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SCOTUS on Geofence Warrants & Migrant Protected Status · Bloomberg Law

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Speaker 1: This is Bloomberg Law, with June Grossel from Bloomberg Radio.
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Speaker 2: During oral arguments this week, the Supreme Court justices struggle
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Speaker 2: with the question of whether a geofence warrant that compelled
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Speaker 2: Google to share location data from cell phones New York
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Speaker 2: crime scene is an unlawful search that violates the Fourth Amendment.
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Speaker 2: Justice has ran through hypotheticals trying to compare the process
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Speaker 2: to a traditional physical search of a hotel or storage locker. Some,
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Speaker 2: like Chief Justice John Roberts, expressed concerns about the surveillance
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Speaker 2: of locations like churches or political rallies.
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Speaker 3: One of the central concerns that's been voiced, of course,
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Speaker 3: is what's to prevent the government from using this to
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Speaker 3: find out the identities of everybody at a particular church,
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Speaker 3: a particular political organization. What are the restraints that would
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Speaker 3: prevent that from becoming a problem.
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Speaker 2: Others were concerned that the government's position on publicly visible
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Speaker 2: movements would extend to private residences. Here's Justice Amy Coney Barrett.
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Speaker 4: Now you're telling Justice Kagan really that if you go
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Speaker 4: into a private home, it wouldn't be a search. I mean,
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Speaker 4: if you trace location services, I mean I understand in
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Speaker 4: this case, and is that true that in this case
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Speaker 4: you're saying you didn't pick him up in any home.
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Speaker 3: Well, your honor, he eventually stopped at the end of
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Speaker 3: his journey away from the bank at a group of homes.
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Speaker 5: But there's testimonies his page one.
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Speaker 4: Twent not inside the home.
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Speaker 5: We couldn't tell which home he was even in.
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Speaker 4: Okay, but you really are saying that you could track
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Speaker 4: someone going inside a home. Justice Soda Mayor asked mister
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Speaker 4: Yunikowski about movements inside of home, movements to the bathroom,
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Speaker 4: movements to the bedroom, all of that.
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Speaker 2: My guest his former federal prosecutor, George Newhouse of Richard's Carrington. George,
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Speaker 2: will you explain what geofence warrant is and how police
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Speaker 2: use them.
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Speaker 1: Geofans warrants are the latest technology innovation that's raising some
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Speaker 1: very interesting Fourth Amendment issues. So essentially, Google, which is
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Speaker 1: everywhere ubiquitous, collects and a massive amount of data location
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Speaker 1: data from you and me and people with phones who
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Speaker 1: walk around. And they have to agree to allow this,
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Speaker 1: by the way, so you can turn your location services off,
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Speaker 1: but most people don't, and Google collects information about millions
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Speaker 1: of its customers. But what's amazing about the geofence is
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Speaker 1: it's able to sort through this massive amount of data
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Speaker 1: and here are all the people that were within one
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Speaker 1: hundred and fifty yards at a particular time and date.
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Speaker 1: So it's very useful and was used in this case
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Speaker 1: to identify the suspect. So it's like a search warrant
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Speaker 1: in reverse. Normally, they know who the suspect is and
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Speaker 1: they want to search for physical evidence. In this case,
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Speaker 1: the geofence warrants allow law enforcement to locate the suspect
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Speaker 1: they otherwise don't know. It's ingenius and of course in
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Speaker 1: very novel technology.
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Speaker 2: In this case is about a bank robber who actually
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Speaker 2: eluded police until they turned to the geofence warrant.
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Speaker 1: Correct His name is Shatri. He robbed a Virginia bank.
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Speaker 1: Probably walked in with a demand note and no one
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Speaker 1: knew who he was, and he walked out by the
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Speaker 1: way with one hundred thousand dollars in cash. So it
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Speaker 1: was a very successful bank robber. He got away. He
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Speaker 1: was on surveillance video, but otherwise no one knew who
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Speaker 1: he was. The police didn't know he was, but they
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Speaker 1: saw something interesting on the surveillance they saw him talking
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Speaker 1: on his phone, so they knew he had a cell phone,
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Speaker 1: and of course most of us, wherever you go, your
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Speaker 1: cell phone is with you. And oh, by the way,
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Speaker 1: that means that your cell phone is pinging towers and
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Speaker 1: Google and telling people what your location is. So knowing
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Speaker 1: that he had a phone, they prepared the search Worm,
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Speaker 1: which is literally a judicially signed document that required Google
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Speaker 1: to search through all this data and produce They did
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Speaker 1: actually a three products. Was the first one was animized,
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Speaker 1: meaning they didn't identify who the customers were, but they
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Speaker 1: identified how many and location, and then they did several
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Speaker 1: different tiers until they got to the third tier with
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Speaker 1: more information, and then Google was able to give them
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Speaker 1: the names and phone numbers of three suspects, one of
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Speaker 1: whom was Shatrey, and that led to a real search
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Speaker 1: warrant for his house where guess what, they found one
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Speaker 1: hundred thousand dollars in cash, easily incriminating him.
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Speaker 2: So, now what's the question before the Supreme Court?
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Speaker 1: So typically in these cases, the first question is was
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Speaker 1: the application to Google? It's a warrant? But was that
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Speaker 1: a search under the Fourth Amendment? Because typically if it's
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Speaker 1: a search, it has to pass the reasonableness question. And
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Speaker 1: of course, one of the things that Justice has talked
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Speaker 1: about in the argument was, you know, normally, if you
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Speaker 1: have a warrant, you're in good shape. A lot of
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Speaker 1: these test cases where they're acting without a warrant. Here
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Speaker 1: they had a warrant, and the question was did the
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Speaker 1: warrant then have probable cause sufficient to allow the judge
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Speaker 1: to sign the magistrate to sign the warrant. And of
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Speaker 1: course they didn't have probable casts as to any specific individual.
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Speaker 1: That's the twist in this case. So they weren't looking
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Speaker 1: for evidence. They were looking to see who did it
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Speaker 1: the identification, and that's novel.
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Speaker 2: There was a lot of concern about the broadness of
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Speaker 2: the Trump administration's position here, and you had justices like
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Speaker 2: the Chief Justice saying, what's to prevent the government from
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Speaker 2: using this to find out the identities of everybody at
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Speaker 2: a particular church, a particular political organization. Justice Amy Cony
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Speaker 2: Barrett said, so you could track someone going inside a home,
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Speaker 2: movements to the bathroom, movements to the bedroom, all of that.
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Speaker 1: Well, first of all, I think they're overstating the preciseness
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Speaker 1: of the technology. It's not that precise. Really, it's a geocircle.
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Speaker 1: It's one hundred yards. They don't necessarily know where you're
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Speaker 1: going or what you're doing, but they can see where
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Speaker 1: you are. And yes, those concerns were raised. I think
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Speaker 1: the response of that is, well, first of all, it
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Speaker 1: can't be used for general surveillance. You have to be
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Speaker 1: investigating a criminal action, bank robbery, or national security ors.
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Speaker 1: You know, they were worried about identifying murderers and other
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Speaker 1: people who committed crimes. So I don't think it be
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Speaker 1: used that far. But the concern is that some of
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Speaker 1: the people talking about this said, this case is unique
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Speaker 1: because the principle of government seems to be search first
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Speaker 1: and develop suspicion or evidence later, and normally it's the
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Speaker 1: other way around. They get the evidence first and then
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Speaker 1: they use that to further identify the individuals responsible. So
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Speaker 1: I think that's probably less of a concern. But the
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Speaker 1: breadth of this particular tool in the hands of law
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Speaker 1: enforcement is staggering.
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Speaker 2: And any other concerns that you heard from the justices.
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Speaker 1: Well, again they're always concerned now when they deal with
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Speaker 1: these cases. Because the way technology develops so fast, it
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Speaker 1: quickly outstrips prior cases. I mean, the last time we
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Speaker 1: had a significant Fourth Amendment search of this nature, it
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Speaker 1: would be Carpenter at the California case where the police
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Speaker 1: seized and then searched a cell phone incident to arrest.
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Speaker 1: And of course the courts are concerned about protecting the
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Speaker 1: privacy of individuals. The argument that the government made in
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Speaker 1: this case, which I think is a pretty strong argument, is,
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Speaker 1: in a sense, everyone who carries a cell phone, they
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Speaker 1: may not know that Google is doing this, but they've
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Speaker 1: consented to location services, so at that point they have it,
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Speaker 1: and they phrases a diminished expectation of privacy, and that's
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Speaker 1: usually where it turns.
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Speaker 5: Cat.
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Speaker 2: Do you think they'll come out well.
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Speaker 1: I mean I listened to the argument, which was interesting.
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Speaker 1: I didn't see the argument as quite as divided as
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Speaker 1: some of the commentators have. I think quite clearly the
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Speaker 1: action will be affirmed. What they're probably likely to do
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Speaker 1: is write an opinion that will seek to put some
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Speaker 1: guardrails up, put some parameters. Here's what the police have
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Speaker 1: to do. Things that they can't do would be including,
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Speaker 1: you know, start following people around. And there are lots
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Speaker 1: of uses that they could conceivably be concerned about that
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Speaker 1: by writing a narrow opinion affirming the conviction and the
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Speaker 1: use of the geofense in this case, the court may
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Speaker 1: be trying to put up boundaries, as they did in
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Speaker 1: the Miranda decision and in other decisions in the past.
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Speaker 2: It seems when privacy is at stake, it's something that
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Speaker 2: concerns them personally, and the oral arguments are a lot livelier,
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Speaker 2: with more energy.
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Speaker 1: Energy, and good humor. At one point, Barrett commented that
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Speaker 1: she was aware that when she walked into Nordstroms or
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Speaker 1: one of these stores where she was shopping, that the
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Speaker 1: store seemed to know she was there. And this is true.
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Speaker 1: This is what Google does with his data. It sells
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Speaker 1: the data and then you immediately get text messages asking
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Speaker 1: if you are interested in a special on XYZ. So
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Speaker 1: you say, oh my gosh, my phone knows exactly where
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Speaker 1: I am and what I'm doing. And the justices all
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Speaker 1: seem to enjoy that. But so the point is when
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Speaker 1: the justices can relate to the use of the technology
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Speaker 1: in their own personal lives, then they stand up and
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Speaker 1: they take attention, and they tend to be very careful
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Speaker 1: in the opinion because it affects them as well as
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Speaker 1: everyone else.
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Speaker 2: It's a learning experience sometimes for us and for them.
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Speaker 1: Correct anyway, a fascinating case and it'll be interesting to
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Speaker 1: see where it comes out. But it's clear to me
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Speaker 1: and a few others that although they were interested in
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Speaker 1: a lot of the variations and the particular concerns were expressed,
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Speaker 1: that seems to be a clear majority of the court,
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Speaker 1: the justices who are supporting law enforcement. I want to
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Speaker 1: make sure that the tools of the law enforcement trade
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Speaker 1: are enabled.
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Speaker 2: And do you think that it could hamper police in
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Speaker 2: their investigations if they have to comply with certain requirements
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Speaker 2: that were referred to.
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Speaker 1: Well, again, it's hard to say yes if the court
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Speaker 1: said you cannot obtain a search one unless you have
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Speaker 1: more specific information about the individual. And there was also
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Speaker 1: some disconcern about what we call the lack of particularity
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Speaker 1: very general warrant. In fact, there was discussion about comparing
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Speaker 1: it to the general warrants that were issued by the
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Speaker 1: British authorities and the revolution that led to the Fourth Amendment.
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Speaker 1: But I think they will add enough to make sure
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Speaker 1: that this is a tool. It's going to be very useful.
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Speaker 1: But of course the other problem is it will also
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Speaker 1: continue to develop as technology develops. We are entering an
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Speaker 1: age of surveillance. I hate to say this, and that's
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Speaker 1: the one thing that everyone should be concerned about.
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Speaker 2: That certainly seemed to cut across the ideological divide. Thanks
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Speaker 2: so much for your insights, George. That's form our federal prosecutor,
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Speaker 2: George Newhouse of Richard's Carrington. President Trump's past remarks disparaging
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Speaker 2: Haiti became part of the oral arguments in two cases
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Speaker 2: before the Supreme Court this week that tests the Department
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Speaker 2: of Homeland Securities power to end temporary protections for migrants
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Speaker 2: from crisis ridden countries like Haiti in Syria. Just as
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Speaker 2: Sonya Soto, Mayors said that trump Comes past comments about
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Speaker 2: Haiti seemed to show that an improper discriminatory purpose may
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Speaker 2: have played a part in the decision to cut off
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Speaker 2: temporary protected status.
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Speaker 6: That Haiti is a quote filthy, dirty and disgusting s
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Speaker 6: whole country. I'm quoting him, and where he complained that
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Speaker 6: the United States takes people from such countries instead of
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Speaker 6: people from Norway, Sweden or Denmark, where he declared illegal.
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Speaker 6: Where he declared illegal immigrants which he associated with TPS
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Speaker 6: as poisoning the blood of America.
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Speaker 2: The administration told the court that those past remarks by
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Speaker 2: the president were not racist and shouldn't get in the
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Speaker 2: way of the government stripping away temporary protections from migrants.
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Speaker 2: But the overarching question was whether judges have authority to
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Speaker 2: even review the DHS secretary's decision. Some of the conservative justices,
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Speaker 2: like Clarence Thomas, question that.
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Speaker 7: Would you be kind enough to say what else is
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Speaker 7: reviewable under despite the jurisdiction stripping provision, because it seems
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Speaker 7: pretty broad. It says there's no judicial review of any
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Speaker 7: determination of the Attorney General.
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Speaker 2: My guest is immigration law expert Leon Fresco, a partner
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Speaker 2: at Hollanden Knight. Leons start by giving us the background
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Speaker 2: of these cases.
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Speaker 5: In September and in June of twenty twenty five, the
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Speaker 5: DHS Secretary at the time, Christinom terminated temporary protected status
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Speaker 5: designations for Siri and Haiti. What that means is the
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Speaker 5: president has the ability to at any time say that
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Speaker 5: the conditions in a country are so unacceptable that it
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Speaker 5: would not be a good idea to deport people to
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Speaker 5: those countries, and then that triggers an eighteen month period
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Speaker 5: called tenporary protected status, So that had been done under
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Speaker 5: the Biden administration for Syria and Haiti, and the Trump
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Speaker 5: administration lifted these designations for Syria and Haiti because they
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Speaker 5: said that there was no more need for this and
13:15
Speaker 5: they said it was in the national interests of the
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Speaker 5: United States to not have TPS, which was a subsequent
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Speaker 5: argument in this case that what does that have to
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Speaker 5: do with anything here? This is sort of a larger
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Speaker 5: issue of what are the conditions in those countries. But nevertheless,
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Speaker 5: the immigration advocates found plaintiffs who were Syrian and Haitian
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Speaker 5: to sue the Department of Homeland Security over their TPS
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Speaker 5: revocation termination, and those cases work their way up the
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Speaker 5: district court and the appellate court, and they're now before
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Speaker 5: the Supreme Court on the issue of whether those designations
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Speaker 5: are reviewable, and if they are reviewable, what can be reviewed.
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Speaker 2: So several of the conservative justice has sort of harped
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Speaker 2: on the fact that the nineteen ninety law that created
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Speaker 2: TPS says there's no judicial review of the secretary's determination.
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Speaker 5: Correct, And there's a lot of case law on this
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Speaker 5: issue of judicial review, and the big one is mcnaery
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Speaker 5: that's a big case that had to deal with other
14:20
Speaker 5: parts of the Immigration Code where they say there's no
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Speaker 5: judicial review. And the issue that comes into play is
14:29
Speaker 5: does that mean everything is not subject to judicial review
14:33
Speaker 5: or the final decision isn't subject to judicial review? And
14:37
Speaker 5: this is where there was a lot of debate and
14:40
Speaker 5: discussion there because the idea was, well, fine, if you
14:45
Speaker 5: really did a good job analyzing the issue, you contacted
14:49
Speaker 5: the State Department, you've had your experts on the ground
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Speaker 5: tell you that Haiti was fine and that Syria was fine, well,
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Speaker 5: then that wouldn't be something subject to review. But what
15:00
Speaker 5: if everybody had found out Let's say they had put
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Speaker 5: it on YouTube as an example, where you blindfold the
15:07
Speaker 5: secretary and you say throw a dart and wherever the
15:10
Speaker 5: dark lands, that's what we're gonna do with TPS. We're
15:13
Speaker 5: either gonna do yes or no. Could you review that?
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Speaker 5: Would you have any remedy if that's how they made
15:18
Speaker 5: the decision on TPS. And it looked like there was
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Speaker 5: three justices who said even that would not be reviewable,
15:24
Speaker 5: but there seemed to be about five justices who thought,
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Speaker 5: wait a second, and really something like that happened where
15:32
Speaker 5: you just made a mockery of the review process on
15:35
Speaker 5: whether to terminate or whether to renew TPS. Then that
15:39
Speaker 5: might be something we would need to look at, because
15:42
Speaker 5: how could you just allow a situation like that to
15:44
Speaker 5: stand leon and.
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Speaker 2: The liberal justices brought this up. Then Homeland Security Secretary
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Speaker 2: Christy Nome, did she take any of the required steps
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Speaker 2: in canceling the GPS protections.
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Speaker 5: That's the concern that they have is they say that
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Speaker 5: at the end of the day, she really didn't review
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Speaker 5: the country conditions that were necessary. She really didn't have
16:10
Speaker 5: the consultations that were necessary in order to make the
16:13
Speaker 5: determinations that it actually was safe to deport people to
16:19
Speaker 5: Syria and Tahiti. They said, this was just a very
16:21
Speaker 5: brief email to the State Department and then boilerplate responses
16:25
Speaker 5: saying there were no foreign policy concerns. And so they're saying, look,
16:30
Speaker 5: we're not saying you have to have a massive trial here,
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Speaker 5: but if that's all you do, and then by the way,
16:37
Speaker 5: you discuss in your revocation, notice that it's just in
16:41
Speaker 5: the national interest to revoke this. You know that the
16:45
Speaker 5: American people not be subjected to immigration from these countries.
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Speaker 5: That's not really what matters in these determinations. What the
16:54
Speaker 5: statute says matters are the conditions on the ground and
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Speaker 5: whether it has become safe to port those individuals to
17:01
Speaker 5: those countries based on the conditions on the ground.
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Speaker 2: And lawyers for the immigrants pointed to State Department advisories
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Speaker 2: that warn US citizens not to travel to either country
17:14
Speaker 2: because of risks of terrorism, kidnapping, and armed conflict. Can
17:18
Speaker 2: you lay out where you think the justices stand.
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Speaker 5: It looks to me like there will be five votes
17:25
Speaker 5: Jackson Kagan Soto mayor. But also it looks like Justice
17:29
Speaker 5: Barrett and Justice Roberts that are signaling concerned with this
17:33
Speaker 5: idea that there might have been some administrative pretext and
17:37
Speaker 5: procedural irregularity there, and that what would happen is you
17:42
Speaker 5: would not have a categorical rule that says, under no
17:45
Speaker 5: circumstances is anything reviewable. But what it would say is
17:49
Speaker 5: you can have review as to whether the procedures that
17:53
Speaker 5: the Congress requested were followed, and if they were, whatever
17:57
Speaker 5: the outcome is that can't be reviewed because at the
18:00
Speaker 5: end of the day, you need to have some ability
18:04
Speaker 5: there to say, hey, there's deference given to these determinations
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Speaker 5: This is not the province of judges to say whether
18:10
Speaker 5: Haiti is too dangerous or whether serious to dangerous. How
18:14
Speaker 5: do the judges know that? But you have to follow
18:17
Speaker 5: the procedures. You can't throw a dart on a dark
18:20
Speaker 5: board and figure this out. And it looked like there
18:23
Speaker 5: were three Justices Thomas, Alito and possibly gorzag who seemed
18:28
Speaker 5: to be concerned that this TPS question. It isn't just
18:32
Speaker 5: about deference to President Trump, but it's also about the
18:35
Speaker 5: fact that there's foreign policy questions here about what we
18:39
Speaker 5: say about foreign countries, and the vast majority of time
18:43
Speaker 5: when you say that something implicates foreign policy, that then
18:46
Speaker 5: becomes what is known as a political question, which means
18:49
Speaker 5: it's not something the courts will elect to review. They'll say, look,
18:53
Speaker 5: that's fully in the province of the president, and we
18:57
Speaker 5: don't get involved in that. I don't know where just
19:00
Speaker 5: this Kavanaugh will go seem very uncertain based on the argument,
19:04
Speaker 5: but I think there's at least five votes to say
19:07
Speaker 5: you can have review as to whether the procedure was followed,
19:11
Speaker 5: but that judicial review of whether the right decision was made.
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Speaker 2: So last week the Supreme Court considered how much discretion
19:20
Speaker 2: immigration officers should have at the border tell us what
19:24
Speaker 2: the question is here and whether this comes up often
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Speaker 2: or not.
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Speaker 5: So this is a complicated issue. So I'll give you
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Speaker 5: this example. So a lot of times people they get
19:34
Speaker 5: what's called the green card, which means that they're lawful
19:37
Speaker 5: permanent residents of the United States. And so when they
19:41
Speaker 5: get that, they're finally relieved that they're not going to
19:43
Speaker 5: have to sweat it out every time they travel and
19:46
Speaker 5: come back into the United States, because the idea is
19:49
Speaker 5: they should be allowed to live in the United States
19:51
Speaker 5: and the story. But there are some occasions where that's
19:56
Speaker 5: not true, where you can actually be scrutinized you try
20:00
Speaker 5: to come back in the country. One of the main
20:02
Speaker 5: ones is the question of whether you abandoned your lawful
20:07
Speaker 5: permanent residency. And this comes up all the time. People
20:09
Speaker 5: will will live outside of the US for way too
20:12
Speaker 5: long and they'll try to come back in, and the
20:16
Speaker 5: customs of Border Protection will say are you really living here?
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Speaker 5: That happens a lot, that would probably happen thousands of
20:23
Speaker 5: times a year. But another one will be and that's
20:26
Speaker 5: the one that happened in this case, was did you
20:30
Speaker 5: commit a criminal act when you were in the United
20:33
Speaker 5: States or outside of the United States that we were
20:36
Speaker 5: not aware of previously, but now we're aware of it.
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Speaker 5: And because you've committed that criminal act, now you are
20:45
Speaker 5: subject to deportation. And so in this case, that's what happened.
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Speaker 5: They said that this person, mister Loo, had a pending
20:54
Speaker 5: criminal charge. So what they said was, look, we know
20:59
Speaker 5: that it would be bad, simply unfair to just you know,
21:01
Speaker 5: you've boarded a plane with a green card, you haven't
21:04
Speaker 5: been ordered deported, you haven't even been convicted of a crime.
21:09
Speaker 5: You just have a pending criminal charge. So we know
21:12
Speaker 5: it would be totally unlawful and unreasonable to not let
21:17
Speaker 5: you in the country. So but what they did was
21:20
Speaker 5: they kind of tried to do this weird middle ground
21:22
Speaker 5: thing where they said, well, here's what we're going to do.
21:24
Speaker 5: We're not going to admit you into the country as
21:27
Speaker 5: a lawful permanent resident. We're going to admit you into
21:31
Speaker 5: the country as a parole ee. And what a parole is,
21:34
Speaker 5: it's illegal fiction. It's just saying we will let your
21:38
Speaker 5: body into the US so that your body can be here.
21:41
Speaker 5: But when you're a parole ee, your legal body, not
21:45
Speaker 5: your actual body. Your actual bodies in the US, your
21:48
Speaker 5: legal body is still outside the US. And what that
21:51
Speaker 5: means is the government could at any time revoke that
21:54
Speaker 5: parole and deport you. And so that's what actually happens
21:58
Speaker 5: here is had they admit him as a lawful permanent resident,
22:03
Speaker 5: they would have subsequently had no basis to deport him.
22:06
Speaker 5: But because they admitted him as a parole ee, what
22:09
Speaker 5: they subsequently did was say, ha, well, we admitted you
22:12
Speaker 5: as a parole now we're going to revoke your parole.
22:16
Speaker 5: And so this Supreme Court case really came down to
22:19
Speaker 5: the issue of whether the CBPS allowed to do that
22:24
Speaker 5: or whether they have to admit anyone who enters with
22:26
Speaker 5: a Green card as a green card holder. So that's
22:30
Speaker 5: the first question, but sort of the deeper question, which
22:33
Speaker 5: was really at the heart of this, and this is
22:36
Speaker 5: why this case is so interesting, is and I teach
22:40
Speaker 5: this talk because I teach immigration law at GW Law School.
22:43
Speaker 5: I teach in my very first class that for the
22:46
Speaker 5: longest time, the immigration law was based on good faith,
22:49
Speaker 5: meaning good faith of the applicant and good faith of
22:52
Speaker 5: the government. And if you stop basing immigration law on
22:56
Speaker 5: good faith, the whole system collapses. Well, here this was
23:00
Speaker 5: testing that concept because what the plaintiffs and the side
23:04
Speaker 5: for the foreign nationals we're saying was you can't trust
23:08
Speaker 5: the government to act in a good faith manner here.
23:11
Speaker 5: Look at what they did here, So from now on
23:14
Speaker 5: that can't happen. And what the conservatives and the enforcement
23:17
Speaker 5: but we're saying is, do you really think that our
23:20
Speaker 5: government is just going to psychotically not let Green card
23:24
Speaker 5: holders in just so that they could deport them later.
23:27
Speaker 5: But the point is, if the Supreme Court doesn't act
23:30
Speaker 5: to prevent this, they will have that authority to do
23:33
Speaker 5: that to Green card holders, which is to say, for
23:36
Speaker 5: any reason, we're not going to let you in with
23:38
Speaker 5: your green card. We know we can't ban you, so
23:41
Speaker 5: we'll parole you in and if for any reason we
23:44
Speaker 5: want to provoke your parole later, we can do it.
23:46
Speaker 5: Even though there was no actual reason to deport you.
23:50
Speaker 5: They can just buy the legal fiction of you re
23:53
Speaker 5: entering the country just decide to do this to you.
23:56
Speaker 5: So that's the question, and the court really struggling with
24:02
Speaker 5: this issue. There was a lot of skepticism at the
24:05
Speaker 5: issue that there would be no standard at the border
24:07
Speaker 5: by which the government could be prevented from saying that
24:13
Speaker 5: you're not a lawful permanent resident. This really troubled people,
24:16
Speaker 5: But they also don't want a MENI trial at the
24:19
Speaker 5: airport about whether you should be admitted or not. So
24:22
Speaker 5: this is very hard to figure out where this is
24:25
Speaker 5: going to go. But I do think there's going to
24:28
Speaker 5: be some constraints as to what the CBP, the Customs
24:32
Speaker 5: of Border Protection could do in terms of trying to
24:36
Speaker 5: figure out when they can refuse to allow you to
24:40
Speaker 5: enter as a lawful permanent resident if you present a
24:44
Speaker 5: lawful permanent resident card and one other thing. The argument
24:48
Speaker 5: got so crazy that people were talking about why not
24:51
Speaker 5: just dismiss this case as improvidently granted and go back
24:54
Speaker 5: to the Second Circuits decision. You know, we're going to
24:57
Speaker 5: create a Pandora's box here, so the outcome is possible here.
25:01
Speaker 5: So this doesn't happen all the time. It might happen
25:04
Speaker 5: a few thousand times a year. But it's really a
25:07
Speaker 5: question of do you want to give the government. Do
25:10
Speaker 5: you trust it enough to give it the authority where
25:12
Speaker 5: it can ruin any Green Card holder's life for any reason,
25:16
Speaker 5: or do you want to put that constraint and that's
25:19
Speaker 5: where it really comes down to whether you believe the
25:21
Speaker 5: government largely acts in good faith or whether you believe
25:25
Speaker 5: the government largely doesn't act in good faith.
25:27
Speaker 2: That's a more loaded question nowadays than it was probably
25:31
Speaker 2: years ago. I've been talking to Leon Fresco of Holland
25:35
Speaker 2: and Knight. He was the former head of the Office
25:38
Speaker 2: of Civil Immigration Litigation in the Obama administration. So let's
25:42
Speaker 2: turn out to an issue that will most likely end
25:45
Speaker 2: up at the Supreme Court because there's a split in
25:48
Speaker 2: the circuits mandatory detention for all. So the Second Circuit
25:54
Speaker 2: here in New York ruled unanimously, with a Trump appointee
25:57
Speaker 2: on the panel, that the Admitisstration can't jail immigrants without
26:02
Speaker 2: the chance to seek bond. Have they been trying to
26:05
Speaker 2: do this?
26:06
Speaker 5: So this is a very complicated case. So let me
26:09
Speaker 5: give you the original way this worked, and then what happened,
26:14
Speaker 5: and then the case. So in nineteen ninety six, there
26:17
Speaker 5: was a law called the Illegal Immigration Enforcement and Responsibility Act,
26:22
Speaker 5: and that law said that there was an issue called
26:27
Speaker 5: expedited removal, where if you just showed up at the
26:30
Speaker 5: border or a port of entry and you didn't have
26:34
Speaker 5: any reason to be here, then the government could detain
26:39
Speaker 5: you without bond until your removal proceedings were concluded, and
26:44
Speaker 5: then they could deport you. But the way that statute
26:50
Speaker 5: was written, it says, if you are an alien meaning
26:53
Speaker 5: you're not a US citizen, you're a foreign national who
26:56
Speaker 5: is an applicant for admission meaning you want to one
27:00
Speaker 5: day be legally admitted into the United States, you must
27:04
Speaker 5: be detained mandatorily. But it says if you are an
27:07
Speaker 5: alien seeking admission, So it has two different things in
27:11
Speaker 5: the same statute, applicant for admission and seeking admission. So
27:16
Speaker 5: for the first thirty years after that statute was written,
27:19
Speaker 5: the way that the immigration authorities thought about this was
27:25
Speaker 5: as follows. If you were apprehended at the border or
27:30
Speaker 5: at the port of entry, or at the seaport or airport,
27:33
Speaker 5: whatever it may be, that that was a person who
27:36
Speaker 5: was an applicant for admission and seeking admission, that person
27:39
Speaker 5: could be detained and that person didn't have an opportunity
27:44
Speaker 5: to seek bond if their removal proceedings were pending. But
27:49
Speaker 5: if you had stuck across the border and made it
27:52
Speaker 5: through and you are no longer being chased, we never
27:56
Speaker 5: even knew you were here. You just entered. At that point,
27:59
Speaker 5: you were you're no longer seeking admission. You weren't caught
28:03
Speaker 5: while you were trying to seek admission to the United States.
28:05
Speaker 5: You were caught well after that. And that would be
28:08
Speaker 5: a person that would be subject to the normal immigration
28:12
Speaker 5: removal statutes, which say that if you either overstayed your visa.
28:17
Speaker 5: That one everybody agrees. If you overstayed your visa and
28:20
Speaker 5: your cought yes you can be deported, and yes you're
28:23
Speaker 5: placed in removal proceedings, but you are entitled to a
28:26
Speaker 5: bond hearing to determine whether you should be detained during
28:31
Speaker 5: these proceedings. And you are entitled to bond if you're
28:34
Speaker 5: not a flight risk or if you're not dangerous to society.
28:37
Speaker 5: So everybody agrees to that with people that overstay their visa.
28:42
Speaker 5: But there's this question that the Trump administration has decided
28:46
Speaker 5: to resuscitate, which is, well, is this really true for
28:50
Speaker 5: the people who stuck across the border and didn't get caught.
28:54
Speaker 5: What are they more like? Are they more like the
28:56
Speaker 5: visa overstate people or are they more like the people
29:01
Speaker 5: who were just apprehended at the border. And so the
29:05
Speaker 5: Trump administration decided to say no, no, no. They are
29:09
Speaker 5: just like the people who were apprehended at the border.
29:12
Speaker 5: It doesn't matter that they were successful in sneaking across.
29:15
Speaker 5: They should be not rewarded for that. They should also
29:19
Speaker 5: be mandatorily detained. So what you've been seeing is thousands
29:24
Speaker 5: of habeas petitions being filed because people who went to
29:27
Speaker 5: immigration court for their hearings were suddenly being put in detention,
29:32
Speaker 5: even though they had been given bond. They were suddenly
29:35
Speaker 5: being told, we don't have any authority to give you bond,
29:38
Speaker 5: so you're going to be put in detention, and people
29:41
Speaker 5: have been filing federal habeases.
29:43
Speaker 2: Tell us more about the split between the Second Circuit
29:47
Speaker 2: and the Fifth Circuit and the Eighth Circuit.
29:49
Speaker 5: In the Fifth Circuit and in the Eighth Circuit, those
29:52
Speaker 5: courts agreed with the Trump administration. But now this Second
29:57
Speaker 5: Circuit is the first court that agrees with the foreign
30:00
Speaker 5: national litigants. And they say that because this statute uses
30:05
Speaker 5: two different terms in the same statute for mandatory detention,
30:09
Speaker 5: not only do you have to be an applicant for admission,
30:12
Speaker 5: which is everybody in the immigration court is an applicant
30:15
Speaker 5: for permission, because if you're fighting your deportation, you're necessarily
30:20
Speaker 5: saying I want to be admitted here legally, don't deport me.
30:23
Speaker 5: So yes, that part's true. But because the statute also
30:27
Speaker 5: uses the words seeking admission, that that means currently that
30:33
Speaker 5: the verbiage of that means you have to be caught
30:36
Speaker 5: when you're trying to enter the United States when you're
30:40
Speaker 5: first asking for permission, not subsequently much later. And so
30:45
Speaker 5: that's what the Second Circuit says, and they say, look,
30:48
Speaker 5: thirty years of this matters. And it also matters that
30:53
Speaker 5: when you're detaining people for not committing a crime, but
30:57
Speaker 5: for immigration, which is a civil matter, if you're going
31:00
Speaker 5: to hold people without bond, that's a serious constitutional problem
31:05
Speaker 5: because even criminals get bonded. I mean, you can murder
31:07
Speaker 5: somebody and potentially get bond. So why would someone who
31:12
Speaker 5: just has an immigration violation not be entitled to bond?
31:16
Speaker 5: And so that's what the court said is in a
31:18
Speaker 5: case like that where there's serious constitutional concerns, if there's
31:22
Speaker 5: an ambiguity where the law can be read fifty to
31:25
Speaker 5: fifty one way, fifty to fifty the other, we can't
31:28
Speaker 5: possibly choose the one that creates constitutional concerns, and so
31:33
Speaker 5: that's why the Second Circuit decided to say that those
31:36
Speaker 5: individuals are now entitled to bond. Now, this case is
31:39
Speaker 5: for sure going to go to the Supreme Court because
31:41
Speaker 5: there's a circuit split, and the Supreme Court will have
31:44
Speaker 5: to decide what to do next.
31:46
Speaker 2: I'm waiting for you to say one day, this is
31:48
Speaker 2: an easy case because these immigration cases are all so complicated.
31:54
Speaker 2: We've talked often about the way ICE officers mask themselves
31:57
Speaker 2: up and a California law that required ICE agents to
32:03
Speaker 2: identify themselves in public has been temporarily blocked by the
32:08
Speaker 2: Ninth Circuit. First of all, tell us about the law
32:11
Speaker 2: it self.
32:12
Speaker 5: It's in the California Penal Code, and it says that
32:15
Speaker 5: if you are a non uniformed federal law enforcement officer,
32:20
Speaker 5: which they're really kind of triggering toward ICE, because ICE
32:23
Speaker 5: is the ones that wear the masks and the non
32:25
Speaker 5: identifying uniforms, if you're performing law enforcement duties, you can
32:30
Speaker 5: be criminally prosecuted for that. So you have a duty
32:34
Speaker 5: to display identification. And if you don't display identification and
32:40
Speaker 5: you're non uniformed in California, the California Police can essentially
32:45
Speaker 5: arrest ICE agents and place them.
32:48
Speaker 2: In jail and explain why. The appeals courts said that
32:51
Speaker 2: California law is an unlawful attempt to regulate the federal government.
32:57
Speaker 5: And so the question was does that byolate the supremacy clause,
33:01
Speaker 5: And the debate is California is saying, yes, we agree
33:07
Speaker 5: that we're regulating the federal government in that sense, because
33:11
Speaker 5: we're telling them that if they want to have ICE
33:13
Speaker 5: operating in California, they have to be visible. They have
33:15
Speaker 5: to say their eyes and they can't have masks. But
33:18
Speaker 5: we're doing this for public safety reasons and we're not
33:21
Speaker 5: actually interfering in their operations. Ice can still deport whoever
33:27
Speaker 5: it wants, It can still capture whoever it wants. It
33:29
Speaker 5: just has to identify itself. So they were trying to
33:33
Speaker 5: say that should be an exception, and the federal government
33:37
Speaker 5: was saying no, no, no, any regulation of federal law enforcement
33:42
Speaker 5: officers and agencies. It doesn't matter how good your reason is,
33:46
Speaker 5: or how benevolent your reason is or anything. It's just
33:48
Speaker 5: not possible under the supremacy clause because then we end
33:52
Speaker 5: up with an eye of the beholder situation of who
33:55
Speaker 5: thinks what regulation is in the best interests and the
33:59
Speaker 5: good faith and all of that, that's not really what matters.
34:02
Speaker 5: The supremacy clause is a strict liability situation here where
34:07
Speaker 5: you can't have any direct regulation by states or localities
34:12
Speaker 5: of federal officers and agents and the performance of their
34:15
Speaker 5: federal duties. And these judges were not so conservative, and
34:19
Speaker 5: they agreed unanimously that an injunction was necessary to the
34:23
Speaker 5: California law because they said, yeah, at the end of
34:26
Speaker 5: the day, you can't have any direct regulation. It doesn't
34:30
Speaker 5: matter that there's a minimal burden, or that it's a
34:33
Speaker 5: safety issue, that it's not interfering or anything like that.
34:37
Speaker 5: It's just saying there's a very bright line rule, and
34:39
Speaker 5: you can't process that. The states cannot directly regulate federal operation.
34:44
Speaker 5: They can't put rules that federal officers have to follow,
34:48
Speaker 5: and especially not criminal rules where they go to jail
34:51
Speaker 5: if they don't follow those rules. So I don't think
34:55
Speaker 5: that this is a case where the Supreme Court's going
34:58
Speaker 5: to need to do anything. BECA think that at the
35:01
Speaker 5: end of the day, it may just finish there at
35:03
Speaker 5: the Ninth Circuit. But it's very interesting in Tenth by
35:06
Speaker 5: California and a very interesting decision by the Ninth Circuit.
35:11
Speaker 2: I mean, the way the ICE officers are masked up, A,
35:14
Speaker 2: it looks frightening, but B you have no idea who's
35:18
Speaker 2: arresting you, who's stopping you. I mean, it's really discomforting
35:22
Speaker 2: in so many ways, and there's nothing that California or
35:25
Speaker 2: any state can do about it.
35:27
Speaker 5: Well, the answer to that is you have to put
35:29
Speaker 5: that in an appropriations bill. And that's why we currently
35:32
Speaker 5: have a shutdown of the Department of Homeland Security. Is
35:36
Speaker 5: you know, and I mean, yes, the TSA is back
35:39
Speaker 5: because President Trump is using money from other legislation to
35:43
Speaker 5: pay for them and everything. But you have the Secretary
35:45
Speaker 5: of Homeland Security saying they're going to run out of
35:47
Speaker 5: money in May, and it is currently shut down the
35:50
Speaker 5: Department of Homeland Security in essence because there they don't
35:53
Speaker 5: have appropriations because of this issue. That the issue is
35:57
Speaker 5: that the Democrats in the Congress want ICE and CVP
36:01
Speaker 5: to operate under specific guidelines like this, and the Republicans
36:06
Speaker 5: don't want ICE and CVP to operate under specific guidelines
36:10
Speaker 5: like this. But this is the forum in which it
36:13
Speaker 5: has to be settled because if it's settled in the
36:16
Speaker 5: federal courts, then you know, you could just you could
36:19
Speaker 5: see where people would be nervous about this kind of thing,
36:22
Speaker 5: because suppose some other states said, look, if you want
36:27
Speaker 5: to enforce civil rights law in our state, you can't
36:31
Speaker 5: be of a certain race or something, or we're gonna
36:33
Speaker 5: arrest you, or you know, who knows what conditions people
36:38
Speaker 5: can start putting in if they were not so belevolent,
36:42
Speaker 5: and who decides whether those conditions are benevolent or not.
36:45
Speaker 5: And so it is really just easier to have a
36:48
Speaker 5: bright line rule that says, hey, the federal government gets
36:53
Speaker 5: to decide how it's federal officers and operators do things.
36:58
Speaker 5: The states have no role, and if they break the law,
37:01
Speaker 5: you can always file a Bibbins lawsuit. If they broke
37:03
Speaker 5: the law visa viu specifically, you can file a Bibbins
37:07
Speaker 5: lawsuit section nineteen eighty three, whatever it takes to say
37:10
Speaker 5: I want to get paid because my civil rights were violated,
37:14
Speaker 5: or on the larger scale, you think there's a problem,
37:17
Speaker 5: then you do the political advocacy necessary to get that
37:21
Speaker 5: changed in an appropriations bill. And that's literally the fight
37:25
Speaker 5: that we're having right now.
37:27
Speaker 2: Leon, do you know when ICE officers started masking up
37:31
Speaker 2: like this?
37:32
Speaker 5: I do not think that that happened anytime before the
37:35
Speaker 5: Trump administration. It might have happened on very specific targeted
37:40
Speaker 5: operations where there were very dangerous people involved, but not
37:44
Speaker 5: as a matter of just uniform practice that happened in
37:48
Speaker 5: this most recent administration.
37:49
Speaker 2: We covered a lot today, Leon, Thanks so much. That's
37:52
Speaker 2: Leon Fresco of Holland and Knight. And that's it for
37:55
Speaker 2: this edition of The Bloomberg Law Show. Remember you can
37:58
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