Latest / Bloomberg Law / ICE Agent Shooting of Minneapolis Woman

Transcript

ICE Agent Shooting of Minneapolis Woman · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
0:08
Speaker 2: Hi Hi.
0:12
Speaker 3: Hi.
0:14
Speaker 2: Tensions are high in Minneapolis after thirty seven year old
0:18
Speaker 2: Renee Nicol Good was shot and killed by an ICE
0:22
Speaker 2: agent during the Trump Administration's latest and largest immigration crackdown.
0:28
Speaker 2: Videos taken by bystanders with different vantage points show an
0:32
Speaker 2: officer approaching an suv stopped across the middle of the road,
0:37
Speaker 2: demanding the driver open the door and grabbing the handle.
0:40
Speaker 2: The Honda pilot begins to move forward, and a different
0:43
Speaker 2: ICE officer standing near the front of the vehicle pulls
0:47
Speaker 2: his weapon and immediately fires at least two shots into
0:51
Speaker 2: the suv at close range, jumping back as it moves
0:55
Speaker 2: toward him. But there are dueling interpretations of the incident.
1:00
Speaker 2: DHS Secretary Christine nom called it an act of domestic
1:04
Speaker 2: terrorism and concluded that the ICE agent was acting in
1:08
Speaker 2: self defense.
1:10
Speaker 4: This vehicle was used to hit this officer, It was
1:13
Speaker 4: used as a weapon, and the officers feels as though
1:16
Speaker 4: his life was in jeopardy. It was used how to
1:19
Speaker 4: perpetuate a violent act. That this officer took action to
1:24
Speaker 4: protect himself and to protect his fellow law enforcement officers.
1:29
Speaker 2: But Minneapolis Mayor Jacob Frye says the video tells a
1:33
Speaker 2: different story.
1:35
Speaker 5: I myself saw a video of the shots being fired
1:41
Speaker 5: as the car was driving away. What I can tell
1:45
Speaker 5: you is the narrative that this was just done in
1:48
Speaker 5: self defense is a garbage narrative that is not true.
1:53
Speaker 1: It has no truth.
1:55
Speaker 2: Joining me is former Manhattan prosecutor and criminal defense attorney
1:58
Speaker 2: Paul Callan, who's of counsel at Edelman and Edelman. Paul,
2:03
Speaker 2: let's start with the very basic question of can this
2:06
Speaker 2: officer be prosecuted? Vice President J. D. Vince, who's an attorney, says,
2:12
Speaker 2: the officer is protected by absolute immunity.
2:16
Speaker 3: Well, there's no such thing as absolute immunity for federal
2:20
Speaker 3: law enforcement officers. They can be prosecuted when they have
2:25
Speaker 3: used excessive force that violate federal rules and regulations with
2:29
Speaker 3: respect to the use of deadly physical force. So he's
2:32
Speaker 3: dead wrong about that. Now, on the issue of federal immunity,
2:38
Speaker 3: that's a more complex question. But I will tell you
2:40
Speaker 3: that there have been numerous cases through the years of
2:44
Speaker 3: federal law enforcement authorities being prosecuted on a state level
2:49
Speaker 3: for the use of excessive force. The most famous one
2:53
Speaker 3: was the Ruby Ridge case, which happened a while back.
2:57
Speaker 3: But in that case, there was a federal sniper who
3:01
Speaker 3: was assigned to try to take down the bad guys
3:04
Speaker 3: in the Ruby Ridge case, and the claim was that
3:07
Speaker 3: he used excessive force and killed somebody, and he was
3:11
Speaker 3: prosecuted in a state court and it was upheld by
3:14
Speaker 3: the federal Ninth Circuit Court of Appeals. Now that case
3:18
Speaker 3: was ultimately dismissed in the end, but not on federal
3:20
Speaker 3: immunity grounds. So federal authorities, if they misused their right
3:25
Speaker 3: to use excessive force, they can be prosecuted, just like
3:29
Speaker 3: any human being can be prosecuted.
3:31
Speaker 2: Are there separate rules for police and federal officers when
3:36
Speaker 2: lethal force is used against someone in a moving vehicle?
3:41
Speaker 3: Well, yes, in the sense that some states. New York's
3:46
Speaker 3: a good example. In nineteen seventy two, New York enacted
3:49
Speaker 3: a rule that police officers were not to fire at
3:54
Speaker 3: moving vehicles for two reasons. Number one, bystanders could be
3:58
Speaker 3: hit by the Gunfirenumber two, if they succeeded in killing
4:02
Speaker 3: the driver, the car could crash into somebody else and
4:06
Speaker 3: kill them. So it's a very very dangerous thing to
4:08
Speaker 3: do so. That's been banned in New York at least
4:11
Speaker 3: since nineteen seventy two. Now, other states have different rules
4:14
Speaker 3: on this. The federal government, basically, according to the Department
4:18
Speaker 3: of Justice manual, has a rule that they can only
4:23
Speaker 3: use what is considered to be deadly force when there's
4:27
Speaker 3: an imminent threat that the person they're shooting at would
4:31
Speaker 3: use deadly force against federal law enforcement agents or others.
4:37
Speaker 3: And that's how the Feds would look at this case
4:40
Speaker 3: and judge it, if they were willing to step back
4:43
Speaker 3: and judge it objectively, which that's a whole other subject.
4:46
Speaker 3: There's no objectivity being brought to this investigation by federal
4:50
Speaker 3: authorities from what I've been able to see.
4:52
Speaker 2: Christy Nome, the Department of Homeland Security director, has already
4:57
Speaker 2: for the past two days, said that the the woman
5:00
Speaker 2: who was killed here was aiming at the officer, and
5:04
Speaker 2: the officer was acting in self defense and according to
5:08
Speaker 2: his training. And then you have state authorities saying, no,
5:11
Speaker 2: that's not the case. In past situations, has the federal
5:15
Speaker 2: government come out so strongly in presenting the narrative and
5:20
Speaker 2: the defense of the officer before there's even an investigation.
5:24
Speaker 3: No they have not, and as a matter of fact,
5:26
Speaker 3: Christy Nooam's statements are really shockingly inappropriate. Normally, federal authorities
5:33
Speaker 3: will make no statement, and this case would be looked
5:36
Speaker 3: at by the US Attorney's office that has jurisdiction, and
5:41
Speaker 3: there might be a presentation to a federal grand jury
5:44
Speaker 3: if it was a close call or if it was
5:47
Speaker 3: clearly misconduct unlawful activity by the law enforcement agent. But
5:51
Speaker 3: they usually make no comment, no public comment, because who's
5:55
Speaker 3: going to believe that an investigation has been fair and
5:59
Speaker 3: impartial if all of the investigators have declared their opinion
6:02
Speaker 3: on it before the investigation even begins. So this is
6:06
Speaker 3: really improper and highly unprofessional behavior by Christy nol And
6:11
Speaker 3: by the way, a person who said that is of
6:14
Speaker 3: all people, Holman, who is called the Border Zar, who
6:18
Speaker 3: makes a lot of television appearances defending everything that the
6:22
Speaker 3: Trump administration is doing, and Thomas Homan has said that
6:25
Speaker 3: it's completely inappropriate for law enforcement authorities to be making
6:30
Speaker 3: definitive statements about whether this was a shooting that could
6:34
Speaker 3: be justified or not.
6:36
Speaker 2: Minnesota investigators say the federal government is blocking them from
6:42
Speaker 2: accessing the evidence in the investigation. And the FBI won't
6:47
Speaker 2: work with them on the probe. So where does that
6:50
Speaker 2: leave the investigation in the hands of the federal government
6:53
Speaker 2: that's already made a conclusion.
6:55
Speaker 3: Yes, I think it will leave the at least the
6:58
Speaker 3: initial investigation with the federal government entirely. Now, I have
7:03
Speaker 3: to say June that in situations that I've seen as
7:06
Speaker 3: a state prosecutor and I prosecuted murder cases on a
7:08
Speaker 3: state level, the FEDS will come in on cases that
7:12
Speaker 3: have federal implications and pull the case from state authorities
7:17
Speaker 3: and take the evidence to begin with. But in the end,
7:21
Speaker 3: when they complete their investigation, the state is then free
7:25
Speaker 3: to pursue the case. And there have been cases where
7:28
Speaker 3: the Feds have decided not to proceed with charges and
7:32
Speaker 3: state authorities have said, no, this was a case of
7:35
Speaker 3: unjustifiable force and someone was killed who didn't deserve to die,
7:39
Speaker 3: and state authorities proceed. That happens all the time, But
7:43
Speaker 3: it's not unusual for the FEDS to take all the
7:46
Speaker 3: evidence and say we're the only ones that are going
7:48
Speaker 3: to look at it initially. So Minnesota will get there
7:52
Speaker 3: their shot at this case. If the Feds don't decide
7:55
Speaker 3: to proceed against the ice officer involved.
7:58
Speaker 2: Here, you have videos and videos taken from various angles.
8:03
Speaker 2: One would think that if there is a video, it'd
8:05
Speaker 2: be pretty clear what happened.
8:08
Speaker 6: But is it.
8:09
Speaker 2: People seem to have different interpretations.
8:12
Speaker 3: Well. Yes, and this video in particular is one where
8:17
Speaker 3: people are disagreeing because if this thirty seven year old
8:22
Speaker 3: mother of three was intending to kill an ice officer
8:27
Speaker 3: by running him over, would she have turned the wheels
8:31
Speaker 3: of her car to go to the right and avoid
8:34
Speaker 3: hitting the officer. That's something I'd be looking at if
8:37
Speaker 3: I were on the grand jury evaluating this case. The
8:41
Speaker 3: other thing that's very troublesome about the video from my
8:43
Speaker 3: standpoint is, even if the vehicle was initially going toward
8:48
Speaker 3: the ice officer, it looked from the video like all
8:52
Speaker 3: he had to do was step two feet to the right,
8:57
Speaker 3: to his right and he would have been out of danger.
9:00
Speaker 3: She had turned the wheels away from him as it was,
9:03
Speaker 3: so it doesn't look to me like there was any
9:06
Speaker 3: imminent threat to him at all when he fired that
9:09
Speaker 3: deadly shot through the windshield of the car.
9:12
Speaker 2: At trial, if this goes to trial, the jury's going
9:15
Speaker 2: to be shown videos from different angles. It'll be slowed
9:19
Speaker 2: down and stop, and there'll be different interpretations from each
9:23
Speaker 2: side about what happened.
9:25
Speaker 3: Well, and I think in front of jury's there's always
9:27
Speaker 3: great sympathy for the law enforcement officials involved in these
9:31
Speaker 3: situations because they're making a snap decision about whether it's
9:37
Speaker 3: appropriate to fire a shot at someone who is presumably
9:40
Speaker 3: committing a crime. So they're hesitant about convicting a law
9:46
Speaker 3: enforcement officer under these circumstances. But here, first of all,
9:50
Speaker 3: you're going to get if you get a Minnesota jury,
9:52
Speaker 3: of Minneapolis jury, they don't seem to be people who
9:56
Speaker 3: are going to be very sympathetic to these two federal
10:01
Speaker 3: officers who have invaded Minneapolis. Now, there doesn't seem to
10:05
Speaker 3: be a lot of sympathy for the federal government in Minnesota. Now,
10:07
Speaker 3: remember that's going to be the jury in this case,
10:10
Speaker 3: if it's brought in federal court or in state court.
10:13
Speaker 2: Paul, the other thing I noticed while watching the video
10:16
Speaker 2: over and over again is that the ice officers are
10:19
Speaker 2: very aggressive. As they're approaching the car, they're already cursing. Also,
10:25
Speaker 2: they're all masked up so that you can barely see
10:28
Speaker 2: their faces, so it doesn't present what I call the
10:31
Speaker 2: typical officer situation.
10:35
Speaker 3: It's completely atypical, June. I mean, we're used to seeing
10:40
Speaker 3: police officers dressed in a normal police uniform which displays
10:45
Speaker 3: their badge number, and they don't have their faces covered
10:48
Speaker 3: like they're some kind of a terrorist operating in the
10:52
Speaker 3: Middle East, which when you see these ice raids, it's
10:56
Speaker 3: a scene that's been never seen before in the United States,
11:00
Speaker 3: with officers with their faces covered, raiding homes and firing
11:05
Speaker 3: gunshots into vehicles. It's a very very strange and terrifying thing,
11:10
Speaker 3: I think for American citizens to see. So that's what
11:14
Speaker 3: this woman was confronted with when they were trying to
11:17
Speaker 3: pull her out of her car. And I don't know
11:19
Speaker 3: what her side of the story will be presented, as
11:22
Speaker 3: obviously she's not here to testify about it. But whether
11:26
Speaker 3: she deliberately came and was deliberately trying to obstruct this
11:29
Speaker 3: investigation or not, we don't know all of the facts
11:32
Speaker 3: at this point in time. But in the end, it
11:35
Speaker 3: comes down to one thing. Did this officer have an
11:38
Speaker 3: imminent threat of death being presented because this van was
11:42
Speaker 3: going in his direction, and was that the only reasonable
11:46
Speaker 3: thing that he could do under the circumstances fire a
11:50
Speaker 3: shot through the window at this woman or could he
11:52
Speaker 3: have merely stepped out of the way and avoid it
11:55
Speaker 3: being killed himself. So that's what a jury will look at.
11:58
Speaker 2: Eventually, Let's suppose that she was trying to avoid arrest
12:04
Speaker 2: and trying to escape from arrest. Does it change the
12:08
Speaker 2: situation at all or the analysis of what the ice
12:11
Speaker 2: officer did in shooting well.
12:15
Speaker 3: On a state and federal level, there is a doctrine
12:18
Speaker 3: called the fleeing felon doctrine, which is if a felon
12:22
Speaker 3: who has committed a violent crime or is trying to
12:25
Speaker 3: commit a violent crime of some sort is fleeing the scene,
12:29
Speaker 3: generally deadly physical force can be used in that person's apprehension.
12:34
Speaker 3: But that doctrine has been narrowed down by the courts
12:38
Speaker 3: through the years in recent years and it's gotten to
12:41
Speaker 3: the point where in most states you're not allowed to
12:44
Speaker 3: use that level of force just because of felon is
12:47
Speaker 3: fleeing the scene. You have to show that that felon
12:50
Speaker 3: actively presents a threat, an imminent threat of death or
12:54
Speaker 3: serious injury to other people, and that applied to this
12:58
Speaker 3: fact pattern, you would have to say did she present
13:03
Speaker 3: an imminent threat of death or injury to members of
13:07
Speaker 3: the public or to this ice officer as she was
13:12
Speaker 3: driving her car away from the scene, and from the
13:16
Speaker 3: video I've seen, I don't think it makes out that standard.
13:20
Speaker 3: But as we discussed earlier, there will be many angles
13:24
Speaker 3: of this video maybe that we haven't seen yet. There's
13:26
Speaker 3: the other information that we don't know about yet, which
13:29
Speaker 3: is why it's totally wrong for Christy Nolan and the
13:33
Speaker 3: Vice president and everybody else to have reached a definitive
13:36
Speaker 3: opinion about guilt or innocence of this ice officer. We've
13:41
Speaker 3: got to wait until all the evidence is in before
13:43
Speaker 3: we can make a determination about that.
13:46
Speaker 2: In any event, I mean, will her family be able
13:49
Speaker 2: to sue in civil court for damages?
13:52
Speaker 3: Well, they will be able to sue, there's no question
13:54
Speaker 3: about that. But I have to say that those cases
13:57
Speaker 3: are very, very difficult cases to win INFEC court. The
14:01
Speaker 3: federal judges are very sympathetic to federal law enforcement authorities,
14:06
Speaker 3: and there are a number of rules in place in
14:09
Speaker 3: federal law granting tremendous protection to federal law enforcement authorities.
14:15
Speaker 3: As a matter of fact, it's if they violate the
14:18
Speaker 3: Constitution in the performance of their duties as law enforcement officers.
14:23
Speaker 3: That's not even enough to hold them liable. You have
14:26
Speaker 3: to prove that not only do they violate the Constitution,
14:29
Speaker 3: but that other officers wouldn't have known about the constitutional
14:33
Speaker 3: protection involved, and that only then maybe you would have
14:38
Speaker 3: a case for liability and money damages in federal court.
14:41
Speaker 3: Most of these cases are thrown out and people recover
14:45
Speaker 3: no money in federal court, so they're very, very difficult
14:47
Speaker 3: cases to win.
14:49
Speaker 2: It does sound like a really high bar. It's been
14:52
Speaker 2: great talking to you again, Paul, thanks so much for
14:54
Speaker 2: joining me. That's former Manhattan prosecutor and criminal defense attorney
14:58
Speaker 2: Paul Callan. Vice president J. D. Vance called the Minneapolis
15:03
Speaker 2: woman who was shot to death by an ICE agent
15:07
Speaker 2: a deranged member of a large left wing protest network.
15:11
Speaker 2: Without any evidence, and Vance declared with certainty that the
15:16
Speaker 2: mother of three tried to ram the officer with her
15:20
Speaker 2: SUV and that the officer acted in self defense by
15:24
Speaker 2: opening fire on her.
15:26
Speaker 7: What you see is what you get in this case.
15:28
Speaker 7: You have a woman who is trying to obstruct a
15:31
Speaker 7: legitimate law enforcement operation. Nobody debates that you have a
15:34
Speaker 7: woman who aimed her car at a law enforcement officer
15:37
Speaker 7: and pressed on the accelerator. Nobody debates that I can
15:40
Speaker 7: believe that her death is a tragedy, while also recognizing
15:43
Speaker 7: that it's a tragedy of her own making.
15:45
Speaker 2: But eyewitness accounts video of the incident captured by protesters
15:50
Speaker 2: and city officials dispute those claims by Vance, and Minnesota
15:56
Speaker 2: Governor Tim Wall says he's skeptical that the federal and
16:00
Speaker 2: investigation into the shooting will be fair since the FBI
16:04
Speaker 2: has barred the state's independent investigative body from seeing the
16:09
Speaker 2: evidence or participating in the investigation.
16:13
Speaker 8: From the President to the Vice president to Christy nom
16:18
Speaker 8: have stood and told you things that are verifiably false,
16:23
Speaker 8: verifiably inaccurate. They have determined the character of a thirty
16:28
Speaker 8: seven year old mom that they didn't even know don't know.
16:31
Speaker 2: And John Sandweg, the former acting ICE director under President Obama,
16:36
Speaker 2: says the videos raised troubling questions about the officer's actions.
16:41
Speaker 1: I think it's been irresponsible to the department's position on this.
16:44
Speaker 1: I don't know why the secretary and the department leadership
16:48
Speaker 1: brushed out with conclusions that this was a justifiable shooting.
16:51
Speaker 1: I think that it, especially when you look at these videos,
16:54
Speaker 1: and I think if the regular public looks at this
16:56
Speaker 1: as we've seen, the regular public has serious concerns with it.
16:59
Speaker 2: Joining me NATA look at the broader implications of this shooting.
17:02
Speaker 2: Is immigration law expert Leon Fresco, a partner at Honden Knight.
17:07
Speaker 2: Leon the shooting of the Minneapolis woman was not an
17:11
Speaker 2: isolated incident. Ice officers have fired on at least nine
17:15
Speaker 2: other people in similar circumstances who were in their vehicles
17:20
Speaker 2: in the last year of these stepped up immigration actions,
17:23
Speaker 2: and yet the administration and the Department of Homeland Security
17:28
Speaker 2: are doubling down today.
17:29
Speaker 9: I want to be careful saying too much here because
17:32
Speaker 9: I think it's a lot of people are engaging in
17:35
Speaker 9: a lot of commentary without really getting to the actual
17:39
Speaker 9: facts of everything that led to this. And quite frankly,
17:42
Speaker 9: there are a lot of facts of a lot of
17:44
Speaker 9: different situations that all culminated in what happened in Minnesota,
17:48
Speaker 9: Which is, if you're looking at this from one side
17:51
Speaker 9: of the perspective, you have a lot of foreign nationals
17:54
Speaker 9: in Minnesota being investigated for various fraud out allegations against
18:01
Speaker 9: the taxpayers of both Minnesota and of the United States,
18:04
Speaker 9: and so the idea was that there needed to be
18:07
Speaker 9: a surge of resources to engage in that fraud. Then
18:11
Speaker 9: you could say a counter argument, well, but a lot
18:14
Speaker 9: of the people that were there doing this kind of
18:18
Speaker 9: law enforcement work for the Department of Homeland Security ended
18:21
Speaker 9: up arresting people who were not involved in any of
18:25
Speaker 9: those operations. And they're just saying if they were picking
18:29
Speaker 9: up people who were just part of the normal immigration
18:32
Speaker 9: and customs enforcement menu of people that they would normally
18:36
Speaker 9: pick up who are undocumented and that weren't involved in
18:39
Speaker 9: these either daycare or other types of fraud actions that
18:43
Speaker 9: people are interested in in the news and.
18:45
Speaker 6: That are investigating.
18:47
Speaker 9: Then on the other side, you would say, meantime, there
18:50
Speaker 9: are efforts in big cities to stifle the activities of ICE,
18:55
Speaker 9: whether they be the implementation of sanctuary cities or individual
19:00
Speaker 9: testers taking matters into their own hands. And on the
19:03
Speaker 9: other side, you could say there's agents from the federal
19:07
Speaker 9: government engaging in law enforcement operations that aren't the traditional detention,
19:13
Speaker 9: removal and otherwise immigration prosecutions that have to do with
19:19
Speaker 9: removing someone from the United States. When they start engaging
19:22
Speaker 9: in actions that would normally be conducted by local police
19:26
Speaker 9: in terms of traffic or other things of this nature.
19:30
Speaker 6: Then you have that issue.
19:31
Speaker 9: So all of these things come into play in the
19:33
Speaker 9: culmination of this one event where you have surges of
19:37
Speaker 9: thousands of agents in Minnesota with people who are opposed
19:41
Speaker 9: to that, with all of the heightened rhetoric on all
19:45
Speaker 9: of the sides of this. This is something we've talked
19:46
Speaker 9: about in the past about perhaps a need for more
19:49
Speaker 9: solemnity in the manner in which immigration law enforcement is occurring.
19:55
Speaker 9: So there isn't this belief that the immigration law enforcement
19:59
Speaker 9: is meant to be overtly purposefully hostile, but rather it's
20:04
Speaker 9: being done out of a solemn obligation to make sure
20:07
Speaker 9: that the immigration code has a meaning. I think it
20:10
Speaker 9: would be a very helpful change in tone for the
20:13
Speaker 9: immigration enforcement people to say, look, we have an eight
20:15
Speaker 9: hundred page book called the Immigration and Nationality Act, and
20:20
Speaker 9: four hundred pages are all the laws about how you
20:22
Speaker 9: get here legally, and four hundred pages are the laws
20:26
Speaker 9: about what happens if you break the law. And what's
20:29
Speaker 9: the point of having those first four hundred pages that
20:31
Speaker 9: tell you that you have to do X, Y Z things?
20:34
Speaker 9: In order to get in the country if we don't
20:37
Speaker 9: enforce the second four hundred pages, because then there's no
20:40
Speaker 9: law and just come in for whatever reason you want
20:43
Speaker 9: and do anything you want while you're here. So the
20:46
Speaker 9: point is there are good arguments to make, but they
20:48
Speaker 9: need to be made, perhaps in a more solemn manner.
20:52
Speaker 9: And then at the same token, as people intend to
20:56
Speaker 9: obstruct or otherwise bifle immigration enforcement, they then have less
21:01
Speaker 9: of a justification for doing so, and their actions can
21:05
Speaker 9: be more targeted towards saying, look, how irrational these people
21:09
Speaker 9: are that don't want us to enforce immigration law at all,
21:12
Speaker 9: as opposed to in a certain manner that might be
21:14
Speaker 9: viewed as particularly hostile. And that's all the kinds of
21:19
Speaker 9: temperature that needs to be lowered. And then here it's
21:23
Speaker 9: just going to come down to it at the end
21:24
Speaker 9: of the day, because there's obviously going to be a
21:27
Speaker 9: state attempt to prosecute this person. The federal government is
21:31
Speaker 9: going to say that this person has immunity, and the
21:35
Speaker 9: legal test is going to be whether the person acted
21:38
Speaker 9: in an objectively unreasonable or clearly unlawful manner under the
21:42
Speaker 9: federal use of force standards. And this is going to
21:46
Speaker 9: come down to a lot of things. Even the video angles.
21:49
Speaker 9: Depending on what angle you look at, you might have
21:51
Speaker 9: a different take. Depending on whether you're talking about the
21:55
Speaker 9: first gunshot or subsequent gunshots, you might have a different take.
21:59
Speaker 9: We may find out that the communication that was held
22:02
Speaker 9: between the driver and the ICE agents added an extra
22:06
Speaker 9: context to this. So there are so many things that
22:09
Speaker 9: you have to look at this that for anyone to
22:12
Speaker 9: rush to judgment on one day, two days, even a
22:16
Speaker 9: week after this without having all of the information in place.
22:20
Speaker 9: Why was there so many ICE agents there? Why was
22:24
Speaker 9: there this stuff? Why was there the need to do
22:25
Speaker 9: any of this when none of this had to do
22:27
Speaker 9: with immigration detention, enforcement and removal? But is there a
22:33
Speaker 9: need to do it because there was an operation that
22:35
Speaker 9: was actively happening that was being obstructed by this person?
22:39
Speaker 9: What did this person say to the ICE agents? All
22:41
Speaker 9: of this needs to be figured out before anybody can
22:45
Speaker 9: make a reasonable assessment as to who.
22:47
Speaker 6: Did what and were their good judgment calls are bad
22:50
Speaker 6: judgment calls.
22:51
Speaker 9: So I'm going to reserve my final opinion on this
22:55
Speaker 9: until all of those facts are obtained. But the only
22:57
Speaker 9: opinion I would give is I wish everyone else do
23:00
Speaker 9: that as well.
23:01
Speaker 2: Coming up next, we'll turn to the situation of Venezuelan
23:04
Speaker 2: undocumented migrants. You're listening to Bloomberg. The about six hundred
23:11
Speaker 2: thousand Venezuelans who fled instability at home are at risk
23:15
Speaker 2: of deportation by the Trump administration because the government has
23:20
Speaker 2: ended their Temporary Protected Status and humanitarian parole. Homeland Security
23:26
Speaker 2: Secretary Christine Nomes said on Sunday that Venezuelans in the
23:30
Speaker 2: US who were previously under TPS status can apply for asylum.
23:36
Speaker 2: I've been talking immigration law expertly on Fresco of Honda Night. Quote,
23:41
Speaker 2: every individual that was under TPS has the opportunity to
23:45
Speaker 2: apply for refugee status and that evaluation will go forward.
23:50
Speaker 2: Is this something new or they opening up asylum already.
23:53
Speaker 9: Basically, which was that every Venezuelan who lost their Temporary
23:57
Speaker 9: Protective status wants to remain here and not be a
24:00
Speaker 9: documented would have been given advice by their immigration attorney.
24:03
Speaker 6: Look, if you actually do fear.
24:05
Speaker 9: Persecution in Venezuela, you should apply for asylum.
24:09
Speaker 6: So many of.
24:10
Speaker 9: Them did, and so many of the Venezuelans who had
24:13
Speaker 9: Temporary Protective status now currently have an asylum application pending
24:18
Speaker 9: that would need to be adjudicated in order to deport them. Now,
24:21
Speaker 9: this is going to lead to quite the conundrum legally,
24:25
Speaker 9: because I do think there will be people in the
24:29
Speaker 9: administration who will want to make the argument at some point,
24:32
Speaker 9: and the question will be when, hey, Venezuela is now
24:35
Speaker 9: a stable, wonderful place. So all of these asylum cases,
24:40
Speaker 9: whether it's five hundred thousand, seven hundred thousand, a million,
24:43
Speaker 9: I'm unclear exactly how many are pending from Venezuela. Let's
24:47
Speaker 9: say there's a million of them pending from Venezuela. They
24:50
Speaker 9: will want to say, just dismiss them all en mass
24:54
Speaker 9: and don't have any asylum cases pending from Venezuela anymore.
24:58
Speaker 9: Because we have a new government that's given us diplomatic
25:01
Speaker 9: assurances that every person that we deport to Venezuela will
25:05
Speaker 9: not be persecuted.
25:06
Speaker 6: So they'll try to get some sort.
25:07
Speaker 9: Of mass dismissal like that, and then you'll have obviously
25:11
Speaker 9: people litigating, both individually and as a class, that that
25:15
Speaker 9: shouldn't be done.
25:16
Speaker 6: But then at the same.
25:18
Speaker 9: Time you have this we've talked about this before, this
25:22
Speaker 9: famous Alien Enemies Act litigation where the government has tried
25:27
Speaker 9: to say that certain people from Venezuela don't get any
25:30
Speaker 9: due process because the government is our enemy and they're
25:33
Speaker 9: in an act of war, and so they'll have to
25:36
Speaker 9: decide do they want to keep that going, because if
25:39
Speaker 9: they do, then the government is our enemy. They're not
25:41
Speaker 9: someone who is safe and you can go there and
25:45
Speaker 9: nothing bad is going to happen to you. So you're
25:47
Speaker 9: not going to be able to balance both of those
25:49
Speaker 9: balls at the same time that Venezuela is a hostile
25:52
Speaker 9: enemy force that requires the invocation of the Alien Enemies Act,
25:57
Speaker 9: but also at the same time, nobody should be able
25:59
Speaker 9: to get asylum from this hostile governmental force.
26:03
Speaker 6: So there's a lot of decisions that.
26:05
Speaker 9: The government's gonna have to make, and they're gonna have
26:08
Speaker 9: to make them within the context of what's actually going
26:10
Speaker 9: on in Venezuela. And I mean, I'm not there, but
26:13
Speaker 9: I read the articles that talk about that there are
26:16
Speaker 9: roving gangs and police that are going and asking people
26:20
Speaker 9: for their phones and seeing if they supported the US,
26:23
Speaker 9: and if.
26:23
Speaker 6: They do, they're getting in trouble.
26:25
Speaker 9: And so all of those kinds of things would seem
26:27
Speaker 9: like things you would want to be able to say
26:29
Speaker 9: in an asylum case, not a reason to dismiss an
26:32
Speaker 9: asylum case. So we're gonna have to see how these
26:35
Speaker 9: events play out and what the administration wants to do
26:39
Speaker 9: with regard to these individuals in Venezuela.
26:42
Speaker 2: I thought that the administration paused asylum decisions in November.
26:47
Speaker 9: This is another issue completely. That is a very excellent point,
26:52
Speaker 9: which is that if you're from Venezuela now or from
26:55
Speaker 9: thirty nine other countries, not only is there the issue
27:00
Speaker 9: of whether you can or can't get asylum or anything else,
27:04
Speaker 9: but literally all immigration decisions period, whether you're applying for asylum,
27:09
Speaker 9: whether you're applying for the Trump Gold Card, whether you're
27:12
Speaker 9: applying for the EB five program, whether you marry a
27:16
Speaker 9: US citizen, all of those cases are currently paused right now,
27:19
Speaker 9: and I'm sure there will be litigation coming up soon
27:22
Speaker 9: saying that that violates certain statutes related to non discrimination
27:27
Speaker 9: by country with regard to the allocation of green cards
27:32
Speaker 9: and also do process claims. I'm sure all of those
27:34
Speaker 9: litigations are being ready to be filed both again individually
27:38
Speaker 9: and on a class basis in certain locations. But until
27:44
Speaker 9: those litigations get filed. At the moment, all of those
27:47
Speaker 9: cases are on pause. So all you can do is
27:49
Speaker 9: file these things, and unless people actually want to make
27:52
Speaker 9: decisions on these cases, then everything's just paused and we're
27:56
Speaker 9: in a state of flux.
27:57
Speaker 6: And so that is a very fair point that you
27:59
Speaker 6: bring up.
28:00
Speaker 2: So now let's turn to this presidential proclamation. So the
28:05
Speaker 2: White House revealed it's more than doubling travel restrictions.
28:10
Speaker 9: So if you recall, there was an initial list of
28:13
Speaker 9: banned countries, and that had to do with again, there
28:16
Speaker 9: was the first Trump administration's list of banned countries. That
28:20
Speaker 9: list was taken away by the Biden administration. The Trump
28:23
Speaker 9: administration gets elected again, it has its first list of
28:26
Speaker 9: banned countries. It's nineteen countries, and people thought that would
28:30
Speaker 9: be the end of it. There was some number of
28:33
Speaker 9: countries that were fully banned, and others that were partially
28:35
Speaker 9: banned were only non work visas meaning student visas or
28:40
Speaker 9: exchange visas or visitor visas. That's what's called a partial ban.
28:44
Speaker 9: Those there were countries that were partially banned. Then after
28:48
Speaker 9: this shooting that happened in DC where an Afghan person
28:53
Speaker 9: who came to the United States, you would call them
28:56
Speaker 9: a refugee I suppose who came to the United States
28:59
Speaker 9: and then murdered a National guardsman. After that event, then
29:03
Speaker 9: there was a discussion about, let's revisit this list, Let's
29:07
Speaker 9: see if there's more countries we should add. And so
29:09
Speaker 9: now as a result of that revisiting, there's thirty nine
29:12
Speaker 9: countries on this list of full ban or partial ban,
29:17
Speaker 9: and some of the you know, most of the countries
29:19
Speaker 9: are in Africa and the Middle East. There is some
29:22
Speaker 9: Caribbean countries hate e Venezuela, Cuba. But so there's two
29:26
Speaker 9: bands in place. One there's a ban on people coming
29:29
Speaker 9: into the United States. But second then USCIS as we
29:33
Speaker 9: just discussed as a separate ban that says, if you're
29:36
Speaker 9: here and you're seeking to either change your status or
29:39
Speaker 9: get a green card, or do an extension of your stay,
29:43
Speaker 9: whatever you're trying to do, we're just going to take
29:45
Speaker 9: your application and hold it in a byance until some
29:49
Speaker 9: other announcement comes out later about whether we can vet
29:53
Speaker 9: you or how we can vet you, or something else.
29:56
Speaker 9: And I do think, like I said, that's going to
29:58
Speaker 9: be subject to litigation because this sort of indefinite abeyance
30:02
Speaker 9: of applications, especially when you're collecting fees under the premise
30:06
Speaker 9: that those fees are being paid by people so that
30:08
Speaker 9: they would get an adjudication of their application. It's gonna
30:12
Speaker 9: be challenging for the government to just permanently stick these
30:15
Speaker 9: cases in a drawer and not do anything with them.
30:18
Speaker 9: So they're gonna have to express some plan of what
30:21
Speaker 9: it is they're gonna do. How long that's gonna take
30:24
Speaker 9: before they start readjudicating these cases, but they're gonna have
30:28
Speaker 9: to do it at some point. And I think one
30:31
Speaker 9: of the interesting things to watch out for, not that
30:33
Speaker 9: this is the most important thing, but it is sort
30:35
Speaker 9: of symbolic of a lot of what goes on is
30:38
Speaker 9: you have this administration saying this is gonna be the
30:41
Speaker 9: best World Cup ever. We're gonna have the most attendance,
30:44
Speaker 9: We're gonna make the most money. The world is gonna
30:47
Speaker 9: think this is the greatest thing ever. And I think
30:49
Speaker 9: there's about five or six countries who are participating in
30:52
Speaker 9: the World Cup where their fans are banned from coming
30:54
Speaker 9: into the United States. And I'm not just talking about
30:57
Speaker 9: a place like Iran, but I'm talking about Ivory Coast
31:00
Speaker 9: and other places like that.
31:03
Speaker 6: Where it's you know, we don't usually.
31:04
Speaker 9: Have dangerous terrorists coming from the Ivory Coast, and so
31:09
Speaker 9: they're gonna have to be a decision about, hey, will
31:11
Speaker 9: fans from these countries be allowed to come in to
31:14
Speaker 9: the United States or will there really be no fans
31:17
Speaker 9: from any of these countries allowed to come into the
31:19
Speaker 9: United States to watch the World Cup. So it's mostly
31:22
Speaker 9: all the African countries that qualify will not be able
31:26
Speaker 9: to have their folks come in and watch the World Cup.
31:28
Speaker 9: So we're gonna have to wait and see on that.
31:30
Speaker 9: But I do think that'll be another interesting thing to monitor.
31:33
Speaker 2: So we talked before about the H one B visa.
31:36
Speaker 2: Where where does that process stand.
31:39
Speaker 9: Well, there's two different developments in the H one B
31:41
Speaker 9: visa world. One was, well, there was a proclamation under
31:45
Speaker 9: the same Travel Band authority that said that if you
31:48
Speaker 9: were outside the United States coming up for the new
31:51
Speaker 9: visa lottery that's gonna come up in twenty twenty six,
31:56
Speaker 9: you want a visa to enter the United States. So
31:59
Speaker 9: you're not here current, you're outside and you want one,
32:01
Speaker 9: You're gonna have to pay one hundred thousand dollars in
32:03
Speaker 9: order to get that visa.
32:05
Speaker 6: There was a lawsuit.
32:06
Speaker 9: Many people thought that was going to be successful, but
32:09
Speaker 9: it turns out that lawsuit has not been successful.
32:12
Speaker 6: And the district Court.
32:13
Speaker 9: Said, and this was a judge who's known as liberal
32:16
Speaker 9: on many issues, she said that the travel band Authority
32:20
Speaker 9: is appropriately invoked here and that that one hundred thousand
32:24
Speaker 9: dollars fee can move forward. So now that's offen appeal
32:27
Speaker 9: in the DC circuit. We'll see what they want to do.
32:30
Speaker 9: But that was a very tough blow for a lot
32:32
Speaker 9: of these It was the Chamber of Commerce who sued,
32:35
Speaker 9: who thought they were going to win pretty easily here.
32:38
Speaker 9: And I had told people from the beginning I thought
32:40
Speaker 9: this would be a lot more challenging for the people
32:42
Speaker 9: suing than they realized.
32:44
Speaker 6: I always thought this would be a fifty.
32:46
Speaker 9: To fifty ks and they lost in the district court.
32:49
Speaker 9: So when the new visa lottery happens in March and
32:53
Speaker 9: those visa start getting allocated, if nothing changes, then if
32:57
Speaker 9: you're here in America, you don't have to pay that fee.
32:59
Speaker 9: But if if you're someone working in India or Brazil
33:02
Speaker 9: or wherever, and they want to bring you in on
33:04
Speaker 9: an H one B visa, that's going to cost one
33:07
Speaker 9: hundred thousand dollars.
33:08
Speaker 6: So that's the first one.
33:10
Speaker 9: The second one is a regulation that's going to be
33:12
Speaker 9: challenged but hasn't been challenged yet, that just got finalized.
33:16
Speaker 9: That said that when we do the lottery for the
33:19
Speaker 9: eighty five thousand, h one b VISA slots that exists,
33:23
Speaker 9: and that lottery happens in March, we're no longer going
33:25
Speaker 9: to do a blind lottery where each human being gets
33:29
Speaker 9: one lottery ball. We're going to change it, and we're
33:31
Speaker 9: going to say that if that company that petitioning for
33:35
Speaker 9: you intends to pay you at the top twenty five
33:38
Speaker 9: percent level of all people who get paid in the
33:41
Speaker 9: United States to do that job, then you will get
33:44
Speaker 9: four balls in the lottery. If you're in the twenty
33:47
Speaker 9: fifth to fiftieth percentile, you'll get three balls in that lottery.
33:51
Speaker 6: If you're in.
33:51
Speaker 9: The fiftieth to seventy fifth percentile, you'll get two balls
33:55
Speaker 9: in that lottery. And if you're in the seventy fifth
33:57
Speaker 9: to one hundred percent time, meaning you're the lowest quadrant
34:00
Speaker 9: of pay, you'll only get one ball. So some people
34:03
Speaker 9: will have a four time greater chance of winning the
34:06
Speaker 9: lottery than other people depending on how much they get paid,
34:11
Speaker 9: with the idea that the lottery slot should be allocated
34:15
Speaker 9: to the companies that pay the most, because the idea
34:17
Speaker 9: is that those are conceivably the people adding the highest
34:21
Speaker 9: economic value to the United States. This has been a
34:24
Speaker 9: bipartisan type of thing where those kinds of solutions had
34:28
Speaker 9: been proposed in the Congress. Many people thought that the
34:31
Speaker 9: Congress would have to be the one who would do this,
34:33
Speaker 9: that this can't be done by regulation. We're going to
34:36
Speaker 9: have to see what the courts say about it, because
34:38
Speaker 9: this wasn't done visa via travel band thing like the
34:41
Speaker 9: one hundred thousand fee. This was just done based on
34:44
Speaker 9: the normal ability to regulate non immigrant visas. So from
34:48
Speaker 9: that standpoint, we're going to have to see what the
34:50
Speaker 9: courts say. And this is going to have to get
34:52
Speaker 9: resolved before the lottery happens in March, so we'll see
34:55
Speaker 9: what they say.
34:56
Speaker 2: The immigration laws don't seem to get any less implicated
35:00
Speaker 2: over time. Thanks so much as always, Leon, that's Leon
35:05
Speaker 2: Fresco of hollanden Knight, and that's it for this edition
35:08
Speaker 2: of the Bloomberg Law Show. Remember you can always get
35:10
Speaker 2: the latest legal news on our Bloomberg Law Podcasts. You
35:13
Speaker 2: can find them on Apple Podcasts, Spotify, and at www
35:18
Speaker 2: dot bloomberg dot com slash podcast, slash Law, and remember
35:22
Speaker 2: to tune into The Bloomberg Law Show every weeknight at
35:25
Speaker 2: ten pm Wall Street Time. I'm June Grosso and you're
35:29
Speaker 2: listening to Bloomberg