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Guns and Drug Users & World Cup Visa Problems · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
0:08
Speaker 2: John Adams took a tankard of hard cider with his
0:11
Speaker 2: breakfast every day. James Madison reportedly drank a pint of
0:16
Speaker 2: whiskey every day. Thomas Jefferson said he wasn't much of
0:20
Speaker 2: an user of alcohol. He only had three or four
0:22
Speaker 2: glasses of wine a nite. Okay, are they all habitual
0:27
Speaker 2: drunkards who would be properly disarmed for life?
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Speaker 3: You may be wondering why. Justice Neil Gorsich was questioning
0:35
Speaker 3: whether some of the Founding Fathers would have been considered
0:38
Speaker 3: habitual drunkards. After all, the case before the justices was
0:43
Speaker 3: about a federal law banning gun ownership by marijuana users. Well,
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Speaker 3: the Supreme Court's recent analysis of Second Amendment cases relies
0:53
Speaker 3: on the government showing a history of analogous restrictions to
0:57
Speaker 3: support gun control laws, and in this case, the government
1:00
Speaker 3: pointed to Founding Error laws that restricted the rights of
1:04
Speaker 3: habitual drunkards. But the Court wasn't convinced, and today it
1:09
Speaker 3: ruled unanimously that the government can't categorically bar marijuana users
1:14
Speaker 3: from possessing firearms and can't prosecute a Texas marijuana smoker
1:19
Speaker 3: for having a gun. Justice Coursich wrote the majority opinion,
1:23
Speaker 3: finding that the government's quote expansive approach to the federal
1:27
Speaker 3: ban couldn't be squared with the country's historical approach toward firearms.
1:33
Speaker 3: My guest is an expert in constitutional law, Louis Michael Sideman,
1:38
Speaker 3: a professor at Georgetown Law. His new book is entitled
1:42
Speaker 3: The Constitution Cannot Save Us Why we can no longer
1:45
Speaker 3: rely on our founding document. This was about the constitutionality
1:51
Speaker 3: of one part of the Gun Control Act. So explain
1:54
Speaker 3: what the justices decided here.
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Speaker 1: So the Court was unanimous and they held that the
2:01
Speaker 1: Second Amendment to the Constitution did not permit depriving somebody
2:05
Speaker 1: of a gun just because of marijuana use. I think
2:10
Speaker 1: that the Court in this case, it's reached results that
2:14
Speaker 1: most Americans would think are common sense, make logical sense.
2:20
Speaker 1: In a case a couple of years ago, the Court
2:23
Speaker 1: rejected a claim by a violent domestic abuser that he
2:28
Speaker 1: had a right constitutional right to have a gun. But
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Speaker 1: the court says an occasional or even a regular marijuana
2:36
Speaker 1: user does have a right to a gun. And I
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Speaker 1: think most people can understand that distinction and would probably
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Speaker 1: agree with it. The problem with what the Court's done
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Speaker 1: is not with the particular results it's reached. The problem
2:50
Speaker 1: is with the test it's used. So what the Court
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Speaker 1: has said is that the way you decide these cases
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Speaker 1: is by looking to the eighteenth century to the seventeen
3:04
Speaker 1: hundreds and seeing if there was some practice that was
3:07
Speaker 1: analogous to the regulation that's being upheld now, and that
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Speaker 1: leads to really bizarre sorts of historical inquiry. So a
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Speaker 1: lot of the Court's opinion in this case was devoted
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Speaker 1: to whether or not laws that restricted the activity of
3:26
Speaker 1: habitual drunkards in the eighteenth century were the same or
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Speaker 1: different from laws that prohibit marijuana users in the twenty
3:35
Speaker 1: first century from having a gun. And that kind of
3:38
Speaker 1: analysis is kind of silly, because, of course, when you
3:43
Speaker 1: compare any two statutes, they're going to be alike and
3:47
Speaker 1: different in an infinite number of respects. So it largely
3:51
Speaker 1: depends on whether you seize on the likeness of the difference.
3:55
Speaker 1: And when you're comparing the eighteenth century to the twenty
3:58
Speaker 1: first century, almost everything is really different because the country
4:05
Speaker 1: was really different in the eighteenth century.
4:07
Speaker 4: It was a.
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Speaker 1: Small, rural, slave dependent republic huddled along the eastern seaboards.
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Speaker 1: There were no automatic weapons, no dribe by shootings, no terrorism.
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Speaker 1: It was just a completely different place. So what you
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Speaker 1: end up with, I think, is the justices having more
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Speaker 1: or less free range to strite down laws that they
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Speaker 1: think finally common sense, uphold laws that they don't think.
4:37
Speaker 1: And if that's all that the justices are going to do,
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Speaker 1: then that raises really serious questions about whether they are
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Speaker 1: to be substituting their judgment. Were democratically elected institutions.
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Speaker 3: Well, I mean, isn't that the problem with this textualist
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Speaker 3: analysis or originalist analysis that the Court is now wedded
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Speaker 3: to because of the sixth concern? So you have not
5:01
Speaker 3: only the conservatives, but the liberal Justice is engaging in
5:04
Speaker 3: the same kind of analysis looking back in time.
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Speaker 1: The problem with originalism they're really two separate problem and
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Speaker 1: they're both really serious. One problem, you might put it
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Speaker 1: this way. One problem is how would we ever know?
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Speaker 1: And the other is why would we ever care?
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Speaker 4: Right?
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Speaker 1: So, how would we ever know? I have no idea
5:27
Speaker 1: what James Madison would think about gun control legislation in
5:32
Speaker 1: twenty first century America. He didn't know anything about it.
5:35
Speaker 1: Neither did his contemporaries. We're not going to kind of
5:38
Speaker 1: dig him out of his grave and say, Jimmy, what
5:41
Speaker 1: do you think about twenty first century America. That's just
5:45
Speaker 1: not going to happen. So we really don't know the answer.
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Speaker 1: Suppose we did know the answer, why should anybody care.
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Speaker 1: The people who wrote the Second Amendment died a very
5:57
Speaker 1: long time ago. What we do with guns today doesn't
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Speaker 1: affect them, but it does affect us, and people who
6:05
Speaker 1: are alive now, I would have thought have some right
6:08
Speaker 1: to be in control of their own country.
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Speaker 3: The outcome was unanimous, but the justices were divided on
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Speaker 3: some of the reasoning. And I think underlying that unanimity
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Speaker 3: was the fact that, as Justice Gorsuch puught it, millions
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Speaker 3: of Americans use marijuana, and gorse It said the ruling
6:25
Speaker 3: was a very narrow one.
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Speaker 1: The Court's ruling is quite narrow. I think Justice gorse
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Speaker 1: It's made it narrow in an admirable attempt to get unanimity,
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Speaker 1: and that's something very rare on this court. And he
6:40
Speaker 1: achieved that all nine justices agreed with him, And I
6:43
Speaker 1: think a big part of the reason is because the
6:46
Speaker 1: opinion makes sense. It makes common sense to say just
6:50
Speaker 1: because somebody uses marijuana, a drug that, according to Justice Gorsas,
6:55
Speaker 1: there's some evidence it's more widely used than alcohol today.
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Speaker 1: So the notion that just because of that, somebody should
7:03
Speaker 1: be prohibited from owning a gun does seem just silly.
7:07
Speaker 1: I think the problem is going to arise when the
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Speaker 1: intuitions of five of the justices are not intuitions widely
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Speaker 1: shared by most Americans, and then you do face the
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Speaker 1: difficulty of why they should control these decisions rather than
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Speaker 1: people who are actually responsible to the American people.
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Speaker 3: And there was an unusual, maybe even shocking pairing in
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Speaker 3: one of the concurrences. One of the most conservative Justices,
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Speaker 3: Samuel Alito, and liberal Justice Elaina Kagan, joined together to
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Speaker 3: say they would have written an even narrower opinion than
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Speaker 3: Gorsuch did.
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Speaker 1: I think that is almost certainly the only case this term,
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Speaker 1: and maybe the only case ever where the two of
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Speaker 1: them have joined in an opinion joined by nobody else.
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Speaker 1: So the opinion is written by Justice Alito, it's joined
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Speaker 1: by Justice Kagan. Justice Kagan is a very savvy operator,
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Speaker 1: and it's just become increasingly obvious that there is lots
8:13
Speaker 1: and lots of tension between the justices. I think what
8:17
Speaker 1: we're likely to see over the next couple of weeks
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Speaker 1: are a series of split decisions and very angry decisions.
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Speaker 1: And so Justice Kagan this was an opportunity for her.
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Speaker 1: It's important to the Court's public image that they try
8:34
Speaker 1: to maintain some impression that they're not at each other's
8:38
Speaker 1: throats and that they can agree about things and that
8:41
Speaker 1: it's not just politics. So Justice Kagan seized an opportunity
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Speaker 1: both to demonstrate that and maybe to ingratiate herself some
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Speaker 1: with Justice Alito. But I wouldn't read too much into it.
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Speaker 1: The fact is the Court is very sharply divided for
8:57
Speaker 1: the first time in generation. The division exactly mirrors the
9:04
Speaker 1: political parties of the presidents who appointed the justices, and
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Speaker 1: that has led to a dramatic decline in public acceptance
9:13
Speaker 1: and regard for the Supreme Court.
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Speaker 3: The Court's conservative majority has expanded Second Amendment rights since
9:22
Speaker 3: twenty twenty two. Do you see this case as a
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Speaker 3: continuation of that or something different.
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Speaker 1: I think that having established some right to gun ownership,
9:34
Speaker 1: it was inevitable that the Court was going to decide
9:38
Speaker 1: it have to decide a series of cases about the
9:42
Speaker 1: reach of that right, and so this is one of
9:46
Speaker 1: a continuing line of cases that tries to bound the
9:50
Speaker 1: right in some way, saying this is okay, this is
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Speaker 1: not okay. Unfortunately, as this progresses, I think it's becoming
10:00
Speaker 1: more and more apparent that the test the Court is
10:03
Speaker 1: using to reach those judgments doesn't really solve the problem,
10:08
Speaker 1: and it's going to be very difficult for the Court
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Speaker 1: to convince people that it's actually acting in a principled
10:15
Speaker 1: way and not just responding to the intuition that justices
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Speaker 1: have about various measures DC.
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Speaker 3: In sixteen states prohibit gun possession by habitual drug users,
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Speaker 3: and another twenty two restrict the rights of those people
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Speaker 3: to carry a weapon in public. Does this affect the
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Speaker 3: state laws?
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Speaker 1: Well, the Court is held at the Second Amendment right
10:39
Speaker 1: applies not just to the federal government but to the
10:42
Speaker 1: states as well. On the other hand, this decision is
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Speaker 1: so narrowly written that it's not at all clear that
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Speaker 1: it would invalidate the state laws you're talking about. In particularly,
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Speaker 1: the court saved the question or did not address the
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Speaker 1: question of whether it was constitutional for the government to
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Speaker 1: preim gun ownership on the part of people addicted to
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Speaker 1: illegal drugs.
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Speaker 3: Thanks so much for your analysis today. That's Georgetown Law
11:11
Speaker 3: professor Louis Michael Sideman. His book is entitled The Constitution
11:16
Speaker 3: Cannot Save Us? Why we can no longer rely on
11:19
Speaker 3: our founding document. A note. Michael Bloomberg, the founder majority
11:24
Speaker 3: owner of Bloomberg LP, the parent company of Bloomberg Radio,
11:28
Speaker 3: is a donor to groups that support gun control, including
11:32
Speaker 3: every Town for Gun Safety. Coming up next on the
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Speaker 3: Bloomberg Law Show. Visa problems at the World Cup. I'm
11:39
Speaker 3: June Grasso and you're listening to Bloomberg. It was a
11:43
Speaker 3: stunning World Cup performance as Kate Verd's goalkeeper Vozenia made
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Speaker 3: seven saves against tournament favorite Spain, with the game ending
11:54
Speaker 3: in a goalless draw. He was named the Player of
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Speaker 3: the Match, but cried after the game because his mother
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Speaker 3: couldn't afford a visa to the United States. Cape Fird
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Speaker 3: is one of the fifty countries where citizens face a
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Speaker 3: fifteen thousand dollars fee to obtain US visas due to
12:12
Speaker 3: President Donald Trump's border crackdown, something Vauzenia's mother couldn't afford.
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Speaker 3: The story has a happy ending, though, thanks to intervention
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Speaker 3: from House Minorti leader Jakim Jeffries. He spoke to Secretary
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Speaker 3: of State Marco Rubio and the State Department has arranged
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Speaker 3: for Vauzenia's mother to enter the country with all thieves
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Speaker 3: waived to watch her son's next match. But the World
12:35
Speaker 3: Cup has exposed many of the problems with Trump's immigration policies.
12:40
Speaker 3: My guest is immigration law expert ly on Fresco, a
12:43
Speaker 3: partner Honda Night. Leon tell us about Vazenia.
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Speaker 5: He just had a remarkable game against Spain. It's almost
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Speaker 5: a Disney movie thing where he's a forty year old
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Speaker 5: has been goalie whose time has long passed and he's
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Speaker 5: working as a part time job seeing the goalie, and
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Speaker 5: he just stopped the best team in the world from
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Speaker 5: scoring any goals with.
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Speaker 4: A remarkable game.
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Speaker 5: And he wanted his mother to be able to see
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Speaker 5: the game live, but they denied her visa because the
13:12
Speaker 5: Trump administration now has a new policy that you have
13:14
Speaker 5: to put a fifteen thousand dollars bond in order to
13:18
Speaker 5: come into the country as a visitor, and they didn't
13:20
Speaker 5: have the money to pay for her to come in,
13:23
Speaker 5: and so it's sort of a mini human tragedy where
13:27
Speaker 5: you had this great Disney story in conjunction with this
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Speaker 5: example where clearly his mother I doubt what have overstayed
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Speaker 5: her visa after the FIFA matches. But nevertheless, you know,
13:39
Speaker 5: sanity doesn't prevail.
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Speaker 3: I mean it took intervention by the House Minority leader
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Speaker 3: and the Secretary of State only after this guy achieved
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Speaker 3: fame to get his mother in.
13:52
Speaker 4: Yeah.
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Speaker 5: I mean again, these are the things people are fake.
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Speaker 5: What's interesting about this is these are the things thousands
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Speaker 5: of people are facing every day. But we're all now
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Speaker 5: being exposed and uncovered as people literally in the World
14:04
Speaker 5: Cup are having to go through.
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Speaker 3: This, including a World Cup referee. Well not a referee now,
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Speaker 3: I guess the US decided to reject one of the
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Speaker 3: fifty two referees, and FIFA had said that it undertook
14:19
Speaker 3: a three year campaign to vet and select these World
14:24
Speaker 3: Cup referees.
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Speaker 5: So what happened was there was a referee from Somalia.
14:29
Speaker 5: And what happens is there are confederations, So there's an
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Speaker 5: African confederation, a European confederation, a North American confederation, a
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Speaker 5: South American confederation, et cetera. And those confederations decide who
14:44
Speaker 5: are the best referees in the matches that are played
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Speaker 5: in that continent. And so one of the best referees,
14:50
Speaker 5: who's considered one of the best referees not just in
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Speaker 5: the African continent, but amongst all the global referees, is
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Speaker 5: this referee from Somalia. And so FIFA had a rule
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Speaker 5: with the United States when people affiliated with FIFA wanted
15:06
Speaker 5: to be able to come to the United States for
15:08
Speaker 5: the World Cup, the United States should generally allow them in.
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Speaker 5: This individual applied for a visa to be a referee.
15:15
Speaker 5: Interestingly enough, there's actually language in the Foreign Affairs Manual
15:20
Speaker 5: because nothing could be done by Congress that said, well,
15:24
Speaker 5: but there's not really a good place for these FIFA referees,
15:27
Speaker 5: so they'll just come in on visitor visas. So he
15:29
Speaker 5: applied for a visitor visa, and when it came time
15:32
Speaker 5: to decide whether to approve him or not, the United
15:36
Speaker 5: States Embassy said, no, this person has ties to al Shabab,
15:41
Speaker 5: which is the terrorist organization that does terroristic things in Somalia.
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Speaker 5: And the question is what does that mean, because does
15:50
Speaker 5: that mean he spoke to someone who was in al
15:52
Speaker 5: Shabab that he did something. I mean because his daytime
15:55
Speaker 5: occupation is referee, so it's unclear is it nighttime occupation.
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Speaker 4: Terrorists or did this go too far?
16:05
Speaker 5: And so a lot of people were outraged that this
16:08
Speaker 5: referee was not allowed to officiate in the United States.
16:12
Speaker 5: But in the end, this referee wasn't assigned to any
16:15
Speaker 5: games in Canada or Mexico either. So basically what FIFA
16:19
Speaker 5: said is they'll pay this referee to just work even
16:22
Speaker 5: though he's not actually gonna work, and they assigned him
16:25
Speaker 5: to a game in Europe that's coming up in August
16:28
Speaker 5: to sort of say here's our reparations to you. But
16:32
Speaker 5: it was one of many situations where the immigration laws
16:37
Speaker 5: of the United States have intersected with this World Cup
16:40
Speaker 5: to show how things have significantly changed between twenty twenty
16:46
Speaker 5: four and now.
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Speaker 3: You know, there were vague allegations from the Trump administration
16:52
Speaker 3: about this ref's supposed association, but the administration never released
16:58
Speaker 3: any evidence to support it's allegations.
17:02
Speaker 4: Correct.
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Speaker 5: The problem is in the visa adjudication world, the only
17:06
Speaker 5: decision maker is the State Department, so there's no federal
17:10
Speaker 5: court lawsuit you can filed.
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Speaker 4: The Supreme Court has actually ruled on this twice.
17:14
Speaker 5: In the last decade, where they've said there's really no
17:17
Speaker 5: Supreme Court case you can file if the State Department
17:21
Speaker 5: denies your visa. The people are trying to work through
17:25
Speaker 5: some exceptions in different cases, but the point being just
17:28
Speaker 5: for your listeners, it's very very very difficult, if not impossible,
17:32
Speaker 5: to file a federal court lawsuit for a visa denial,
17:35
Speaker 5: and especially when the visa denial is on issues like this,
17:39
Speaker 5: where it's on terroristic grounds, then the problem is the
17:43
Speaker 5: State Department really is betwixt and between, because yes, it's
17:47
Speaker 5: possible that they're overdoing it and they shouldn't deny it.
17:50
Speaker 5: But the problem is, what if they aren't overdoing it,
17:53
Speaker 5: if they have to actually explain to you, the visa applicant,
17:57
Speaker 5: here's how we know you're a terrorist, then the concern
18:00
Speaker 5: is that that would make you have to release sources
18:03
Speaker 5: and methods of getting information as the government, which you
18:06
Speaker 5: wouldn't want to do to preserve the sanctity and the
18:09
Speaker 5: safety of those sources and methods. And so from that standpoint,
18:13
Speaker 5: everybody just has to assume that people are acting in
18:16
Speaker 5: good faith. But because of the restrictions that have been
18:20
Speaker 5: made in the last two years. Those presumptions of good
18:23
Speaker 5: faith are less given by the rest of the world
18:26
Speaker 5: when they hear those stories of denials, like the denial
18:29
Speaker 5: of this referee.
18:31
Speaker 3: Was there any player who was denied entry?
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Speaker 5: So interestingly there have been two players who have denied entry,
18:38
Speaker 5: but they are both denied entry from Canada, which is
18:41
Speaker 5: oddly enough, they haven't been denied entry from the United States.
18:45
Speaker 4: The two that have been denied entry from Canada.
18:47
Speaker 5: One is a player from Ghana who was arrested for rape,
18:52
Speaker 5: but he hasn't been convicted yet. But when they asked
18:55
Speaker 5: him in his application was he ever arrested? He put
18:58
Speaker 5: know and so the Canadians did not allow him. And
19:01
Speaker 5: he's a very popular player in terms of his his
19:05
Speaker 5: high level and so this was significant harm for the
19:08
Speaker 5: Ghanaian team. And now there's a player from the Ivory
19:12
Speaker 5: Coast who is now implicated in a gambling scheme and
19:17
Speaker 5: he's been denied entry into Canada.
19:20
Speaker 4: So there's that.
19:21
Speaker 3: Let's turn now from the World Cup to the Supreme Court.
19:24
Speaker 3: So the Supreme Court is going to decide. They took
19:27
Speaker 3: a case to decide whether immigrants with criminal histories can
19:32
Speaker 3: be held for prolonged periods in federal custody without a
19:36
Speaker 3: bond hearing. And this is because of a second Circuit decision.
19:40
Speaker 4: Correct.
19:41
Speaker 5: So this has been an issue that's actually been litigated
19:44
Speaker 5: for the last twenty six years and we haven't been
19:47
Speaker 5: able to get a solution to this.
19:49
Speaker 4: Here's what's going on.
19:50
Speaker 5: There's a statue called Title eight, Section twelve twenty six C,
19:55
Speaker 5: but also known as two twenty six seed where what
19:58
Speaker 5: happens is is if you have any kind of criminal
20:03
Speaker 5: record and that's the reason the government is trying to
20:06
Speaker 5: deport you. So the government is saying, you know, we're
20:10
Speaker 5: not deporting you because you overstayed your visa, or we're
20:13
Speaker 5: not deporting you because of some sort of technical violation.
20:18
Speaker 5: This is because you were here legally and you committed
20:22
Speaker 5: a crime and you were convicted of the crime in fact,
20:25
Speaker 5: and so now we're trying to deport you for that reason.
20:28
Speaker 5: There's a statute which says, if you just take the
20:31
Speaker 5: literal interpretation of that statute, Hey, federal government, the second
20:37
Speaker 5: you find this person who's a foreign national in America
20:41
Speaker 5: with a criminal conviction, you a must detain them and
20:45
Speaker 5: b you must keep them detained until such time as
20:49
Speaker 5: you can effectuate their removal. And by the way, if
20:52
Speaker 5: they happen to win their removal case, fine you can
20:54
Speaker 5: release them then. But if they don't win their removal case,
20:58
Speaker 5: you have to keep them detained for as long as
21:00
Speaker 5: it takes in order to effectuate their removal. So there's
21:06
Speaker 5: been two Supreme Court cases. One that was called the
21:09
Speaker 5: More versus Kim, which was right in the beginning of
21:11
Speaker 5: the millennium, and then another one called Rodriguez versus Jennings,
21:16
Speaker 5: which was in during the first Trump administration, where courts
21:19
Speaker 5: have tried to figure out what does that mean? Does
21:22
Speaker 5: that really mean forever? What if the government wanted to
21:25
Speaker 5: hold a person in sort of quote unquote removal process
21:31
Speaker 5: but forever, just keep them in detention forever and not
21:34
Speaker 5: actually decide their case.
21:36
Speaker 4: Could the government get away with doing that? Could that
21:39
Speaker 4: actually happen?
21:40
Speaker 5: And so in the first case, the More versus Kim,
21:43
Speaker 5: that happened at the beginning of the millennium, just as
21:46
Speaker 5: Kennedy was the plurality fifth vote, and what he said was, look,
21:51
Speaker 5: we don't have any evidence that this is going on.
21:53
Speaker 5: Most of these cases take three months, which it turned
21:56
Speaker 5: out was inaccurate, and the Department of Justice had to
21:58
Speaker 5: take that back and it was both couple years, but
22:01
Speaker 5: the Justice Department at that time said it was three months.
22:04
Speaker 5: And so I said, most of these cases take three months.
22:07
Speaker 5: And here's what he said, Here's what was the key.
22:08
Speaker 5: He said, if there was ever a specific case where
22:12
Speaker 5: things were taking too long, you should come back and
22:16
Speaker 5: file a as applied challenge saying that you specifically have been
22:21
Speaker 5: held too long, come back and figure this out. So
22:24
Speaker 5: then what happened after that was the Ninth Circuit and
22:27
Speaker 5: the Second Circuit said, well, that seems a little bit
22:31
Speaker 5: crazy to force every single person to have to do
22:34
Speaker 5: this in their case. So we're just going to put
22:36
Speaker 5: a presumption that after six months your detention has been unreasonable.
22:40
Speaker 5: The government has to decide your case in six months,
22:43
Speaker 5: or if that then give you a bond hearing. That
22:45
Speaker 5: doesn't mean release you. That means give you a bond
22:48
Speaker 5: hearing to decide whether you are too dangerous to be
22:52
Speaker 5: released or whether you're too much of a flight risk
22:55
Speaker 5: to be released. And just to be clear, what is
22:57
Speaker 5: a bond hearing. A bond hearing, even if you've been
23:00
Speaker 5: charge for murder, you get a bond hearing, and a
23:02
Speaker 5: lot of people who are charged for murder get bond
23:05
Speaker 5: even where they actually are released pending the decision whether
23:09
Speaker 5: to convict them or not. So the idea is, if
23:12
Speaker 5: in a criminal case there are people suspected for murder
23:16
Speaker 5: that get bond hearings and actually get bond, that how
23:20
Speaker 5: in immigration, which is a civil case, could you just
23:24
Speaker 5: categorically say there's a whole group of people that never
23:27
Speaker 5: get a bond hearing, no matter how long they've been detained.
23:30
Speaker 5: So that's why the Second Circuit of the nine second
23:32
Speaker 5: Circuit said no, no, no, that should be six months.
23:35
Speaker 5: The Supreme Court in twenty eighteen said absolutely not. Six
23:38
Speaker 5: months is not what the statute says. Get out of
23:41
Speaker 5: town with that, we meant what we said, if you
23:44
Speaker 5: have a specific person who actually has been detained for
23:49
Speaker 5: a long time, then that person can come back, But
23:54
Speaker 5: not any six month presumption that that's too long. So
23:59
Speaker 5: there have been some se cases the Second Circuit, the
24:02
Speaker 5: Third Circuit, and the Eighth Circuit who are all trying
24:05
Speaker 5: to figure out what does that unreasonably prolonged situation mean?
24:11
Speaker 5: And the Second Circuit thought that a person who was
24:15
Speaker 5: detained in total for seven months.
24:17
Speaker 4: They said that was too long. This person deserves a
24:20
Speaker 4: bond hearing, So they didn't.
24:21
Speaker 5: Make a presumption everybody gets a bond hearing after seven months, but.
24:26
Speaker 4: They said this person does.
24:27
Speaker 5: The Third Circuit said, look, we're going to have a
24:30
Speaker 5: different multi factor reasonable to this test. We're going to
24:33
Speaker 5: try to figure out whose fault it is, because sometimes
24:36
Speaker 5: if you put a time period, then the foreign national
24:39
Speaker 5: can ask for continuances until such time as they can
24:43
Speaker 5: get then.
24:44
Speaker 4: This presumption of a bond hearing.
24:46
Speaker 5: So they're saying, if that's what you're going to do,
24:47
Speaker 5: we're not going to give you the thing, but we're
24:50
Speaker 5: going to take into account how long, whose faults, how
24:53
Speaker 5: close are we to the end, etc. And then you
24:56
Speaker 5: could get a bond hearing if it's still taking too long.
24:59
Speaker 5: The Eighth Circuit pose no time limit. They just said, hey,
25:02
Speaker 5: the Supreme Court meant what it said, and if the
25:06
Speaker 5: person detained twenty years and that's along their case takes,
25:09
Speaker 5: then they can be detained for twenty years bid their
25:12
Speaker 5: criminal That is what it is.
25:14
Speaker 3: Okay, leon Hold, that thought coming up will continue this conversation.
25:18
Speaker 3: Also why the Trump administration has set a goal of denaturalizations.
25:24
Speaker 3: This is Bloomberg. I've been talking to immigration law expert
25:28
Speaker 3: Leon Fresco of Holland and Knight. Leon tell us what
25:31
Speaker 3: the Supreme Court is going to decide.
25:33
Speaker 5: So, now the Supreme Court has to decide these two issues,
25:38
Speaker 5: which is how long and what is the framework for
25:42
Speaker 5: deciding if someone can actually happen as applied constitutional challenge
25:49
Speaker 5: to their detention. And so that's what they're going to
25:51
Speaker 5: have to decide and they'll be taking that case.
25:54
Speaker 4: Later in this fall.
25:55
Speaker 3: So I mean, would this affect a lot of people?
25:58
Speaker 4: Yes, a lot of people are in the system.
26:01
Speaker 5: Especially when you say we're going to prioritize the worst
26:04
Speaker 5: of the worst people with criminal convictions for deportation, then
26:08
Speaker 5: every one of those people, if you're prioritizing them, are
26:11
Speaker 5: the ones going through the system. And the idea is
26:13
Speaker 5: if one of those people with a criminal conviction is apprehended,
26:17
Speaker 5: then at the moment the law is, they will not
26:20
Speaker 5: be released until their case is finished.
26:23
Speaker 4: And by the way, the Congress passed that law for
26:24
Speaker 4: good reasons.
26:25
Speaker 5: They were worried that people would either reoffend, meaning they'd
26:29
Speaker 5: commit more crimes while they were out, or that they
26:31
Speaker 5: would abscond and there are some statistics that show that
26:35
Speaker 5: these absconsin rates and the reoffending rates are high. But
26:40
Speaker 5: you know, nevertheless, the question is do you still get
26:43
Speaker 5: a chance at least to make your case in terms
26:46
Speaker 5: of a bond hearing or is the risk of reoffending
26:50
Speaker 5: and also flight so high that we shouldn't get people
26:54
Speaker 5: bond no matter what. And I think this no matter
26:57
Speaker 5: what issue is what the Supreme Court is now going
27:00
Speaker 5: to have to grapple with. Is there really no limit
27:02
Speaker 5: to how long the government can keep someone detained without
27:05
Speaker 5: deciding their case.
27:07
Speaker 3: Why are they keeping them detained without deciding their case?
27:10
Speaker 5: So there's a lot of reasons, but the main reason,
27:13
Speaker 5: and this is kind of the most troubling one, would
27:15
Speaker 5: be you go to immigration court and you lose your case,
27:21
Speaker 5: you appeal it, and then you win your case, and
27:23
Speaker 5: then the judge remands it back to the immigration court
27:27
Speaker 5: for a new case. And by the time we've done that,
27:29
Speaker 5: we're already two years into this thing. And so the
27:32
Speaker 5: question is whose fault is that at that point? And
27:36
Speaker 5: should the immigrants stay in detention during that or should
27:41
Speaker 5: the immigrant get a chance for a bond hearing? And
27:44
Speaker 5: that's really I think the main issue the Court's going
27:46
Speaker 5: to have to grapple with is who gets the loss.
27:49
Speaker 5: There is the loss the government's lass because they made
27:53
Speaker 5: a mistake and the case got appealed and now there's
27:55
Speaker 5: a new hearing.
27:56
Speaker 4: Or is it.
27:57
Speaker 5: You know, if you hadn't appealed your case, you could
28:01
Speaker 5: have been deported a lot earlier and released from detention.
28:04
Speaker 5: So if you want to stay and fight your case,
28:05
Speaker 5: you have to know that you have to do it
28:07
Speaker 5: from detension. Get over it kind of thing. And so
28:10
Speaker 5: that's what the court is going to have to grapple
28:12
Speaker 5: with here.
28:13
Speaker 3: Something that continues to fascinate me is the Trump administration's
28:19
Speaker 3: aggressive efforts to denaturalize people who are citizens. I think
28:25
Speaker 3: CBS News first reported that the administration is planning to
28:30
Speaker 3: expand the denaturalization push, aiming for two hundred and fifty
28:34
Speaker 3: cases by the fall, and statistics are that the government
28:38
Speaker 3: filed an average of just eleven denaturalization cases a year
28:43
Speaker 3: between nineteen ninety and twenty seventeen. I mean, these cases
28:48
Speaker 3: take a long time. Why is the government going through this?
28:52
Speaker 3: Why are they targeting them?
28:54
Speaker 5: There's two reasons. Reason Number one is they do want
28:59
Speaker 5: to make everyone who's going through the system very aware
29:04
Speaker 5: of the fact that, look, if you make any misrepresentation
29:08
Speaker 5: while you're going through this system, you're never going to
29:10
Speaker 5: be safe in America. There's always a chance you could
29:13
Speaker 5: be denaturalized and deported, So make sure that you're giving
29:18
Speaker 5: accurate information to the government through this entire time. And
29:21
Speaker 5: then for people who have been naturalized, they also want
29:25
Speaker 5: to sort of give a deterrent of Hey, if you
29:28
Speaker 5: do anything bad even after you're naturalized, that makes us
29:33
Speaker 5: think that you lied on your naturalization case, and we
29:36
Speaker 5: can somehow then go back and try to you know,
29:40
Speaker 5: the sort of theory of show me the person, I'll
29:42
Speaker 5: show you the crime. We can go back and figure
29:45
Speaker 5: out that you didn't tell us you were in the
29:47
Speaker 5: Elks club, and now it turns out you were. But
29:51
Speaker 5: that's not really why we're denaturalizing you. We're denaturalizing you
29:54
Speaker 5: because of something else we didn't like about you. Then
29:57
Speaker 5: the idea is to just sort of put that sort
30:00
Speaker 5: of control on the entire foreign born population in the
30:05
Speaker 5: United States to basically say, hey, mind your p's and q's,
30:10
Speaker 5: get your act together, or you could be denaturalized and
30:14
Speaker 5: look there's gonna be very few applications where everything was perfect,
30:18
Speaker 5: and then a lot of the adjudications are gonna have
30:21
Speaker 5: to be by these federal judges deciding whether either the
30:24
Speaker 5: omission or the error or the misstatement was material such
30:29
Speaker 5: that a different decision would have been necessary had the
30:33
Speaker 5: missing or incorrect or erroneous or actually false statement had
30:39
Speaker 5: been made as part of the immigration process.
30:42
Speaker 3: I mean, there haven't been that many cases, I take it,
30:44
Speaker 3: but our judge is generally reluctant, and it's sort of
30:47
Speaker 3: a high bar for the government to denaturalize someone.
30:52
Speaker 5: So in my experience, so this was before I left
30:55
Speaker 5: the private practice, these cases were a slam dunk because
30:59
Speaker 5: the federal judges were always saying, well, there's so few
31:02
Speaker 5: of them. If the government really went through all this
31:05
Speaker 5: trouble to put this case together, I should be taking
31:09
Speaker 5: this very seriously. And most of these cases used to
31:11
Speaker 5: be for Nazi war criminals and other sort of the
31:16
Speaker 5: kinds of people that ends the international would hate because
31:19
Speaker 5: they terrorized an entire village or something like that. That's
31:23
Speaker 5: what this used to be for, basically, was for all
31:25
Speaker 5: these human rights violators. But now if it starts getting
31:30
Speaker 5: extended out to populations where the person isn't so notorious
31:36
Speaker 5: or has it done such bleak things. Then these federal judges,
31:40
Speaker 5: I assume, are going to fall along the ideological lines,
31:44
Speaker 5: and some are going to say, hey, none of these
31:46
Speaker 5: are material, so I'm not going to grant them, and
31:49
Speaker 5: others will say, oh, well whatever if if this administration
31:52
Speaker 5: doesn't like them, I don't like them. And unfortunately, that's
31:55
Speaker 5: how a lot of this is happening, and so I
31:57
Speaker 5: can foresee a lot of that happen. Sure there will
32:00
Speaker 5: be judges in the middle who will scrutinize and do
32:03
Speaker 5: a very serious analysis and decide just on the facts.
32:09
Speaker 5: But I've seen some judges who will just say, look,
32:12
Speaker 5: I'm not finding that material disrepresentation. Sorry, this is all
32:16
Speaker 5: ideologically driven. I'm not going to reward it. And others
32:19
Speaker 5: will say, hey, I trust this administration, and if they
32:22
Speaker 5: don't want someone here, I'm not going to really look
32:25
Speaker 5: behind the reason I'm concerned if they're concerned, And so
32:28
Speaker 5: I think there will be a lot of.
32:30
Speaker 3: That that goes on, and we don't know yet who
32:32
Speaker 3: they're targeting.
32:34
Speaker 5: Well, they say they're targeting only people who lied about
32:37
Speaker 5: criminal convictions and national security risks. So to that extent,
32:43
Speaker 5: you know, I would be fine with that too, but
32:45
Speaker 5: you know, we're gonna.
32:46
Speaker 4: Have to see case by case how that plays out.
32:48
Speaker 3: I know we hear national security risks so many times
32:51
Speaker 3: from the Trump administration in so many different settings that
32:54
Speaker 3: it's hard to know. Before I let you go, let's
32:57
Speaker 3: do an update on the Milwaukee County Circuit Court judge
33:01
Speaker 3: Hannah Dugan, who was convicted of obstruction of justice.
33:06
Speaker 5: Basically, what happened was she was a judge in just
33:09
Speaker 5: a local criminal court and she was worried that this
33:12
Speaker 5: local criminal defendant was going to be arrested by ICE
33:15
Speaker 5: after having a hearing in her court. And she felt like, look,
33:19
Speaker 5: if ICE is going to be in our court house,
33:20
Speaker 5: then people are going to show up to my hearings.
33:23
Speaker 5: So I have to protect people so that they come
33:25
Speaker 5: to my hearings. So she told one of the foreign nationals, hey,
33:28
Speaker 5: go out this other door where the jury goes out,
33:30
Speaker 5: and then you won't be able to get caught by ICE.
33:34
Speaker 5: And then I still catches the person anyway, but they say, hey,
33:37
Speaker 5: this judge was trying to obstruct a proceeding by making
33:41
Speaker 5: it harder for us to catch this person.
33:43
Speaker 4: And this judge was convicted. The judge was not acquitted here.
33:47
Speaker 5: So then the judge filed a motion for acquittal, trying
33:50
Speaker 5: to rely on a Fourth Circuit decision which talked about
33:54
Speaker 5: whether a preceding is a pending preceding or not for
33:58
Speaker 5: the purposes of deciding what is obstruction or not. And
34:01
Speaker 5: so the judge was trying to argue, look, I wasn't
34:03
Speaker 5: obstructing any proceeding because there wasn't actually a pending removal
34:08
Speaker 5: proceeding going on. Only if there was a pending removal
34:12
Speaker 5: proceeding going on, should I have been convicted. But if
34:15
Speaker 5: there wasn't one, that would be it. But at the
34:18
Speaker 5: end of the day, the federal judge here said, I'm sorry,
34:22
Speaker 5: I don't agree with the fact that this thing needed
34:26
Speaker 5: to actually have a pending removal proceeding. That's being obstructed here.
34:32
Speaker 5: If you're obstructing what a pure law enforcement agency is
34:36
Speaker 5: doing in terms of issuing its own warrants and removal
34:39
Speaker 5: without court proceedings that it can issue these things, then
34:43
Speaker 5: you could obstruct that. And so you've obstructed it. And
34:46
Speaker 5: so at the moment the conviction has been upheld, and
34:51
Speaker 5: so she's going to try to appeal to the Seventh
34:53
Speaker 5: Circuit now to try to again figure out what is
34:56
Speaker 5: a proceeding such that did she obstruct the nature of
35:01
Speaker 5: that preceding or not?
35:02
Speaker 4: So did you actually have to know.
35:04
Speaker 5: This person was in a removal process in order to
35:07
Speaker 5: obstruct it? Or could she just be convicted for obstructing
35:12
Speaker 5: ice as efforts to put the foreign national in the
35:15
Speaker 5: preceding so to speak.
35:17
Speaker 3: So it becomes a technical kind of issue. But I
35:20
Speaker 3: haven't heard of another judge doing anything similar, so maybe
35:23
Speaker 3: this is having a deterrent effect on judges. Always a pleasure, Leon,
35:29
Speaker 3: thanks so much. That's immigration law expert Leon Fresco, a
35:33
Speaker 3: partner at Hollanda Knight. And that's it for this edition
35:36
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35:39
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35:42
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