speaker 1: reasonable suspicion because you've already established that there's twenty undocumented
6:37
Speaker 1: people at that work site, that the employer hires undocumented people.
6:42
Speaker 1: But in terms of just randomly generating leads by going
6:47
Speaker 1: to places and making these sort of facial decisions, I
6:52
Speaker 1: am concerned about how this person looks or how they
6:55
Speaker 1: present themselves, etc. That's the kind of thing that is
6:59
Speaker 1: enjoying them this injunction.
7:01
Speaker 2: How much of a hindrance is this order to ICE, Well.
7:07
Speaker 1: It depends if you say how much of a hindrance
7:10
Speaker 1: is it to their deterrent operations as opposed to their
7:15
Speaker 1: removal operations. It's not really a deterrent at all to
7:18
Speaker 1: their removal operations in the sense of ICE has pretty
7:22
Speaker 1: sophisticated databases where it knows where most of the undocument
7:26
Speaker 1: the people in this country are and where they live,
7:29
Speaker 1: and ICE, if they want to, can go and pick
7:32
Speaker 1: up as many people as it has detention space to detain,
7:36
Speaker 1: and so there's never a shortage of people that ICE
7:40
Speaker 1: can pick up on any given day to place and
7:42
Speaker 1: detention given the limited detention space it has. But what
7:46
Speaker 1: it does limit is ICE's ability to engage in the
7:50
Speaker 1: kind of patrols that are designed to create a deterrent effect,
7:54
Speaker 1: meaning people are nervous to remain here in the United
7:58
Speaker 1: States because they think, oh, if I take a city bus,
8:01
Speaker 1: or if I just go shopping, or if I'm taking
8:04
Speaker 1: my child to school, I could be apprehended at any moment.
8:08
Speaker 1: The design of those operations isn't to meet the quota,
8:12
Speaker 1: so to speak. It's to instead create a deterrent effect
8:17
Speaker 1: that tells people, if you stay here, you never know
8:20
Speaker 1: what day is going to be the day you're apprehended,
8:23
Speaker 1: so you should just return home. And so that's where
8:26
Speaker 1: it's limiting the operation. Isn't that deterrent effect.
8:29
Speaker 2: So the government has two options. It can ask for
8:33
Speaker 2: an onbink hearing to reconsider the panel's decision, or it
8:37
Speaker 2: could ask the Supreme Court to stay the order. Do
8:41
Speaker 2: you think it will do either of those things.
8:43
Speaker 1: I think the government has been quite aggressive in appealing
8:46
Speaker 1: to the Supreme Court, so I do think the government
8:49
Speaker 1: probably will not take the step of going to the
8:52
Speaker 1: unbank Ninth Circuit because that will simply delay thing and
8:56
Speaker 1: probably unlikely to be considered unbanked by the Ninth Circuit
9:00
Speaker 1: unless they happen to get a perfect setup of the
9:03
Speaker 1: twelve judges that would be picked for the unbound panel.
9:05
Speaker 1: Then I mean, theoretically it could happen, but the odds
9:08
Speaker 1: are not so great for that purpose. And they've been
9:11
Speaker 1: getting better results in the Supreme Court with saying some
9:14
Speaker 1: of these injunctions, and I could foresee the Supreme Court
9:20
Speaker 1: lifting or staying parts of the injunction that limit ICE's hands.
9:25
Speaker 1: I mean, I don't see them potentially taking away the
9:28
Speaker 1: whole injunction, but I could see them giving Ice a
9:31
Speaker 1: little bit more wiggle room here. And so I do
9:34
Speaker 1: think they're going to try their hand there to see
9:36
Speaker 1: if they can continue, because I think they view these
9:39
Speaker 1: city roving operations as an important part of their deterrent force,
9:46
Speaker 1: and so they really want to be engaging in these
9:49
Speaker 1: and I don't think they'll give it up that easily.
9:51
Speaker 2: So during this hearing, the Ninth Circuit hearing, the judges
9:56
Speaker 2: asked the government lawyer repeatedly whether the Trump administer has
10:00
Speaker 2: set a quota of three thousand immigration arrests a day.
10:04
Speaker 2: That number has been bandied about, and it started with
10:07
Speaker 2: I believe Stephen Miller, White House advisor, the government lawyer
10:11
Speaker 2: Yakovrov said he didn't know, and the judges said, okay,
10:14
Speaker 2: submit a letter, and in the letter he said that
10:18
Speaker 2: was incorrect, that there wasn't a goal of three thousand.
10:22
Speaker 2: I mean, do you think there's a goal.
10:24
Speaker 1: I think the way they're trying to basically square the
10:28
Speaker 1: circle is to say that there's not a memo or
10:32
Speaker 1: a policy or anything in place where they don't hit
10:35
Speaker 1: three thousand in a day. Something bad happens to somebody
10:39
Speaker 1: at ice, or somebody's pay gets dogs or anything like that.
10:44
Speaker 1: So they recognize, yes, people have said three thousand a day,
10:47
Speaker 1: that is something that's been said in the media, but
10:50
Speaker 1: there's not any operational context that actually requires three thousand
10:56
Speaker 1: people to be arrested today. And the truth is there
11:00
Speaker 1: goal is to detain as many people as they can
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Speaker 1: each day. I think three thousand is probably not a
11:06
Speaker 1: policy in the sense that it has to hit three
11:08
Speaker 1: thousand or something happens legally where somebody's heels responsible for
11:13
Speaker 1: not hitting three thousand, So I think that's probably an
11:16
Speaker 1: accurate statement. But the intent or the goal is to
11:21
Speaker 1: detain as many people as possible. If that was six thousand,
11:24
Speaker 1: they'd be happier than if it was four thousand, or
11:27
Speaker 1: if it was two thousand, and So if the idea
11:30
Speaker 1: behind this lawsuit is that these roving patrols are being
11:35
Speaker 1: done to generate as many removals as possible, there are
11:39
Speaker 1: as many detentions as possible, I don't think the administration
11:42
Speaker 1: would dispute that. But the issue is do they have
11:45
Speaker 1: this quota? And I think the quota would only bother
11:48
Speaker 1: them from the standpoint that any law enforcement operation that's
11:53
Speaker 1: not geared toward enforcing the law in that individual case,
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Speaker 1: but that's geared toward a larger quota, creates trouble with
12:01
Speaker 1: regard to sort of the motives of the government in
12:04
Speaker 1: how it's operating and how it's conducting law enforcement. Those
12:08
Speaker 1: have been problematic cases and other contexts in the court.
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Speaker 1: But I think it's just fair to say there's not
12:14
Speaker 1: a quota that is operationalized, but rather just a goal, Hey,
12:20
Speaker 1: get as many people as you can in detention and
12:22
Speaker 1: in deportation proceedings as humanly possible, and so the number
12:26
Speaker 1: three thousand was a goal in terms of you should
12:30
Speaker 1: be able to do this. But again, I think it's
12:33
Speaker 1: fair enough to say that there's no legal consequences for
12:36
Speaker 1: not hitting that number coming up next.
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Speaker 2: I just agree that agents in Los Angeles won't impersonate
12:43
Speaker 2: police officers to make arrests and homes. You're listening to Bloomberg.
12:48
Speaker 2: We've been talking about the Ninth Circuit backing a judge's
12:51
Speaker 2: order barring immigration agents in Los Angeles barring immigration agents
12:56
Speaker 2: in the Los Angeles area from using racial profile filing
13:00
Speaker 2: to detain in question suspected undocumented migrants. Well, in another
13:05
Speaker 2: lawsuit challenging the constitutionality of ICE agents in LA impersonating
13:11
Speaker 2: police officers or using other ruses to make home arrests,
13:15
Speaker 2: ICE has reached a court approved settlement. Under the agreement,
13:19
Speaker 2: ICE officers can't claim to be state or local law
13:23
Speaker 2: enforcement or misrepresent the nature of their visit in order
13:28
Speaker 2: to enter a home or persuade a resident to come outside.
13:32
Speaker 2: I've been talking to immigration attorney Leon Fresco of Holland
13:36
Speaker 2: and Knight. Leon explain what ICE officers were doing.
13:41
Speaker 1: This is sort of a larger issue, which is that
13:43
Speaker 1: as the people in the immigration rights movement have become
13:48
Speaker 1: very very successful in communicating messages of know your Right,
13:52
Speaker 1: a lot of people in the immigration community have understood
13:55
Speaker 1: that ICE can be refused entry into a home unless
13:59
Speaker 1: they have a judice warrant. So if they have an
14:01
Speaker 1: administrative warrant, or if they just say can you let
14:04
Speaker 1: me in, you're totally within your right to say no,
14:07
Speaker 1: I don't want to let you in, and I can't
14:09
Speaker 1: go in. If I goes in, then whatever operation they
14:12
Speaker 1: did is invalid under the law once it eventually gets
14:15
Speaker 1: to a court. And so a lot of individuals know
14:18
Speaker 1: this now. So ICE has had to operate in this
14:21
Speaker 1: sort of and this has been happening for many years.
14:24
Speaker 1: This is not a recent thing, but the settlement is
14:26
Speaker 1: recent where they try to find ways around these limitations.
14:30
Speaker 1: So they try to get people to come outside. They say, hey,
14:33
Speaker 1: your car is broken, or hey I need some directions,
14:36
Speaker 1: can you come outside or whatever, and then once they're
14:39
Speaker 1: outside then they can conduct their legal action. Or they
14:42
Speaker 1: say they're police, can they be let inside? And if
14:45
Speaker 1: people think they're police but not ICE, then they let
14:48
Speaker 1: them inside. And so the idea of this lawsuit was
14:51
Speaker 1: to say ICE has to not do those tactics of
14:56
Speaker 1: giving some sort of not whole truth or or potent
15:00
Speaker 1: deviation from the truth in what their operations are. They
15:03
Speaker 1: have to say that their ICE both in their clothing
15:06
Speaker 1: and in their verbiage, and so that when they are
15:10
Speaker 1: engaging in those operations. Now under this settlement, then the
15:13
Speaker 1: individuals will know this is ICE. ICE is strength enter
15:17
Speaker 1: the home. I can refuse it unless they have a
15:19
Speaker 1: judicial warrant.
15:20
Speaker 2: Yeah, so they have to have a warrant that's signed
15:22
Speaker 2: by a judge, and those are hard to get.
15:25
Speaker 1: It's not that they're hard to get, but it's time
15:27
Speaker 1: consuming because judges only have so many things they can
15:30
Speaker 1: do on a given day. And if ICE is trying
15:34
Speaker 1: to get one of those warrants, they have to set
15:36
Speaker 1: up the paperwork that says, here's this person, here's how
15:40
Speaker 1: we know they entered illegally, or they entered legally but
15:43
Speaker 1: they've overstayed their status, and then you wait for the
15:46
Speaker 1: judge they issue the warrant, and then the judge issues
15:49
Speaker 1: the warrant. So all of this takes time, and it's
15:52
Speaker 1: time that ICE doesn't want to be spending when it
15:54
Speaker 1: can just write up an administrative warrant on their work
15:58
Speaker 1: processing documents. So they try to do that, but if
16:01
Speaker 1: they're not successful, then they have to go and get
16:04
Speaker 1: a warrant from a judge, meaning also they have to
16:06
Speaker 1: get the Department of Justice lawyer involved, and those lawyers
16:10
Speaker 1: want to be doing other things. They don't necessarily want
16:12
Speaker 1: to be doing this, although they're being ordered to do
16:14
Speaker 1: more of this, and so that's the sort of barriers
16:18
Speaker 1: to entry to get those warrants. So it's not hard legally,
16:21
Speaker 1: but you just have to get a lot of people
16:23
Speaker 1: interested in terms of the judge and the Department of
16:26
Speaker 1: Justice and others in issuing the warrant. And so that
16:29
Speaker 1: takes fine and resources.
16:31
Speaker 2: And so you mentioned clothing identifying them as ice. Do
16:35
Speaker 2: ICE agents often have clothing that says police instead of ice.
16:41
Speaker 1: They for a number of years have been engaging in
16:43
Speaker 1: these operations where what the front of their shirt would
16:47
Speaker 1: say was the word police. And that did and they said, well,
16:51
Speaker 1: police has this sort of general meaning of a person
16:55
Speaker 1: who enforces law. So we are correct to be able
16:58
Speaker 1: to say police. We don't have to say ice. We
17:00
Speaker 1: just have to say we are people who enforce the laws.
17:04
Speaker 1: But now in this settlement I can't do that. It
17:07
Speaker 1: actually has to say it is ice, not just that
17:10
Speaker 1: it's believed.
17:11
Speaker 2: One more question on clothing ICE agents. Whenever you see
17:15
Speaker 2: video of them or photos they're wearing masks. Is there
17:19
Speaker 2: a problem with them wearing masks as well? I mean,
17:22
Speaker 2: I take it they're wearing masks to conceal their identity.
17:26
Speaker 1: Right at the moment, this mask issue is one that's
17:29
Speaker 1: being hotly debated in the Congress for this upcoming appropriations bill.
17:33
Speaker 1: They're trying to see if they can actually get some
17:36
Speaker 1: language in there that maybe the Republicans will agree to
17:39
Speaker 1: with regard to people being able to identify themselves so
17:42
Speaker 1: that people aren't worried whether these are fake ICE officers
17:46
Speaker 1: who are actually criminals trying to take advantage. But at
17:49
Speaker 1: the moment, there isn't any court order or anything that
17:52
Speaker 1: says that the agents can't wear masks. The agents wear
17:55
Speaker 1: masks because they don't want people coming to their homes.
17:59
Speaker 1: Now in this social media you could say, oh, that's
18:01
Speaker 1: ICE agent Fred Smith who lives on one one one
18:04
Speaker 1: Smith Lane, and so go to their house and yell
18:07
Speaker 1: at them. They're trying to avoid that scenario. That is
18:11
Speaker 1: a scenario that whether you agree with immigration enforcement or not,
18:14
Speaker 1: the people that I don't deserve to have their houses
18:17
Speaker 1: raided by angry people in the community. And so it's
18:21
Speaker 1: one of those terrible situations all the way around. But
18:25
Speaker 1: the wearing a mask, there's going to need to be
18:28
Speaker 1: I think most people agree some sort of limiting principle
18:32
Speaker 1: here where there has to be some identification that's done
18:36
Speaker 1: and shown that says I'm an ice agent. So maybe
18:39
Speaker 1: the person wears a mask, but during the immediate apprehension says,
18:43
Speaker 1: here's my badge and I'm an ice agent, and they
18:46
Speaker 1: show it, and then that follows the problem. But I
18:50
Speaker 1: think the current way where someone just is completely unidentified
18:54
Speaker 1: wearing a mask and putting someone in a van, I
18:57
Speaker 1: think if that continues, you will see courts getting involved,
19:01
Speaker 1: and I think you'll even see Congress getting involved, because
19:04
Speaker 1: those are not the kind of images that one typically
19:08
Speaker 1: associates with normal law enforcement. You want the law enforcement
19:13
Speaker 1: to be more transparent than that, and so we will see.
19:16
Speaker 1: But the concerns are well understood, they're well justified. But
19:20
Speaker 1: there has to be some principle where at least I
19:22
Speaker 1: think a badge is shown or something happens so that
19:24
Speaker 1: people can know, Okay, this is a nice agent that's
19:27
Speaker 1: doing this operation.
19:29
Speaker 2: Let's turn now to visas to get into the country.
19:33
Speaker 2: The State Department is proposing requiring applicants for business and
19:37
Speaker 2: tourists visas, some applicants to post bonds up to fifteen
19:42
Speaker 2: thousand dollars. Who are they targeting here?
19:46
Speaker 1: So this is a pilot program, And what they're trying
19:48
Speaker 1: to do is they are worried that there are certain
19:51
Speaker 1: countries that have very high over stay rates. That means
19:55
Speaker 1: that a visa gets issued and the person doesn't go
19:57
Speaker 1: home and they instead stay in the the United States.
20:00
Speaker 1: And so what they're trying to do is to create
20:02
Speaker 1: a financial disincentive for people to do that, which is
20:06
Speaker 1: a bond, meaning you put up this money and you
20:09
Speaker 1: don't get it back if you don't go home. And
20:11
Speaker 1: so right now they're doing about two dozen countries that
20:14
Speaker 1: have a ten percent or higher overstay rate. Most of
20:17
Speaker 1: these are African countries. And what they're going to say
20:20
Speaker 1: to the State Department is charge these bonds and if
20:24
Speaker 1: only if they can put up the bond, will they
20:26
Speaker 1: get the visa. Now, this is an interesting concept. This
20:29
Speaker 1: is actually a concept that even when I was a
20:32
Speaker 1: staffer back on the hill, you know, a long long
20:34
Speaker 1: time ago, many many many years ago, I actually was
20:39
Speaker 1: in favor of this concept. But in a slightly different way,
20:43
Speaker 1: meaning that a lot of what the State Department does
20:46
Speaker 1: is guess work, trying to guess is someone going to
20:50
Speaker 1: overstay or not. They really don't have any idea. They're
20:52
Speaker 1: just trying to do the best they can under some
20:55
Speaker 1: challenging circumstances. And so I had pushed the State Department
20:59
Speaker 1: personally as as baff Director of the Immigration sub Committee,
21:03
Speaker 1: to do these bonds, but in a way where it
21:05
Speaker 1: basically what would happen was if someone was refused a visa,
21:09
Speaker 1: they could overcome the refusal by putting up a bond
21:13
Speaker 1: and say, hey, if you really think I'm going to overstay,
21:16
Speaker 1: you're fifty thousand dollars saying I'm not going to oversay.
21:19
Speaker 1: And the State Department had traditionally and by traditionally, I
21:23
Speaker 1: need at least the last two three decades take in
21:25
Speaker 1: the view, there was no bond you could make people
21:28
Speaker 1: pay that would substitute from their desire to overstay. So
21:33
Speaker 1: if you made the bond twenty thousand, fifty thousand, they've
21:36
Speaker 1: just put up the money and overstay and they don't care.
21:39
Speaker 1: And so it appears that Trump administration does not agree
21:43
Speaker 1: with that. They so they're putting up the bond. But
21:45
Speaker 1: the issue is who's going to get charged this bond.
21:48
Speaker 1: So is this bond and this is we're gonna have
21:50
Speaker 1: to wait and see. Is this bond going to get
21:53
Speaker 1: charged to people who would otherwise have already been approved
21:59
Speaker 1: and now they have to pay a bond? Or is
22:01
Speaker 1: this going to be the way I wanted it, which
22:04
Speaker 1: was someone whose case was iffy, who you thought could
22:08
Speaker 1: be approved, but you're a little nervous, so you deny it.
22:11
Speaker 1: Now you can put a bond in and you can
22:13
Speaker 1: approve the visa because now they can pay and show
22:17
Speaker 1: that they're serious about going back. And so if it's
22:20
Speaker 1: this second concept, I think that's actually an improvement from
22:24
Speaker 1: where we were before. But if it's the first concept,
22:28
Speaker 1: then it's useful for your listeners to know that getting
22:32
Speaker 1: a visa from any of these countries in Africa is very,
22:35
Speaker 1: very hard. You have to be extraordinarily wealthy in order
22:39
Speaker 1: to get a visa, so that your overstay risk is
22:42
Speaker 1: almost zero in that context. And so just to make
22:45
Speaker 1: those people have to pay a bond when it was
22:48
Speaker 1: clear they were already going to go home seems excessive
22:52
Speaker 1: and unnecessary. So that's what We're going to wait and
22:55
Speaker 1: see is what context, because it's still going to be
22:57
Speaker 1: optional for the individual consular officials to decide whether the
23:01
Speaker 1: bond would be zero, five, ten thousand, or up to
23:04
Speaker 1: fifteen thousand that's the highest they can charge, and who
23:08
Speaker 1: they will give the bonds too. So we'll have to
23:12
Speaker 1: wait and see. But I do think if there was
23:13
Speaker 1: a scenario where this could be applied to people who
23:17
Speaker 1: otherwise wouldn't have been permitted to travel, I'm not so
23:20
Speaker 1: against it, but I think we'll have to wait and see.
23:22
Speaker 2: There. Does it involve a lot of paperwork? Does this
23:26
Speaker 2: put additional burdens?
23:27
Speaker 1: Well, this is going to be a brand new thing
23:29
Speaker 1: for the state Department. Absolutely. They don't have the infrastructure
23:32
Speaker 1: in place to a collect the money, be hold the money,
23:35
Speaker 1: see pay back the money, the determine if you actually
23:41
Speaker 1: earned your bond, meaning you came back. And then the
23:44
Speaker 1: question also is what does this mean. So for instance,
23:47
Speaker 1: a visitor visa, sometimes it's a ten year visa and
23:50
Speaker 1: it allows you to go back and forth as many
23:52
Speaker 1: times as you want during those ten years. So the
23:55
Speaker 1: question is you have to keep putting up the fifteen
23:57
Speaker 1: thousand every single time you enter, you only have to
24:00
Speaker 1: do it the first time and show that you went
24:02
Speaker 1: back the first time. Because if you only have to
24:05
Speaker 1: do it the first time, then somebody can become very
24:07
Speaker 1: creative and say, let me just you know, come back
24:10
Speaker 1: the first time, but then the second time I enter
24:12
Speaker 1: is the time I can overstay. So I don't know
24:15
Speaker 1: what they're going to do about all of that. I
24:17
Speaker 1: don't think they quite know either, but they're going to
24:19
Speaker 1: have to work out all of those issues.
24:21
Speaker 2: The administration is also tightening visa requirements for certain people.
24:27
Speaker 2: We talked about them denying visa to the Venezuelan Little
24:32
Speaker 2: League team, so now they're going to deny female transgender
24:35
Speaker 2: athletes petitions for extraordinary ability visas. First of all, what
24:40
Speaker 2: is an extraordinary ability visa?
24:42
Speaker 1: I have a lot of these. So for instance, if
24:45
Speaker 1: you're going to watch now upcoming the US Open tennis
24:47
Speaker 1: tournament in New York, I know a lot of people
24:49
Speaker 1: love that. I have. Any tennis players that are my
24:51
Speaker 1: clients that come in on these extraordinary ability visas, and
24:55
Speaker 1: what happens is you basically show hey immigration service. These
25:00
Speaker 1: tennis players are at the top of their field. They're
25:03
Speaker 1: in the members of either of the ATP, which is
25:05
Speaker 1: the men's tournament or the WTA the women's tournament. And
25:10
Speaker 1: because they've reached the top let's say one hundred ranking,
25:13
Speaker 1: that means they're one of the top hundred tennis players
25:15
Speaker 1: in their field. So they have extraordinary ability. So you
25:19
Speaker 1: should give them a visa, and that visa lasts for
25:21
Speaker 1: three years, and so they can then come in the
25:24
Speaker 1: country and play in the tennis tournament for three years,
25:27
Speaker 1: or it could be the same thing for Formula one
25:29
Speaker 1: drivers or for golfers. You get the pictures the points
25:34
Speaker 1: of those visas. What they're trying to say is, suppose
25:37
Speaker 1: you end up being one of the best female tennis
25:41
Speaker 1: players in the world, but you are born a man.
25:44
Speaker 1: Could you get one of these visas? And what they're
25:47
Speaker 1: saying is, no, we won't give you one of those
25:49
Speaker 1: visas if we can determine that you're coming to America
25:53
Speaker 1: to play in the female part of the US Open,
25:55
Speaker 1: but you are born a man. Now, I don't know
25:58
Speaker 1: at the moment who that would apply to. I mean,
26:01
Speaker 1: I know theoretically, but what I'm saying is, at the moment,
26:04
Speaker 1: I don't know if there is a specific athlete who
26:08
Speaker 1: was born a man who's trying to come into the
26:11
Speaker 1: United States to compete in an event like this in
26:14
Speaker 1: the female category. But with the Olympics coming up, perhaps
26:18
Speaker 1: the concern is maybe this could happen, even though the
26:21
Speaker 1: Olympic Committee said they will not allow people who are
26:23
Speaker 1: born men to compete in the women's events. But nevertheless,
26:27
Speaker 1: this is now a clear line in the sand saying
26:30
Speaker 1: don't even try to get the visa because we won't
26:32
Speaker 1: allow it.
26:33
Speaker 2: At some point, when you know international organizations are thinking
26:38
Speaker 2: about where their next tournament or their next event should
26:43
Speaker 2: take place, are they going to start considering, well, if
26:46
Speaker 2: we go to the US, a certain number of people
26:49
Speaker 2: are not going to be let in for various reasons.
26:53
Speaker 2: I mean, they also blocked the Cuban volleyball team from
26:57
Speaker 2: playing in Puerto Rico.
26:59
Speaker 1: I think there's gonna have to be long term analyses
27:03
Speaker 1: here because obviously any new events that get scheduled in
27:06
Speaker 1: the US will be beyond twenty twenty eight. And so
27:08
Speaker 1: the question is do people want to assume that whatever
27:12
Speaker 1: the immigration policies that are in the existence now will
27:15
Speaker 1: be in existence past twenty twenty eight. Those are all
27:18
Speaker 1: the kinds of gambling and speculation that people put in place.
27:23
Speaker 1: I think if people thought that, then I do think
27:26
Speaker 1: there would be a likelihood you wouldn't see as many
27:28
Speaker 1: events scheduled in the United States in the future. But
27:31
Speaker 1: if people think that the immigration policy will revert back
27:34
Speaker 1: to some more moderate tones, then they might not care
27:40
Speaker 1: and they might schedule these events in the United States
27:42
Speaker 1: because obviously it's very lucrative to hold these events in
27:45
Speaker 1: the United States, and they have the infrastructure and the
27:47
Speaker 1: stadiums and everything else. But I think that those determinations
27:52
Speaker 1: we're gonna have to wait and see. But I mean,
27:54
Speaker 1: I think we're going to see pretty soon with the
27:56
Speaker 1: World Cup coming up next summer. Are those stadiums full
28:00
Speaker 1: or are they emptied? Did people travel, were they allowed
28:03
Speaker 1: to travel? Do we hear stories of people not getting in?
28:06
Speaker 1: And then obviously twenty twenty eight at the Olympics, we're
28:10
Speaker 1: athletes banned from competing. And if we really start to
28:13
Speaker 1: see that, or we're coaches or families or fans of
28:17
Speaker 1: the team banned from entering, the more we see that,
28:21
Speaker 1: then the more likely that even if there's a different president,
28:24
Speaker 1: people will just say, look for a little while, we
28:26
Speaker 1: need to calm ourselves from the US until we redetermine
28:30
Speaker 1: the landscape, and then we could decide to come back in.
28:33
Speaker 2: Our immigration policy certainly does change from administration to administration.
28:39
Speaker 2: Thanks so much, Leon. That's Leon Fresco of Holland and
28:43
Speaker 2: Knight coming up next. When religious accommodations in the workplace
28:48
Speaker 2: impose a higher burden on coworkers, you're listening to Bloomberg.
28:54
Speaker 2: There's been a line of lower court decisions following the
28:57
Speaker 2: Supreme Court's twenty twenty three rule that employers under Title
29:02
Speaker 2: seven of the Civil Rights Act need to be the
29:05
Speaker 2: higher bar to refuse a religious accommodation as an undue hardship.
29:10
Speaker 2: Could the Trump administrations loosening accommodation rules for religious employees
29:15
Speaker 2: place a higher burden on their coworkers. Joining me is
29:19
Speaker 2: Beru College professor Debbie Kamener, who's been studying this. Debbie,
29:23
Speaker 2: tell us about your paper.
29:25
Speaker 4: So what I'm actually trying to send this up right
29:27
Speaker 4: now is an article on Title seven, which requires religious
29:33
Speaker 4: accommodation in the workplace. And there was a case Grass
29:36
Speaker 4: versus the Joy It came down two years ago, and
29:40
Speaker 4: it was a sort of weird Supreme Court case because
29:43
Speaker 4: we have the Roberts Court, which is so pro religion
29:46
Speaker 4: and also FAU pro business. And when you think about
29:49
Speaker 4: religious accommodation in the workplace, in many ways, what it
29:53
Speaker 4: does is it pits religious rights against business rights because
29:58
Speaker 4: if you have more religious acommodation, you would need to
30:01
Speaker 4: give religious employee time off to celebrate their religious holiday.
30:05
Speaker 4: Then the employer has to bear the cost. What the
30:09
Speaker 4: court did in Graph is they did this very strange
30:12
Speaker 4: thing where they wrote the decision in a way where
30:14
Speaker 4: more accommodation is required. But it's possible for both lower
30:19
Speaker 4: courts and employers to now shift that increase the commodation
30:23
Speaker 4: costs to coworkers. So instead of the employer having to say,
30:28
Speaker 4: pay somebody over time to work the extra hours or
30:32
Speaker 4: suffer a loss and productivity in the workplace, what the
30:35
Speaker 4: employer does is they just stay to coworkers, sorry, you
30:38
Speaker 4: have to work the undesirable shifts of the religious employee.
30:43
Speaker 4: So what I've been looking at is what has been
30:46
Speaker 4: happening since Graph came down two years ago, and what
30:49
Speaker 4: are the lower courts and then the employers doing, and
30:53
Speaker 4: have they actually been shifting this increased the accommodation costs
30:57
Speaker 4: to co workers, and in many instances it seems like
31:01
Speaker 4: they are. So it seems like what's happening isn't these
31:04
Speaker 4: co workers who are bearing the cost of the accommodation
31:08
Speaker 4: and there's the party with the least power. So I
31:11
Speaker 4: have been finding that to be very, very problematic.
31:15
Speaker 2: How have the courts been handling these issues?
31:18
Speaker 4: So the courts what they used to say is they
31:21
Speaker 4: used to say that anything more than a deminimous or
31:25
Speaker 4: minimal cost was not required. So if for example, a
31:30
Speaker 4: religious employee regularly needed their status off, that in many
31:36
Speaker 4: instances would be more than a deminimous cost because it
31:39
Speaker 4: would mean that a religious employees co workers would have
31:42
Speaker 4: to work that undesirable weekend shift on a regular basis.
31:47
Speaker 4: The cases I do want to emphasize they're just starting
31:50
Speaker 4: to come down. But courts are now requiring the lower
31:54
Speaker 4: courts this higher level of accommodation, and they seem very
31:59
Speaker 4: unconcerned earned with an impact on coworkers. What they're saying
32:03
Speaker 4: is that unless the coworkers are impacted in a way
32:08
Speaker 4: that there's a direct financial cost to the business itself. So,
32:12
Speaker 4: like you know, the co workers are very annoyed that
32:15
Speaker 4: they have to work. The religious employees shifts, so you know,
32:19
Speaker 4: they're letting it be known, and they're morale issues and
32:22
Speaker 4: it's leading to efficiency issues and productivity issues. That could
32:26
Speaker 4: be an undue hardship. But if it's just an impact
32:29
Speaker 4: on coworkers alone and the co workers, particularly a very
32:32
Speaker 4: powerless coworker, you know, think about somebody maybe like stocking
32:37
Speaker 4: the shells and the target store. They may be very
32:41
Speaker 4: concerned about complaining, and if they are, the imposition on
32:46
Speaker 4: them would not be considered an undue hardship. So it's
32:50
Speaker 4: this very odd thing where the burden is now being
32:54
Speaker 4: shifted to the coworkers to bear this increased accommodation cost.
32:59
Speaker 2: And so is it the co workers who are complaining
33:01
Speaker 2: or filing complaints.
33:03
Speaker 4: Well, so what's happening, which is sort of interesting, is
33:06
Speaker 4: is the employers say we can't accommodate. And then if
33:10
Speaker 4: an employer says they can't accommodate, the religious employee will
33:15
Speaker 4: soothe saying the Title seven was violated, that they have
33:18
Speaker 4: a right to accommodation. And there are cases where actually
33:21
Speaker 4: the employers will say, well, we can't accommodate because it's
33:26
Speaker 4: an imposition on coworkers. So there are cases where the
33:29
Speaker 4: employers are concerned with the coworkers. They'll say, we can't accommodate.
33:33
Speaker 4: It's an imposition on coworkers. And the courts will then say,
33:36
Speaker 4: we are not particularly concerned with an imposition on the
33:40
Speaker 4: coworkers themselves. So once the courts start saying that, I
33:44
Speaker 4: think what's going to end up happening is employers will say, oh, okay,
33:48
Speaker 4: courts don't care about imposition on coworkers. We're just going
33:52
Speaker 4: to shift the cost to coworkers to avoid the litigation.
33:56
Speaker 4: And again, I do want to emphasize this is at
33:58
Speaker 4: the very very early stages, but this is sort of
34:03
Speaker 4: what has been going on.
34:05
Speaker 2: So this new memo from the Trump administration encouraging federal
34:10
Speaker 2: government employees to express their faith and proselytize coworkers, how
34:17
Speaker 2: would it affect that.
34:19
Speaker 4: I don't think it would have a huge effect on that,
34:22
Speaker 4: because what the memo is saying is the memo is
34:24
Speaker 4: clearly requiring this higher level of accommodation. One of the
34:29
Speaker 4: very odd things in the memo is they seem to
34:32
Speaker 4: be very unconcerned with whether or not the person engaging
34:37
Speaker 4: in cases of religious expression whether it's a supervisor or
34:41
Speaker 4: not a supervisor. And the reason that I found to
34:44
Speaker 4: be very odd is that the court traditionally are understandably
34:52
Speaker 4: very concerned when you're dealing with religious expression, you know,
34:55
Speaker 4: which are different than the time off cases, but they're
34:58
Speaker 4: very concerned with religious question of supervisors because the impact
35:03
Speaker 4: on employees is going to be very different. The memoir
35:07
Speaker 4: was very odd. They cited a case called Tamas versus Toulon,
35:13
Speaker 4: and in that case, essentially what the court had said
35:17
Speaker 4: is that accommodation of religious expression is not required, in
35:22
Speaker 4: part because you're dealing with a supervisor. But the memos
35:27
Speaker 4: seemed to be citing that almost for the position that
35:32
Speaker 4: you know, it doesn't matter if an employee is a
35:34
Speaker 4: supervisor or not in a supervisory role. So that was
35:38
Speaker 4: that was a very very odd thing.
35:40
Speaker 2: There's been a lot of Supreme Court cases where religious
35:44
Speaker 2: rights clash with LGBTQ rights. Tell us about the cases
35:49
Speaker 2: coming up where employees claim a religious right to intentionally
35:55
Speaker 2: misgender their co workers.
35:58
Speaker 4: Yeah, so you know they're but there's been like this
36:01
Speaker 4: ongoing thing where you have a conflict between religious rights
36:04
Speaker 4: and religious liberties and LGBTQ rights. And in the constitutional realm,
36:09
Speaker 4: you had what is a creative three of three, you
36:12
Speaker 4: had Masterpiece cake Shop, And now you're also having these
36:16
Speaker 4: cases starting to come down, while more of them are
36:20
Speaker 4: coming down under Title seven. And essentially, what these religious
36:24
Speaker 4: employees are saying is they are saying that we believe
36:30
Speaker 4: that gender is assigned to birth, and we have a
36:33
Speaker 4: religious belief. We must speak our truth. And if our
36:37
Speaker 4: truth is you are a biological male, then we refuse
36:42
Speaker 4: to call you she, and we need a religious accommodation
36:46
Speaker 4: to do that. And what's interesting, and I don't want
36:49
Speaker 4: to make too much of these decisions because they're just
36:52
Speaker 4: starting to come down, the court seems to be very
36:56
Speaker 4: very concerned with the dignitary rights of the transgender employees
37:03
Speaker 4: or the transgender one case that involves students who are
37:07
Speaker 4: being intentionally misgendered in these cases, so courts aren't basically
37:13
Speaker 4: saying you cannot accommodate somebody who has a need to
37:17
Speaker 4: intentionally misgender, you know, someone in the workplace, whether it's
37:21
Speaker 4: an employee or this was one big case that involves students.
37:26
Speaker 4: So that's like another way where these cases are starting
37:30
Speaker 4: to go.
37:30
Speaker 2: But the Trump administration's Religion Memo just applies to government employees.
37:37
Speaker 4: So the Religion Memo covers both religious employees rights under
37:42
Speaker 4: the Constitution, because religious employees have constitutional rights. But then
37:46
Speaker 4: it also covers religious employees rights under Title seven because
37:52
Speaker 4: if you're a government employee, you have both constitutional rights
37:56
Speaker 4: and statutory rights to religious expression in the workplace. So
38:00
Speaker 4: it's covering both of those, and it is essentially interpreting
38:05
Speaker 4: cases or in some cases misinterpreting cases, to provide an
38:11
Speaker 4: extremely high level of accommodation of religious expression in the workplace.
38:19
Speaker 2: Will these ideas or requirements migrate to the private sector.
38:25
Speaker 2: Will the EOC sort of up its game in that regard?
38:29
Speaker 4: That's a very good question. I don't know. What's interesting
38:33
Speaker 4: is that the EEOC guidance that has come down on
38:38
Speaker 4: religion in the workplace over the last few years. There
38:42
Speaker 4: are few parts, very small parts that have been rescinded,
38:46
Speaker 4: but when I last checked, like a week ago, most
38:49
Speaker 4: of it is still up. You know, courts now, and
38:53
Speaker 4: I don't have any kind of great expertise in administrative law,
38:57
Speaker 4: but courts are now focusing much less on what the
39:01
Speaker 4: EEOC has to say. Could it I guess, you know,
39:07
Speaker 4: It's like I think, with all of these things, if
39:09
Speaker 4: employers see this, and employers are reading about the fact
39:14
Speaker 4: that more religious accommodation is required, just in like a
39:18
Speaker 4: very non legalistic sense. You keep hearing about how the
39:23
Speaker 4: administration is requiring more religious expression in the workplace, more
39:26
Speaker 4: religious accommodation in the workplace, and you're an employer and
39:30
Speaker 4: you just want to make your widgets, and you don't
39:32
Speaker 4: want to have to deal with litigation, you may just
39:35
Speaker 4: over accommodate because it's the easiest thing to do. And
39:40
Speaker 4: I do think that this type of a memo is
39:42
Speaker 4: going to encourage that. I am most concerned about the
39:47
Speaker 4: types of employees who have to show up in the
39:50
Speaker 4: workplace every single day, who can't work remotely, and who
39:56
Speaker 4: now are going to be told that they have to
39:59
Speaker 4: work a religious employees less desirable shifts. But there's something
40:03
Speaker 4: about that which is a little unfair. And there's also
40:08
Speaker 4: something that is very strange, particularly with Title seven, that
40:14
Speaker 4: here you have the statute which was passed, the stop
40:19
Speaker 4: Discrimination in Employment, and under the statue, religious employees are
40:25
Speaker 4: saying we have a right to discriminate against LGBTQ employees.
40:31
Speaker 4: And that's what I'm watching and what I'm most interested in.
40:35
Speaker 2: Thanks for joining me, Debbie. That's Debbie Camoner, a professor
40:38
Speaker 2: of law at Beru College. In other legal news today,
40:43
Speaker 2: the House Oversight Committee has subpoenaed the Justice Department for
40:47
Speaker 2: files in the Jeffrey Epstein sex trafficking investigation. It's also
40:52
Speaker 2: seeking depositions with the Clintons and former law enforcement officials.
40:57
Speaker 2: The committee's actions show how even with awmakers away from
41:01
Speaker 2: Washington on a month long break, interest in the Epstein
41:05
Speaker 2: files is still running high. The committee has issued subpoenas
41:10
Speaker 2: for depositions with former President Bill Clinton, former Secretary of
41:14
Speaker 2: State Hillary Clinton, and former Attorneys General Merrick Garland, Bill Barr,
41:20
Speaker 2: Jeff Sessions, Loretta Lynch, Eric Holder, and Alberto Gonzalez. And
41:26
Speaker 2: that's it for this edition of The Bloomberg Law Show.
41:28
Speaker 2: Remember you can always get the latest legal news Honor
41:31
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41:35
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41:40
Speaker 2: And remember to tune into The Bloomberg Law Show every
41:43
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41:47
Speaker 2: and you're listening to Bloomberg,