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SCOTUS Blocks Rastafarian's Suit Against Prison Guards · Bloomberg Law

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  Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
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  Speaker 2: It is undisputed that my client has alleged an assault
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  Speaker 2: that is just brazenly illegal. He was at respondent's mercy
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  Speaker 2: in federally funded custody when he handed them a copy
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  Speaker 2: of controlling precedent holding that RALUPA protected his right to
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  Speaker 2: keep his hair long. They threw it away, handcuffed him
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  Speaker 2: to a chair, and shaved him bald.
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  Speaker 3: Damon Landor is a devout Rastafarian who hadn't cut his
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  Speaker 3: hair in two decades following his faith, in which dreadlocks
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  Speaker 3: are a sacred symbol. So when he was transferred to
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  Speaker 3: a Louisiana prison with just weeks left on his five
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  Speaker 3: months sentence, Landor handed prison guards a copy of an
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  Speaker 3: appeals court decision holding that cutting religious prisoner's dreadlocks violated
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  Speaker 3: federal law. But a guard threw the ruling into the trash,
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  Speaker 3: and despite Landor's please, he was handcuffed to a chair
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  Speaker 3: and held down as his knee length dreadlocks were cut
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  Speaker 3: and his head was shaved. During oral arguments, the Supreme
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  Speaker 3: Court Justice's condemned Landor's treatment and the blatant disregard of
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  Speaker 3: his religious rights. Here's Conservative Justice Amy Cony Barrett.
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  Speaker 2: Look, the facts of this case are egregious.
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  Speaker 1: So if on the facts we were looking for a
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  Speaker 1: case in which there should be money damages.
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  Speaker 4: This is it.
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  Speaker 3: But it turns out this case wasn't it. Today In
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  Speaker 3: a six to three decision, the court's conservative majority ruled
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  Speaker 3: that Landor cannot sue the prison officials who cut off
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  Speaker 3: his dreadlocks, finding that the Religious land Use and Institutionalized
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  Speaker 3: Persons Act, better known as RALUPA, can't be used to
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  Speaker 3: hold those who violate inmates religious rights financially responsible. The
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  Speaker 3: opinion was written by Justice Neil Gorsuch, who telegraphed that
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  Speaker 3: conclusion during the arguments.
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  Speaker 2: The circuits are unanimously against you and have been for many, many,
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  Speaker 2: many years. So saying that.
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  Speaker 1: Something awful's going to happen, it's all whatever's happened has happened, right.
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  Speaker 3: But the liberal justice is disagreed, and in a dissent
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  Speaker 3: by Justice Katanji Brown Jackson expressed concerns that now state
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  Speaker 3: prison officials will have little incentive to follow the law
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  Speaker 3: regarding the religious rights of inmates. My guest is Richard Garnett,
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  Speaker 3: a professor at Notre Dame Law School and director of
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  Speaker 3: the school's Program on Church, State and Society. Rick, what's
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  Speaker 3: your reaction to this decision and the implications of this decision?
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  Speaker 1: The result in this case, in the land Or case
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  Speaker 1: is not surprising given the way the oral arguments went.
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  Speaker 1: It was clear that the justices, or at least a
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  Speaker 1: majority of them, were very focused on the federalism issues
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  Speaker 1: in this case. And that's what makes this case kind
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  Speaker 1: of tricky. It has a religious freedom dimension, for sure,
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  Speaker 1: because the facts involve a really shocking violation of a
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  Speaker 1: prisoner's religious freedom rights. But there's also this kind of
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  Speaker 1: technical constitutional law question about the power of Congress to
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  Speaker 1: authorize certain kinds of lawsuits. And so, you know, some
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  Speaker 1: of the reactions to the case I think are misguided
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  Speaker 1: in the sense that I've seen some reports that OUs
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  Speaker 1: is just the court not caring about a minority religion.
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  Speaker 1: I think that's not the right way to think about it.
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  Speaker 1: You know, a group of the justices, the sixth and
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  Speaker 1: the majority here have a pretty consistent vision of federalism,
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  Speaker 1: and they believe that there are limits on the federal
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  Speaker 1: government's power to authorize certain kinds of relief against state officials.
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  Speaker 1: Now I should confess I filed a brief on the
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  Speaker 1: side of the prisoner in this case. In my view,
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  Speaker 1: the right answer was that this action was authorized. But
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  Speaker 1: the reason the court ruled against him, in my view,
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  Speaker 1: was not because it was unbothered by the egregiousness of
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  Speaker 1: this violation, but because they just didn't think the federal
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  Speaker 1: government had the power to authorize the suit. So what
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  Speaker 1: this means, in my opinion, among other things, is that
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  Speaker 1: state governments need to really step up and make sure
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  Speaker 1: they provide meaningful relief for prisoners whose religious liberty rights
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  Speaker 1: are violated by officials, as mister Landor's clearly were.
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  Speaker 3: RALOOPA was designed to protect the religious rights of inmates,
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  Speaker 3: So why doesn't it work for this inmate whose religious
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  Speaker 3: rights were I mean, everyone agrees, clearly and blatantly violated.
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  Speaker 1: Yeah, this is and I apologize for getting into the
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  Speaker 1: weeds a little bit, but RALUPA is a special kind
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  Speaker 1: of statute. It's authorized by what we call the spending power,
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  Speaker 1: which means that it's not so much a direct regulation
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  Speaker 1: as it is a deal. The Congress says to the states,
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  Speaker 1: if you want this money, then you have to agree
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  Speaker 1: to comply with this understanding of religious liberty rights. The
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  Speaker 1: wrinkle in this case is that mister Landor wasn't suing
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  Speaker 1: the state. He wasn't suing the state prison. He was
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  Speaker 1: suing the prison employee in that employee's personal capacity. So
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  Speaker 1: you know, you're not suing the prison doing you know,
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  Speaker 1: officer Jones. And the thing is, officer Jones never took
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  Speaker 1: any federal money, so he didn't make this deal with
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  Speaker 1: the federal government. So according to the court, since officer
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  Speaker 1: Jones that that's not his name, I'm making that up,
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  Speaker 1: didn't make the deal with the federal government, that means
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  Speaker 1: that the federal statute doesn't authorize a lawsuit against Jones.
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  Speaker 1: And it's all based on these kind of you know,
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  Speaker 1: first year law school constitutional law debates about the regulatory
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  Speaker 1: powers of Congress and how much power Congress has to
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  Speaker 1: attach strings to the money it spends. And there's a
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  Speaker 1: long tradition of the court saying, you know, there are
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  Speaker 1: limits on the strings you can attach to money. So again,
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  Speaker 1: nothing in today's opinion denies that the officers behaved badly
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  Speaker 1: and that mister Landor's religious freedom was violated. It's that
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  Speaker 1: the particular relief that Landor was seeking, that's you know,
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  Speaker 1: money damages lawsuit against an individual, wasn't authorized by the
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  Speaker 1: statute or couldn't be authorized by the statue.
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  Speaker 3: So the majority said that state employees didn't con to
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  Speaker 3: face lawsuits in their personal capacities when Congress passed RELOOPA.
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  Speaker 3: As a practical matter, when would an employee willingly consent
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  Speaker 3: to be sued? And Justice Katanji Brown Jackson in Descent said,
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  Speaker 3: today's decision magically transforms a federal statute into an invitation
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  Speaker 3: to be accepted or declined, deemed binding only if each
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  Speaker 3: particular defendant has explicitly agrees to be penalized. I mean,
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  Speaker 3: to the average person, the descent makes sense.
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  Speaker 1: Well, and again I was on that side. In the end,
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  Speaker 1: I do think she oversimplifies the federalism issue. There's plenty
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  Speaker 1: of precedent to the effect that these regulatory spending arrangements
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  Speaker 1: do function kind of like a contract. That said, in
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  Speaker 1: my view, the better ruling would have been to say
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  Speaker 1: that when the state entered into this effectively contract with
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  Speaker 1: the federal government and took on the burdens to respect
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  Speaker 1: the religious liberty of inmates that because these folks are
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  Speaker 1: the employees of the state, those folks kind of take
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  Speaker 1: employment subject to the requirements that are laid on their employers,
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  Speaker 1: and that includes what the statute calls appropriate relief, which,
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  Speaker 1: if you really want to get in the weeds, that's
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  Speaker 1: kind of what this case really came down to, is
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  Speaker 1: what counts is appropriate relief. So a concern that Justice
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  Speaker 1: Jackson raised and that I share, even though I think
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  Speaker 1: she oversimplifies a bit, is that, you know, the incentives
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  Speaker 1: on state prison employees to respect religious inmates rights, those
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  Speaker 1: incentives are going to be muted a bit if they're
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  Speaker 1: not subject to damages for you know, egregious violations. I mean,
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  Speaker 1: this wasn't kind of a judgment call reasonable minds can
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  Speaker 1: disagree kind of thing. It's very clear on the facts
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  Speaker 1: of this case that mister Landor's rights were again outrageously violated.
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  Speaker 1: And so there's a concern, and this is one of
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  Speaker 1: the concerns that Justice Jackson raised and that I share,
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  Speaker 1: is that the effectiveness of the statute, which I mean,
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  Speaker 1: as you said earlier, to the point of the whole
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  Speaker 1: statute was to protect prisoner's religious freedom rights, is going
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  Speaker 1: to be weakened or under mine. If that kind of
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  Speaker 1: what do you want to call it stick is pulled away?
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  Speaker 3: Could Landor have sued the state and the state prison system.
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  Speaker 1: Yeah, so this is about a particular cause of action,
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  Speaker 1: and you know, there are almost certainly other ones that
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  Speaker 1: in theory could have been available to him. And you know, again,
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  Speaker 1: my hope is that some states will respond by making
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  Speaker 1: sure that they create additional causes of action for prisoners
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  Speaker 1: like this. But you know, there's a tendency and all
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  Speaker 1: we're all familiar with it that it's easy to kind
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  Speaker 1: of lose sight of prisoners and their rights. You know,
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  Speaker 1: out of sight, out of mind, we tend to other
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  Speaker 1: our prisoners. But it isn't the case that this decision
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  Speaker 1: means that Landor would never have any relief for this
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  Speaker 1: kind of violation, and the decision is limited to relief
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  Speaker 1: under this particular statue.
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  Speaker 3: The Court in twenty twenty allowed Muslim men to sue
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  Speaker 3: over their inclusion on the FBI's no fly list under
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  Speaker 3: a sister statute, the Religious Freedom Restoration Act. Explain why
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  Speaker 3: the same reasoning didn't apply here.
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  Speaker 1: Yeah, this is an important distinction, or at least it
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  Speaker 1: was to the course So the Religious Freedom Restoration Act
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  Speaker 1: is not a spending power statute. It's a statute that
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  Speaker 1: rests on Congress's power to enforce the Fourteenth Amendment, and
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  Speaker 1: it's a statute that only applies to the federal government.
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  Speaker 1: RELUOPA is, on the one hand, much broader. It applies
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  Speaker 1: to not only the federal government but the states. On
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  Speaker 1: the other hand, it's also narrower because the basis for it,
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  Speaker 1: the justification for the RELOOPA statute is this spending power,
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  Speaker 1: and the lines of doctrine about Congress's power under the
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  Speaker 1: fourteenth Amendment are just different from the lines of precedent
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  Speaker 1: about Congress's power under the spending clause. And again, I
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  Speaker 1: know this is really the kind of thing that makes
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  Speaker 1: normal people's eyes lays over, So I apologize to anybody
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  Speaker 1: who's listening to it. But for legal purposes, it really
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  Speaker 1: does make a difference which power Congress is using. And
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  Speaker 1: with RELUPA, because it was only applying to the federal government,
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  Speaker 1: these federalism concerns are not in play. Congress is perfectly
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  Speaker 1: within its right to subject the federal government to various
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  Speaker 1: standards of liability and to create causes of action against
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  Speaker 1: the federal government. But because we have a federalist system,
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  Speaker 1: it's more complicated when Congress imposes standards on the states.
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  Speaker 1: And that's what explains the difference.
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  Speaker 3: Can you explain why this would be a you know,
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  Speaker 3: there was an ideological split, why it would be a
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  Speaker 3: conservative liberal split on this.
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  Speaker 1: Again, this is generalizing with these labels and so on,
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  Speaker 1: but it tends to be the case that the conservatives
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  Speaker 1: are more interested in federalism, and it tends to be
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  Speaker 1: the case that the liberals are more friendly to Congress's
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  Speaker 1: power to create causes of action. What divided the court
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  Speaker 1: was not the importance of religious freedom. I mean, you know,
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  Speaker 1: a couple of years ago, we had a case involving
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  Speaker 1: a Muslim prisoner who wanted to grow a beard, and
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  Speaker 1: it was nine to zero. Everybody agreed on the importance
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  Speaker 1: of that under RALUPA, but there was no question about
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  Speaker 1: federalism in that case because the cause of action wasn't
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  Speaker 1: against the person in his individual capacity, it was against
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  Speaker 1: the prison system. So the justices, you know, whether there
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  Speaker 1: appointed by Democrats or Republicans, they all agree that the
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  Speaker 1: religious freedom rights of prisoners are important, but divided them
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  Speaker 1: here were these issues that divide them in lots of
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  Speaker 1: cases again, debates about federal power and debates about the
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  Speaker 1: ability to create causes of action.
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  Speaker 3: We've talked before that, you know, there's been a string
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  Speaker 3: of victories for religious liberty. Is this the first in
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  Speaker 3: a long time where there was a defeat, you might say,
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  Speaker 3: for religious interests.
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  Speaker 1: I'm thinking out loud here, it is the first in
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  Speaker 1: a while. So certainly religious freedom claimants have done well
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  Speaker 1: with this court.
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  Speaker 2: Now.
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  Speaker 1: I suppose some might say, for example, that when a
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  Speaker 1: claimant filed a lawsuit against the War Memorial Cross in
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  Speaker 1: the American Legion case, that they were seeking to vindicate
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  Speaker 1: their religious freedom and they lost. But I think it's
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  Speaker 1: certainly true that this court has been friendly to religious
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  Speaker 1: freedom claims. But you know, I can't think of any
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  Speaker 1: of those claims that involved the same federalism concerns that
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  Speaker 1: this one did. Probably the last case I can think
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  Speaker 1: of where the of his freedom claimants lost was the
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  Speaker 1: Trump versus Hawaii, which was a challenge to this so
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  Speaker 1: called Muslim band that the Trump administration had put into
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  Speaker 1: place early in its first administration.
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  Speaker 3: I think thanks so much for your insights today, Rick,
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  Speaker 3: that's Professor Richard Garnett of Notre Dame Law School coming
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  Speaker 3: up next. In another six to three decision, the Court
• 12:19
  Speaker 3: sides with the Trump administration on Green card holders. This
• 12:24
  Speaker 3: is Bloomberg. The Supreme Court sided with the Trump administration
• 12:30
  Speaker 3: today in an immigration case dealing with the government's power
• 12:34
  Speaker 3: over Green card holders returning to the country. The six
• 12:38
  Speaker 3: to three decision down ideological lines, centered on an immigration
• 12:43
  Speaker 3: officer's decision to put a Green card holder on immigration
• 12:47
  Speaker 3: parole when he returned from a short trip to China
• 12:51
  Speaker 3: because he'd been accused of a third degree trademark counterfeiting crime.
• 12:55
  Speaker 3: The Conservative majority, in an opinion by Justice Clarence Thomas,
• 13:00
  Speaker 3: reversed the Second Circuit Court of Appeals and said that
• 13:03
  Speaker 3: the Immigration and Nationality Act doesn't require border officers to
• 13:09
  Speaker 3: establish by clear and convincing evidence that the Green card
• 13:13
  Speaker 3: holder had committed a crime involving moral turpitude, while the
• 13:17
  Speaker 3: dissenting Liberal justice is in an opinion written by Justice
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  Speaker 3: Katanji Brown Jackson, said that the decision effectively sentences the
• 13:26
  Speaker 3: Green card holder to immigration limbo before he'd been convicted
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  Speaker 3: of any crime. Joining me is Leon Fresco, a partner
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  Speaker 3: at Hollanden Knight and the former head of the Office
• 13:36
  Speaker 3: of Immigration Litigation in the Obama administration, Leon, Will you
• 13:41
  Speaker 3: start with the basics about green card holders and what
• 13:45
  Speaker 3: happens when they re enter the country.
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  Speaker 4: Sure, so, here is what happens when a person obtains
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  Speaker 4: a green card or what is also known as lawful
• 13:56
  Speaker 4: permanent residents in the United States. The common conception is
• 14:00
  Speaker 4: that that person can just stay permanently in the United States,
• 14:04
  Speaker 4: and if they want to become a citizen, they can
• 14:06
  Speaker 4: become a citizen. But if they don't want to become
• 14:08
  Speaker 4: a citizen for whatever reason, maybe they're from a country
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  Speaker 4: that they'll lose their citizenship from there, so they don't
• 14:14
  Speaker 4: do it, then that's fine too, But that's actually not true.
• 14:18
  Speaker 4: There are ways you can lose your green card, and
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  Speaker 4: one of the ways you can lose your green card
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  Speaker 4: is if you commit a criminal offense that is a
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  Speaker 4: deportable offense. So what happens is a lot of times
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  Speaker 4: people don't realize these sort of interplays between the green
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  Speaker 4: card law and the immigration law until they travel outside
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  Speaker 4: of the United States. And so here's what happens when
• 14:43
  Speaker 4: you travel outside the United States. When you travel outside
• 14:46
  Speaker 4: of the United States and you try to re enter,
• 14:49
  Speaker 4: you show your green card to the Customs and Border
• 14:53
  Speaker 4: Protection official who is at the airport, and ninety nine
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  Speaker 4: out of one hundred times that's not a big deal.
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  Speaker 4: They swipe your green card and they let you in
• 15:03
  Speaker 4: the country. But what the law says is that if
• 15:08
  Speaker 4: you in the intervening time that you traveled or we
• 15:12
  Speaker 4: didn't realize it before and now we're just realizing it
• 15:16
  Speaker 4: for the first time, that you committed some sort of
• 15:20
  Speaker 4: criminal offense, then it's not a taken for granted thing
• 15:24
  Speaker 4: that you just re enter the United States with your
• 15:27
  Speaker 4: green card. But they basically say in the statute is
• 15:32
  Speaker 4: you start from scratch again, having to prove that you
• 15:36
  Speaker 4: are entitled to be admitted in the United States. And
• 15:41
  Speaker 4: so the question in this Supreme Court case is what
• 15:45
  Speaker 4: happens in a world where the person was accused of
• 15:49
  Speaker 4: the crime, And in this case, it was a crime
• 15:52
  Speaker 4: of trademark counterfeitting. It was a Chinese citizen who was
• 15:56
  Speaker 4: charged with trademark counterfeiting. So what happens when it's a
• 15:59
  Speaker 4: person who's charged with a crime but it's not convicted
• 16:03
  Speaker 4: of a crime. And so if this person had never
• 16:07
  Speaker 4: left the United States, they could never be placed into
• 16:11
  Speaker 4: deportation proceedings unless and until they actually were convicted of
• 16:19
  Speaker 4: the crime. The charging wouldn't change anything because if they
• 16:22
  Speaker 4: were innocent, then that would not lead to any deportation.
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  Speaker 4: But this issue did not arise with the person just
• 16:31
  Speaker 4: staying in the United States. This arose where a person
• 16:35
  Speaker 4: becomes a lawful permanent resident in two thousand and seven,
• 16:39
  Speaker 4: they get charged for the crime in May of twenty twelve,
• 16:43
  Speaker 4: they leave the United States and then try to re
• 16:49
  Speaker 4: enter the United States while the charge was pending. And
• 16:53
  Speaker 4: so at that point, the Customs and Border Protection says, look,
• 16:59
  Speaker 4: in this city situation, you don't get the presumption that
• 17:02
  Speaker 4: you are a lawful permanent resident who just gets to
• 17:05
  Speaker 4: re enter the United States. We treat you like everybody
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  Speaker 4: else who if you are charged with a crime, don't
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  Speaker 4: get to just enter scott free. So what we're gonna
• 17:18
  Speaker 4: do is, yes, we'll let you enter because you do
• 17:21
  Speaker 4: have this green card, but we're not gonna let you
• 17:24
  Speaker 4: enter as a lawful permanent resident. We're gonna enter you
• 17:27
  Speaker 4: in as a parole. And that way, when we tried
• 17:33
  Speaker 4: to deport you, if you tried to use your lawful
• 17:36
  Speaker 4: permanent residency as a defense to deportation, you will have
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  Speaker 4: the burden a proof to show that you're not deportable,
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  Speaker 4: as opposed to the government having the burden a proof
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  Speaker 4: to show that you are deportable. And so that's what
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  Speaker 4: happened here.
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  Speaker 3: This was an appeal from a Second Circuit decision, but
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  Speaker 3: there's a split in the circuit on this issue, probably
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  Speaker 3: one of the reasons why the court took this case.
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  Speaker 4: So there was a circuit split between the Second Circuit,
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  Speaker 4: who had ruled in favor of the foreign national, and
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  Speaker 4: previous decisions from the Fifth and the Ninth Circuit that said, hey,
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  Speaker 4: wait a second, in these cases, why doesn't the border
• 18:19
  Speaker 4: patrol that's at the airport, why don't they have to
• 18:23
  Speaker 4: do exactly the same thing an immigration judge would have
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  Speaker 4: to do if this person had never left the United States,
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  Speaker 4: which is essentially, wait to see if they're convicted of
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  Speaker 4: the crime before they strip someone of their lawful permanent residency.
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  Speaker 4: So that's what the Second Circuit said. The government appealed
• 18:42
  Speaker 4: that decision because they didn't want to shortcut the ability
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  Speaker 4: of the border patrol to find people with criminal issues
• 18:51
  Speaker 4: at the airport and place them in removal proceedings. They
• 18:54
  Speaker 4: view that as an important safeguard for America. You know,
• 18:58
  Speaker 4: it's we don't think about p until they try to
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  Speaker 4: re enter. That's a good sort of like reminder, Hey,
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  Speaker 4: this person exists, let's check their background. And so they
• 19:08
  Speaker 4: like that that reminder exists in the system, and so
• 19:11
  Speaker 4: they ask for a Supreme Court review. And when the
• 19:14
  Speaker 4: government asks for a Supreme Court review, they usually get it.
• 19:17
  Speaker 4: And in this case, it turns out the Supreme Court
• 19:19
  Speaker 4: held today six to three that yes, Customs and Border
• 19:23
  Speaker 4: Protection at the airport does not have to actually put
• 19:28
  Speaker 4: you through sort of a little mini hearing or wait
• 19:31
  Speaker 4: until you're actually convicted of a crime. They are more
• 19:34
  Speaker 4: than capable or legally able to now, after this decision,
• 19:39
  Speaker 4: take someone who's been charged of a crime but not
• 19:42
  Speaker 4: convicted of a crime, and conditionally allow them in the
• 19:46
  Speaker 4: country with what's called a parole, which is just basically
• 19:49
  Speaker 4: a legal fiction that even though your body's in the US,
• 19:52
  Speaker 4: your legal body is still waiting to see what will
• 19:55
  Speaker 4: happen after a hearing. And so they said they can
• 19:59
  Speaker 4: do that. And then at the time of the immigration
• 20:03
  Speaker 4: court hearing, now the burden will be on the foreign
• 20:06
  Speaker 4: national to prove that they shouldn't be deported, as opposed
• 20:10
  Speaker 4: to the burden being on the government.
• 20:13
  Speaker 3: The six Conservatives didn't say there had to be any standard.
• 20:17
  Speaker 3: The Second Circuit had said, clear and convincing evidence of
• 20:21
  Speaker 3: the crime at the border, but there's no standard at
• 20:23
  Speaker 3: all to it could be the intuition of the officer.
• 20:27
  Speaker 4: The court actually did leave open the separate question of
• 20:31
  Speaker 4: what appropriate evidentiary standard, if any, applies at the border.
• 20:36
  Speaker 4: So you're correct. At the moment, it's totally up to
• 20:39
  Speaker 4: the discretion of the Customs and Border Protection whether to say,
• 20:43
  Speaker 4: I think there's something wrong with your immigration status that
• 20:47
  Speaker 4: I'm not going to just accept your green card as
• 20:50
  Speaker 4: evidence that you should be lawfully permanently admitted to the
• 20:53
  Speaker 4: United States. Instead, I'm going to just parole you in
• 20:56
  Speaker 4: and let an immigration court figure that out. Every time
• 20:59
  Speaker 4: that's Supreme Court does something like this, it always leads
• 21:02
  Speaker 4: to a subsequent case that needs to clarify this. But
• 21:06
  Speaker 4: I understand an incrementalist approach generally, but whenever something like
• 21:10
  Speaker 4: this happens, it's inevitable where two or three more years
• 21:15
  Speaker 4: of just chaos occurs because the Supreme Court didn't want
• 21:19
  Speaker 4: to give an evidentiary standard in the first place here,
• 21:24
  Speaker 4: and the Supreme Court ultimately doesn't do that in this
• 21:27
  Speaker 4: case because in between the time of this fact pattern
• 21:34
  Speaker 4: and now the person does actually get convicted of this
• 21:39
  Speaker 4: counterfeiting offense, and so the court figures, Okay, if this
• 21:42
  Speaker 4: person is convicted of the counterfeiting offense, then it's not
• 21:47
  Speaker 4: really important that we go down this road because it's
• 21:50
  Speaker 4: not going to make a difference in this case this person.
• 21:54
  Speaker 4: Now the only decision left is whether this counterfeiting offense
• 21:58
  Speaker 4: is what's called the crime involving moral turpitude or it isn't.
• 22:02
  Speaker 4: And that comes down to the concept of whether it's
• 22:05
  Speaker 4: really considered a moral offense like a murder or a
• 22:09
  Speaker 4: rape or a burglary or something, or is it considered
• 22:12
  Speaker 4: a pure regulatory offense. And if it's a pure regulatory offense,
• 22:16
  Speaker 4: then this person won't be deported. But that's the point
• 22:19
  Speaker 4: is the court basically leaves this more important issue of
• 22:23
  Speaker 4: it for another day of what the Border patrol, whether
• 22:27
  Speaker 4: they have any standards at all before they can decide
• 22:30
  Speaker 4: to reject your green card and conditionally let you in
• 22:34
  Speaker 4: the country as opposed to lawfully permanently letting you in
• 22:37
  Speaker 4: the country. And so yes, that's yet another uncertainty now
• 22:42
  Speaker 4: for even people who have been here twenty thirty years.
• 22:45
  Speaker 3: So leon, who is going to make that decision about
• 22:48
  Speaker 3: whether the crime is one of moral turpitude?
• 22:53
  Speaker 4: That will now be made first by an immigration judge
• 22:56
  Speaker 4: who's an employee of the Department of Justice. It's gonna
• 22:58
  Speaker 4: get remained all the way back. It gets remanded to
• 23:01
  Speaker 4: the second Circuit, but the second Circuit will remand it
• 23:04
  Speaker 4: down to the Board of Immigration Appeals, who will remand
• 23:06
  Speaker 4: it back down to the immigration judge, and then it'll
• 23:10
  Speaker 4: work its way back up to the second Circuit, because
• 23:13
  Speaker 4: presumably the Immigration court, especially now in the current climate,
• 23:19
  Speaker 4: will probably rule that it is a crime involving moral turpitude,
• 23:23
  Speaker 4: and then it'll be up to the Second Circuit, who
• 23:25
  Speaker 4: no longer has to defer to the immigration courts anymore
• 23:28
  Speaker 4: under the lower bright line of cases, which says, look, what,
• 23:31
  Speaker 4: there's a legal sion, there's a legal issue. This isn't
• 23:33
  Speaker 4: really anything we have to defer to here. So in
• 23:36
  Speaker 4: the end, this decision is going to be made by
• 23:39
  Speaker 4: the Second Circuit, who will have to decide whether this
• 23:43
  Speaker 4: individual's counterfeiting conviction actually constitutes a crime involving moral alterpetude.
• 23:49
  Speaker 3: So Lee on the three liberal justices dissented, and Justice
• 23:53
  Speaker 3: Katanji Brown Jackson wrote that the decision to put the
• 23:57
  Speaker 3: Green card holder on immigration parole effectively sentenced him to
• 24:02
  Speaker 3: immigration limbo before he'd been convicted of any crime. She wrote,
• 24:07
  Speaker 3: I worry that the court has now handed the government
• 24:10
  Speaker 3: a massive blank check.
• 24:12
  Speaker 4: Well, I mean, there's definitely some merit to the argument,
• 24:16
  Speaker 4: and I don't see how even the majority could dispute that.
• 24:21
  Speaker 4: They're really hoping that the good faith of the men
• 24:25
  Speaker 4: and women in the Customs and Border Protection continues to
• 24:28
  Speaker 4: operate in good faith so that this doesn't become an
• 24:31
  Speaker 4: excessive problem. Of course, if it becomes an excessive problem,
• 24:35
  Speaker 4: then the Court's going to have to revisit this. And
• 24:37
  Speaker 4: this is why I say these fact patterns tend to
• 24:40
  Speaker 4: lead and evolve into foreseeable excessive problems. But they point
• 24:45
  Speaker 4: out in the dissenting opinion that one of the main
• 24:48
  Speaker 4: problems here is if the Customs and Border Protection wants
• 24:52
  Speaker 4: to sort of proform a invalidate your Green card in
• 24:55
  Speaker 4: this manner, they can place you in detention when they
• 24:59
  Speaker 4: do this, and when they you in detention, then depending
• 25:02
  Speaker 4: on where they place you, if they place you in
• 25:04
  Speaker 4: some remote rural area, you also will have very difficult
• 25:08
  Speaker 4: time in accessing an attorney. And if you can't access
• 25:11
  Speaker 4: an attorney, then you can't make the defense as to
• 25:13
  Speaker 4: why you shouldn't be deported. And basically, this whole thing
• 25:18
  Speaker 4: can essentially lead to a revocation of someone's green card
• 25:22
  Speaker 4: by default in a fact pattern where it wouldn't actually
• 25:26
  Speaker 4: be lawfully permitted. And so from that standpoint, the only
• 25:30
  Speaker 4: thing preventing this is the good faith of the men
• 25:32
  Speaker 4: and women working in the government. And now we're going
• 25:36
  Speaker 4: to have to see. You know, usually the way this
• 25:38
  Speaker 4: works is you put constraints on the good faith, hoping
• 25:44
  Speaker 4: that people do operate in good faith, but just in
• 25:46
  Speaker 4: case they don't, there are constraints so that people know, hey,
• 25:50
  Speaker 4: this will be reviewed by this person, et cetera. But
• 25:54
  Speaker 4: now we'll have to see will the good faith that
• 25:57
  Speaker 4: has been given in terms of this blanket authority to
• 26:00
  Speaker 4: the customs of border protection be abused or will it
• 26:03
  Speaker 4: be used in a way that is still very rare
• 26:07
  Speaker 4: for criminal type of cases, and not just for all
• 26:10
  Speaker 4: types of lawful permanent residence re entering in the United
• 26:13
  Speaker 4: States after visiting abroad.
• 26:16
  Speaker 3: I mean, is there an undercurrent here of the administration
• 26:19
  Speaker 3: trying to undermine perhaps the security that Green card holders
• 26:25
  Speaker 3: may feel.
• 26:26
  Speaker 4: The idea is to say, since you don't actually have
• 26:29
  Speaker 4: to be convicted of a crime, and you could basically
• 26:33
  Speaker 4: have this green card status in a sense conditionally revoked
• 26:38
  Speaker 4: while you go through immigration court, if the Customs of
• 26:42
  Speaker 4: Border Protection has any reason to think that you committed
• 26:45
  Speaker 4: a crime as opposed to you or convicted of a crime,
• 26:48
  Speaker 4: then everybody is potentially on notice that if there's anything
• 26:54
  Speaker 4: on your phone, or anything on your laptop or anything
• 26:58
  Speaker 4: anywhere that someone at the CB could decide to inspect
• 27:02
  Speaker 4: and decide to say, oh, well it looks like you've
• 27:04
  Speaker 4: committed xyz, then yes, you won't be allowed to enter
• 27:08
  Speaker 4: in the United States. So now everybody has more incentive. First,
• 27:13
  Speaker 4: as a factual matter, yes, mind your p's and q's,
• 27:16
  Speaker 4: but also I think you will end up seeing the
• 27:19
  Speaker 4: immigration bar start giving advice about what types of electronics
• 27:23
  Speaker 4: to bring into the United States or or don't bring any,
• 27:27
  Speaker 4: leave them all here, et cetera, because the potential for
• 27:31
  Speaker 4: application here you know pretty much. You confiscate anybody's computer,
• 27:36
  Speaker 4: you can find something, and so you say, oh, you know,
• 27:40
  Speaker 4: there's a mattress you didn't pay your matriss tag violation
• 27:43
  Speaker 4: or whatever, and so from that standpoint, it becomes very,
• 27:48
  Speaker 4: very complicated.
• 27:49
  Speaker 3: It's the most high profile case of the term, probably
• 27:52
  Speaker 3: is the birthright citizenship case and also ending TPS status.
• 27:57
  Speaker 3: I mean, does this decision at all indicate the way
• 28:00
  Speaker 3: the court might go in other immigration decisions to come
• 28:04
  Speaker 3: or is it separate?
• 28:05
  Speaker 4: Well, I will say I was surprised that this decision
• 28:09
  Speaker 4: was six to three. I'm not surprised that there was
• 28:12
  Speaker 4: a majority of votes for this decision, because at the
• 28:17
  Speaker 4: end of the day, I think it's incremental enough that
• 28:20
  Speaker 4: the Court can come back if the CBP starts going
• 28:24
  Speaker 4: too overboard with regard to rejecting lawful permanent residents and
• 28:28
  Speaker 4: come back and impose some type of evidentiary standard. So
• 28:32
  Speaker 4: I do think that part is not surprising. But I
• 28:37
  Speaker 4: do think that because the oral argument, there was a
• 28:40
  Speaker 4: lot of concern about how broad this thing could be applied,
• 28:45
  Speaker 4: and yet they still wrote a decision that, at least
• 28:48
  Speaker 4: for the short term, allows this doctrine of canceling people's
• 28:52
  Speaker 4: green cards, so to speak, at the airport, to be
• 28:55
  Speaker 4: applied in as broad a fashion as possible, meaning it
• 28:58
  Speaker 4: hasn't been constrained by this particular decision. Then I do
• 29:03
  Speaker 4: think maybe not exactly in the birthright citizenship case, although
• 29:08
  Speaker 4: we'll wait and see, because there are some things here
• 29:10
  Speaker 4: where they might let Congress actually do some legislation, which
• 29:14
  Speaker 4: they would never do because the Congress won't have the
• 29:17
  Speaker 4: votes either way to pass anything on this. But I
• 29:19
  Speaker 4: could see something like that now from the standpoint that
• 29:23
  Speaker 4: it seems that the Court really is willing to say
• 29:26
  Speaker 4: that in any of these cases where we are going
• 29:30
  Speaker 4: to defer to the political system in the way it
• 29:33
  Speaker 4: would work normally if it was full of good faith
• 29:37
  Speaker 4: actors that were all doing their job, not like the
• 29:40
  Speaker 4: world that exists today where the Congress can't really pass anything,
• 29:44
  Speaker 4: and in a world where people in the administrative branch
• 29:49
  Speaker 4: have sort of change depending on what administration they're in,
• 29:53
  Speaker 4: how they operate, and how they view the law. They
• 29:55
  Speaker 4: don't read the law like an AI chat bot. They
• 29:58
  Speaker 4: read the law based on policy priorities of different administrations.
• 30:02
  Speaker 4: They're still willing to seem to give a lot of
• 30:04
  Speaker 4: good faith difference here, and so we'll have to think
• 30:08
  Speaker 4: whether that ends up being wise or not.
• 30:10
  Speaker 3: Okay, stay with me. Leon. Coming up next on the
• 30:13
  Speaker 3: Bloomberg Law Show, I'll continue this conversation with Leon Fresco.
• 30:17
  Speaker 3: The case about alleged Venezuelan gang members sent to a
• 30:21
  Speaker 3: notorious El Salvador prison back in March of last year
• 30:25
  Speaker 3: is still going on. I'm June Grosso and you're listening
• 30:29
  Speaker 3: to Bloomberg. I've been talking to immigration law attorney Leon
• 30:33
  Speaker 3: Fresco of Holland and Knight. So now let's go back
• 30:36
  Speaker 3: in time to you know, early in the Trump administration
• 30:40
  Speaker 3: and those flights in March of last year where the
• 30:43
  Speaker 3: administration sent alleged Venezuelan gang members to a notorious El
• 30:50
  Speaker 3: Salvador prison. That case is amazingly still going on, even
• 30:55
  Speaker 3: though the Venezuelans have been returned to their home and
• 30:58
  Speaker 3: set free.
• 31:00
  Speaker 4: Oddly enough, this case is still going on even though
• 31:02
  Speaker 4: Venezuela is now an ally of the United States. And
• 31:06
  Speaker 4: so the whole idea that remember that these deportations of
• 31:10
  Speaker 4: Venezuelans that were taken to Al Savador were all based
• 31:15
  Speaker 4: on the idea that Venezuela was an alien enemy of
• 31:18
  Speaker 4: the United States, and that people here were acting and
• 31:21
  Speaker 4: sort of in cohoots with the Venezuelan government to be
• 31:24
  Speaker 4: our enemy and destabilized the United States. And so even
• 31:29
  Speaker 4: though all of that has now changed, one the government
• 31:32
  Speaker 4: hasn't actually withdrawn its theoretical doctrine that's gone on in
• 31:36
  Speaker 4: other cases where these issues are being appealed, that there
• 31:39
  Speaker 4: are still Venezuelan alien enemies of the United States. So
• 31:43
  Speaker 4: that's going to be interesting. I don't know what the
• 31:45
  Speaker 4: government's gonna end up doing with that. Again, given that
• 31:48
  Speaker 4: we're in this world where we have this cooperation with
• 31:51
  Speaker 4: the Venezuelan government. But in this particular case, you still
• 31:55
  Speaker 4: have Judge Boseburg who remains upset from the quote unquota
• 32:00
  Speaker 4: original Act in this case, which is he said, orally,
• 32:04
  Speaker 4: bring the people back if they're on a plane, and
• 32:07
  Speaker 4: don't send people to El Salvador if they're not on
• 32:11
  Speaker 4: a plane. And yet people never got sent back and
• 32:14
  Speaker 4: planes didn't turn back, and both got sent to El Salvador.
• 32:18
  Speaker 4: And so even though the Supreme Court said that he
• 32:21
  Speaker 4: didn't have jurisdiction to have that case, that needed to
• 32:24
  Speaker 4: be filed as individual habeas is by the people who
• 32:28
  Speaker 4: were subject to these orders and couldn't be done as
• 32:32
  Speaker 4: a class action. In DC. Judge Boseburg still said, yeah,
• 32:36
  Speaker 4: but if you lie to me in my courtroom, I
• 32:39
  Speaker 4: should still have content authority to do something about that.
• 32:44
  Speaker 4: And the DC Circuit, in a three judge panel, basically
• 32:48
  Speaker 4: disagreed with that and said, look, this case has reached
• 32:50
  Speaker 4: an end. You don't have contempt authority to do anything
• 32:54
  Speaker 4: at this point. And even if you if you want
• 32:56
  Speaker 4: to try to issue a content order, go ahead, because
• 32:59
  Speaker 4: you already know what happened. So if you want to
• 33:01
  Speaker 4: basically hold former Secretary Nomen content or anybody else, that's fine.
• 33:06
  Speaker 4: But what Judge Bozburg wanted to do is hold an
• 33:09
  Speaker 4: evidentiary hearing with testimony before he issued a contempt order
• 33:14
  Speaker 4: and a criminal referral and all of that. And then
• 33:16
  Speaker 4: that looks like the full DC Circuit that's the decision says,
• 33:20
  Speaker 4: let's see whether he can do this or not. Because
• 33:22
  Speaker 4: there was hundreds of judges who did an amicas brief saying, look,
• 33:26
  Speaker 4: judges have to be able, regardless of in the end
• 33:29
  Speaker 4: whether they're right or wrong, still be able to patrol
• 33:31
  Speaker 4: their courtrooms for people who will lie to judges. And
• 33:36
  Speaker 4: so from that standpoint, you know, we'll see if the
• 33:39
  Speaker 4: DC Circuit ends up saying regardless of whether there was
• 33:43
  Speaker 4: jurisdiction or not, you still can enforce your courtroom and
• 33:47
  Speaker 4: issue contempt orders for things that happened while you putatively
• 33:52
  Speaker 4: did have jurisdiction over the matter. And then if that
• 33:55
  Speaker 4: does happen, I'm sure the government will appeal to the
• 33:57
  Speaker 4: Supreme Court. Then the Supreme Court will have to decide
• 34:01
  Speaker 4: whether Judge Boseburg actually can continue with this contempt issue
• 34:06
  Speaker 4: or whether it's over and we just move on to
• 34:09
  Speaker 4: another issue.
• 34:10
  Speaker 3: I mean, I would say, just looking at the numbers
• 34:13
  Speaker 3: that since the full Court has decided to hear the case,
• 34:17
  Speaker 3: it might be because a lot of the judges are
• 34:19
  Speaker 3: interested in reversing the two to one decision that went
• 34:23
  Speaker 3: against Judge Boseburg. But that's just looking at numbers.
• 34:27
  Speaker 4: And I mean, he's a very well regarded judgs in BC.
• 34:31
  Speaker 3: He certainly is, and he was subject to repeated attacks
• 34:35
  Speaker 3: by the Attorney General and the President. So before we go, Leon,
• 34:40
  Speaker 3: tell us about the cows.
• 34:42
  Speaker 4: So for thirty years, every administration and every bipartisan presidency
• 34:47
  Speaker 4: has said you can't bring in temporary agricultural workers to
• 34:51
  Speaker 4: do their work because you have to milk those cows
• 34:54
  Speaker 4: every day. The cows don't just seasonally need to be milked.
• 34:57
  Speaker 4: And the Trump administration, out of all the the issues
• 35:00
  Speaker 4: that it could have, picked the site that this is
• 35:02
  Speaker 4: the one issue where we will take the pro immigrant
• 35:05
  Speaker 4: stands and let people bring in immigrant workers to build
• 35:08
  Speaker 4: the cows, even though they have to be every day
• 35:12
  Speaker 4: so they're not season all. All, well, that's not our problem.
• 35:15
  Speaker 4: We're gonna let them come in. And so clearly the
• 35:17
  Speaker 4: agricultural industry got a huge win there, and.
• 35:20
  Speaker 3: The cows are happy too, I guess yeah.
• 35:22
  Speaker 4: And the cows are happy as well.
• 35:25
  Speaker 3: We've talked about so many immigration issues, Leon, but I
• 35:28
  Speaker 3: never thought it would be about milking cows. Thanks as always.
• 35:32
  Speaker 3: That's Leon Fresco of Honda Night. And that's it for
• 35:35
  Speaker 3: this edition of The Bloomberg Law Show. Remember you can
• 35:38
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• 35:41
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• 35:44
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• 35:49
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• 35:53
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• 35:56
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