Latest / Bloomberg Law / Acquittal in Subway Chokehold. Mangione Extradition & Sham Marriages

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Acquittal in Subway Chokehold. Mangione Extradition & Sham Marriages · Bloomberg Law

0:03
Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
0:10
Speaker 2: Both applause and anger erupted in a Manhattan courtroom this
0:14
Speaker 2: week when a jury announced its verdict of not guilty
0:17
Speaker 2: in the trial of Daniel Penny for the chocold death
0:20
Speaker 2: of Jordan Neely on a Manhattan subway in twenty twenty three.
0:24
Speaker 2: It was a reflection of how the case divided New
0:27
Speaker 2: Yorkers over issues of race, homelessness, and mental illness in
0:32
Speaker 2: a city where millions ride the subway every day. During
0:35
Speaker 2: the month long trial, prosecutors said the former marine went
0:39
Speaker 2: too far after Neelie had an outburst that frightened writers,
0:43
Speaker 2: but Penny's lawyers argued that he put his own safety
0:46
Speaker 2: on the line to protect other passengers from a threatening man.
0:51
Speaker 2: The trial may be over, but the legal ramifications are
0:54
Speaker 2: not joining me, is Dave Ahrenberg, Palm Beach County State
0:57
Speaker 2: Attorney Dave. Over the four days of deliberations, the jury
1:02
Speaker 2: asked to rewatch the bystander videos of Penny restraining Neely,
1:08
Speaker 2: the officer's bodycam videos, and video of Penny's interview with
1:13
Speaker 2: police detectives. They also wanted to rehear the medical examiner's
1:17
Speaker 2: testimony about issuing a death certificate before Neale's full toxicology
1:23
Speaker 2: reports came in, and they asked the judge to read
1:27
Speaker 2: back the definitions of criminal negligence and recklessness. Can you
1:32
Speaker 2: tell from those requests what they were likely hung up on.
1:37
Speaker 3: It's really the overall narrative, and it was never a
1:40
Speaker 3: question whether Penny sought out to kill the victim in
1:45
Speaker 3: this case, Jordan Neely. It was whether he acted recklessly,
1:49
Speaker 3: whether he went too far, And even with the lesser
1:52
Speaker 3: charge of negligent homicide, you only need to act carelessly.
1:56
Speaker 3: So they really wanted to know if this guy just
2:00
Speaker 3: went too far, and they wanted to hear from bystanders
2:05
Speaker 3: and want to see video. And by all appearances, it
2:09
Speaker 3: looked like Daniel Penny was a good samaritan, would step
2:12
Speaker 3: up to try to help people, and he was there
2:16
Speaker 3: to hold Jordan Neely down in that choke hold. It
2:20
Speaker 3: depends how you define it. Until the threat abated, and
2:25
Speaker 3: was it too long? That was the question for the jury,
2:28
Speaker 3: and the jury ultimately said, if it's too long or not,
2:31
Speaker 3: we can't make a clear delineation beyond a reasonable doubt,
2:36
Speaker 3: And so therefore not guilty.
2:38
Speaker 2: On Friday, the jury came back twice and told the
2:41
Speaker 2: judge they were deadlocked on the manslaughter charge, which is
2:45
Speaker 2: the top charge, and then the prosecutors made a motion
2:48
Speaker 2: to drop the manslaughter charge, and the judge allowed that
2:52
Speaker 2: and told the jurors that they were going to go
2:54
Speaker 2: back and deliberate the lesser charge of criminally negligent homicide.
3:00
Speaker 2: Vents had asked for a mistrial. The defense attorney said
3:03
Speaker 2: doing this could unfairly sway the jury and potentially encourage
3:07
Speaker 2: a compromise verdict. Shouldn't the judge have declared a mistrial
3:11
Speaker 2: after the jury said they were deadlocked.
3:14
Speaker 3: No, because it is the prerogative of prosecutors to seek
3:18
Speaker 3: a verdict on the lesser counts, And just because you
3:22
Speaker 3: can't come up with a verdict on the biggest count
3:25
Speaker 3: manslaughter in this case, doesn't mean that you can't look
3:28
Speaker 3: to door B. Because prosecutors wanted any type of conviction
3:33
Speaker 3: in this case, and quite frankly, I think this case
3:36
Speaker 3: probably should not have been brought because I think going
3:39
Speaker 3: into it, prosecutors had to know it was very unlikely
3:42
Speaker 3: that they would get a conviction beyond a reasonable doubt.
3:45
Speaker 3: After all, jurors take the subway too, and all of
3:48
Speaker 3: us have had experiences with someone with untreated mental illness
3:52
Speaker 3: scaring people on the subway. So I thought this was
3:55
Speaker 3: an uphill battle. But I do say that the prosecutors
3:58
Speaker 3: should have been able to seek a verdict on the
4:01
Speaker 3: lesser charge, and they were.
4:03
Speaker 2: So the prosecution makes a strategic decision about what charges
4:08
Speaker 2: to bring, so here they also brought the lesser included charge.
4:12
Speaker 2: So when their strategy backfires and the jury can't come
4:15
Speaker 2: to a decision on the top charge, why should the
4:18
Speaker 2: prosecution be allowed to say, Okay, forget the top charge,
4:21
Speaker 2: we're just going to go with the lower charge.
4:22
Speaker 3: Now, Well, the defense has all the advantages. For example,
4:26
Speaker 3: if they wanted to take an appeal, they can after
4:29
Speaker 3: the verdict is done. The prosecutors cannot appeal. Now, once
4:32
Speaker 3: the person's acquitted, that's it for the prosecutors. So the
4:36
Speaker 3: prosecutors have the entire burden of proof. They've got to
4:38
Speaker 3: prove everything beyond a reasonable doubt. The defense doesn't have
4:40
Speaker 3: to prove anything, and if it goes the wrong way
4:43
Speaker 3: for prosecutors, they're out of luck. Whereas the defense can
4:46
Speaker 3: appeal and appeal and appeal, so the system actually favors defendants.
4:50
Speaker 3: One of the few advantages that a prosecutor has is
4:54
Speaker 3: that they decide on the charges and they can decide
4:57
Speaker 3: whether to ask for a lesser and clue charges. And
5:00
Speaker 3: that's what they did here.
5:02
Speaker 2: So here's one of the many things that surprised me.
5:05
Speaker 2: The jury deliberates for four days on the manslaughter charge,
5:09
Speaker 2: the top charge, and there's one or more holdouts, they
5:12
Speaker 2: can't reach a decision. They go back to deliberate on
5:15
Speaker 2: the lesser charge of criminally negligent homicide, and in an
5:18
Speaker 2: hour they come back with a verdict of not guilty.
5:22
Speaker 2: So they were stuck on the top charge, but they're
5:24
Speaker 2: not stuck on the lower charge. It sort of doesn't
5:28
Speaker 2: compute to.
5:29
Speaker 3: Me, June, you hit the nail on the head. This
5:32
Speaker 3: was the biggest head scratcher because they took a while
5:36
Speaker 3: hand ringing over the largest charge, the most difficult charge,
5:39
Speaker 3: the manslaughter charge, and after there were holdouts and they
5:43
Speaker 3: couldn't come to a verdict, you would think that they
5:46
Speaker 3: would then deliberate justice extensively with just as many holdouts
5:51
Speaker 3: on the lesser charge. I mean, lesser charge is much
5:53
Speaker 3: easier to convict Penny on. But yet they quitted him
5:57
Speaker 3: on that one very quickly, And I think the reason
5:59
Speaker 3: is durre fatigue during fatigue is a real thing. They
6:04
Speaker 3: have the weekend to think about it. They came back
6:06
Speaker 3: and they hold out the ones who could not equit.
6:11
Speaker 3: Daniel Penny on the biggest charge, manslaughter, decided it wasn't
6:14
Speaker 3: worth a fight anymore and let's just let him go.
6:18
Speaker 2: I understand that one of the jurors, when the judge
6:20
Speaker 2: said you're going to go home for the weekend and
6:22
Speaker 2: come back on Monday and consider the lesser charge, was
6:26
Speaker 2: shaking his head back and forth. I mean, what chery
6:29
Speaker 2: wants to come back after a weekend. That's why you
6:31
Speaker 2: have so many Friday verdicts. What do you think was
6:34
Speaker 2: the strongest part of the defense. They argued that the
6:37
Speaker 2: medical examiner's report was wrong, that the choke hold didn't
6:42
Speaker 2: cause Neely's death. Do you think it was those arguments
6:46
Speaker 2: or was it the fact that you have this guy
6:50
Speaker 2: who started out with good intentions. Even the prosecutor admitted that,
6:54
Speaker 2: and right things got away from him.
6:57
Speaker 3: Even the prosecution said that Daniel Penny acted with the
7:01
Speaker 3: right mindset. He was acting in self defense. This was
7:04
Speaker 3: not a murder case. This is a case at some
7:06
Speaker 3: point when perhaps Jordan Neely stopped breathing, although that was
7:10
Speaker 3: a big bone of contention when that happened, or perhaps
7:13
Speaker 3: when the subway cars opened at the station, that Daniel
7:17
Speaker 3: Penny had an obligation to release the choke hold and
7:21
Speaker 3: that's where he crossed the line. But see, that's like
7:24
Speaker 3: a very difficult question for jurors, is to make that
7:28
Speaker 3: distinction between heroism and being a killer. And so it's
7:34
Speaker 3: tough for jurors beyond a reasonable doubt to find that delineation.
7:39
Speaker 3: And I think that's why this case was always going
7:41
Speaker 3: to be an uphill battle for prosecutors, because no one
7:44
Speaker 3: doubt that Journey was threatening people on the train, scared people,
7:48
Speaker 3: even the witnesses for the prosecution that, yeah, we were
7:51
Speaker 3: scared by him. The question is at what point do
7:54
Speaker 3: you cross the line and go too far? And to
7:57
Speaker 3: ask a jury to find beyond a easonable doubt that
8:01
Speaker 3: someone went too far, it's so hard when they probably
8:05
Speaker 3: have taken the subways, when they have been scared themselves,
8:08
Speaker 3: and when they probably wish at some point in their
8:10
Speaker 3: life that a Daniel Penny had stood up to protect them.
8:14
Speaker 2: The police interviewed Penny and let him go, and there
8:18
Speaker 2: was a lot of pressure on the DA from community
8:21
Speaker 2: members and from even some lawmakers to charge him. You
8:26
Speaker 2: think this is a case that shouldn't have been brought.
8:29
Speaker 2: So do you think the DA just gave in to
8:31
Speaker 2: the pressure.
8:32
Speaker 3: Well, he still had to take it to the grand jury.
8:34
Speaker 3: So although it is the DA's decision to pursue it,
8:37
Speaker 3: you still could go through a grand jury. And yes
8:40
Speaker 3: there was community pressure, But I do think that the
8:43
Speaker 3: DA did have a legitimate case. I mean, the subway
8:47
Speaker 3: doors opened, Jordan Neely didn't appear to be breathing, the
8:51
Speaker 3: threat had subsided. With that said, as a prosecutor, I'm
8:56
Speaker 3: not sure I would have brought this case because you
8:58
Speaker 3: have to have a good faith believe that you can
9:00
Speaker 3: get a conviction beyond a reasonable doubt. And as I said,
9:04
Speaker 3: if those jurors had taken the subway like all or
9:07
Speaker 3: most of them probably have, there's no way you were
9:09
Speaker 3: going to get a conviction beyond a reasonable doubt for manslaughter.
9:12
Speaker 3: Maybe for the lesser crime, but then is it worth
9:14
Speaker 3: crosskinging the case for criminally negligent homicide, even that would
9:17
Speaker 3: be an uphill climb. So these are the calculations the
9:19
Speaker 3: prosecutor has to make. So was there enough evidence to
9:22
Speaker 3: convict Daniel Penny? Sure, but it was never going to
9:25
Speaker 3: happen on manslaughter and unlikely on the lesser charge. So
9:29
Speaker 3: because of that, as a prosecutor, you probably shouldn't bring
9:32
Speaker 3: the case.
9:33
Speaker 2: There have been demonstrations throughout the trial on both sides.
9:37
Speaker 2: Some people are looking at this and saying race was
9:39
Speaker 2: a factor. Others are saying frustration with the failure to
9:44
Speaker 2: address homelessness and mental illness. Do you think any of
9:48
Speaker 2: that played in or was the jury just looking at
9:51
Speaker 2: what happened?
9:52
Speaker 1: Oh?
9:52
Speaker 3: No, the jury is just looking at the evidence in
9:54
Speaker 3: front of them, and the larger issues are not supposed
9:57
Speaker 3: to come into play. But you know, you can't take
9:58
Speaker 3: away from each jurors own lived experience. And this whole
10:01
Speaker 3: thing was a tragedy all around the fact that Jordan
10:04
Speaker 3: Neely had a lifetime of mental illness and it was
10:08
Speaker 3: largely untreated, even though there were opportunities for him to
10:11
Speaker 3: get treatment, and sometimes he did, and you know, his
10:15
Speaker 3: family expressed frustration, but his father apparently was not in
10:19
Speaker 3: his life, and it just is a tragedy all around.
10:21
Speaker 3: No one wants to someone's end this way. At the
10:24
Speaker 3: same time, you know, when you take the subway, there's
10:27
Speaker 3: just not enough law enforcement on the cars, and so
10:30
Speaker 3: you have people with untreated mental illness causing a stir
10:33
Speaker 3: and threatening people and making people scared. And then what happens, Well,
10:37
Speaker 3: if you have a good samaritan who steps up and
10:40
Speaker 3: does something about it, that person should normally be heralded
10:44
Speaker 3: as a hero. But in this case, it looks like
10:46
Speaker 3: he did go too far. He kept that hole too far.
10:49
Speaker 3: But could a jury make that delineation? At what point
10:53
Speaker 3: did he go too far? Can you prove beyond a
10:55
Speaker 3: reasonable doubt? Then instead of being a hero, he turned
10:58
Speaker 3: into a criminal. That's why this case was always an
11:01
Speaker 3: uphill battle for prosecutors. That's why I think it probably
11:04
Speaker 3: should not have been brought.
11:05
Speaker 2: Neelie's father filed a civil lawsuit against Penny, alledging that
11:10
Speaker 2: Penny committed assault and battery against Neelie and accusing him
11:15
Speaker 2: of causing his son's death through negligence, carelessness, and recklessness.
11:20
Speaker 2: I mean, the standard in a civil trial is much lower.
11:23
Speaker 3: Well, it's a much easier case than civil court because
11:26
Speaker 3: the civil standard is not beyond a reasonable doubt, it's
11:28
Speaker 3: by a preponderance of the evidence. Is it more likely
11:31
Speaker 3: than not that this occurred? And so yes, it is
11:34
Speaker 3: a much better case against Daniel Penny civilly than criminally.
11:39
Speaker 3: I'm not surprised that it has brought. It is one
11:40
Speaker 3: way for the family of Jordan Neely to obtain a
11:44
Speaker 3: measure of justice in their eyes. I don't know which
11:47
Speaker 3: way it will go, but definitely is a better chance. Now,
11:49
Speaker 3: if Daniel Penny had been convicted, then that lawsuit would
11:52
Speaker 3: have been much much easier, because once you've been proven
11:56
Speaker 3: beyond a reasonable doubt of acting carelessly or rec lessly,
12:00
Speaker 3: then that comes into play in the civil court and
12:03
Speaker 3: you're almost certain of winning a civil judgment.
12:06
Speaker 2: I don't want to seem insensitive, but there's always the
12:09
Speaker 2: question of damages in a civil trial because Neely was homeless,
12:14
Speaker 2: so it doesn't seem like there are any economic damages.
12:18
Speaker 2: And if his father wasn't in his life, will it
12:20
Speaker 2: be difficult to prove non economic damages.
12:24
Speaker 3: It is not being callous, You're being realistic because you
12:27
Speaker 3: have to prove damages and if you're not in someone's life,
12:32
Speaker 3: and if someone was homeless, that is going to be
12:35
Speaker 3: a consideration if you do win the civil case. So
12:38
Speaker 3: the question of damages would come after the question of
12:41
Speaker 3: whether Daniel Penny acted negligently, whether he violated civil rules
12:46
Speaker 3: of court rules, But then you'd go to the question
12:49
Speaker 3: of what are the damages, And that's why I think
12:51
Speaker 3: that they may not be able to recover much, if
12:54
Speaker 3: anything at all.
12:55
Speaker 2: The defense says that they're considering a malicious prosecution lawsuit
13:00
Speaker 2: against the DA and others behind the charges, saying the
13:04
Speaker 2: medical examiner colluded with the DA's office. They said the
13:08
Speaker 2: district attorney needed the medical examiner to act quickly, and
13:12
Speaker 2: he did just that. It was like they wanted to
13:14
Speaker 2: try and get him on something. How difficult are malicious
13:18
Speaker 2: prosecution cases?
13:19
Speaker 1: Oh? Those are very hard.
13:21
Speaker 3: I mean you really have to prove some bad faith
13:23
Speaker 3: and that hardly ever works in this case. If the
13:27
Speaker 3: DA was motivated by political pressure, that's still not malicious prosecution.
13:30
Speaker 3: As long as you have the evidence. And as I said,
13:33
Speaker 3: there was enough evidence here at least to file the charge,
13:35
Speaker 3: at least to seek an indictment. And yes, you could
13:38
Speaker 3: have been convicted of one of these charges, maybe just
13:40
Speaker 3: a lesser charge based on the evidence, But because of
13:42
Speaker 3: the lived experiences of the jurors, I thought that that
13:45
Speaker 3: would never happen. And so, you know, both sides can
13:48
Speaker 3: be right about this. The defense can be right that
13:50
Speaker 3: this case should never have been brought. At the same time,
13:52
Speaker 3: the prosecution can be right that there was enough evidence
13:55
Speaker 3: to bring the case. Both sides can be true on
13:57
Speaker 3: this one. Now, this was a sign of the time.
14:00
Speaker 3: This case reflected a larger split amongst the public about
14:04
Speaker 3: issues of crime and race, and homelessness and mental illness.
14:08
Speaker 3: And in the end, because there was such a split,
14:10
Speaker 3: because there was such a controversy, you were never going
14:12
Speaker 3: to get a unanimous jury, a twelve percent jury to
14:15
Speaker 3: decide beyond a reasonable doubt that Daniel Penny committed manslaughter.
14:21
Speaker 3: Maybe a lesser crime, possibly, but even that was too
14:24
Speaker 3: high of a burden for this jury.
14:26
Speaker 2: Dave, I want to ask you a few questions about
14:28
Speaker 2: this case that has been in the headlines. Luiji Mangioni
14:33
Speaker 2: has been arrested for the fatal shooting of a healthcare
14:37
Speaker 2: executive in New York City. He was arrested in Pennsylvania
14:41
Speaker 2: and he's fighting extradition. Why is he fighting extradition to
14:45
Speaker 2: New York. It's going to happen, isn't it.
14:48
Speaker 3: It's inevitable. They're just forestalling the obvious. And there have
14:51
Speaker 3: been a lot of theories out there. Maybe one reason
14:54
Speaker 3: is he wants to avoid Riker's prison as long as possible,
14:57
Speaker 3: but he's going to get there. Or perhaps they want
14:59
Speaker 3: to worse prosecutors to give up extra evidence that they
15:02
Speaker 3: wouldn't be entitled to otherwise at a hearing in Pennsylvania.
15:05
Speaker 3: But really, extradition hearings are so easy. The only main
15:08
Speaker 3: argument is is this the guy who is described? And
15:12
Speaker 3: the problem cause after David, do you have the right
15:13
Speaker 3: person is? Or is it mistaken identity? Well it's clearly
15:16
Speaker 3: not mistaken identity. So this is going to happen. He's
15:18
Speaker 3: going to be extradited. They're just delaying the inevitable.
15:21
Speaker 2: There seems to be a lot of evidence against him already.
15:25
Speaker 2: They reportedly have ballistics from the gun he was carrying,
15:29
Speaker 2: that Matt shellcasing's found at the scene. They have his manifesto,
15:34
Speaker 2: which speaks to his motive. It's early, but do you
15:38
Speaker 2: see any defenses here?
15:40
Speaker 3: I think the only real defense would be that Mangioni
15:43
Speaker 3: acted with such in a severe emotional disturbance that he
15:48
Speaker 3: was so upset about the way the insurance companies treated
15:51
Speaker 3: him and his family that this could be a manslaughter
15:54
Speaker 3: case and not a murder case. Now I would disagree
15:56
Speaker 3: with that. I think this is clear murder. I think
15:58
Speaker 3: it should be premeditated. But that, to me, will be
16:01
Speaker 3: the best offense to try to get a conviction on
16:05
Speaker 3: a lesser count that will allow them to get out
16:07
Speaker 3: of prison one day. Now, as far as another potential defense,
16:10
Speaker 3: there's what you call jury nullification. Jury nullification is when
16:14
Speaker 3: the jurors drew the evidence and see the law and
16:17
Speaker 3: disregard it. Instead of doing what they're told by the
16:20
Speaker 3: prosecution and the judge, they go their own way because
16:23
Speaker 3: they have sympathy for the defendant. They're not supposed to
16:25
Speaker 3: do it, but it happens. It's a prosecutor's worst nightmare.
16:29
Speaker 3: That is a possibility in a case like this, where
16:32
Speaker 3: there's so many emotions about it and so many hard
16:35
Speaker 3: feelings and frustrations towards the insurance industry.
16:38
Speaker 2: If the jury is anything like the Internet, it seems
16:41
Speaker 2: like jury nullification is a possibility. Because there has been
16:45
Speaker 2: support from Angioni on social media.
16:48
Speaker 3: And as a prosecutor, it's disappointing, and it shows you
16:50
Speaker 3: this is an age we're living it in the age
16:52
Speaker 3: of impunity, where you can say what you want, you
16:55
Speaker 3: can do what you want, and nothing sticks to you.
16:57
Speaker 3: You can get elected to what you want no matter
16:59
Speaker 3: what path. You can be appointed to what you want,
17:02
Speaker 3: no matter what you've done. And you know, it's a
17:06
Speaker 3: reflection or where we are, where people are treating this
17:09
Speaker 3: guy as a hero when it's not a very courageous
17:14
Speaker 3: thing to put on a mask, lie in wait for
17:17
Speaker 3: an unarmed man and then shoot him in the back
17:21
Speaker 3: and then run away. And then when he's caught, he
17:24
Speaker 3: is quiet and then starts shaking. Not exactly captain courage.
17:28
Speaker 3: So he's not someone who should be raised up and lionized.
17:31
Speaker 3: He's someone who is a murderer and should spend the
17:34
Speaker 3: rest of his life in prison.
17:35
Speaker 2: So he's great to get the prosecutor's perspective, Dave, thanks
17:38
Speaker 2: so much. That's pom Beach County State Attorney Dave Arenberg.
17:43
Speaker 4: I'll put you each in a room and I'll ask
17:45
Speaker 4: you every little question. They're a real couple would know
17:47
Speaker 4: about each other. Step two. I dig deeper. I look
17:51
Speaker 4: at your phone records. I talk to your neighbors, I
17:54
Speaker 4: interview your coworkers. If your answers don't match up at
17:57
Speaker 4: every point, you will be deported indefinitely, and you, young man,
18:01
Speaker 4: will have committed a felony punishable by a fine of
18:04
Speaker 4: two hundred and fifty thousand dollars in a stay of
18:07
Speaker 4: five years in federal president.
18:11
Speaker 2: The Proposal is just one of many rom coms where
18:15
Speaker 2: someone threatened with deportation enters into a sham marriage for
18:19
Speaker 2: the US citizen. The movies usually have happy endings, but
18:23
Speaker 2: a real life case before the Supreme Court doesn't seem
18:26
Speaker 2: to be headed in that direction. The Justice is ruled
18:29
Speaker 2: unanimously that federal courts can't second guess the government revoking
18:34
Speaker 2: a visa due to a sham marriage. That's left to
18:37
Speaker 2: the discretion of the Department of Homeland Security. Joining me
18:41
Speaker 2: is an expert in immigration law, and in this movie
18:43
Speaker 2: The Proposal, Leon Fresco a partner at Holland and Knight.
18:47
Speaker 2: So Leon tell us about the couple in this.
18:49
Speaker 1: Case, so the situation is actually pretty straightforward. There was
18:53
Speaker 1: a US citizen the US citizen applied for a visa
18:57
Speaker 1: for the spouse to be able to get law permanent
19:00
Speaker 1: residents in the United States. The first part of the process,
19:04
Speaker 1: because there's two parts, one is is the marriage valid?
19:07
Speaker 1: And then the second is is everything fine in the
19:10
Speaker 1: background check? The first part is the marriage valid, that's
19:13
Speaker 1: what's called the visa petition that was approved. And so
19:17
Speaker 1: they thought, okay, we're all said, now we're on to
19:19
Speaker 1: the second part, the background check. Everything's going to be good.
19:23
Speaker 1: And then during the background check process, they said, you
19:25
Speaker 1: know what, We're going to revoke the initial approval because
19:29
Speaker 1: we didn't realize at the time that the foreign husband
19:33
Speaker 1: who they were trying to get the green card for
19:35
Speaker 1: had actually been involved in a sham marriage where supposedly
19:39
Speaker 1: the person in that marriage said that this guy had
19:42
Speaker 1: paid five thousand dollars to try to get a green card.
19:46
Speaker 1: And I don't know why USCIS didn't know it initially,
19:49
Speaker 1: but they figured it out the second time around, and
19:51
Speaker 1: so they revoked the petition. They then took an administrative appeal.
19:57
Speaker 1: They lost in the administrative appeal, so they tried to
20:00
Speaker 1: file a federal court case, and the issue in the
20:03
Speaker 1: federal court case was, is this decision to revoke the
20:08
Speaker 1: initial approval something that you can actually review in the
20:11
Speaker 1: federal court.
20:13
Speaker 2: So there are mandatory and discretionary decisions, and discretionary decisions
20:19
Speaker 2: can't be reviewed by a court.
20:22
Speaker 1: Right, So the way the Immigration Code works, there's a
20:25
Speaker 1: lot of things that the government is very concerned that
20:29
Speaker 1: if you start giving judicial review for there will be thousands,
20:33
Speaker 1: if not hundreds of thousands of federal court cases. So
20:37
Speaker 1: what they do is the Congress writes laws that say,
20:40
Speaker 1: here's what we're going to do. We are gonna say
20:43
Speaker 1: that in certain situations, the agencies that deal with immigrants
20:48
Speaker 1: will get the final word, meaning sometimes they can be nice,
20:53
Speaker 1: sometimes they can be mean, but whatever they decide, they
20:55
Speaker 1: will get the final word because there's no way we
20:58
Speaker 1: can possibly allow thousands of not hundreds of thousands of
21:02
Speaker 1: cases to challenge these agencies and what they're saying. There's
21:06
Speaker 1: other times that the statute say, if you make a decision,
21:11
Speaker 1: you can get review. And so the question is does
21:14
Speaker 1: a particular statute in any given instance give the final
21:18
Speaker 1: discretionary word to the agency so that you can't review it,
21:22
Speaker 1: or if the decision is one that has to be
21:25
Speaker 1: made yes or no, and there's no discretion. You can't.
21:28
Speaker 1: You either have to decide, for instance, is the person
21:32
Speaker 1: qualified under the visa to do the it work, And
21:36
Speaker 1: so that's either a yes or no. And if you
21:38
Speaker 1: say yes, that's fineman. You say no, you can get
21:41
Speaker 1: review of that. I am qualified. I know they said
21:43
Speaker 1: that I'm not, but I am. That's the kind of
21:46
Speaker 1: thing where review is available. But if the Congress says no,
21:51
Speaker 1: this is a discretionary decision, we want it to be
21:54
Speaker 1: decided by the agency, and they can either be nice
21:57
Speaker 1: or mean, but it's up to them. Then they're the
21:59
Speaker 1: last You cannot go to federal court. So the question
22:02
Speaker 1: is what is this statute Where the statute says that
22:08
Speaker 1: if you have a reason by sham marriage, that they
22:14
Speaker 1: can revoke the approval for good and sufficient cause, so
22:18
Speaker 1: it doesn't say that they have to. Then that's the key.
22:21
Speaker 1: The statue says, if you come across a sham marriage
22:24
Speaker 1: in any part of this process, you can revoke it
22:27
Speaker 1: for good and sufficient cause. But because it says you
22:30
Speaker 1: can revoke and it doesn't say you have to revoke,
22:34
Speaker 1: then the Supreme Court said, hey, that's again a discretionary
22:39
Speaker 1: decision that either the agency can decide to let it
22:43
Speaker 1: slide even if there was a sham marriage, or they
22:46
Speaker 1: can decide to revoke the petition. But in either case
22:50
Speaker 1: that's a discretionary decision because it doesn't say you shall revoke.
22:56
Speaker 1: It says you can revoke if you see that there
23:00
Speaker 1: was a sham marriage involved. And so because of that,
23:04
Speaker 1: they say that that's then not a decision that the
23:07
Speaker 1: federal courts can review. And that was a nothing, rare,
23:11
Speaker 1: nine nothing Supreme Court decision that was actually written by
23:14
Speaker 1: Justice Jackson, who's considered probably to be the most of
23:18
Speaker 1: the compassionate judges toward immigrants on the court. Even she
23:22
Speaker 1: said that this is the kind of discretionary decision that
23:25
Speaker 1: is not reviewable in this situation.
23:29
Speaker 2: I thought that sham marriages barred people from remaining in
23:34
Speaker 2: the country legally, that if they found a sham marriage,
23:37
Speaker 2: you were out.
23:37
Speaker 1: So interestingly, here's how that worked. If you apply on
23:42
Speaker 1: step one, so you say I'm a US citizen, I
23:44
Speaker 1: want to marry a foreign nationalist, you're in step one
23:47
Speaker 1: of the process. If USCIS encounters there that there was
23:53
Speaker 1: a sham marriage in any part of this process, either
23:57
Speaker 1: the US citizen had been in a sham marriage in
23:59
Speaker 1: the past, or the foreign national had been in a
24:01
Speaker 1: shen marriage in the past, they must deny that petition,
24:06
Speaker 1: and that petition therefore can be reviewed in federal courts.
24:11
Speaker 1: But this is not how that happened. This was after
24:14
Speaker 1: the fact USCIS find out that there was an error,
24:18
Speaker 1: do you have to revoke it? And what they said
24:22
Speaker 1: was nobody says in this statute that you have to
24:26
Speaker 1: revoke it. You could just let it slide. Now there's
24:29
Speaker 1: evidence in this case, and Justice Jackson cites to it
24:33
Speaker 1: that says, well, USCIS never lets it slide. They never
24:37
Speaker 1: are nice to people in this situation. They always revoke
24:40
Speaker 1: every single case where they see that there was a
24:43
Speaker 1: sham marriage involved. But what Justice Jackson says is who cares.
24:48
Speaker 1: That doesn't matter what they actually do. What matters is
24:51
Speaker 1: whether the legislature gives them the discretion to overlook it
24:55
Speaker 1: or not. And because it does, the language of the
24:59
Speaker 1: statutes give the discretion to the immigration agency to overlook
25:03
Speaker 1: a sham marriage if it is found after the fact
25:06
Speaker 1: after an approval, not beforehand. But if it is found
25:09
Speaker 1: after the fact, then that's considered a discretionary decision, and
25:14
Speaker 1: so the decision to revoke, which is discretionary, then cannot
25:18
Speaker 1: be reviewed. But this does lead to sort of perverse situations.
25:23
Speaker 1: One would be what if the government was not comfortable
25:28
Speaker 1: with the decision to deny upfront, because maybe the marriage
25:33
Speaker 1: was a little bit shammy but not super shammy, So
25:37
Speaker 1: they would be worried that if they denied it upfront
25:39
Speaker 1: there would be federal court reviews. They could just revoke
25:44
Speaker 1: it after approval and then it wouldn't be reviewable and
25:48
Speaker 1: that would be the end of it. The reason they
25:51
Speaker 1: don't end up caring in this context. Now, there will
25:54
Speaker 1: be other contexts where this ends up mattering, but the
25:58
Speaker 1: court basically said, well, be a of those on another case.
26:01
Speaker 1: In this marriage context, this doesn't bother us because you
26:06
Speaker 1: can always just apply again, and if they deny you,
26:09
Speaker 1: now that they know about this Shen marriage, you can
26:12
Speaker 1: get the federal court review you were worried about. And
26:15
Speaker 1: in fact, the plaintiff in this case is literally in
26:17
Speaker 1: the middle of this, So it just seemed like a
26:20
Speaker 1: why are you complaining case at the end of the day,
26:24
Speaker 1: since you actually can get the federal court review that
26:27
Speaker 1: you want by simply putting in a brand new application,
26:31
Speaker 1: and there's no bar in this instance to putting in
26:33
Speaker 1: a brand new application. So that's why I think you
26:36
Speaker 1: end up getting the nine zero decision is because in
26:40
Speaker 1: the end, yes, this will close out a way that
26:44
Speaker 1: theoretically could have been available for a revocation of a
26:47
Speaker 1: marriage case. But in the end, what it makes clear
26:51
Speaker 1: is that if you are in this exact situation where
26:54
Speaker 1: your marriage was approved for immigration green card purposes, but
26:58
Speaker 1: now it's been revoked on step two when you're going
27:02
Speaker 1: through the background check process, that all you have to
27:05
Speaker 1: do is file step one again and they'll have to
27:08
Speaker 1: deny it because now they know about the sham marriage,
27:12
Speaker 1: and since they have to deny it, that's what you'll
27:14
Speaker 1: be able to get the review of that denial.
27:17
Speaker 2: Practically, it seems ridiculous just adding steps to the process.
27:23
Speaker 2: So if you step back and look at what's going
27:26
Speaker 2: to happen, did the couple actually win the case? Because
27:30
Speaker 2: now the woman can start the application over, it will
27:34
Speaker 2: be denied because it's a sham marriage, but then she'll
27:38
Speaker 2: be able to appeal to a federal court to review
27:42
Speaker 2: that denial.
27:43
Speaker 1: So at least the court did make clear that she
27:45
Speaker 1: can do all of that, but she didn't win the
27:48
Speaker 1: case from the standpoint of the relief she actually wanted,
27:51
Speaker 1: which was to immediately be able to get a decision
27:55
Speaker 1: right now as to whether that was really a sham marriage.
27:59
Speaker 1: So she can't get and she has to restart the process,
28:02
Speaker 1: like you've said, and so it's a non ultimate loss,
28:08
Speaker 1: but it's a loss in this forum, in these proceedings.
28:11
Speaker 1: For what she wanted.
28:12
Speaker 2: Is that what Justice Jackson meant when she said Congress
28:16
Speaker 2: created room for mercy in the process.
28:20
Speaker 1: Well, she met mercy in two ways here. The mercy
28:24
Speaker 1: that she really meant was that the agency, if they
28:28
Speaker 1: wanted to overlook the sham marriage, they theoretically could have
28:31
Speaker 1: overlooked the sham marriage. So that's the real mercy that
28:35
Speaker 1: she meant, and that's why she said it was discretionary
28:38
Speaker 1: and why it wasn't in the end a reviewable decision,
28:42
Speaker 1: because in the end, the agency has the discretion to
28:45
Speaker 1: grant mercy. But she also meant that there is this
28:49
Speaker 1: second out year in this particular fact pattern, which is
28:53
Speaker 1: why the case is limited to this particular fact pattern
28:56
Speaker 1: for now, which is the marriage issue. Where in marriage
29:00
Speaker 1: issue you can go in and you can actually restart
29:04
Speaker 1: and do a new application and then get the federal
29:06
Speaker 1: court review that you want.
29:08
Speaker 2: Leon. I mean, when the federal court reviews it, they're
29:11
Speaker 2: going to see there was a sham marriage, correct, So
29:13
Speaker 2: the judge will rule against the couple. So what's the
29:16
Speaker 2: point here? Is it just to delay the inevitable?
29:19
Speaker 1: So sometimes the hope is this that occasionally what will
29:23
Speaker 1: happen is so you'll have the uscis the Immigration Service,
29:28
Speaker 1: We'll say that there was a sham marriage, and then
29:30
Speaker 1: you'll have an administrative appeal, but it goes to people
29:34
Speaker 1: who are generally inclined to be deferential to the agency,
29:40
Speaker 1: and so they'll say it was a sham marriage. But
29:42
Speaker 1: you hope you can get a federal court judge who
29:46
Speaker 1: maybe looks a little bit more askance at the government
29:49
Speaker 1: that says, you know, what, why are you viewing things
29:52
Speaker 1: in such a skeptical, cynical light. You know, I know
29:55
Speaker 1: there was five thousand dollars exchange, but that was for
29:58
Speaker 1: love or something, you know, who knows. And so you
30:02
Speaker 1: get one of these judges who baby doesn't really trust
30:05
Speaker 1: the government so much, and maybe you could get a
30:07
Speaker 1: decision that's better than you could have ever hoped for,
30:10
Speaker 1: and so that's what they're looking for, is that kind
30:13
Speaker 1: of hail mayor is here in this situation.
30:16
Speaker 2: Since Homeland Securities decision is the final word in this area, Now,
30:21
Speaker 2: does that strengthen executive power over immigration?
30:26
Speaker 1: Well, in this instance, they didn't say in this case that,
30:31
Speaker 1: for instance, if unemployment green card petition is granted, that
30:35
Speaker 1: there's not any federal court review over a revocation because
30:39
Speaker 1: they're what what happened is you couldn't just refile an
30:43
Speaker 1: application because if there's a revocation, what usually happens is
30:47
Speaker 1: you're now in illegal status and in an employment green
30:51
Speaker 1: card if application, you have to be in legal status
30:55
Speaker 1: the whole time or you can't get a green card.
30:58
Speaker 1: So there it would be a huge problem. But in
31:01
Speaker 1: the marriage context, you can fall into illegal status, it's
31:05
Speaker 1: not a problem. The marriage fixes it. So that's why
31:09
Speaker 1: it's not a problem in this marriage context. But in
31:12
Speaker 1: the employment green card context, the government could totally harm
31:17
Speaker 1: someone's life permanently if they were to do the cynical
31:21
Speaker 1: acts of approving unemployment green card and then revoking it.
31:26
Speaker 1: And so that would be a very interesting case to
31:29
Speaker 1: see what happens there because there there isn't a solution
31:33
Speaker 1: of refiling available because when you filed, you were in
31:37
Speaker 1: legal status. But what always happens is then later after
31:42
Speaker 1: you file, whatever status you were in always expires. And
31:46
Speaker 1: what you're doing is you're waiting for the green card
31:48
Speaker 1: to be approved, and that's what preserves your status. But
31:51
Speaker 1: if it's refused, you don't have a status anymore at
31:55
Speaker 1: that point. And so those are the cases that are
31:58
Speaker 1: going to be very interesting to watch. It's inevitable that
32:01
Speaker 1: that case is going to come to the court now
32:03
Speaker 1: at some point.
32:04
Speaker 2: I'm curious because there are lots of movies about, you know,
32:08
Speaker 2: sham marriages for Green Corp purposes? Are there actually a
32:11
Speaker 2: lot of sham marriages?
32:13
Speaker 1: So here's what's very interesting is what is a marriage?
32:18
Speaker 1: And the famous judge Posner has a decision that really
32:21
Speaker 1: goes into this, which is, you know, talk about movies.
32:24
Speaker 1: One of my favorite ones of this variety is the
32:26
Speaker 1: one with Ryan Reynolds and Sandra Bullock.
32:29
Speaker 2: Uh huh yes, called the.
32:30
Speaker 1: Proposal Yes, where he says at the end, I want
32:33
Speaker 1: to marry you so that I can date you. And
32:36
Speaker 1: the question is would that be a legitimate purpose for
32:40
Speaker 1: an immigration marriage? Because in the end, you are still
32:44
Speaker 1: professing some sort of love there. And so what Judge
32:47
Speaker 1: Poster said is, here's what I'm concerned about. This is
32:51
Speaker 1: not exactly the law, but I find the very persuasive,
32:54
Speaker 1: and I keep trying to convince the agencies that this
32:57
Speaker 1: is the real issue, and they're almost there, is this
33:01
Speaker 1: did money change hands? Because if money changed hands, that's
33:06
Speaker 1: a sham marriage. But any other kind of marriage, you know,
33:10
Speaker 1: I go to Harvard and my wife goes to Stanford.
33:13
Speaker 1: We love each other, but we don't live together. Non
33:15
Speaker 1: immigration marriages that are just like that, and so that's
33:19
Speaker 1: where it gets super complicated. And so the issue is,
33:23
Speaker 1: I think did money change hands? And that really is
33:26
Speaker 1: the main thing they look for, But they also do
33:29
Speaker 1: look are you living together? And if not, why are
33:32
Speaker 1: you not living together? And you know, is their constant communication,
33:38
Speaker 1: is their joint assets, all of these things and those
33:42
Speaker 1: areas sometimes are not conventional in certain marriages, but they
33:46
Speaker 1: still want to try to enforce those conventions on these
33:50
Speaker 1: immigration marriages.
33:52
Speaker 2: Let's turn out to a judge in North Dakota ruling
33:55
Speaker 2: that nineteen Republican led states don't have to provide health
33:59
Speaker 2: insurance coverage to DONCA recipients.
34:02
Speaker 1: Nineteen states sued the federal government saying that we did
34:06
Speaker 1: not like a rule that was promulgated in May of
34:11
Speaker 1: twenty twenty four which said for the first time that
34:15
Speaker 1: people who had DACA and DACA remember was done in
34:18
Speaker 1: twenty twelve, so this was a rule that didn't happen
34:21
Speaker 1: for twelve years, were now to be considered lawfully present
34:25
Speaker 1: in the United States for the purposes of deciding whether
34:28
Speaker 1: they could access the Obamacare healthcare system. And so for
34:33
Speaker 1: the first twelve years of DACA, the people on DACA
34:36
Speaker 1: were not considered lawfully present. But now there was a
34:40
Speaker 1: rule saying they have to be considered lawfully present, and
34:43
Speaker 1: the states were saying, well, we don't want these DACA
34:47
Speaker 1: people to be added to our exchanges because now this
34:50
Speaker 1: is going to cost administration costs and fees and everything else.
34:54
Speaker 1: What's fascinating is that North Dakota, which is where the
34:57
Speaker 1: venue of the court is. North Dakota ended up having
35:00
Speaker 1: a very flimsy standing argument, which is the court for
35:04
Speaker 1: whatever reason, accepted I don't necessarily agree with it, which
35:08
Speaker 1: is that people will remain in America if they have
35:13
Speaker 1: access to this healthcare that they wouldn't otherwise have remained,
35:16
Speaker 1: and hence they'll remain in North Dakota, and North Dakota
35:20
Speaker 1: shouldn't have to tolerate that. And the point is, I don't
35:23
Speaker 1: know of anyone on DHAKA who's not staying or staying
35:27
Speaker 1: based on the healthcare issue. What really matters to them
35:30
Speaker 1: is the status and the work permit. The healthcare is
35:33
Speaker 1: an extra thing which they're very happy to have, but
35:36
Speaker 1: it isn't the reason they're saying or not saying. And
35:40
Speaker 1: so I do wonder when that case ultimately gets to
35:43
Speaker 1: further review in the circuit court, if that standing decision
35:47
Speaker 1: is actually going to prevail there. But then once the
35:50
Speaker 1: court found standing, the court then held that because for
35:54
Speaker 1: the first twelve years, nobody thought that these folks were
35:58
Speaker 1: lawfully present in the United States, and Congress never wrote
36:02
Speaker 1: the words DACA as a status, you couldn't use DACA
36:06
Speaker 1: as a status to call them lawfully present in the
36:09
Speaker 1: United States. So that part of the decision was more straightforward.
36:13
Speaker 2: Do you think that an administration can reclassify people as
36:18
Speaker 2: legally present in the US.
36:21
Speaker 1: So here's this interesting. The Obamacare language left it blank.
36:25
Speaker 1: So there's other public benefits that define which immigrants can
36:29
Speaker 1: get which status is so, for instance, food stamps and
36:33
Speaker 1: housing benefits and other things actually have a list. And
36:37
Speaker 1: the court actually says, which I think cuts both ways, Well,
36:40
Speaker 1: doca's not on any of these lists, so how can
36:43
Speaker 1: we have it for the Obamacare list? But what's interesting is, well,
36:47
Speaker 1: why didn't Obamacare have a list? Maybe they did want
36:49
Speaker 1: to give that discretion to the agencies in order to
36:53
Speaker 1: decide what were the statuses? So fair enough, you know,
36:57
Speaker 1: I think that argument could cut either way. The fact
36:59
Speaker 1: that Care didn't actually have a list of statuses could
37:04
Speaker 1: I think fifty to fifty goal to the federal government
37:06
Speaker 1: argument or to what the states are saying. But I
37:09
Speaker 1: do think where the problem is is if Congress is
37:12
Speaker 1: saying you have to be lawfully present, and Congress never
37:16
Speaker 1: wrote anywhere in any statute ever in the history of
37:19
Speaker 1: mankind that there's a status called DOCA, Well what do
37:22
Speaker 1: you do with that? Do you allow an agency to
37:25
Speaker 1: be able to invent a status in order to be
37:29
Speaker 1: able to give healthcare to people? And that I do
37:32
Speaker 1: think becomes a tougher argument. Now, having said all of this,
37:34
Speaker 1: I think the Trump administration would easily have written a
37:37
Speaker 1: regulation soon enough rescinding this, so it wouldn't have been
37:40
Speaker 1: necessary to have this decision. But as long as this
37:43
Speaker 1: injunction is in place, they won't have to write that decision.
37:47
Speaker 1: And then, sort of much later down the roads, we're
37:51
Speaker 1: talking June twenty twenty six, most likely we'll probably see
37:55
Speaker 1: a decision by the Supreme Court revoking the entire DACA
37:59
Speaker 1: exercise as unlawful. And then at that point this would
38:03
Speaker 1: obviously go away as well, because there wouldn't even be
38:05
Speaker 1: DOCA at all, And then we'd have a congressional fight.
38:09
Speaker 1: What gets done as the fate for these people who've
38:12
Speaker 1: had DOCA previously.
38:13
Speaker 2: Do you think the Supreme Court would actually, because doca's
38:16
Speaker 2: been before the Supreme Court before, you think that the
38:19
Speaker 2: Supreme Court will say DOCA is unconstitutional?
38:23
Speaker 3: So two parts.
38:24
Speaker 1: First, the Court has never actually answered the question is
38:28
Speaker 1: DACA legal or not, which is fascinating. All the courts
38:32
Speaker 1: have done so far as to say whether the revocation
38:35
Speaker 1: of DOCA actually followed the Administrative Procedure Act, to which
38:42
Speaker 1: Justice Roberts said no. But also, here's the very interesting part.
38:47
Speaker 3: The votes are.
38:48
Speaker 1: Now different, so that even if you lost Justice Roberts.
38:52
Speaker 1: You could still get a fight for decision revoking DOCA
38:56
Speaker 1: that would have Gorsicch and Cony, Barrett and and Thomas
39:01
Speaker 1: and Alito. And so there is a much larger chance
39:06
Speaker 1: than in that previous decision that you could actually get
39:09
Speaker 1: a ruling that says DACA is illegal.
39:11
Speaker 2: I believe that Trump said he was willing to work
39:15
Speaker 2: with Democrats to help DACA people.
39:17
Speaker 1: Right, It's very likely that the way this would get
39:20
Speaker 1: teed up is as follows. You would have maybe one
39:24
Speaker 1: year all of twenty twenty five and half of twenty
39:27
Speaker 1: twenty six, where you've shown significant enforcements, to which then
39:32
Speaker 1: the president could feel like he's gotten enough of a credibility,
39:35
Speaker 1: that he's created enough enforcement that when this decision inevitably
39:40
Speaker 1: comes out in June of twenty twenty six saying that
39:43
Speaker 1: DACA is not legal, then he could say, Okay, well,
39:47
Speaker 1: now we can actually have a negotiation as to the
39:50
Speaker 1: parts of our immigration system that need to be fixed,
39:54
Speaker 1: because the public now has confidence that we have our
39:57
Speaker 1: border under control and that if you come here unlawfully,
40:01
Speaker 1: you'll be deported. But we'll have to see how that
40:03
Speaker 1: all plays out. I don't know, and that may even
40:05
Speaker 1: be an optimistic view, but that's the only way anything
40:09
Speaker 1: like this would happen. Then that the Congress rarely acts
40:12
Speaker 1: unless there's an emergency, So the emergency would have to
40:15
Speaker 1: be created, and what is that emergency. The emergency would
40:18
Speaker 1: be the Supreme Court resfinding Zaka program.
40:22
Speaker 2: Thanks so much for being on the show. Leon, that's
40:24
Speaker 2: Leon Fresco of Holland and Knight. And that's it for
40:27
Speaker 2: this edition of the Bloomberg Law Podcast. Remember you can
40:30
Speaker 2: always get the latest legal news by subscribing and listening
40:33
Speaker 2: to the show on Apple Podcasts, Spotify, and at Bloomberg
40:37
Speaker 2: dot com, slash podcast, Slash Law. I'm June Grosso and
40:41
Speaker 2: this is Bloomberg