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Immigration Issues from ICE in Minneapolis to Mahmoud Khalil · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law, with June Grosseo from Bloomberg Radio.
0:08
Speaker 2: Continuing clashes on the streets of Minneapolis between protesters and
0:14
Speaker 2: ICE agents. As tensions escalated following two shootings by agents,
0:19
Speaker 2: one of them deadly. Brooklyn Park Police Chief Mark Brooley
0:23
Speaker 2: says that his office has been fielding NonStop complaints about
0:27
Speaker 2: civil rights violations and that his own officers went off duty,
0:32
Speaker 2: have been stopped and racially profiled by federal officers.
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Speaker 3: Every one of these individuals is a person of color
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Speaker 3: who has had this happen to them.
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Speaker 2: Border Patrol Commander Gregory Bavino, who was seen recently on
0:47
Speaker 2: a video tossing a smoke canister into a crowd, said
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Speaker 2: the tactics employed by ICE are justified, but the Minnesota
0:55
Speaker 2: Attorney General, Keith Ellison, disagrees.
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Speaker 4: Our operations are lawful. They're targeted, and they're focused on
1:03
Speaker 4: individuals who pose a serious threat to this community. They
1:08
Speaker 4: are not random, and they are not political.
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Speaker 3: These tactics that we've seen from MICE are brutal, they
1:16
Speaker 3: are unfair, they are racial profiling, they are hurting our economy,
1:21
Speaker 3: and they're running up our costs in terms of policing
1:23
Speaker 3: and other public expenses. It is damaging to our state.
1:27
Speaker 2: Joining me is immigration law expert Leon Fresco, a partner
1:31
Speaker 2: at Honda Knight Leo. Let's start with this order from
1:34
Speaker 2: a federal judge that the Eighth Circuit has put on hold.
1:38
Speaker 2: Federal Judge Catherine Menendez had granted the ACLU's request and
1:44
Speaker 2: ruled that the federal agents are prohibited from arresting or
1:49
Speaker 2: detaining peaceful protesters in retaliation for their protected conduct and
1:54
Speaker 2: absent a showing of probable cause or reasonable suspicion that
1:58
Speaker 2: the person has committed a crime or obstructing or interfering
2:01
Speaker 2: with the activities. Is this order anything more than her
2:05
Speaker 2: basically saying follow the law eyes. Is there anything extraordinary
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Speaker 2: about it?
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Speaker 1: Well, a couple of things. First of all, I suppose
2:13
Speaker 1: so to this extent that the Eighth Circuit on Wednesday
2:18
Speaker 1: issued an administrative stay temporarily lifting that injunction, which did
2:23
Speaker 1: block the federal agents from retaliating against her detaining peaceful
2:28
Speaker 1: protesters without probable cause. I think the reason that the
2:34
Speaker 1: Eighth Circuit did stay the district court order is that
2:38
Speaker 1: perhaps there was some confusion about how you would implement
2:44
Speaker 1: this order in the sense of if an ICE agent
2:49
Speaker 1: does something illegal against a peaceful protester, then the recourse
2:54
Speaker 1: would be a civil lawsuit or a criminal action. So
2:58
Speaker 1: adding an injunction that does it change the law, but
3:03
Speaker 1: just says enforced the law doesn't really add anything except
3:07
Speaker 1: it adds confusion as to whether the injunction does anything more.
3:12
Speaker 1: So the issue would be, are you adding additional requirements
3:17
Speaker 1: that other than those that exist in the law, And
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Speaker 1: then what so now you sue for a violation of
3:23
Speaker 1: this injunction as opposed to a civil lawsuit, because perhaps
3:27
Speaker 1: what you're saying is that you're worried that the federal
3:30
Speaker 1: government won't prosecute an ICE agent who violates the law.
3:34
Speaker 1: This is sort of the complex issues there, and so
3:37
Speaker 1: I think the Eighth Circuit said, we're going to need
3:40
Speaker 1: more time to consider this. Let's pause this for a while,
3:44
Speaker 1: because it seemed like it was going to be too complicated.
3:48
Speaker 1: That every use of potentially, for instance, chemical agents, or
3:52
Speaker 1: every arrest of a protester, or every discussion about a
3:57
Speaker 1: protester perhaps following to close and perhaps potentially obstructing, were
4:03
Speaker 1: they obstructing or were they peacefully protesting? Perhaps every single
4:07
Speaker 1: instance of that could have led to a contempt of
4:10
Speaker 1: court injunction violation hearing. And the question was from the
4:15
Speaker 1: Eighth Circuits perspective, I suppose did they want to have
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Speaker 1: that granular hearing every single time in front of this
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Speaker 1: district cord or did they just think, look at the end,
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Speaker 1: that there's something really wrong. People can file civil suit
4:29
Speaker 1: or criminal actions can be filed.
4:33
Speaker 2: The problem is it's hard to deny what you can
4:35
Speaker 2: see on the videos. I saw one video where a
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Speaker 2: man was already restrained and on the ground and an
4:42
Speaker 2: ice officer was spraying some kind of yellow chemical into
4:46
Speaker 2: his face while he's on the ground. So the ice
4:49
Speaker 2: officers don't seem to be exhibiting any kind of restraint,
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Speaker 2: and there are multiple reports of US citizens getting arrested.
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Speaker 1: Well, this is what becomes complicated from the standpoint of
5:02
Speaker 1: in a normal course of action, when you have an
5:05
Speaker 1: agent that you believe violates the federal laws, then you
5:10
Speaker 1: can have a prosecution of that agent by a US
5:12
Speaker 1: Attorney's office who says that that agent acted in correctly,
5:16
Speaker 1: or you can of course obviously file a civil lawsuit
5:19
Speaker 1: in that situation. But I think what motivated this injunction
5:24
Speaker 1: was all of that would take far too long or
5:27
Speaker 1: might not even occur at all, and so you needed
5:29
Speaker 1: to have something in place that was faster in order
5:33
Speaker 1: to try to tamp down any actions that might violate
5:36
Speaker 1: the law. But the problem was how do you do
5:39
Speaker 1: that and who sets the line for when one of
5:43
Speaker 1: those uses of chemical agents did cross the line or
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Speaker 1: when it was necessary to protect the agents. This situation
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Speaker 1: in Minnesota has become so intense and so high octane
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Speaker 1: that you may have in fifty percent of this situations
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Speaker 1: the ice agents acting completely correctly, and in fifty percent
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Speaker 1: of the time, perhaps they do not completely correctly. And
6:08
Speaker 1: now you're having a debate every single day in the
6:11
Speaker 1: federal court who did what when? What does that mean?
6:15
Speaker 1: And I think that this is just a situation that
6:19
Speaker 1: needs to be handled, perhaps in a new manner. Irrespective
6:23
Speaker 1: of either this injunction or anything else where, the targeted
6:28
Speaker 1: operations happen in a way that are not intersecting with
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Speaker 1: all of these protests and not causing all of these
6:36
Speaker 1: city skirmishes, and so I think that's a matter for
6:39
Speaker 1: everybody involved to try to figure out. But I think
6:42
Speaker 1: this injunction, the reason it was stayed is because the
6:47
Speaker 1: Eighth Circuit may have believed that it just wasn't the
6:51
Speaker 1: right approach to have a district judge basically trying to
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Speaker 1: be a referee for every single thing that was happening
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Speaker 1: in Minneapolis at that point.
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Speaker 2: The problem is one of perception. You have the FEDS
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Speaker 2: refusing to open a civil rights investigation into the killing
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Speaker 2: of Renee Good by an ICE officer, with the Vice
7:12
Speaker 2: President again declaring today that it was her own fault.
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Speaker 2: At the same time, they're serving the governor of Minnesota
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Speaker 2: and the mayor of Minneapolis with subpoenas over their refusal
7:24
Speaker 2: to cooperate with federal law enforcement. It doesn't help to
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Speaker 2: quell the protests.
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Speaker 1: Absolutely. I understand why the injunction was sought and why
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Speaker 1: the injunction was issued to the extent that people believe
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Speaker 1: that any actions that are taken would not be dealt
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Speaker 1: with in a normal course of action where there would
7:44
Speaker 1: be an investigation and a prosecution, So you needed to
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Speaker 1: do something else so that you could have a content order.
7:50
Speaker 1: But at the end of the day, even that, let's
7:52
Speaker 1: say you have a content order from a court saying
7:55
Speaker 1: this person is held in content, then what at the
7:58
Speaker 1: end of the day, the federal agents aren't going to
8:01
Speaker 1: put anyone in detention. We end up just back where
8:04
Speaker 1: we were, which is with a constitutional crisis. So it's
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Speaker 1: not like this injunction at the end of the day
8:11
Speaker 1: would avoid the constitutional crisis, because you could still have
8:16
Speaker 1: an injunction from a court that says this ICE agent
8:19
Speaker 1: acted incorrectly, they are now in contempt of court and
8:23
Speaker 1: put them in jail, and the administration will just say, well, no, sorry,
8:28
Speaker 1: too bad. And then what is the actual judge going
8:31
Speaker 1: to start picking up ICE agents and you know, putting
8:34
Speaker 1: them in detention. No, they require federal agents to implement
8:39
Speaker 1: these orders, and so we're back at square one. And
8:42
Speaker 1: so I think that's what makes this complicated.
8:44
Speaker 2: According to reports, hundreds of soldiers are on standby to
8:49
Speaker 2: enter Minneapolis, and the preparations are tied to the possibility
8:54
Speaker 2: that Trump could invoke the Insurrection Act. He's threatened that before.
9:00
Speaker 2: How would that go.
9:02
Speaker 1: Well, the way the Insurrection Act works, there's two main ways.
9:06
Speaker 1: One is not going to happen, which is that the
9:08
Speaker 1: state actually requests the assistance of the federal government through
9:13
Speaker 1: the governor or the state legislature. That's the opposite of
9:16
Speaker 1: what's happening here. Here you have the state governor and
9:19
Speaker 1: the local officials and everyone else saying that they don't
9:22
Speaker 1: want the federal authorities. So then the second way is
9:25
Speaker 1: what's called the federal authority standard, which allows the president
9:29
Speaker 1: to act unilaterally to enforce the federal law. And there
9:33
Speaker 1: the president has to say that there's been some sort
9:36
Speaker 1: of unlawful obstruction or rebellion against the authority of the
9:41
Speaker 1: United States and makes it impracticable to enforce the laws
9:45
Speaker 1: of the United States. And here the president would say,
9:48
Speaker 1: I'm trying to just enforce immigration law, and I have
9:52
Speaker 1: a number of individuals that are causing me problems because
9:58
Speaker 1: they're basically like the Civil War, it's refusing certain things
10:03
Speaker 1: to happen that the federal government wants to happen in
10:05
Speaker 1: particular states. And so I have to come in and
10:08
Speaker 1: protect the ICE agents who are being followed around by
10:12
Speaker 1: protesters and everywhere they go, they're being followed around or obstructed.
10:16
Speaker 1: I need to be able to come in and solve
10:19
Speaker 1: that problem. And then what would happen is the president
10:21
Speaker 1: access to the issue of proclamations, saying I'm going to
10:25
Speaker 1: be invoking the Insurrection Act unless you disperse, give people
10:29
Speaker 1: time to disperse, and if they don't, then insert the
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Speaker 1: Insurrection Act. And then we're back to if there's a lawsuit, Okay, well,
10:38
Speaker 1: who has the authority? Is this reviewable? Is their judicial review?
10:42
Speaker 1: If there is judicial review? How much different? And we're
10:46
Speaker 1: back to all of that again. And those are going
10:49
Speaker 1: to be the issues that would then need to be
10:51
Speaker 1: decided ultimately by the Supreme Court. I mean, yes, there'll
10:54
Speaker 1: be lower courts that way in, but the Supreme Court
10:56
Speaker 1: would ultimately need to decide is this reviewable? If so,
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Speaker 1: how much deference is given to the president, and who
11:05
Speaker 1: can challenge it, etc. So we'd be back to all
11:07
Speaker 1: of those ar givens.
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Speaker 2: Again, seemingly back to square one. Coming up next on
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Speaker 2: the Bloomberg Lawn Show, more with immigration expert Leon Fresco.
11:17
Speaker 2: Vice President JD Vance visits Minneapolis and defends the Trump
11:21
Speaker 2: Administration's aggressive deportation raids. I'm June Grosso and you're listening
11:28
Speaker 2: to Bloomberg. Vice President JD Vance visited Minneapolis today, where
11:34
Speaker 2: he sought to defend the Trump Administration's aggressive deportation raids,
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Speaker 2: which have set off street confrontations between demonstrators and immigration agents.
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Speaker 2: ICE operations turned deadly earlier this month when agent Jonathan
11:50
Speaker 2: Ross shot and killed Renee Good, something the federal government
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Speaker 2: is not investigating and refuses to allow the state access
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Speaker 2: to the evidence. Here's what Van said about his previous
12:02
Speaker 2: statement that ICE officers have absolute immunity.
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Speaker 5: When federal law enforcement officers violate the law, that is
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Speaker 5: typically something that federal officials would look into. We don't
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Speaker 5: want these guys to have kangaroo courts. We want them
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Speaker 5: to actually have real due process, real investigation.
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Speaker 2: Of course that's not happening in the case of Renee
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Speaker 2: Good shooting. I've been talking to immigration expertly on Fresco
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Speaker 2: of Holland and Knight back to the beginning. So, immigration
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Speaker 2: advocates and legal aid groups have warned people or urged
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Speaker 2: them not to open their doors to immigration agents to
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Speaker 2: ICE agents unless they're shown a warrant signed by a judge.
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Speaker 2: But according to an internal ICE memo obtained by the
12:45
Speaker 2: Associated Press, the federal immigration officers are asserting power to
12:50
Speaker 2: forcibly enter people's homes without a judge's warrant to do
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Speaker 2: it based on an administrative warrant. Isn't that on constitutional?
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Speaker 1: So let's give you both of the arguments, and let's
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Speaker 1: give you some facts. What is an administrative warrant. It's
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Speaker 1: a form document. You can look at the ICE administrative warrant.
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Speaker 1: It's called an I two five. You can google it
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Speaker 1: and see the blank warrant. But basically, an ICE agent
13:18
Speaker 1: could fill out that warrant and then get their supervisor
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Speaker 1: to sign it, and on that basis, ICE is arguing
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Speaker 1: that it can then enter the home. Now, to be
13:27
Speaker 1: very clear, because they're important that we get all the
13:29
Speaker 1: facts right. ICE is not currently taking the position now.
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Speaker 1: It may it may evolve and take this position if
13:36
Speaker 1: its first position become successful, but let's just go with
13:39
Speaker 1: what the facts are. They're not currently taking the position
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Speaker 1: that they can go into any home they want with
13:45
Speaker 1: an administrative warrant and knock things down and go around
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Speaker 1: and grab people. What they're currently saying is if someone
13:54
Speaker 1: has a final order of removal, meaning that they were
13:59
Speaker 1: already served with what's called a notice to appear, which
14:03
Speaker 1: is saying, look, you're in deportation proceedings, and then they've
14:07
Speaker 1: gone to immigration court and then they've lost, then all
14:11
Speaker 1: of that due process was already done. So it's not
14:14
Speaker 1: like barging into your house in the first place and
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Speaker 1: taking your computer and then convicting you of a crime
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Speaker 1: based on that. It's not any's. They would say, it's
14:24
Speaker 1: not anything like that. They would say, this is the
14:26
Speaker 1: equivalent of somebody escaped from jail, and now we're just
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Speaker 1: trying to find them, and so we don't need to
14:33
Speaker 1: go through the whole judicial warrant process to do this.
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Speaker 2: Are they relying on any case law or precedent.
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Speaker 1: The case they rely on for that is very interesting
14:44
Speaker 1: because it's if you've seen the movie The Bridge of
14:47
Speaker 1: Spies with Tom Hanks and the Academy Award winning Supporting
14:52
Speaker 1: actor Mark Rylands, that Rudolph Abel case, whereas the Russian
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Speaker 1: spy from the nineteen sixties, he was taken pursue it
15:00
Speaker 1: to an administrative warrant for immigration. Originally that's what it's
15:04
Speaker 1: also searched for. And so there's some dicta in that
15:07
Speaker 1: case that says that because immigration is a civil matter,
15:10
Speaker 1: it's not a criminal matter, the concerns of the administrative
15:14
Speaker 1: warrant aren't necessarily valid in that instance, and so that's
15:20
Speaker 1: dick that wasn't necessary for the able case. But the
15:23
Speaker 1: point is ice wants to build off of that precedent
15:28
Speaker 1: and say, look, immigration is a civil matter. There's a
15:31
Speaker 1: final order of removal. We're just now trying to execute
15:35
Speaker 1: this civil removal that is not a criminal matter. There's
15:39
Speaker 1: already been the due process of the notice to appear
15:42
Speaker 1: and the hearing, and we should be allowed to do that.
15:45
Speaker 1: From the perspective obviously of the opponents of this, they say,
15:49
Speaker 1: when you're going into someone's home, that's literally if you're
15:52
Speaker 1: talking about rock scissors paper, someone's home is nuclear war.
15:57
Speaker 1: You know, it beats everything. It's the Fourth Amendment most
16:01
Speaker 1: sanctity location that there is. And so you can't go
16:05
Speaker 1: into anyone's home without a judicial warrant. Why because maybe
16:09
Speaker 1: you're gonna go into the wrong home. And now what
16:12
Speaker 1: you've just barged into somebody's home, there wasn't any judicial
16:15
Speaker 1: oversight to make sure that everything was correct before you
16:19
Speaker 1: started barging into people's homes. You're going to cause collateral damage.
16:24
Speaker 1: There's a lot of untrained people being deployed out onto
16:27
Speaker 1: the field, and so that's why you need this judicial
16:31
Speaker 1: warrant to sort of make sure that these untrained people
16:34
Speaker 1: are doing what they're doing. And of course, if people
16:36
Speaker 1: have unfettered anything in any aspect of the government, there's
16:40
Speaker 1: always going to be more mistakes than if they have
16:43
Speaker 1: to answer to independent authorities before they do things. And
16:47
Speaker 1: so from that perspective, this is where you have the tension.
16:51
Speaker 1: But it is possible that if they're allowed to do this,
16:54
Speaker 1: if the courts don't join this, then they may expand
16:57
Speaker 1: this to other immigration actions or the person doesn't currently
17:01
Speaker 1: have a final order of removal, but at the moment
17:04
Speaker 1: they're saying that they're limiting it to people who have
17:07
Speaker 1: a final order of removal.
17:09
Speaker 2: But there's also the point that perhaps most likely there
17:12
Speaker 2: are other people in the house, correct, and they're violating
17:16
Speaker 2: their constitutional rights. I mean they have a constitutional right absolutely.
17:20
Speaker 1: I think you know they have constitutional rights to the
17:23
Speaker 1: sanctity of their home. And especially if ICE is going
17:25
Speaker 1: to start engaging in what are called collateral operations once
17:29
Speaker 1: they're in there and say who else is undocumented here,
17:32
Speaker 1: or this is very interesting what we've uncovered, then that
17:36
Speaker 1: is going to weaken their argument for being able to
17:39
Speaker 1: come in with an administrative warrant as opposed to a
17:42
Speaker 1: judicial warrant. But we're going to have to wait and
17:44
Speaker 1: see what the courts say, and also in what procedural
17:48
Speaker 1: posture this ends up getting challenged. Does it only end
17:51
Speaker 1: up getting challenged in the context of a final order
17:56
Speaker 1: of removal or do the people who challenge it have
17:59
Speaker 1: better facts like you've talked about, where there are collateral
18:02
Speaker 1: cases that they're also challenging, and then that'll make the
18:06
Speaker 1: government's defense much more complicated.
18:09
Speaker 2: So, speaking of procedural issues, former Columbia grad student Mood Khalil,
18:14
Speaker 2: who was one of the first to be rounded up
18:16
Speaker 2: during the government's crackdown on anti Israel campus protests, is
18:22
Speaker 2: set to be deported to Algeria, according to a Homeland
18:25
Speaker 2: Security official. So it seemed as if Khalil was on
18:29
Speaker 2: a winning streak he was released from ice to attention.
18:32
Speaker 2: Tell us what happened with this third circuit decision.
18:35
Speaker 1: Mister Khalil was out of detention because a district judge
18:38
Speaker 1: at held that he should be released from detention because
18:42
Speaker 1: his deportation violated potentially the First Amendment because of concerns
18:48
Speaker 1: that he was just being penalized for his views on
18:51
Speaker 1: Middle Eastern conflicts. The Third Circuit comes in and says, wait,
18:56
Speaker 1: a second district court you shouldn't have been looking at
18:59
Speaker 1: any of this. All of this needed to go in
19:02
Speaker 1: the following mode. The government apprehends Khalil, places him in
19:07
Speaker 1: detention proceeding and removal proceedings, places him in detention and
19:11
Speaker 1: places him in removal proceedings. The removal proceedings go until
19:15
Speaker 1: the end, and then at the end of those administrative
19:18
Speaker 1: removal proceedings, you then make an appeal of every legal
19:22
Speaker 1: and constitutional claim you have directly to the Court of Appeals.
19:26
Speaker 1: The district judge should never have any view of any
19:29
Speaker 1: of this, because that's the way the statute is written,
19:33
Speaker 1: and so it was a two to one decision. There
19:35
Speaker 1: was assent saying, look, we don't have time for all
19:37
Speaker 1: of that. That could take years, and you unjustly are
19:40
Speaker 1: holding people in detention who are nice people for years
19:44
Speaker 1: while you're doing this. They'll never be able to make
19:46
Speaker 1: these claims if you don't let them file a habeas
19:49
Speaker 1: and you could just have unfettered chaos where administration just
19:53
Speaker 1: start putting people in jail and what are they supposed
19:56
Speaker 1: to do. And that's certainly very very sympathetic, but you
20:00
Speaker 1: can also take a view that the statutes don't care
20:04
Speaker 1: about any of that, and the statutes understand that all
20:07
Speaker 1: of these things may happen, but nevertheless they still say
20:12
Speaker 1: it doesn't matter. You've got to go first go to
20:14
Speaker 1: the Immigration judge, then go to the Board of Immigration Appeals,
20:18
Speaker 1: and then if you actually have these constitutional claims to
20:20
Speaker 1: make about the First Amendment or retaliation or anything else,
20:25
Speaker 1: you've then make it in what's called the petition for
20:27
Speaker 1: review in a final order of removal to the appropriate
20:31
Speaker 1: circuit Court of Appeals. And so that's what the Third
20:34
Speaker 1: Circuit said. It didn't say that the government was right
20:37
Speaker 1: or Khalil was wrong, or that Khalil was rightment didn't
20:40
Speaker 1: say any of that. It just said these all of
20:43
Speaker 1: these proceedings are just canceled because they shouldn't have happened
20:46
Speaker 1: in the first place. And when there's a final order
20:49
Speaker 1: of removal, the circuit court will deal with that. Now,
20:53
Speaker 1: the issue there is that that findal order of removal
20:56
Speaker 1: would be in the Fifth Circuit, and so it would
20:58
Speaker 1: be the Fifth Circuit, who's known as a conservative court,
21:01
Speaker 1: who would actually end up dealing with that. And then
21:04
Speaker 1: the other specific problem in the Khalil case is he
21:08
Speaker 1: doesn't just have this Middle Eastern speech issue. He also
21:12
Speaker 1: has a lying on his green card application issue, which
21:15
Speaker 1: I think he probably understands is fatal to his case,
21:19
Speaker 1: because even if he wins his constitutional argument, he still
21:24
Speaker 1: may be deported on this lying on his green card
21:27
Speaker 1: part of it.
21:29
Speaker 2: Despite what the Trump administration says. He hasn't agreed to
21:32
Speaker 2: go to Algeria yet. His lawyers are still fighting, right.
21:36
Speaker 1: I mean, he's still trying to fight the third Circuit
21:39
Speaker 1: order and take it on bank on appeal and try
21:43
Speaker 1: to make sure he can't be put in detention. But
21:45
Speaker 1: he may soon be forced to make this calculation, do
21:49
Speaker 1: I want to go to Algeria or do I want
21:54
Speaker 1: to fight this even if I'm in detention this whole time.
21:57
Speaker 1: And so he does have Algerian citizenship through his mother's family,
22:01
Speaker 1: which is why Algeria was designated as the country for removal.
22:05
Speaker 1: He's not saying I'm leaving today, but I think the
22:07
Speaker 1: reason they've settled on Algeria is because he does have
22:11
Speaker 1: that citizenship, and perhaps they think if he's put to
22:16
Speaker 1: this choice, he may end up taking it instead of
22:18
Speaker 1: having to fight two three years more in detention.
22:21
Speaker 2: The panel was composed of two Republican appointed judges who
22:25
Speaker 2: voted for the government and a Democratic appointee who voted
22:28
Speaker 2: against the government. If he goes to the Third Circuit,
22:32
Speaker 2: the balance there is still seven judges appointed by Democrats,
22:36
Speaker 2: but eight appointed by Republicans, including six Trump appointees. Is
22:40
Speaker 2: he going to have a better chance at an on
22:42
Speaker 2: bank hearing.
22:44
Speaker 1: Here's the problem with this. If the judge in this case,
22:48
Speaker 1: I mean, I might be biased. People can accuse me
22:51
Speaker 1: on either side of being biased. I really tried to
22:53
Speaker 1: give it as down the middle as I can. So
22:56
Speaker 1: I try to use this if the judge was a
22:58
Speaker 1: robot standard, and I would say it is my belief
23:02
Speaker 1: that if the judge was a robot, unmotivated in any
23:05
Speaker 1: way by human concerns, but only looking at language patterns,
23:10
Speaker 1: you would have to rule that the Third Circuit two
23:13
Speaker 1: to one decision is correct. That the statute says that
23:18
Speaker 1: where you make these arguments is in a petition for
23:21
Speaker 1: review in the Court of Appeals. The statue couldn't be
23:24
Speaker 1: any clearer about that. The problem is that that basically
23:29
Speaker 1: denies you due process for any random, arbitrary thing that
23:34
Speaker 1: the government wants to do. Now we're not talking about
23:36
Speaker 1: this specific case. This is anything. If you really take
23:40
Speaker 1: that statute to its logical conclusion, the government can impose
23:44
Speaker 1: all sorts of harm on foreign nationals without any checker
23:48
Speaker 1: balance for the entire time it's doing it. It could
23:51
Speaker 1: be a year, two year, three years, and who knows,
23:54
Speaker 1: they could potentially delay the proceedings for many years so
23:57
Speaker 1: that you never even get to the end of the proceedings,
24:01
Speaker 1: in which case you'd have to file what's called an
24:04
Speaker 1: unapplied challenge to your due process rights being taken away
24:08
Speaker 1: from you. So you would file, you would file this
24:10
Speaker 1: as applied challenge and say the Constitution is not being
24:14
Speaker 1: applied correctly in my case. But how long would that be?
24:18
Speaker 1: After eighteen months, twenty four months? The courts have had
24:21
Speaker 1: all kinds of deadlines in these immigration cases, but certainly
24:25
Speaker 1: not two months, three months, six months. They never say
24:29
Speaker 1: that that short of a period allows you to get
24:32
Speaker 1: back into court. So then the problem is how many
24:35
Speaker 1: people are you essentially coercing over two months or six
24:38
Speaker 1: months of detention to leave and not pursue their rights
24:42
Speaker 1: and everything else. And so that's the sort of challenge,
24:45
Speaker 1: is that the human side of this, it seems obvious
24:48
Speaker 1: you wouldn't want to have a system that was vulnerable
24:52
Speaker 1: to this level of hardship. But on the linguistic side,
24:58
Speaker 1: that seems to be absolutely what Congress road. And so
25:02
Speaker 1: this is what the courts are going to have.
25:03
Speaker 2: To wrestle with leon you know, on the ground, if
25:07
Speaker 2: this Third Circuit decision is affirmed, et cetera, et cetera,
25:10
Speaker 2: I mean, what implications would that have for immigration lawyers
25:15
Speaker 2: using habeas to.
25:17
Speaker 1: Get very well? I mean if it gets to the
25:19
Speaker 1: Supreme Court and the Supreme Court agrees that there's just
25:23
Speaker 1: no habeas anymore for any reason, because that's what they'd
25:27
Speaker 1: have to decide, because this is honestly one of the
25:29
Speaker 1: most compelled If you're going to say, what's one of
25:31
Speaker 1: the most compelling reasons you would ever need a habeas,
25:34
Speaker 1: it would be because a lawful permanent resident was being
25:38
Speaker 1: placed in detention for a nebulous, vague situation where it's
25:44
Speaker 1: unclear whether something applied to that Green card holder or not.
25:48
Speaker 1: I'm not saying Khalil is a good person or a
25:51
Speaker 1: bad person. I'm not talking about that he baby Khalil
25:54
Speaker 1: did some horrible things and should be deported. So I'm
25:57
Speaker 1: not taking any position there I'm just saying, you have
26:00
Speaker 1: a statute which says, if the Secretary of State deems
26:03
Speaker 1: you to be contrary to the interests of the foreign
26:08
Speaker 1: policy interests of the United States, they can deport you,
26:11
Speaker 1: even if you're a Green card holder. So the point is,
26:13
Speaker 1: what does that mean? How can I govern my conduct
26:17
Speaker 1: in order to avoid the Secretary of State thinking that
26:20
Speaker 1: about me? And so that's not exactly clear. It's different
26:23
Speaker 1: than a statute which says if I commit a felony,
26:27
Speaker 1: I can be deported. Okay, well, I know, don't commit
26:30
Speaker 1: a felony. Fine, But how do I govern my conduct
26:33
Speaker 1: so as to not have the Secretary of State mad
26:36
Speaker 1: at me? Hard to know in that situation. And so
26:40
Speaker 1: from that standpoint, if in that situation the court says
26:45
Speaker 1: there's no habeas, that's going to mean there's no habeas
26:48
Speaker 1: for anyone because this is going to be very much
26:52
Speaker 1: a sensitive case and that they're saying, Look, I could
26:54
Speaker 1: be held for detention for one year two years on
26:58
Speaker 1: the basis of a statute I don't even know to follow.
27:00
Speaker 1: When I'm a lawful permanent resident and I have a
27:03
Speaker 1: US it is in child, and I have a US
27:05
Speaker 1: citizens spouse, what are we doing here? And so I
27:08
Speaker 1: do think this is it. This is the test case.
27:12
Speaker 1: And if the Supreme Court says there's no habs here,
27:15
Speaker 1: that's going to mean there's no habeas for anyone.
27:19
Speaker 2: Finally, I want to talk about in the Massachusetts case
27:22
Speaker 2: by university professors that accuse the administration of having an
27:26
Speaker 2: unconstitutional policy of deporting people based on their political views.
27:31
Speaker 2: The trial focused on the targeting of five non citizen students,
27:35
Speaker 2: including Khalil and Judge William Young, a Reagan appointee, has
27:42
Speaker 2: criticized what he said, we're breathtaking constitutional violations by senior
27:47
Speaker 2: Trump administration officials and call the president an authoritarian who
27:52
Speaker 2: expects everyone in the executive branch to tow the line. Absolutely.
27:57
Speaker 2: So he's going to come out with a decision. First
27:59
Speaker 2: of all, what's your reaction to the judge's sort of
28:02
Speaker 2: astonishment at what he saw?
28:05
Speaker 1: Well, yes, the judge is clearly upset by Again, we're
28:08
Speaker 1: talking about the same statute here, which is a very
28:11
Speaker 1: difficult statue to comply with, because you're saying that anybody
28:15
Speaker 1: can be deported. If the Secretary of State thinks that
28:19
Speaker 1: your speech is running a file of US foreign policy interests.
28:23
Speaker 1: So how do people comply, how do people voice their opinions,
28:27
Speaker 1: et cetera, if they're not actually engaging any any illegal action.
28:32
Speaker 1: And so Judge Young didn't want that and said, basically,
28:35
Speaker 1: very clearly, this is something authoritarians do, and in order
28:39
Speaker 1: to implement this, you have to be engaging in a
28:42
Speaker 1: conspiracy and you have to have people writing you out
28:46
Speaker 1: like in the Fugitive Slave Act. And so he was
28:48
Speaker 1: saying all of these very strong words. But at the
28:51
Speaker 1: end of the day, we're going to be back to
28:54
Speaker 1: what I just said a few minutes ago, which is,
28:56
Speaker 1: does Judge Young have any authority to be doing any
28:59
Speaker 1: of this? Or do these challenges have to be brought
29:03
Speaker 1: by individual foreign nationals who are going through their proceedings
29:07
Speaker 1: and suffering these these arms, as opposed to it a
29:12
Speaker 1: separate proceeding a district judge being able to deal with this.
29:16
Speaker 1: So this is literally part and parcel again of the
29:19
Speaker 1: exact same argument. And here this will be decided by
29:23
Speaker 1: the first Circuit, and so we'll have a first circuit
29:26
Speaker 1: and a third circuit situation, and then it'll again go
29:29
Speaker 1: back to the Supreme Court. Maybe if they break in
29:32
Speaker 1: a way where it needs to, and the Supreme Court
29:35
Speaker 1: would have to decide can these kinds of claims be
29:38
Speaker 1: brought in the district courts or is the only solution
29:42
Speaker 1: for an individual foreign national in deportation proceedings to bring
29:47
Speaker 1: these claims administratively where first of all these judges can't
29:50
Speaker 1: do anything about that, lose, and then a year later,
29:54
Speaker 1: two years later, bring it to a Court of Appeals
29:57
Speaker 1: as part of a petition for review of a final
30:00
Speaker 1: order removal. And so I think that's the issue is
30:03
Speaker 1: people are saying, man, that's going to take a long time,
30:05
Speaker 1: what are we doing here? But this is this is
30:08
Speaker 1: potentially what might need to be done under the law.
30:11
Speaker 2: And then the question is whether you're in detention or not.
30:14
Speaker 2: That makes a huge difference. Thanks so much, Leon, I've
30:17
Speaker 2: been talking to immigration expert lyon Fresco of Holland and Knight.
30:22
Speaker 2: And that's it for this edition of The Bloomberg Law Show.
30:24
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30:27
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30:31
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30:43
Speaker 2: June Grosso and you're listening to Bloomberg, all right,