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US Air Force Officer Charged for Criticizing Trump & Visas Revoked · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grosso from Bloomberg Radio.
0:08
Speaker 1: On July 1st, at a protest on the steps of
0:11
Speaker 1: the Capitol, U.S. Air Force Major Jason Watson called for
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Speaker 1: the impeachment of President Donald Trump for violating the Constitution
0:21
Speaker 1: by ordering military action against Iran.
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Speaker 2: When the President of the United States orders military action
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Speaker 2: against foreign countries absent an emergency scenario, where American interests
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Speaker 2: are under imminent dire threat, as was done with Venezuela, Cuba,
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Speaker 2: and Iran, that's an unconstitutional usurpation of Congress's authority and
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Speaker 2: a violation of the War Powers Clause. These violations resulted
0:50
Speaker 2: in the deaths of 13 service members and injuries of
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Speaker 2: hundreds more. For this, the President and Vice President must
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Speaker 2: be impeached, convicted, and removed.
1:04
Speaker 1: After Watson, who served in the Air Force for 17 years,
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Speaker 1: repeated his criticisms of Trump in an interview on CNN,
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Speaker 1: he was criminally charged under the Uniform Code of Military
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Speaker 1: Justice with violating Article 88 for contemptuous remarks about Trump.
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Speaker 1: violating Article 92 for disobeying orders and violating Article 133
1:30
Speaker 1: for conduct on becoming an officer. The Article 88 charges
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Speaker 1: are exceedingly rare, so much so that there have been
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Speaker 1: only a few instances since the modern code of military
1:43
Speaker 1: justice was enacted 75 years ago. And this appears to
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Speaker 1: be the only case where an officer of Watson's rank
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Speaker 1: has been charged. Joining me is Joshua Kastenberg, a professor
1:55
Speaker 1: at the University of New Mexico Law School and a
1:58
Speaker 1: former judge and lawyer in the U.S. Air Force. Josh,
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Speaker 1: let's start with the charges under Article 88 of the
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Speaker 1: Uniform Code of Military Justice, which prohibits officers from using
2:12
Speaker 1: contemptuous words against the president, the vice president, Congress, and
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Speaker 1: other U.S. representatives.
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Speaker 3: Well, those charges, first of all, they're quite ancient. They
2:23
Speaker 3: go back to, in a sense, Thomas Jefferson, when the
2:27
Speaker 3: first articles of war were being rewritten from the British.
2:31
Speaker 3: And one of the things that was changed from the
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Speaker 3: British article to what we now know as Article 88
2:38
Speaker 3: is the U.S. limited it to the chain of command
2:42
Speaker 3: in the military, whereas contemptuous words against the government as
2:46
Speaker 3: a whole could be a means for prosecuting people in
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Speaker 3: the old British Army. So it's an old charge, but
2:52
Speaker 3: it's a charge that has been used in a very
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Speaker 3: selective manner over the years since that time. And what
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Speaker 3: I mean by a selective manner is that we have
3:03
Speaker 3: seen generals and admirals, sometimes in their retired states, but
3:08
Speaker 3: they're still subject to the UCMJ making disparaging words against
3:12
Speaker 3: the president. For example, Bill Clinton being called a draft dodger.
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Speaker 3: But in the present time, you know, you can go
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Speaker 3: back to the Vietnam War. There was a lieutenant who
3:22
Speaker 3: did that. And then you can jump ahead to the present.
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Speaker 3: And we've got this major fisher who's done that as well.
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Speaker 3: But there have been hundreds of others who've done it
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Speaker 3: and haven't been charged.
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Speaker 1: So do you think it's the high profile nature of this?
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Speaker 1: I mean, he he was arrested on the steps of
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Speaker 1: the Capitol and also he went on CNN.
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Speaker 3: Yeah, I mean, he certainly invited it on himself, and
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Speaker 3: he did it with full knowledge because he apparently had
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Speaker 3: been warned beforehand not to do this. And so he
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Speaker 3: pulled one of the, hey, world, look at me. That
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Speaker 3: doesn't take away from the fact that he may be
3:57
Speaker 3: very sincere in his beliefs, but he certainly did it
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Speaker 3: in a manner that baited the administration to go after him.
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Speaker 1: As far as whether remarks are contemptuous, what is the
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Speaker 1: standard for determining whether they're contemptuous?
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Speaker 3: So remarks tend to be considered contemptuous if they're made
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Speaker 3: in a manner that would undermine confidence and the reliability
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Speaker 3: of the chain of command. And so you can go back,
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Speaker 3: for example, to the Vietnam War, and there was this
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Speaker 3: army captain, and he was a noted dermatologist. He was
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Speaker 3: training corpsmen. His name was Captain Levy. And he started
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Speaker 3: advising students who were, you know, enlisted members in the
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Speaker 3: United States Army's Medical Corps not to go to Vietnam
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Speaker 3: by arguing that it was an imperialistic, it was a
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Speaker 3: white man's war, it was making the rich richer, it
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Speaker 3: was immoral and unconstitutional. And, you know, he had a
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Speaker 3: position of authority over them. And so he was convicted
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Speaker 3: in a court martial. It went all the way up
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Speaker 3: to the United States Supreme Court, and the Supreme Court
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Speaker 3: upheld the conviction in a case we know as Parker v. Levy. Today,
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Speaker 3: I think one of the things the defense counsel will
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Speaker 3: raise is, The idea that this major obviously did what
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Speaker 3: he's accused of doing as a matter of a factual basis,
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Speaker 3: but the idea that he would undermine the chain of
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Speaker 3: command and military discipline is unprovable. And that is a
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Speaker 3: burden on the government to have to prove.
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Speaker 1: Does the prosecution have to show that what he said
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Speaker 1: was contemptuous rather than just critical? And what's the line?
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Speaker 3: Well, yeah, I mean, you're absolutely right in asking that question.
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Speaker 3: Words have meaning, and they particularly have meaning in the law.
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Speaker 3: The prosecution has to prove, beyond a reasonable doubt, to
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Speaker 3: the court martial, whether it's composed of officers or it's
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Speaker 3: a bench trial, but it is the prosecution's duty to
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Speaker 3: prove that the words were contemptuous. So what might separate
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Speaker 3: the major from, say, Lieutenant Howe in 1967, who stood
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Speaker 3: outside of Fort Bliss with the Sandwich Board calling Lyndon
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Speaker 3: Johnson a war criminal, is that it's unclear to me
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Speaker 3: whether the Major engaged in any superfluous or mean-spirited name-calling,
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Speaker 3: and rather just exercised what he believed his prerogative to
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Speaker 3: warn Congress about conditions in the military and how the
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Speaker 3: chain of command might be acting in an unconstitutional manner.
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Speaker 3: That might not clear the hurdle of contempt, but I
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Speaker 3: suspect it will.
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Speaker 1: People in the military don't have the same First Amendment
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Speaker 1: rights that the rest of us do.
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Speaker 3: Yeah, you're absolutely correct. I mean, one of the things
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Speaker 3: that you learn when you're in ROTC or at the
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Speaker 3: academy or at officer training programs is that you are surrendering.
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Speaker 3: to the federal government some of your free speech rights,
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Speaker 3: and that includes the right to be politically engaged in
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Speaker 3: a military status. But you know, this administration, and I
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Speaker 3: mean both Trump administrations, has done more to water down
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Speaker 3: the political-military barrier, and they've instead politicized the military to
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Speaker 3: an unusual degree, that they've set an example that it's
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Speaker 3: okay to cross the line. And you see it in
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Speaker 3: the speeches that Secretary of Defense Hegseth has made to
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Speaker 3: uniformed personnel, the speeches the president makes at the academy graduations,
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Speaker 3: and just basically their public comments and the overuse of
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Speaker 3: the military to promote the president's ideology. There's no equal
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Speaker 3: to that in my lifetime, and so I suspect One
7:47
Speaker 3: of the things that this major's attorneys are going to
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Speaker 3: argue is that it's the president himself who's moved the
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Speaker 3: definitions of what political activity and contemptuous language are, and
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Speaker 3: therefore that is the standard by which our client must
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Speaker 3: be judged, and therefore they can't prove beyond a reasonable
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Speaker 3: doubt he's guilty of contempt.
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Speaker 1: He's also charged, so it's three violations of Article 88,
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Speaker 1: five violations of Article 92.
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Speaker 4: Yes.
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Speaker 1: And two violations of Article 133.
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Speaker 3: So Article 92 is a failure to obey lawful orders
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Speaker 3: or regulations. And regardless of who's sitting in the White House,
8:29
Speaker 3: there are these age-old military cultural rules that are designed
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Speaker 3: to keep the military a trustworthy institution by keeping it
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Speaker 3: out of politics. that have been written into department of
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Speaker 3: defense regulations and instructions and then air force instructions army
8:50
Speaker 3: regulations navy and marine corps instructions and regulations all of
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Speaker 3: those regulations have the force of law as long as
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Speaker 3: they don't violate a you know legally passed statute limiting
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Speaker 3: the military or the first amendment but for those regulations
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Speaker 3: and instructions you have to assume going in that they
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Speaker 3: are constitutionally permissible. And I can tell you that demonstrating
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Speaker 3: in a military uniform for any cause without permission, whether
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Speaker 3: it's for wildlife preservation, children's rights, or a political rally
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Speaker 3: that's partisan, if you don't have permission to be in
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Speaker 3: uniform and you're part of it, you've crossed the line. Now, again,
9:32
Speaker 3: collective prosecution is something that I'm sure the defense counsel
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Speaker 3: in this case will raise. because they'll point out the
9:39
Speaker 3: fact that the president has used the military at his
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Speaker 3: partisan rallies. No one there has been prosecuted, so we'll
9:45
Speaker 3: see what happens. As for Article 133, that's the easiest
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Speaker 3: of all the charges to prove. It's called conduct unbecoming
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Speaker 3: an officer and a gentleman, and it basically throws it
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Speaker 3: out to the court-martial whether or not this may crossed
10:00
Speaker 3: the line. The prosecution doesn't really have to prove that
10:05
Speaker 3: there's a threat to good order and discipline. It's just
10:07
Speaker 3: rather whether or not this major has crossed the line
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Speaker 3: against the norms and become something of a criminal embarrassment
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Speaker 3: to the military. I mean, the classic line of that
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Speaker 3: is an officer who goes and does something legal like gambling,
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Speaker 3: but falls into debt and can't pay the debt back.
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Speaker 3: But you do see examples of conduct on becoming an
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Speaker 3: officer and a gentleman for lots of different things that
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Speaker 3: are ordinarily legal, including, you know, things like appearing in
10:35
Speaker 3: softcore pornographic movies or, you know, having multiple partners of
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Speaker 3: a polyamorous nature and it gets out. But This one,
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Speaker 3: I think of all the charges, this is the easiest
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Speaker 3: to prove. But as a jurisdictional nature, it's possible that
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Speaker 3: defense could prevail on the military judge that their client
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Speaker 3: is selectively prosecuted in violation of his constitutional rights.
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Speaker 1: It hasn't actually been decided yet whether Major Watson will
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Speaker 1: have to face trial.
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Speaker 3: Yeah, well, the thing is that he's held in pretrial confinement.
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Speaker 3: which is very unusual for an officer. I mean, even
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Speaker 3: officers who are accused of violent crimes like rape generally
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Speaker 3: don't end up being placed in pretrial confinement. So first
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Speaker 3: we have to wait and see whether a military judge,
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Speaker 3: or if they go and try to file in U.S.
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Speaker 3: District Court, whether a U.S. District Court judge would order
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Speaker 3: him released from pretrial confinement. under the argument that, look,
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Speaker 3: he's not a threat to good order and discipline. He
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Speaker 3: hasn't committed a violent crime. He's not charged with espionage.
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Speaker 3: This is just something that normal human beings can do
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Speaker 3: in the United States. So even before we were to
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Speaker 3: get to a trial, that could become an issue. Then
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Speaker 3: this has to go through the military's equivalent of a
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Speaker 3: grand jury process. That's done by one individual. It's not
12:02
Speaker 3: really a grand jury, but it's the equivalent of a
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Speaker 3: grand jury. It's a pretrial investigation. And then and only
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Speaker 3: then would a senior military officer known as a general
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Speaker 3: court-martial convening authority, and usually those are major generals or,
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Speaker 3: you know, rear admirals, upper half or higher, lieutenant generals,
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Speaker 3: four-star generals, and the like, able to convene a general
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Speaker 3: court-martial against this major. So it's a process. And one
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Speaker 3: of the things that makes this process different is that
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Speaker 3: I think the government has opened the door to the
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Speaker 3: possibility of the defense counsel being able to stop this
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Speaker 3: process in its tracks through some sort of appeal to
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Speaker 3: the United States District Court.
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Speaker 1: I thought that when you're in the military, you're subject
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Speaker 1: to the jurisdiction of the military courts. How would he
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Speaker 1: get this into federal district court?
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Speaker 3: Well, when you can prove to the federal courts that
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Speaker 3: the government is either incompetent has violated your client's rights
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Speaker 3: to a constitutional degree or has committed a major infraction
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Speaker 3: of the law, you can get it into the U.S.
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Speaker 3: District Court. It's a very high bar. But if you
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Speaker 3: remember the case of Lieutenant Aaron Watada, Aaron Watada did
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Speaker 3: not want to go and comply with his orders to
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Speaker 3: deploy to Iraq or Afghanistan. And the prosecution was getting
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Speaker 3: ready to prosecute him in a court-martial for failure to go.
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Speaker 3: there was some problem with the handling of evidence, of
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Speaker 3: the discovery requirement to give Watada's attorneys all of the
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Speaker 3: government's evidence. The defense counsel shrewdly went to U.S. District Court,
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Speaker 3: and the U.S. District Court shut that case down, and
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Speaker 3: the military was never able to go forward and prosecute
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Speaker 3: Lieutenant Aaron Watada for something that, at least facially, Aaron
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Speaker 3: Watada did, which was refuse to comply with orders. But
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Speaker 3: for every Lieutenant Watata, there are hundreds of people who
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Speaker 3: the military more or less functions as it's supposed to do,
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Speaker 3: and they can't get in the U.S. District Court. What
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Speaker 3: makes this case different is its uniqueness.
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Speaker 1: It seems like they're charging him in many different ways
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Speaker 1: for the same act.
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Speaker 3: Yeah. Well, that's one area where the military justice system
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Speaker 3: can misfire. Because a military trial judge, just like a
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Speaker 3: state criminal trial judge or a U.S. District Court judge,
14:34
Speaker 3: has to make sure that the charges do not overlap
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Speaker 3: to such a degree as to violate the Constitution's prohibition
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Speaker 3: against double jeopardy. And I've taken a look at the
14:46
Speaker 3: way this case has been charged, and one of the
14:48
Speaker 3: features of it to me is that there is enough
14:51
Speaker 3: of an overlap to create a constitutional issue in this case.
14:55
Speaker 3: A military trial judge could say to the government two things.
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Speaker 3: Number one, you're going to have to decide which of
15:02
Speaker 3: these charges you're going forward on and which you're not
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Speaker 3: because there's significant overlap, or I'll throw it out to
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Speaker 3: the court-martial to do that and let them decide. officer
15:10
Speaker 3: sitting on the court-martial decide whether your client guilty or
15:14
Speaker 3: not but they won't be able to do it for
15:16
Speaker 3: all charges they'll have to do it in what's known
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Speaker 3: as the alternative meaning he's either guilty of this charge
15:21
Speaker 3: or he's guilty of that charge but you can't find
15:23
Speaker 3: them both which you certainly could find him not guilty
15:26
Speaker 3: of all charges so that's one possibility the other possibility
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Speaker 3: I could see a military judge doing is saying I'm
15:32
Speaker 3: just gonna consolidate a bunch of these charges if he's
15:35
Speaker 3: found guilty of them for the purpose of sentencing and
15:38
Speaker 3: do a singular charge.
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Speaker 1: How fast does this military process move?
15:45
Speaker 3: If people think this is going to go to a
15:47
Speaker 3: court tomorrow, barring some miraculous dropping of the case against
15:52
Speaker 3: him or a plea agreement, it's not. It's a long process.
15:56
Speaker 3: Military justice is supposed to be quick and efficient, but
15:59
Speaker 3: it's become like just about any other criminal justice system,
16:02
Speaker 3: and it's not quick or efficient anymore.
16:05
Speaker 1: We'll keep track of what happens. Thanks so much for
16:07
Speaker 1: joining me, Josh. That's Professor Joshua Kastenberg of the University
16:12
Speaker 1: of New Mexico Law School. The ICE officer charged with
16:16
Speaker 1: shooting and injuring a man in Minneapolis has been released
16:20
Speaker 1: from a jail in Texas after a federal judge denied
16:24
Speaker 1: Minnesota's request to keep him in custody. Minnesota officials had
16:28
Speaker 1: filed a lawsuit earlier this month asking a judge to
16:32
Speaker 1: order the Texas governor to extradite Christian Castro. so he
16:37
Speaker 1: could face four counts of assault and one count of
16:40
Speaker 1: falsely reporting a crime. But a judge sided with Texas,
16:45
Speaker 1: allowing Castro to be released and for Texas to continue
16:49
Speaker 1: weighing whether to comply with the extradition request or not.
16:54
Speaker 1: My guest is Leon Fresco, a partner at Holland &
16:57
Speaker 1: Knight and an expert in immigration law. Leon, does the
17:00
Speaker 1: Texas governor have the power to deny extradition to Minnesota?
17:06
Speaker 4: Well, so the extradition clause in the Constitution, and there's
17:11
Speaker 4: a statute, 18 U.S.C. Section 3182, makes extradition mandatory, not discretionary.
17:19
Speaker 4: So Abbott doesn't have power, lawful power to refuse. And
17:23
Speaker 4: the Supreme Court also said this as well in a
17:27
Speaker 4: case called Puerto Rico versus Branstad. So Governor Abbott can't
17:31
Speaker 4: really win this on the merits, but what he's doing
17:34
Speaker 4: is He's trying to win on the calendar. He's trying
17:37
Speaker 4: to say he's got the federal court to agree with
17:40
Speaker 4: him that this question isn't right because Abbott hasn't formally
17:43
Speaker 4: said no to the extradition. So that's a roadmap for
17:47
Speaker 4: indefinite delay. Just don't deny the extradition. Just say that
17:52
Speaker 4: you continually seek to analyze it and to try to
17:57
Speaker 4: see that, you know, this is a difficult decision. We
17:59
Speaker 4: need to try to get to the right decision here.
18:02
Speaker 4: And then the question is, well, Will that ever be
18:05
Speaker 4: able to be resolved? Will the federal government end up
18:07
Speaker 4: bringing charges? Will Minnesota try to sue to compel this
18:11
Speaker 4: and say it's serving as a functional denial and try
18:15
Speaker 4: citing a flight risk and the need to stop this
18:19
Speaker 4: flight risk? And that's what we're going to have to
18:21
Speaker 4: wait and see here.
18:22
Speaker 1: I'm curious as to why Minnesota is trying to get
18:25
Speaker 1: this particular ICE officer. He faces assault counts and falsely
18:31
Speaker 1: reporting a crime. And not the ICE officers who were
18:34
Speaker 1: involved in the shooting deaths of Rene Good and Alex Prattie,
18:39
Speaker 1: two U.S. citizens, during the Minneapolis Operation Metro surge in
18:45
Speaker 1: January of 2026. Where are they and what's happening to them?
18:49
Speaker 4: And there have been no charges in either of those shootings.
18:53
Speaker 4: There was a DOJ investigation in one of them in
18:58
Speaker 4: the Alex Prattie case, but DOJ didn't do an investigation.
19:02
Speaker 4: in the Renee Good case. And in those situations, in
19:06
Speaker 4: the Renee Good case, you had a bunch of Minnesota
19:08
Speaker 4: federal prosecutors resigning, including the acting U.S. attorney. And in
19:13
Speaker 4: the Alex Pretty case, they did do a civil rights investigation,
19:17
Speaker 4: and the agents were placed on administrative leave, but there
19:19
Speaker 4: were no charges to date in that one.
19:22
Speaker 1: Will we see civil lawsuits by Renee Good and Alex
19:26
Speaker 1: Pretty's family against the federal government or these ICE officers,
19:31
Speaker 1: or is that a no-go?
19:33
Speaker 4: So the problem with civil lawsuits is they're very, very
19:37
Speaker 4: difficult now because of some precedents that have happened in
19:41
Speaker 4: the Supreme Court. There was a Border Patrol precedent that happened,
19:45
Speaker 4: I want to say, two or three years ago where
19:47
Speaker 4: they tried to sue the Border Patrol for Bivens Act claims,
19:51
Speaker 4: saying you owe civilly for excessive force. And in that situation,
19:58
Speaker 4: what ended up happening was the Supreme Court said that
20:02
Speaker 4: this was not like a normal situation where the federal
20:05
Speaker 4: government violates your rights and you can sue them. In
20:09
Speaker 4: this situation, there's a problem with national security that the
20:15
Speaker 4: Border Patrol has to be able to take care of
20:18
Speaker 4: this national security concern. And so you can't sue under
20:23
Speaker 4: Bivens in that situation. Now, that was Border Patrol. The
20:27
Speaker 4: question is, would ICE... end up being able to benefit
20:31
Speaker 4: from that same Border Patrol national security concerns argument. So
20:36
Speaker 4: it's very hard to sue the Border Patrol under Bivens.
20:39
Speaker 4: And would ICE get the benefit of that? We'd have
20:41
Speaker 4: to wait and see what the Supreme Court says, especially
20:44
Speaker 4: if it's inside the country, it's not at the border.
20:47
Speaker 4: and it's a U.S. citizen, it's not a foreign national,
20:50
Speaker 4: it seems like it'd be more likely that Bivens is
20:53
Speaker 4: not foreclosed, but it's going to be a tough call.
20:55
Speaker 4: I would bet that would be a 5-4 case or
20:57
Speaker 4: a 6-3 case either way. And then finally, the Federal
21:02
Speaker 4: Tort Claims Act, which is another suit that you can do,
21:04
Speaker 4: there's this thing called the discretionary function exception, and a
21:08
Speaker 4: lot of times that discretionary function exception, they're saying, look,
21:12
Speaker 4: these are tough calls from these officers in difficult situations.
21:17
Speaker 4: And they're using personal judgment to try to stop a
21:20
Speaker 4: violent attack from happening. And so it's very hard to
21:24
Speaker 4: sue them under the Federal Court Claims Act in that situation.
21:27
Speaker 1: Well, there is no statute of limitations on murder charges, right?
21:31
Speaker 1: So two years from now, a.
21:33
Speaker 4: New administration could charge them for murder. There's no doubt
21:37
Speaker 4: about that. And we'll have to wait and see if
21:38
Speaker 4: that ends up happening.
21:40
Speaker 1: OK, stay with me, Leon. Coming up next on the
21:43
Speaker 1: Bloomberg Law Show, we'll talk about the Trump administration's plans
21:46
Speaker 1: for the single largest mass revocation of visas in U.S. history.
21:53
Speaker 1: So far, the Trump administration has concentrated its immigration crackdown
21:59
Speaker 1: on people who entered the U.S. illegally. But now it's
22:03
Speaker 1: expanding its focus to include people who entered the country legally.
22:08
Speaker 1: The State Department has paused all immigrant visa applications, while
22:13
Speaker 1: it says it's briefing consular officials around the world on
22:17
Speaker 1: a new policy that aims to keep out people who
22:20
Speaker 1: are considered potential drains on public coffers. I've been talking
22:24
Speaker 1: to Leon Fresco of Holland & Knight. So tell us
22:27
Speaker 1: about the State Department pausing all immigrant visa applications temporarily.
22:34
Speaker 4: So this... Right, so this is sort of confusing because
22:37
Speaker 4: there's actually a lot of misinformation going around all over
22:41
Speaker 4: the world. You have articles from everywhere, and I have clients,
22:45
Speaker 4: thousands of them, emailing me, what's going on? Former clients,
22:49
Speaker 4: current clients, previous... future clients potentially, and I can't get
22:53
Speaker 4: to all of the emails. So that's how much news
22:55
Speaker 4: this is making, even if your listeners haven't heard about this.
22:58
Speaker 4: What's actually happening is this. There are a small subset
23:03
Speaker 4: of interviews that happen each month called immigrant visa interviews.
23:07
Speaker 4: These are interviews for green cards, for lawful permanent residents
23:12
Speaker 4: that are done by people abroad. Most green card interviews
23:15
Speaker 4: happen in America. People are already here. and they try
23:19
Speaker 4: to change their status from something temporary to something permanent.
23:23
Speaker 4: But some of the people applying for green cards do
23:26
Speaker 4: wait abroad. And in fact, the Trump administration has been
23:30
Speaker 4: trying to encourage people to do this, to wait abroad,
23:33
Speaker 4: by saying they're going to make it harder to change
23:36
Speaker 4: your status from inside the United States. So they're going
23:38
Speaker 4: to ask you, why didn't you wait abroad? But now, okay,
23:41
Speaker 4: if you want to wait abroad... Now they're currently saying
23:45
Speaker 4: there's no interviews available for you. Now here's why they're
23:48
Speaker 4: saying there's no interviews available for you. They're saying this
23:50
Speaker 4: is a very brief training period. So we're going to
23:53
Speaker 4: have to wait and see if that's true. That's a
23:55
Speaker 4: very brief waiting training period to train the officers to
23:59
Speaker 4: figure out whether you're going to be a public charge
24:03
Speaker 4: in the United States. And the public charge statute has
24:05
Speaker 4: actually existed since the 1800s, believe it or not. And
24:08
Speaker 4: what it has said is that if the government thinks
24:12
Speaker 4: that you're going to come here and become someone who
24:14
Speaker 4: needs government benefits, then the government shouldn't let you in.
24:18
Speaker 4: And so the Trump administration had previously had a 75-country
24:22
Speaker 4: ban on green cards from abroad, saying these 75 countries
24:28
Speaker 4: presumptively use public charge, public benefits and resources. So almost
24:35
Speaker 4: everybody who comes from these countries is a public charge.
24:38
Speaker 4: So we're just going to pause their immigration. And a
24:41
Speaker 4: federal judge recently, a district judge, Judge Vargas, said, no,
24:45
Speaker 4: you can't have a ban like that. That's categorical. That's
24:49
Speaker 4: a nationality discrimination, which violates, there's an actual green card
24:53
Speaker 4: law in section 1152A1A, which says, You can't discriminate against
24:59
Speaker 4: people on the basis of their nationality when it comes
25:03
Speaker 4: to green card allocation. And so because of that, the
25:06
Speaker 4: Trump administration has basically said, OK, fine, you can't do that.
25:11
Speaker 4: Then we're going to have this pause on the entire world.
25:14
Speaker 4: So now we're not discriminating against anybody. And the question is,
25:18
Speaker 4: is this really going to be a brief pause or
25:19
Speaker 4: is this going to be a pause that lasts a
25:22
Speaker 4: long time? And just one final caveat on this. There
25:25
Speaker 4: are some green card interviews that have to take place
25:29
Speaker 4: before the end of the fiscal year, which is September 30th.
25:33
Speaker 4: And if they don't take place, the person just loses
25:35
Speaker 4: their right to the green card. And I don't think
25:38
Speaker 4: that point is lost on the government because that may be,
25:42
Speaker 4: in fact, part of the reason that this is happening.
25:46
Speaker 4: And so those people, unfortunately, may never get their green
25:49
Speaker 4: card unless a court actually allows them to backdate their
25:53
Speaker 4: interview to the date it should have happened.
25:56
Speaker 1: There was a policy where the Trump administration stopped issuing
25:59
Speaker 1: visas to people from 75 countries. And earlier this month,
26:04
Speaker 1: a New York judge struck that down. Does that serve
26:09
Speaker 1: as precedent for what they're doing now?
26:13
Speaker 4: Serves probably as the precursor for why they're doing what
26:17
Speaker 4: they're doing now meaning the reason the judge struck down
26:20
Speaker 4: the 75 country pause was because there's a statute which
26:24
Speaker 4: says when you're allocating green cards you can't discriminate based
26:28
Speaker 4: on nationality and so that's the current reason that that
26:34
Speaker 4: pause has been struck down among 75 countries because the
26:37
Speaker 4: idea is why you got to treat people individually, not
26:40
Speaker 4: based on what country they're from and decide whether they
26:43
Speaker 4: meet the criteria or not. And there's certainly some rich
26:46
Speaker 4: people in every country around the world that will absolutely
26:49
Speaker 4: not be public charges. And so there's certainly a point
26:52
Speaker 4: to be made there. So now the discrimination point is
26:55
Speaker 4: gone when you pause the entire world, which is what's
26:59
Speaker 4: been done now. And so the question is, how long
27:02
Speaker 4: can the administration hold off before a federal court says
27:06
Speaker 4: you can't have a permanent pause all from all over
27:09
Speaker 4: the world for green cards so the question is going
27:12
Speaker 4: to be is this really going to be a one
27:14
Speaker 4: week or two week training like they're saying or is
27:17
Speaker 4: it going to end up trying to be a wolf
27:19
Speaker 4: in sheep's clothing and be a pause that never ends
27:23
Speaker 4: until a court forces it to end.
27:26
Speaker 1: Does the Trump administration want to limit the number of
27:28
Speaker 1: green cards that are given out?
27:30
Speaker 4: Absolutely. They have said, not only do we want to
27:34
Speaker 4: reduce illegal immigration and deport people here without status, but
27:38
Speaker 4: we dramatically want to reduce the number of people coming
27:42
Speaker 4: in through the legal immigration system. And so every form...
27:47
Speaker 4: of application is being delayed, is being scrutinized much more carefully,
27:53
Speaker 4: but scrutinized with an eye toward delay, meaning the reason
27:57
Speaker 4: for the scrutiny is for the delay. It's not even
28:00
Speaker 4: for the purpose of saying we want to get to
28:03
Speaker 4: the right decision here. The point is to cause the delay,
28:07
Speaker 4: and the reason for the delay is to lower the
28:09
Speaker 4: overall number's So that there are fewer people who are
28:13
Speaker 4: coming to the United States, period.
28:14
Speaker 1: So the administration is also preparing to revoke business and
28:19
Speaker 1: tourism visas of up to 200,000 foreigners who applied for asylum.
28:25
Speaker 4: Well, this is a little bit more complicated.
28:27
Speaker 1: Oh, no, more complicated than that.
28:30
Speaker 4: There are definitely things to be said on all sides
28:32
Speaker 4: of this equation. And so here's the issue. There are
28:35
Speaker 4: a number of people every year who obtain a visitor
28:38
Speaker 4: visa and then they come to America and then they
28:41
Speaker 4: apply for asylum. And so the question is, When you
28:45
Speaker 4: went to the interview to get your visitor visa, if
28:49
Speaker 4: your intent was to apply for asylum, then you've made
28:52
Speaker 4: a misrepresentation because the very point of a visitor visa
28:56
Speaker 4: is you're going to come to the United States for
28:58
Speaker 4: a brief period of time and you're going to return.
29:01
Speaker 4: So when someone comes here on a visitor visa and
29:04
Speaker 4: applies for asylum, they're saying, no, I was not planning
29:07
Speaker 4: on returning unless their conditions changed. After the interview, something
29:11
Speaker 4: might have happened. Maybe the government got toppled. Maybe they
29:14
Speaker 4: received an individual threat, something like that. Who knows? But
29:19
Speaker 4: so what the administration is saying is when you get
29:21
Speaker 4: a visitor visa, those are valid 10 years. Those are
29:24
Speaker 4: not valid just for one trip. You can keep going
29:27
Speaker 4: back and forth for 10 years. Well, if you've asked
29:30
Speaker 4: for asylum, You've now declared that you want to stay
29:33
Speaker 4: in America permanently, so you're no longer a visitor. You
29:36
Speaker 4: should not have a visa that allows you to leave
29:39
Speaker 4: and come back in. in for the next 10 years
29:42
Speaker 4: if you've already said you want asylum in the United States.
29:45
Speaker 4: So from that standpoint, it does make sense. It's kind
29:48
Speaker 4: of a housekeeping matter to revoke the visa. And quite frankly,
29:53
Speaker 4: if the visa hadn't been revoked, and the person had
29:56
Speaker 4: left the country after applying for asylum and tried to
30:00
Speaker 4: come back in on a visitor visa, probably the Customs
30:03
Speaker 4: and Border Protection at the airport or the seaport or
30:06
Speaker 4: the land port wouldn't have let them in anyway, because
30:08
Speaker 4: they would have said, wait a second, you applied for
30:11
Speaker 4: asylum and then you left? What is this? This is
30:13
Speaker 4: very strange. I don't understand any of this. And maybe
30:17
Speaker 4: you do have an explanation. Maybe the government changed back
30:20
Speaker 4: again into something that was fine, so you didn't need asylum.
30:23
Speaker 4: But the point is, they'd say, okay, well, we don't know.
30:27
Speaker 4: This is all too confusing. We're going to just cancel
30:29
Speaker 4: the visa you previously had and go explain your case
30:32
Speaker 4: to the State Department. So instead of going through all
30:35
Speaker 4: of that, they've just canceled all of these visas. Now,
30:40
Speaker 4: there will be some people who might get caught up
30:42
Speaker 4: because of either mistaken identity or some other thing that
30:47
Speaker 4: might end up getting prejudiced by this, but it's not
30:50
Speaker 4: all 200,000. It'll be in the several thousand number. Most
30:55
Speaker 4: of this is just going to be a housekeeping matter.
30:58
Speaker 1: The Trump administration seems to have the view that asylum
31:03
Speaker 1: is a sham. There are so many people applying for asylum.
31:08
Speaker 1: Do most of them really have a fear of being
31:10
Speaker 1: persecuted in their country or are the fears manufactured because
31:16
Speaker 1: they want to stay here?
31:17
Speaker 4: So the problem is there are some standard asylum cases
31:22
Speaker 4: that everybody is used to, which is Perhaps you fled
31:26
Speaker 4: Russia during the Cold War and you were a dissident
31:29
Speaker 4: in Russia and you were calling for the government to
31:31
Speaker 4: be toppled and freedom and fair elections and something. That's
31:34
Speaker 4: the kind of standard political asylum claim people would think. Okay,
31:40
Speaker 4: that makes sense. That's someone who should be allowed to
31:42
Speaker 4: stay here because if you deport them to Russia, then
31:45
Speaker 4: they're going to be imprisoned or maybe killed. Fine, fair enough.
31:49
Speaker 4: But the problem is, because asylum applies not just to
31:53
Speaker 4: these political type of claims, but applies to many categories, race, religion,
31:58
Speaker 4: national origin, and social group, many people try to come
32:02
Speaker 4: in under this social group, it's kind of amorphous category.
32:07
Speaker 4: And this is where people think that the asylum claims
32:10
Speaker 4: are being stretched beyond what anybody thought was asylum, because
32:14
Speaker 4: the social group's were really meant for things like, I'm
32:19
Speaker 4: in a tribe where the other tribe is in power,
32:23
Speaker 4: and when the other tribe's in power, they kill people
32:25
Speaker 4: of my tribe. Okay, that makes sense as a social group.
32:29
Speaker 4: But you see these social groups that are three, four
32:32
Speaker 4: sentences long. People who oppose this, and then came and
32:37
Speaker 4: did that, and then did that. And the federal government says,
32:42
Speaker 4: how does someone even know that you fit into that
32:45
Speaker 4: category to persecute you? It's taken you four sentences to
32:49
Speaker 4: describe the social group in the first place. So how
32:53
Speaker 4: is this a persecuted group of people? And so from
32:57
Speaker 4: that standpoint, there's a lot of those kinds of asylum
33:00
Speaker 4: claims that are not very successful. And then the big ones,
33:03
Speaker 4: You know, we had a lot of Central American immigration
33:06
Speaker 4: during the Biden administration and the first Trump administration and
33:10
Speaker 4: the end of the Obama administration. And in Central America,
33:13
Speaker 4: you had two big claims. Number one was, I am
33:17
Speaker 4: a female asylum seeker and what I'm fleeing is domestic
33:20
Speaker 4: violence from my spouse. that my government doesn't care about.
33:25
Speaker 4: And for the males, it was, I'm a male and
33:29
Speaker 4: I'm being forced to either join a gang and then
33:32
Speaker 4: become a gang member, which the government won't like, or
33:35
Speaker 4: not join the gang and to get killed by the
33:37
Speaker 4: members of the gang. And so depending on what administration
33:42
Speaker 4: it's been, the Biden administration and the Obama administration had
33:46
Speaker 4: more sympathy for those claims and thought, okay, those can
33:49
Speaker 4: be social group asylum claims. And the Trump administration has thought,
33:53
Speaker 4: that's not my problem that your country is in disarray
33:57
Speaker 4: in this matter. This isn't the textbook, I'm fleeing from
34:02
Speaker 4: the Russian government because I'm opposing Vladimir Putin and I
34:06
Speaker 4: formed a political freedom group in my country. That's what
34:10
Speaker 4: we mean when we mean asylum. We don't mean these
34:13
Speaker 4: other kinds of claims.
34:14
Speaker 1: A great explanation, Leon. Thank you so much. That's immigration
34:19
Speaker 1: law expert Leon Fresco of Holland & Knight. And that's
34:22
Speaker 1: it for this edition of the Bloomberg Law Show. Remember,
34:25
Speaker 1: you can always get the latest legal news on our
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34:41
Speaker 1: Wall Street time. I'm June Grosso, and you're listening to Bloomberg.