Latest / Bloomberg Law / Controversial Immigration Cases

Transcript

Controversial Immigration Cases · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
0:08
Speaker 1: Abolish I Abolish, I Abolish, Ilish.
0:15
Speaker 2: I protests over ICE's arrest of Newark's mayor outside a
0:20
Speaker 2: new federal immigration detention center on Friday. The arrest came
0:24
Speaker 2: after Mayor Ross Baraka tried to join three members of
0:28
Speaker 2: New Jersey's congressional delegation in an oversight visit. Democratic Congresswoman
0:34
Speaker 2: Lamonica McIver said that I started pushing them as they
0:38
Speaker 2: went to arrest Baraka.
0:39
Speaker 1: Would shoved everything. Literally the aggression that would just ruughy handled. Literally.
0:45
Speaker 2: I mean nobody picked up a fence to punch us,
0:47
Speaker 2: but literally they pushed us.
0:49
Speaker 1: They actually ended and removed us out of the way
0:53
Speaker 1: to get to the mayor to arrest him.
0:55
Speaker 2: The mayor, who said he did nothing wrong, was arrested
0:58
Speaker 2: on federal trespass charges in the public area outside the facility.
1:04
Speaker 1: I didn't climb a fence. I didn't kick the door out.
1:06
Speaker 1: I didn't bust the window like their friends did at
1:08
Speaker 1: the Capitol.
1:09
Speaker 2: I didn't hurt people joining me is immigration law expertly
1:12
Speaker 2: on Fresco, a partner at Honden Night Leon on the
1:15
Speaker 2: three New Jersey representatives said that they have the right
1:19
Speaker 2: to conduct oversight without prior notice, and they've done it
1:23
Speaker 2: three times this year. Is that unusual.
1:26
Speaker 1: It is a very common thing in the history of
1:30
Speaker 1: this framework where there are ice attention facilities, which is
1:34
Speaker 1: about a thirty year phenomenon, that Congress people go into
1:38
Speaker 1: these ice attention facilities and view them and monitor them.
1:42
Speaker 1: There is usually some coordination so that there can actually
1:46
Speaker 1: be a time and a date where the inspection takes place,
1:51
Speaker 1: or if there's not a coordination, there's usually some sort
1:54
Speaker 1: of event that takes place outside of the facility where
1:58
Speaker 1: you know, there's a press conference and they're using the
2:00
Speaker 1: facility essentially as a background to complain about something or other.
2:05
Speaker 1: Or the third way is they'll arrive at the facility
2:09
Speaker 1: and they'll say, basically like if you would walk into
2:12
Speaker 1: an emergency room, Hey, I need to come in, and
2:15
Speaker 1: then thirty minutes later maybe they'll be let in. The
2:18
Speaker 1: problem is when you're trying to combine all of these
2:21
Speaker 1: things into one event, which is we're trying to do
2:24
Speaker 1: the emergency walk in and we're trying to do a
2:28
Speaker 1: media event. That's where I think the people at the
2:31
Speaker 1: facility didn't manage it particularly well, and so there was
2:36
Speaker 1: this brew haha about whether there was trespassing and assault
2:40
Speaker 1: and pushing, and then there was a question as to
2:43
Speaker 1: what the mayor of Newark, New Jersey was doing. Was
2:46
Speaker 1: he trying to keep the peace or was he trying
2:49
Speaker 1: to escalate things and assault officers. And so that's where
2:53
Speaker 1: he got arrested because at least ICE is claiming that
2:56
Speaker 1: he was not part of the solution, but he was
3:00
Speaker 1: of the problem in terms of actually pushing his way
3:03
Speaker 1: through and trespassing and disregarding the commands of the ICE
3:07
Speaker 1: officers with regard to the movements within the facility. So
3:11
Speaker 1: from that perspective, that's going to be quite fascinating, to
3:14
Speaker 1: the extent that now the DHS spokesperson is threatening the
3:19
Speaker 1: arrests of the House Democratic Congress members because they are
3:24
Speaker 1: protected under something called the Speech of the Bay Clause,
3:27
Speaker 1: which is if they are trying to basically show that
3:30
Speaker 1: they can engage in functions that are pursued to their
3:34
Speaker 1: duties in Congress, which they would say this falls within that,
3:37
Speaker 1: they're allowed to do that. But the Speech of the
3:40
Speaker 1: Bay clause also has an exception for if you are
3:45
Speaker 1: committing this kind of assault and battery on someone, you're
3:49
Speaker 1: not covered by the speech of the Bay clause. So
3:52
Speaker 1: this is actually going to be yet another interesting convergence
3:56
Speaker 1: of law, which is was there really an assault and
3:59
Speaker 1: battery or was this a prevention of the congress people
4:03
Speaker 1: doing their job.
4:04
Speaker 2: A Homeland Security spokeswoman said members of Congress assaulted ICE
4:09
Speaker 2: agents and body slammed a female ICE officer. I just
4:13
Speaker 2: want to note that one of the New Jersey representatives
4:16
Speaker 2: is eighty years old. ICE claims it has video, but
4:20
Speaker 2: the only video they've released so far is from the
4:23
Speaker 2: body cams of the ICE officers outside the facility, and
4:27
Speaker 2: it just looks like chaos and confusion.
4:30
Speaker 1: I mean, all of those facilities, every inch of them,
4:33
Speaker 1: are under video and sound, so they would have it
4:36
Speaker 1: and we would know the answer to that question. And secondly,
4:40
Speaker 1: all of those facilities, I've been to dozens of them,
4:43
Speaker 1: both when I was in the government and in representing
4:45
Speaker 1: foreign nationals who are Unfortunately in those facilities, you can't
4:50
Speaker 1: move six feet without getting through some door or some
4:54
Speaker 1: gate or something. There's nothing to storm. You'd be storming
4:57
Speaker 1: a metal door. That would be very painful to you.
5:00
Speaker 1: And so from that perspective it does seem unlikely. But
5:05
Speaker 1: because I haven't seen a video, I would need to
5:07
Speaker 1: reserve judgment on that. But nobody here has clean hands,
5:12
Speaker 1: because certainly there's a wait for a congress member to
5:16
Speaker 1: go into an ice facility that one hundred percent of
5:19
Speaker 1: the time has to happen and has to be allowed.
5:21
Speaker 1: But by the same token, there is probably an escalation
5:25
Speaker 1: that occurred there when they didn't get exactly what they
5:28
Speaker 1: wanted when they wanted it, and this is what leads
5:31
Speaker 1: to these unfortunate conflagrations.
5:34
Speaker 2: So the mayor said he was there along with the
5:37
Speaker 2: New Jersey representatives, but does he have a right to
5:41
Speaker 2: be there as the mayor well.
5:43
Speaker 1: So this is actually an interesting part of what is
5:45
Speaker 1: currently subject to a lot of federal litigation which hasn't
5:50
Speaker 1: been decided in the Supreme Court yet, which is what
5:54
Speaker 1: rights do states and localities have over these detention facilities
5:58
Speaker 1: in their states and local For instance, California has passed
6:02
Speaker 1: laws in the past that say you can't have these
6:05
Speaker 1: ice attention facilities in California, and the courts, at least
6:11
Speaker 1: the Ninth Circuit is held that that's preempted and that
6:14
Speaker 1: the federal government is allowed to function even in a
6:17
Speaker 1: state or a locality that says that the federal government
6:22
Speaker 1: can't have these kinds of ice facilities in their city.
6:25
Speaker 1: But then their question is, well, what about licensing requirements?
6:28
Speaker 1: What about environmental requirements? Are all of those preempted? And
6:32
Speaker 1: yet again, these are issues that aren't fully decided in
6:35
Speaker 1: the courts. Is what jurisdiction or what guidance or supervision
6:41
Speaker 1: of any kind would a mayor of a town have
6:43
Speaker 1: over an immigration detention facility in their city. Can they
6:47
Speaker 1: do anything at all? Or is it one hundred percent
6:50
Speaker 1: preempted such that when they arrive at such a facility,
6:53
Speaker 1: they are no different than you or I, just a
6:56
Speaker 1: private citizen, and whatever they do, if they try to desert,
7:00
Speaker 1: additional pressure could lead them to being arrested.
7:04
Speaker 2: The mayor's office is claiming that the facility is operating
7:07
Speaker 2: without a valid certificate of occupancy, but more than a
7:12
Speaker 2: dozen federal agents arrested him on federal trespassing charges in
7:18
Speaker 2: a public area outside of facility that's owned by a
7:22
Speaker 2: private prison company.
7:24
Speaker 1: Is that a problem, Well, it would be a problem
7:27
Speaker 1: if he didn't actually engage in a crime. Then arresting
7:30
Speaker 1: him is going to be a huge problem. And obviously
7:32
Speaker 1: any time that happened, the person could file a lawsuit
7:35
Speaker 1: and tried to get damages under the Federal Toward Claims Act.
7:39
Speaker 1: So there's definitely possibilities of that if that's really what happened.
7:43
Speaker 1: But again this is going to have to be subject
7:46
Speaker 1: to the video and the recordings to see what happened,
7:49
Speaker 1: and also then subject to these legal conclusions about what
7:53
Speaker 1: jurisdiction does a mayor have, what was the mayor doing,
7:57
Speaker 1: was the mayor inside when the mayor shouldn't have been,
7:59
Speaker 1: or was the mayor arrested for absolutely no reason? So
8:03
Speaker 1: we will just have to wait and see. But definitely
8:07
Speaker 1: a very fascinating sequence of events that occurred last week.
8:11
Speaker 2: I mean, if Ice actually had a video showing this,
8:16
Speaker 2: wouldn't they have released it to back up their point?
8:18
Speaker 2: We would already have.
8:19
Speaker 1: Seen it many times. I would have seen the video,
8:22
Speaker 1: I agree. I agree scenes most likely if you have
8:24
Speaker 1: a video, it would have been seen, especially since the
8:27
Speaker 1: mayor has specifically called on them to produce a video.
8:32
Speaker 1: The fact that they have not produced a video, you know,
8:34
Speaker 1: I think what the mayor should probably want to do
8:36
Speaker 1: now is to try to poia the video to file
8:39
Speaker 1: a freedom of information I requise and or the media
8:42
Speaker 1: can do this, and if there are no videos, then
8:44
Speaker 1: that's going to be the end of the story there.
8:47
Speaker 2: When you take the mayor's arrest with the arrest of
8:51
Speaker 2: the judge in Wisconsin, do you think this is the
8:55
Speaker 2: federal authorities warning local officials stay out of our business.
9:01
Speaker 1: Well, I think the arrest of the judge is far
9:04
Speaker 1: more justified than the arrest of the Newark mayor, and
9:07
Speaker 1: that the judge was openly impeding a request from ICE
9:12
Speaker 1: to be able to actually pick someone up in the courtroom. Now,
9:16
Speaker 1: the judge is going to have her explanation that she's
9:19
Speaker 1: trying to manage her courtroom and the safety of the
9:21
Speaker 1: facility and the ability to have a docket because she
9:25
Speaker 1: won't have a docket if ICE is operating in her court.
9:28
Speaker 1: So fine, there's defenses for that. But the Newark mayor,
9:31
Speaker 1: at least if one believes his account, he's saying he
9:34
Speaker 1: was just there supporting his members of Congress and just
9:38
Speaker 1: making sure that the facility was up to code, so
9:41
Speaker 1: to speak, and as soon as he was told to
9:44
Speaker 1: VAK he did so. This is the question. Now, maybe
9:47
Speaker 1: he didn't, but again, like we discussed, and the video
9:50
Speaker 1: is going to answer all of those questions. But if
9:52
Speaker 1: there's no video showing him basically trying to barge into
9:57
Speaker 1: a facility where he's been told to leave and he's
9:59
Speaker 1: not used physical force to do that, I think an
10:03
Speaker 1: arrest there is going to be very difficult to justify.
10:06
Speaker 2: I've been talking to Leon Fresco, the former head of
10:09
Speaker 2: the Office of Immigration Litigation in the Obama administration and
10:14
Speaker 2: a partner at Honden Knight.
10:15
Speaker 1: Leon.
10:16
Speaker 2: Let's turn to the very high profile arrests of several
10:19
Speaker 2: foreign graduate students. A couple have been released from custody.
10:24
Speaker 2: A doctoral student at Toughs was released after six weeks
10:30
Speaker 2: in detention. What happened there?
10:33
Speaker 1: So she is one of the three sort of big
10:37
Speaker 1: students in terms of there was the original Columbia student,
10:39
Speaker 1: Madmud Khalil, then there was an additional student who was
10:44
Speaker 1: also a Columbia student, and there is ur the tough
10:47
Speaker 1: student Rubsaya os third who all are under that same
10:52
Speaker 1: guys where Secretary of State Rubio said that this individual
10:57
Speaker 1: had to lead the United States because they were that
11:00
Speaker 1: ttrumental to the foreign policy interests of the United States.
11:03
Speaker 1: So it's not even the typical student visa cases that
11:07
Speaker 1: are happening, which is that a student visa is being revolved,
11:11
Speaker 1: and when the student visa is being revolved, then the
11:15
Speaker 1: student is just in flux. No, this is sort of
11:18
Speaker 1: the nuclear bomb version of this, which is we are
11:22
Speaker 1: saying that you are basically no different than a foreign dictator.
11:26
Speaker 1: You're that bad. You being here hurts America's foreign policy.
11:30
Speaker 1: We have to keep you in detention, and we have
11:34
Speaker 1: to remove you once we can, as soon as we can.
11:36
Speaker 1: But in the meantime, you're in detention. So all three
11:40
Speaker 1: of these individuals have filed federal habeas claims, and two
11:43
Speaker 1: of them, so one of the Columbia students, most in Madawi,
11:46
Speaker 1: and now this tough student, have been released because these
11:51
Speaker 1: judges are finding they're not making the final judgment with
11:55
Speaker 1: regard to some rejudgment on the statute being unconstitutional, but
12:00
Speaker 1: seems to be where they're headed because they're saying, as
12:02
Speaker 1: a matter of injunctive relief, we're going to do two
12:05
Speaker 1: things that are quite stunning as legal conclusion. You know,
12:09
Speaker 1: it's not clear that the Supreme Court ultimately will allow this.
12:12
Speaker 1: We'll have to wait and see. But they said, first
12:14
Speaker 1: of all, we're going to accept jurisdiction of these claims,
12:19
Speaker 1: and that's very remarkable because we don't know that that's
12:22
Speaker 1: actually going to be the way the law plays out
12:25
Speaker 1: at the end of this, because the Department of Justice
12:27
Speaker 1: is saying, no, you have to have the deportation proceeding first,
12:31
Speaker 1: and then if there's a deportation ordered, only then can
12:34
Speaker 1: you make these constitutional claims. So you have to be
12:37
Speaker 1: in attention the whole time to challenge the constitutionality of
12:40
Speaker 1: the statute and then you can do it. So the
12:42
Speaker 1: court is saying no, no, no, no, you can do
12:44
Speaker 1: this upfront in a habeas position. So a there's that,
12:48
Speaker 1: And then secondly, we find that there's sort of this
12:52
Speaker 1: injunction standard, a likelihood of success that you will be
12:57
Speaker 1: able to actually show that there's a problem with this
13:00
Speaker 1: statute such that we're going to release you from the tension.
13:03
Speaker 1: And so you now have that in two of the
13:05
Speaker 1: three cases. We're waiting for what the judge is going
13:08
Speaker 1: to do in the third case. But it seems like
13:11
Speaker 1: the courts aren't concerned about what is the limiting principle
13:16
Speaker 1: for the Secretary of State to be able to say
13:18
Speaker 1: that someone is harmful to the foreign policy interests of
13:22
Speaker 1: the United States and just kick them out without any
13:25
Speaker 1: sort of limiting principle as to what that means. And
13:29
Speaker 1: I think if the government doesn't do a better job
13:33
Speaker 1: of articulating a limiting principle, it's going to have a
13:36
Speaker 1: much tougher time defending these types of deportations in the court.
13:40
Speaker 2: Is this without precedent to have the Secretary of State
13:43
Speaker 2: use this provision in this way or is there law
13:46
Speaker 2: on this.
13:47
Speaker 1: Well, they use it all the time for things like,
13:49
Speaker 1: you know, a dictator seeks in the country, or some
13:53
Speaker 1: terrorists or something. They've used it for that. But to
13:56
Speaker 1: use it in a situation where it's a foreign student
13:59
Speaker 1: who with you know, maybe articulating things that are very
14:03
Speaker 1: unseemly an unclear, you know, we'll have to have that
14:06
Speaker 1: debate as to each of these students, what they did,
14:08
Speaker 1: what they didn't do. But the point is there are
14:11
Speaker 1: already grounds of deportation for giving material supports to terrorist organizations,
14:16
Speaker 1: and those would be much more within the compatibility of
14:20
Speaker 1: how the immigration system usually works. If you could say, hey, look,
14:24
Speaker 1: this person openly advocated for hamas or this person said
14:28
Speaker 1: to donate, or this person said to do this, you
14:31
Speaker 1: know whatever, it may be, okay, But this issue of
14:34
Speaker 1: saying that by engaging in this protest, they are engaging
14:39
Speaker 1: in conduct that is outside of the foreign policy interests
14:43
Speaker 1: of the United States, then the question is, well, okay,
14:46
Speaker 1: how does that determination get made? What are the limiting principles?
14:51
Speaker 1: And what prevents any Secretary of State from doing that
14:55
Speaker 1: for any reason whatsoever. So, for instance, let's say you
14:58
Speaker 1: called on to stop fleeing the American public. Could Secretary
15:04
Speaker 1: of State say, well, maybe we like that, but we
15:06
Speaker 1: don't want you particularly upsetting China because we're insensitive trade negotiations,
15:11
Speaker 1: and so you couldn't do that either. You know, you
15:13
Speaker 1: get supported for saying China is fleeing the American public
15:17
Speaker 1: on trade. So this is the question what is the
15:20
Speaker 1: limiting principle? And I think if that's not articulated, the
15:23
Speaker 1: courts are going to say, look, there's a vagueness problem
15:26
Speaker 1: with this statue. That becomes quite concerning to So suppose.
15:30
Speaker 2: She wins this round, what happens when her student visa expires?
15:35
Speaker 1: Well, so this is what's bizarre about a student visa
15:38
Speaker 1: unless and until the administration does new regulations to change this.
15:43
Speaker 1: A student visa actually, once you're in the US doesn't
15:46
Speaker 1: expire ever if you want to remain a student for
15:49
Speaker 1: the rest of your life here, So if you keep
15:51
Speaker 1: doing programs, they can keep keeping you here as a student. Now,
15:55
Speaker 1: the question is how much money do you have to
15:58
Speaker 1: be able to do this over and over again. But
16:00
Speaker 1: it is fair to say if they tried to change
16:02
Speaker 1: their status to anything else, they may have a tough
16:04
Speaker 1: time doing it, no doubt about it.
16:06
Speaker 2: It's about due process. And you know, we had the
16:09
Speaker 2: President last week saying he's not sure about due process,
16:14
Speaker 2: and different people in the administration saying that due process
16:18
Speaker 2: rights are not accorded to immigrants, although we had Justice
16:22
Speaker 2: Scalia in an important opinion saying yes, due process is
16:27
Speaker 2: accorded to immigrants. So, I mean, tell us about this
16:30
Speaker 2: whole due process argument.
16:34
Speaker 1: Well, we start with the words of the Constitution, as
16:37
Speaker 1: the Great Justice Kullia used to say, but it is
16:40
Speaker 1: a very fair point. Well why not actually start with
16:42
Speaker 1: the words of the Constitution. And if you were to
16:44
Speaker 1: do what's called a control f or you know, a
16:47
Speaker 1: word find in the Constitution. You would see that sometimes
16:51
Speaker 1: the Constitution uses the words citizen, and sometimes it doesn't
16:55
Speaker 1: use the words citizen. And so for the due process
16:58
Speaker 1: clause of the Constitution, and it does not use the
17:00
Speaker 1: word citizen. It uses the word person. And so there's
17:04
Speaker 1: a lot of case saw that it said that because
17:07
Speaker 1: the due process clause uses the word person and that citizen,
17:11
Speaker 1: it doesn't only apply to citizens. It applies to person.
17:14
Speaker 1: Now that's a separate question to Okay, So everybody has
17:19
Speaker 1: a right to do process. And I think you wouldn't
17:21
Speaker 1: find one justice who would say that that's not true,
17:24
Speaker 1: because I think the reason we know this is because
17:27
Speaker 1: we already had the nine to nothing decision in the
17:30
Speaker 1: cases involving the alien enemies at where the Supreme Court.
17:34
Speaker 1: You know, there was a debate about whether Trump one
17:37
Speaker 1: or the plaintiffs won. But in any case, what the
17:39
Speaker 1: Supreme Court said is everybody gets a chance to come
17:43
Speaker 1: into court and say, I'm not an alien enemy. Are
17:45
Speaker 1: you out of your mind? I'm built from Cleveland. Why
17:49
Speaker 1: why am I being said to El Savador? I sell
17:51
Speaker 1: vacuum cleaners and I was born in Cleveland. I don't
17:55
Speaker 1: I don't get it. And so everybody gets that right
17:59
Speaker 1: to go to court, and so everybody has that due process,
18:02
Speaker 1: But the question is what process is due to you?
18:06
Speaker 1: And I think this is where there's a debate here
18:09
Speaker 1: about the Trump administration saying, look, we can't give all
18:15
Speaker 1: of the people who entered the United States and set
18:18
Speaker 1: the moment from everything that you hear, and they say,
18:22
Speaker 1: they claim at the moment that they're really concerned with
18:25
Speaker 1: just a group of people who entered between twenty twenty
18:28
Speaker 1: one and twenty twenty four. They're saying, we'll get to
18:31
Speaker 1: the people from before twenty twenty one later, but what
18:34
Speaker 1: they feel is the sort of bad act that they
18:38
Speaker 1: need to remedy is to remove the people who came
18:41
Speaker 1: from twenty twenty one to twenty twenty four. And they're
18:43
Speaker 1: saying that that's millions of people, which it is. It's
18:46
Speaker 1: unclear how many millions, but it certainly is some number
18:50
Speaker 1: of millions of people. And what they're saying is there's
18:54
Speaker 1: no way we can have a trial for each one
18:57
Speaker 1: of these people in immigration court, which is probably going
19:00
Speaker 1: to be what ends up happening because a lot of
19:03
Speaker 1: these folks are from Venezuela, Cuba, Nicaragua, Haiti, China at
19:08
Speaker 1: other places where they can ask for asylum. And so
19:11
Speaker 1: when these folks are asking for asylum, they will have
19:15
Speaker 1: to have a trial about whether they're going to be
19:17
Speaker 1: persecuted when you send them back. And so this is
19:20
Speaker 1: the problem. The administration is saying, there's no way we
19:22
Speaker 1: can do this. How are we going to be able
19:24
Speaker 1: to get all of these people out? So you have
19:27
Speaker 1: some understanding of what they're saying. But by the same token,
19:32
Speaker 1: the other side says, but if you don't do this
19:35
Speaker 1: on a case by case basis, you're going to remove
19:37
Speaker 1: people who our law say you can't remove. And so
19:41
Speaker 1: there's no other way to do this. You know, it
19:43
Speaker 1: might be nice to be able to have some sort
19:45
Speaker 1: of group thing going on, but that's not how it works.
19:48
Speaker 1: Everybody has to make their case and that's what the
19:51
Speaker 1: current law is. And so this is the question. It's
19:55
Speaker 1: definitely not practical. There's no dispute to what Trump is
19:58
Speaker 1: saying is that it it's not practical to have a
20:01
Speaker 1: trial for every single person. But in the end, the
20:04
Speaker 1: trial is not for the evil gang members benefit. It's
20:09
Speaker 1: for build from Cleveland's benefit to be able to say, hey,
20:13
Speaker 1: I'm built from Cleveland. Why did you arrest me I'm
20:16
Speaker 1: a US citizen or somebody who already won asylum, or
20:19
Speaker 1: somebody who actually is a dissident from Venezuela and was
20:24
Speaker 1: you know, trying to get this Maduro out of power
20:26
Speaker 1: and actually use theirs TV and YouTube clips of them
20:30
Speaker 1: doing it, et cetera. So for those kind of people,
20:32
Speaker 1: you need to do process. And the only way to
20:34
Speaker 1: figure out which kind of person you're talking about is
20:37
Speaker 1: to allow each person to make their claim.
20:40
Speaker 2: So I mean, there are fast trials, and couldn't they
20:44
Speaker 2: do each of these and you know a few.
20:46
Speaker 1: Hours, Well you can, and they are done. I mean,
20:50
Speaker 1: no asylum claim other than maybe a couple of cases
20:53
Speaker 1: I've been involved with, But that's because I wonder why, yes, yes, yes,
20:59
Speaker 1: I mean I've been in once take two three days,
21:01
Speaker 1: and that's considered like a record amount of time to
21:03
Speaker 1: have an asylum case. But most of them take four hours,
21:07
Speaker 1: six hours. But here's the problem. I mean, even if
21:11
Speaker 1: you had a thousand immigration court judges, and those thousand
21:17
Speaker 1: immigration court judges worked three hundred and sixty five days,
21:22
Speaker 1: which they do not. But let's say they work three
21:25
Speaker 1: hundred and sixty five days, we would still be talking
21:29
Speaker 1: about at the end of the day, you know, three
21:32
Speaker 1: hundred and sixty five thousand cases or something. And so
21:36
Speaker 1: if you're trying to deport what they claim is ten
21:38
Speaker 1: million people, you're not going to make a vent there.
21:41
Speaker 1: And so that's the problem that they're coming across here.
21:45
Speaker 2: I've been talking immigration law expert Leon Fresco of Honden
21:48
Speaker 2: Night Stephen Miller. Over the weekend, the White House Chief
21:52
Speaker 2: of Staff said that they're thinking about trying to suspend
21:57
Speaker 2: Habeas corpus, which has been done I think four times
22:00
Speaker 2: in the nation's.
22:02
Speaker 1: History, right, and so the Habeas corpus clause says that
22:06
Speaker 1: it can be suspended during times of rebellion and invasion.
22:10
Speaker 1: And so the question is is this considered a type
22:12
Speaker 1: of invasion that they were talking about, especially when Congress
22:16
Speaker 1: hasn't declared war. We've already seen that the courts at
22:20
Speaker 1: the moment are not very excited about this invasion language
22:24
Speaker 1: because they're not allowing it to be used in the
22:27
Speaker 1: alien Enemies at context. So far, there's not a judge
22:31
Speaker 1: who's reviewed any of these alien Enemies at case as
22:34
Speaker 1: yet who has said yes, by the way, we are
22:36
Speaker 1: under an invasion, and so the Trump administration is correct
22:40
Speaker 1: to allow folks to be detained and deported without due
22:45
Speaker 1: process because we're under an invasion. They haven't been successful
22:49
Speaker 1: with that argument yet, and so if they're not successful
22:52
Speaker 1: there in that context, it's going to be hard to say, well,
22:57
Speaker 1: how can you suspend habeas corpus, which is a much
23:01
Speaker 1: much larger list in the courts. I mean, that's a
23:05
Speaker 1: monumental thing to do because it's literally the founding of
23:09
Speaker 1: the republic is about these rights as you have for
23:12
Speaker 1: habeas corpus, and so to suspend it, if they're not
23:15
Speaker 1: going to say there's an invasion for the purposes of
23:17
Speaker 1: the Alien Enemies Act, it's going to be difficult. But
23:20
Speaker 1: what they're trying to do is they're trying to avoid
23:24
Speaker 1: literally what we've just talked about with regard to the
23:26
Speaker 1: foreign students. Those foreign students are in court filing habeas petitions,
23:31
Speaker 1: and the people under the Alien Enemies Act are in
23:34
Speaker 1: federal court filing habeas petition. That's their only jurisdiction that
23:38
Speaker 1: they have to get into court. So if you suspend
23:40
Speaker 1: abeas corpus, then they can't file those petitions. And so
23:45
Speaker 1: the idea is you can keep them detained, give them
23:48
Speaker 1: their removal process, and then maybe at the end they'll
23:52
Speaker 1: be able to file something. But at least maybe a
23:55
Speaker 1: lot more people will be discouraged because they won't be
23:58
Speaker 1: able to see a quick way to get relief, which
24:01
Speaker 1: is what Habeas does, and so they'll just try to
24:05
Speaker 1: self support or give up or never come into country
24:07
Speaker 1: the first place, etc. Et cetera. And so we'll see
24:11
Speaker 1: if they end up doing it. But I think the
24:13
Speaker 1: reason that even you see some hesitation from Stephen Miller
24:17
Speaker 1: is because at the end of the day, if they
24:19
Speaker 1: don't win any of these cases on the alien Enemies odds,
24:23
Speaker 1: then whether we are under an invasion for the purposes
24:26
Speaker 1: of that, it will be very hard to say why
24:29
Speaker 1: we are under an invasion for the purposes of suspending
24:32
Speaker 1: Habeas corpus.
24:33
Speaker 2: And speaking of Habeas corpus petitions Kilmar Abrigo Garcia, which
24:38
Speaker 2: I don't know where that case is now. But Christy Nome,
24:41
Speaker 2: the DHS secretary, said in Congress last week he's not
24:45
Speaker 2: coming back.
24:46
Speaker 1: He's not coming back restrained. I have no doubt about it.
24:50
Speaker 1: Why the plaints that are still holding off on doing
24:53
Speaker 1: anything here when they hear the Secretary of Homeland Security
24:57
Speaker 1: thing they're not going to bring him back, but perhaps
25:01
Speaker 1: there's some other arrangement that's interesting to both sides. I
25:05
Speaker 1: don't know what it is. I do think the plaintiffs
25:08
Speaker 1: definitely wanted him back. That was why they had filed
25:11
Speaker 1: the litigation. And so if they hadn't pushed the tieline
25:15
Speaker 1: and they're sort of still on this Flower timeline and
25:19
Speaker 1: you have the second Tary of Land Security say he's
25:21
Speaker 1: not going to come back, something is going to have
25:23
Speaker 1: to give soon. And so either you're going to see
25:25
Speaker 1: the announcement of some settlement that works for both sides,
25:29
Speaker 1: or you're going to see the litigation come back again.
25:32
Speaker 1: And I don't know where this is going now. Having
25:36
Speaker 1: said that, there was a case that just got decided
25:39
Speaker 1: on Friday with regards to the Biden administration's asylum ban,
25:43
Speaker 1: not the Trump administration's asylum ban, but the Biden administration
25:47
Speaker 1: asylum ban. The Biden administration banned asylum by saying you
25:52
Speaker 1: had to use the CBP one app if you tried
25:55
Speaker 1: to come in the country illegally, you wouldn't be able
25:57
Speaker 1: to get asylum. And the court held that that violates
26:00
Speaker 1: the statutes. You can't do that or Interestingly, the plaintiffs
26:04
Speaker 1: in that case said that there had been some wrongly
26:08
Speaker 1: deported people under the Biden Asylum band and they asked
26:12
Speaker 1: the judge to force the administration to bring them back,
26:16
Speaker 1: and the judge there, who's known as quite a progressive judge,
26:19
Speaker 1: that absolutely not. I can't bring them back. There's nothing
26:22
Speaker 1: I can do about this. All I can do is
26:25
Speaker 1: take away their deportation order. And they want to come
26:28
Speaker 1: back and try again to apply for asylum, that's certainly
26:32
Speaker 1: something they can do. But I can't order anybody to
26:34
Speaker 1: bring anybody back. And so perhaps there's some belief system
26:40
Speaker 1: here that's starting to take place that really the courts
26:43
Speaker 1: can't do this and they and they can't order anybody
26:47
Speaker 1: to be brought back. So that's what's going to be
26:49
Speaker 1: very interesting to see.
26:50
Speaker 2: Thanks so much, Leon. That's Leon Fresco of Honda Night,
26:54
Speaker 2: and that's it for this edition of the Bloomberg Law Show.
26:57
Speaker 2: Remember you can always get the latest legal news on
26:59
Speaker 2: our Bloomberg Glaw podcasts. You can find them on Apple Podcasts, Spotify,
27:03
Speaker 2: and at www dot Bloomberg dot com. Slash podcast slash Law,
27:09
Speaker 2: and remember to tune into the Bloomberg Law Show every
27:12
Speaker 2: weeknight at ten pm Wall Street Time. I'm June Grosso
27:16
Speaker 2: and you're listening to Bloomberg