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Green Card Applicants Facing Uncertainty · Bloomberg Law

• 0:02
  Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
• 0:08
  Speaker 2: You may remember last spring, during the federal crackdown targeting
• 0:12
  Speaker 2: pro Palestinian campus activities, Secretary of State Marco Rubio pushed
• 0:18
  Speaker 2: back against criticism over the administration revoking green cards and
• 0:23
  Speaker 2: student visas.
• 0:24
  Speaker 3: This is not about free speech.
• 0:26
  Speaker 1: This is about people that don't have a right to
• 0:27
  Speaker 1: be in the United States.
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  Speaker 2: To begin with, No one has a right to a
• 0:30
  Speaker 2: student visa.
• 0:31
  Speaker 3: No one has a right to a green card.
• 0:32
  Speaker 2: By the way, now there is a new kind of
• 0:35
  Speaker 2: focus on green cards by the Trump administration, one that
• 0:38
  Speaker 2: affects immigrants when they're applying for permanent residency or a
• 0:43
  Speaker 2: green card. Ten days ago, the Department of Homeland Security
• 0:47
  Speaker 2: announced that immigrants seeking permanent residency would have to return
• 0:51
  Speaker 2: to their home countries to wait for their green cards,
• 0:55
  Speaker 2: a sweeping change in the policy of allowing them to
• 0:58
  Speaker 2: remain in this country while waiting. But then a week
• 1:01
  Speaker 2: later DHS appeared to walk back the changes, causing whiplash
• 1:06
  Speaker 2: among applicants and their attorneys. My guest is immigration law
• 1:11
  Speaker 2: expert Leon Fresco, a partner at Holland and Knight. Leon
• 1:15
  Speaker 2: what was this latest policy change.
• 1:19
  Speaker 1: Well, let's start with some basic immigration law. When a
• 1:22
  Speaker 1: person wants lawful, permanent residency in the United States, there's
• 1:26
  Speaker 1: two ways for them to achieve that goal. One is
• 1:29
  Speaker 1: to apply from abroad, which is called consular processing. And
• 1:33
  Speaker 1: when you do that, you put whatever application you first
• 1:36
  Speaker 1: have to put in with US. It is in CHIP
• 1:38
  Speaker 1: and Immigration Services that says you qualify for whatever green
• 1:42
  Speaker 1: card it is. Let's say it's that you have a
• 1:45
  Speaker 1: US it is in spouse, or a US it isn't parent,
• 1:48
  Speaker 1: or a US it is in child, or that you
• 1:50
  Speaker 1: have an employer that's willing to pay you to come
• 1:54
  Speaker 1: work in the United States, or you're an extraordinary Einstein
• 1:58
  Speaker 1: type of person, or you've invested a million dollars into
• 2:02
  Speaker 1: the US economy and created ten jobs. Those are the
• 2:05
  Speaker 1: basic criteria for a green card. And then the second
• 2:08
  Speaker 1: part is if you're abroad, you go.
• 2:11
  Speaker 3: To an embassy appointment.
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  Speaker 1: You know, once that first part is approved by US
• 2:15
  Speaker 1: citizen Ship and Immigration Services, the State Department makes a
• 2:19
  Speaker 1: determination as to whether you're admissible into the country. And
• 2:23
  Speaker 1: by admissible, that means you know, you're not a terrorist,
• 2:25
  Speaker 1: a drug dealer, a criminal, that.
• 2:28
  Speaker 3: Kind of thing.
• 2:29
  Speaker 1: Now, if you're inside the United States and you're here legally,
• 2:33
  Speaker 1: you can do what's called adjustment of status, which is
• 2:37
  Speaker 1: instead of leaving the country to apply for the green card,
• 2:40
  Speaker 1: you can do both steps that I've described from inside
• 2:43
  Speaker 1: the United States. You file them at the same time.
• 2:45
  Speaker 1: You file first for the application that says, yes, I
• 2:50
  Speaker 1: do qualify for whatever Green card category I qualify for,
• 2:54
  Speaker 1: and I'm also admissible to the United States. And that's
• 2:56
  Speaker 1: called filing for adjustment of status. So what the new
• 3:02
  Speaker 1: announcement by US Citizenship Immigration Services tried to say last
• 3:06
  Speaker 1: week is it said that because the Adjustment of Status
• 3:10
  Speaker 1: Statute i NA two forty five is discretionary, saying that
• 3:14
  Speaker 1: you know, the Secretary of Homeland Security may adjust status. Well,
• 3:20
  Speaker 1: we're just reminding every one of that, and we're saying, well,
• 3:22
  Speaker 1: we're not going to exercise that discretion unless it's an extreme,
• 3:26
  Speaker 1: extraordinary circumstance case. Now, their memo itself didn't say that.
• 3:32
  Speaker 1: Their press release said that because that would have been
• 3:35
  Speaker 1: completely contrary to the intent of the statute, which says
• 3:39
  Speaker 1: that you can do it. And there's actual statutory language
• 3:42
  Speaker 1: with regard to high skilled immigration and investors and everything
• 3:46
  Speaker 1: else that specifically says you can do it, but this
• 3:50
  Speaker 1: for a week freaked out every there's about a million
• 3:53
  Speaker 1: people like this in the United States that are in
• 3:55
  Speaker 1: the middle of their green card process, and every one
• 3:58
  Speaker 1: of my clients, I would say, hundreds called me or
• 4:01
  Speaker 1: emailed me or texted me.
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  Speaker 3: Do I have to go home? What's going to happen?
• 4:05
  Speaker 3: Et cetera.
• 4:07
  Speaker 1: And I told them, look, this memo is gonna be
• 4:10
  Speaker 1: walked back. It's illegal. There will be litigation on this probably,
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  Speaker 1: And so on Friday, May thirtieth, we had a situation
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  Speaker 1: where a press person, an unnamed press person, said no, no, no,
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  Speaker 1: this memo just reminds our adjudicators that they can use discretion.
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  Speaker 1: But it's not telling everybody to go home. So this
• 4:31
  Speaker 1: thing is going to remain in flux.
• 4:33
  Speaker 2: Are there certain groups of people applying for green cards
• 4:38
  Speaker 2: that might be most affected.
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  Speaker 1: The couple of groups that concerned me that really need
• 4:44
  Speaker 1: to think about, you know, what's going to happen in
• 4:46
  Speaker 1: their cases moving forward.
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  Speaker 3: Are first of all, if you are someone who's.
• 4:53
  Speaker 1: Came here legally on a visa, but you overstayed your
• 4:57
  Speaker 1: visa and you gave birth to a the US citizen child,
• 5:01
  Speaker 1: and that child is now over twenty one, so they
• 5:04
  Speaker 1: can now petition for you for a green card. I
• 5:07
  Speaker 1: especially imagine after the birthright citizenship case, whenever that's decided,
• 5:11
  Speaker 1: assuming that's decided against the Trump administration's position, they're gonna
• 5:15
  Speaker 1: be very angry about that decision and they're gonna try
• 5:18
  Speaker 1: to crack down on that way of getting Green cards,
• 5:21
  Speaker 1: and there's gonna have to be litigation on that.
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  Speaker 3: But that's one aspect of this.
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  Speaker 1: But I also think in general, people who overstay their
• 5:30
  Speaker 1: visa and let's say they get married to a US citizen,
• 5:34
  Speaker 1: like the Sandra Bullock Ryan Reynolds Green Card movie you
• 5:38
  Speaker 1: know where that happens, or the Gerard de Parnout Green
• 5:41
  Speaker 1: Card movie, or any number of Green card movies that
• 5:44
  Speaker 1: you have, those people are gonna face a lot more
• 5:47
  Speaker 1: scrutiny also when their Green card applications go forward. And
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  Speaker 1: the reason for all of this is because there's been
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  Speaker 1: recent case law from the Supreme Court that's not been
• 5:56
  Speaker 1: very helpful that said that because adjustment of status is
• 6:00
  Speaker 1: a may statute, it's a discretionary statue. We're not gonna
• 6:04
  Speaker 1: review denials of adjustment of status. So as long as
• 6:08
  Speaker 1: they can cabin these denials to individual cases, they can
• 6:13
  Speaker 1: kind of try to create an environment where they create
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  Speaker 1: a blanket ban, which I think a blanket ban could
• 6:19
  Speaker 1: be challenged, But if they're saying they're just doing this
• 6:21
  Speaker 1: in individual cases, it's going to be much harder to challenge,
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  Speaker 1: and the courts are either going to have to change
• 6:27
  Speaker 1: what they said or come up with some exception, or
• 6:30
  Speaker 1: they will let all of these cases get denied individually.
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  Speaker 1: So that's where we stand, and there's still a lot
• 6:37
  Speaker 1: of flux and a lot of gray areas and something
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  Speaker 1: we can keep talking about as we do these podcasts,
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  Speaker 1: But a lot of people are still very nervous about this.
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  Speaker 2: What's the danger of going back to your home country
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  Speaker 2: and waiting for your green card?
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  Speaker 3: So there's two or three dangers.
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  Speaker 1: Number One, a lot of people can't lead because they
• 6:56
  Speaker 1: have jobs here and if they leave, they lose their
• 6:59
  Speaker 1: job here and they have no job abroad. And let's
• 7:02
  Speaker 1: say you're married to a US then your US citizen
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  Speaker 1: spouse has to leave to or you're separated from your
• 7:09
  Speaker 1: US citizen spouse.
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  Speaker 3: So there's a lot of that.
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  Speaker 1: But then the second and more cynical thing is, once
• 7:15
  Speaker 1: you're outside of the country, you have zero rights of
• 7:18
  Speaker 1: any kind to make any challenges in any court whatever.
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  Speaker 1: So if the Trump administration wants to do a travel
• 7:25
  Speaker 1: ban or any other kind of ban, then you're never
• 7:28
  Speaker 1: coming back in the country.
• 7:30
  Speaker 3: And joke is on you in that.
• 7:31
  Speaker 1: Situation, whereas you're not subject to that ban if you're
• 7:35
  Speaker 1: inside of the United States.
• 7:37
  Speaker 2: Has that, let's call it a clarification. Has that done
• 7:40
  Speaker 2: anything to alleviate the concerns of green cord applicants.
• 7:45
  Speaker 1: People are very nervous about this because the memo is
• 7:47
  Speaker 1: still saying and even this press guidance from Friday is saying, look,
• 7:51
  Speaker 1: we're just telling our adjudicators on a case by case
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  Speaker 1: basis to look at their discretionary authority and really take
• 7:58
  Speaker 1: it seriously. And everyone says, well, jeez, you know, is
• 8:02
  Speaker 1: not going to be decided negatively in my particular case.
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  Speaker 1: And if it is, then just suddenly one day you're
• 8:07
  Speaker 1: here illegally. The next day you get that decision, you're
• 8:09
  Speaker 1: here illegally and you have to leave immediately. So it's
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  Speaker 1: quite unsettling. If you have a job, if you have
• 8:14
  Speaker 1: a house, if you have a spouse, children, whatever else.
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  Speaker 3: Do you have.
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  Speaker 1: It's not so great to suddenly be told you have
• 8:22
  Speaker 1: twenty four hours to leave the country, or even the
• 8:25
  Speaker 1: US Citizenship and Immigration Services will tell you come in,
• 8:28
  Speaker 1: get the decision, and did they place you in detention,
• 8:31
  Speaker 1: which they could theoretically do.
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  Speaker 2: I don't know if I'm reading you wrong, but are
• 8:34
  Speaker 2: they tougher on people who overstay their visas that on
• 8:37
  Speaker 2: people who come here illegally or is people who are
• 8:39
  Speaker 2: come here illegally or not.
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  Speaker 1: As way, if you entered the illegally, you can't even
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  Speaker 1: get a green card through this process called adjustment of status.
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  Speaker 1: So that's one of the big misconceptions of immigration laws.
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  Speaker 1: People think anybody can just marry a US citizen and
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  Speaker 1: fix their status. That's absolutely not true. You had to
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  Speaker 1: have entered here legally in the first place. That's why
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  Speaker 1: at the end of the Biden administration they were doing
• 9:01
  Speaker 1: a process where they were going to try to take
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  Speaker 1: people who were married to US citizens or who had
• 9:08
  Speaker 1: US citizen children above the age of twenty one and
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  Speaker 1: allow them to get a parole that would give them
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  Speaker 1: a legal entry into the United States such that they
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  Speaker 1: could apply for adjustment of status. That was happening right
• 9:20
  Speaker 1: at the end of the Bid administration. But obviously that
• 9:23
  Speaker 1: reelection did not occur, and so that got canceled immediately
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  Speaker 1: when President Trump took.
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  Speaker 3: Over, so it never happened.
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  Speaker 1: But if there were a democratic administration, I'd imagine that
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  Speaker 1: that might come back in. But the point is it's
• 9:36
  Speaker 1: never been available to people who've crossed illegally, but it's
• 9:39
  Speaker 1: always been available to people who've overstayed if they are
• 9:43
  Speaker 1: either parents to US citizen children over twenty one, or
• 9:47
  Speaker 1: if they are spouses of a US citizen. But I
• 9:51
  Speaker 1: think the Trump administration is going to quote unquote carefully
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  Speaker 1: use its discretion and a lot of these cases are
• 9:57
  Speaker 1: probably going to be denied in the near.
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  Speaker 2: Few do not green cards.
• 10:02
  Speaker 1: Yeah, they'll be denied green cards, but then they'll have
• 10:04
  Speaker 1: no status and they could easily be detained at that
• 10:07
  Speaker 1: point in place them to removal proceedings.
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  Speaker 2: So let's turn to Homeland Security Secretary Mark Wayne Mullen
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  Speaker 2: has threatened to halt or to delay immigration and customs
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  Speaker 2: processing at airports in sanctuary cities. He's trying to leverage this.
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  Speaker 2: But do you think all of a sudden, these sanctuary
• 10:26
  Speaker 2: cities are going to say, we're not going to be
• 10:28
  Speaker 2: sanctuary cities anymore.
• 10:30
  Speaker 1: So let's talk about how a lot of these things work.
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  Speaker 1: Because the airports in a lot of these cities that
• 10:36
  Speaker 1: are quote unquote sanctuary cities. And again what we mean
• 10:39
  Speaker 1: by sanctuary cities is that they do not cooperate with
• 10:42
  Speaker 1: ICE requests to let them into the jails or to
• 10:46
  Speaker 1: report people who are arrested to ICE. So that's what's
• 10:49
  Speaker 1: called the sanctuary city. A lot of these airports are
• 10:52
  Speaker 1: run by independent airport authorities that are not necessarily feeding
• 10:57
  Speaker 1: revenue into the city local government that is a sanctuary city.
• 11:02
  Speaker 1: These airport authorities are sort of self operating entities that
• 11:06
  Speaker 1: are funding themselves, and yes they have some affiliation with
• 11:09
  Speaker 1: the state and the locals, but a lot of times
• 11:12
  Speaker 1: they are regional authorities, et cetera. So it's sort of
• 11:16
  Speaker 1: like saying, you know, if you don't eat your vegetables,
• 11:19
  Speaker 1: I'm going to hit your brother in the face or something,
• 11:21
  Speaker 1: and it's a tangential strike. And the other issue is this,
• 11:27
  Speaker 1: So what's going on. So when people fly into an
• 11:30
  Speaker 1: airport from abroad, they have to get processed by someone
• 11:34
  Speaker 1: at US Customs and Border Protection. If they're a US
• 11:37
  Speaker 1: it is in. They have a special line that just
• 11:39
  Speaker 1: says are you a US it is in, and if
• 11:40
  Speaker 1: you are, you get in unless you have some drugs
• 11:43
  Speaker 1: or other contraband. And if you are not a us
• 11:46
  Speaker 1: czen then you have to prove that you can be
• 11:49
  Speaker 1: admitted back into the United States, and so that they
• 11:52
  Speaker 1: have separate lines for those individuals. And what Secretary Mullen
• 11:56
  Speaker 1: is saying is, look, we're going to take those CBP
• 11:58
  Speaker 1: employees and move them out of the airports of the
• 12:02
  Speaker 1: sanctuary cities and presumably move them to other airports like
• 12:05
  Speaker 1: Miami or Houston or Dallas or Las Vegas or Orlando that
• 12:10
  Speaker 1: are not sanctuary cities. But here's the problem. There are
• 12:13
  Speaker 1: no more gates for any of those planes to come in.
• 12:16
  Speaker 1: It's fine if you have a thousand more CBP agents
• 12:19
  Speaker 1: in those airports, but for a plane to actually land,
• 12:23
  Speaker 1: it's gotta have runway space, it's gotta have a gate,
• 12:26
  Speaker 1: it's got to have all of those things. And every
• 12:29
  Speaker 1: airport in America is at capacity. There's no more room
• 12:33
  Speaker 1: for planes to land at any of these airports in
• 12:35
  Speaker 1: terms of the timing, or in terms of the gates,
• 12:39
  Speaker 1: or in terms.
• 12:39
  Speaker 3: Of anything else.
• 12:40
  Speaker 1: And so from that component, what you're really doing is
• 12:44
  Speaker 1: cutting air travel by fifty percent. And what's really a
• 12:48
  Speaker 1: problem there is, if you're cutting air travel by fifty percent,
• 12:51
  Speaker 1: that's one of our largest exports is foreign nationals coming
• 12:54
  Speaker 1: in here and giving us free.
• 12:56
  Speaker 3: Money, paying hotels, paying food, et cetera.
• 12:59
  Speaker 1: There's no trade involved. We're not sending any money over there.
• 13:02
  Speaker 1: They're just coming in and giving us money. So it's
• 13:05
  Speaker 1: the number one foreign investment, you know, export that we have,
• 13:09
  Speaker 1: and we would be cutting it by fifty percent by
• 13:13
  Speaker 1: moving our CBP agents out of those airports. And then
• 13:16
  Speaker 1: the final point to say here is that a very
• 13:20
  Speaker 1: small percentage of people who fly into these airports actually
• 13:24
  Speaker 1: is staying in a sanctuary city. They're either going to
• 13:28
  Speaker 1: some other city that's a suburb or an ex serb,
• 13:31
  Speaker 1: or they're connecting to another airport in another state. And
• 13:35
  Speaker 1: so again, like I said, it's really like you know,
• 13:38
  Speaker 1: punishing your brother because you didn't eat vegetables. It really
• 13:41
  Speaker 1: is not the best way of going at it. There's
• 13:44
  Speaker 1: many other ways that the Secretary of Homeland Security could
• 13:48
  Speaker 1: go after these sanctuary cities. I won't suggest them here
• 13:52
  Speaker 1: on the podcast, but there are If they're interested, they
• 13:55
  Speaker 1: can contact me, but you know this is not the
• 13:59
  Speaker 1: correct way to do it in my opinion.
• 14:01
  Speaker 2: Coming up next, I'll continue this conversation with immigration law
• 14:04
  Speaker 2: attorney Leon Fresco. An ice officer has been arrested in
• 14:08
  Speaker 2: Texas for the shooting of a Venezuelan man during the
• 14:12
  Speaker 2: Trump administration's Minnesota crackdown. Will the case actually get to trial?
• 14:18
  Speaker 2: I've been talking to immigration law attorney Leon Fresco of
• 14:21
  Speaker 2: Holland and Knight about Homeland Security Secretary Mark Wayne Mullens
• 14:26
  Speaker 2: threats to halt immigration and customs processing at airports and
• 14:31
  Speaker 2: sanctuary cities. The target of the threat right now appears
• 14:36
  Speaker 2: to be Newark Airport because of the high profile protests
• 14:41
  Speaker 2: outside Delaney Hall and Immigrant Detention Center in Newark, and
• 14:46
  Speaker 2: a coalition of groups representing airports, airlines, hotels and other
• 14:50
  Speaker 2: businesses are calling on DHS not to follow through on
• 14:54
  Speaker 2: the threat.
• 14:55
  Speaker 1: It would be very difficult, especially now during the World
• 14:58
  Speaker 1: Cup where the final is being played in the Meadowlands,
• 15:01
  Speaker 1: which is in New Jersey. The closest airport Todare is
• 15:04
  Speaker 1: in Newark. Did they were especially to cut it off? Now?
• 15:07
  Speaker 1: I think that that would be quite a difficult incident
• 15:11
  Speaker 1: for the government.
• 15:11
  Speaker 3: On top of the fact that you have this issue.
• 15:14
  Speaker 1: We have the South African national soccer team unable to
• 15:17
  Speaker 1: get visas to come.
• 15:18
  Speaker 3: Into the United States.
• 15:20
  Speaker 1: There's too many blips in terms of you try to
• 15:24
  Speaker 1: have this very stringent policy where you say, hey, we're
• 15:29
  Speaker 1: gonna be tough, and then you unintentionally create a ton
• 15:33
  Speaker 1: of collateral damage that's creating serious problems for entities that
• 15:38
  Speaker 1: the United States doesn't want. The United States doesn't want
• 15:41
  Speaker 1: to reduce its travel exports by half, I don't think
• 15:46
  Speaker 1: because a lot of people would lose jobs and people
• 15:48
  Speaker 1: would say, hey, why did I lose my job, and
• 15:50
  Speaker 1: they would you know, it would eventually flow to that reason.
• 15:53
  Speaker 1: Or they don't want to have stories that you tried
• 15:57
  Speaker 1: to host a World Cup and teams couldn't come in
• 15:59
  Speaker 1: because they couldn't get visas. But it becomes a reflection
• 16:03
  Speaker 1: of you'd start going on autopilot with a lot of
• 16:07
  Speaker 1: these policies that are meant to just say nobody gets
• 16:10
  Speaker 1: to come in. America is closed, and you end.
• 16:14
  Speaker 3: Up doing damage that you didn't intend to do.
• 16:16
  Speaker 1: Because if you said America's closed, now it's close to people.
• 16:19
  Speaker 3: You didn't even want it.
• 16:20
  Speaker 2: To be closed to for DHS. The attention is on
• 16:25
  Speaker 2: Newark and off Minnesota. But Minneapolis prosecutors are still going
• 16:30
  Speaker 2: forward with investigations and things, and they charged an ice
• 16:34
  Speaker 2: officer with assault and falsely reporting a crime. As a
• 16:38
  Speaker 2: second federal agent to be charged over their conduct during
• 16:41
  Speaker 2: that Minnesota crackdown. He's a federal agent, can Minnesota charge him?
• 16:47
  Speaker 3: Well, that's going to be the argument that's made.
• 16:49
  Speaker 1: And it's the same argument we've been seeing in California,
• 16:52
  Speaker 1: where the Ninth Circuit held that you cannot regulate what
• 16:55
  Speaker 1: a federal agent does when a federal agent is perform
• 17:00
  Speaker 1: their duties. Now, the different tier is one thing is
• 17:04
  Speaker 1: external regulation, which is to say, here's a set of
• 17:08
  Speaker 1: policies you can't wear masks, or you can't do this,
• 17:12
  Speaker 1: or you can't do that. Those sets of policies in
• 17:14
  Speaker 1: advance are going to be very hard. So like the
• 17:16
  Speaker 1: New York law that just got passed that says they
• 17:19
  Speaker 1: can't wear masks, or the California law that just got
• 17:22
  Speaker 1: stricken down, those are going to be very hard to survive.
• 17:25
  Speaker 1: Most likely those are going to be stricken under the
• 17:28
  Speaker 1: supremacy Clause, which says or which has been interpreted to
• 17:32
  Speaker 1: say that when a federal officer is enforcing federal law,
• 17:36
  Speaker 1: they benefit from the supremacy clause and you can't regulate
• 17:39
  Speaker 1: how they do it. Now, that's different than if a
• 17:42
  Speaker 1: federal officer breaks the law acting outside of the scope
• 17:46
  Speaker 1: of their employment. They can be prosecuted in that situation.
• 17:51
  Speaker 3: So if an.
• 17:51
  Speaker 1: Individual federal officer says, you know, oh, yes, this person
• 17:57
  Speaker 1: had a gun and was shooting at me, and really
• 17:59
  Speaker 1: there were there's no such thing, and the person just
• 18:03
  Speaker 1: started on a shooting rampage at a mall, that person
• 18:06
  Speaker 1: can be prosecuted under state law. They were not acting
• 18:09
  Speaker 1: in the scope of their employment. There was no reason
• 18:12
  Speaker 1: that their employment mandated them to shoot up them all,
• 18:15
  Speaker 1: and so you could prosecute them for that. And so
• 18:17
  Speaker 1: that's going to be the question in a prosecution here
• 18:22
  Speaker 1: is going to be worthy individuals acting within the lawful
• 18:25
  Speaker 1: scope of their employment or were they so far outside
• 18:28
  Speaker 1: the bounds of what their employment permits that they can
• 18:31
  Speaker 1: be prosecuted.
• 18:32
  Speaker 2: And Texas appears to have cooperated in this arrest.
• 18:37
  Speaker 1: If another state's willing to cooperate with you, you can enforce
• 18:40
  Speaker 1: the arrest warrant in another state, and the other state
• 18:43
  Speaker 1: can then you know, implement the arrest and then you
• 18:47
  Speaker 1: have to have proceedings to even though it's the same
• 18:49
  Speaker 1: country extra nite the person back to Minnesota and try
• 18:53
  Speaker 1: to have the trial of that individual. So that can
• 18:55
  Speaker 1: be done, you'll probably want to remove it to federal
• 18:58
  Speaker 1: court to immediately file a motion to quash that state proceeding,
• 19:02
  Speaker 1: and the federal court will have to decide whether the
• 19:05
  Speaker 1: person was acting inside or outside of the scope of
• 19:08
  Speaker 1: their employment.
• 19:09
  Speaker 2: Yeah, Ice called the Hennepin County attorney's action unlawful and
• 19:13
  Speaker 2: nothing more than a political stunt.
• 19:16
  Speaker 1: I mean that's going to be proven by this proceeding
• 19:19
  Speaker 1: that will most certainly be removed the federal court, where
• 19:22
  Speaker 1: the ICE officer.
• 19:23
  Speaker 3: Will challenge the legality of their.
• 19:26
  Speaker 1: Indictment and the Headepen County Attorney's going to have to
• 19:30
  Speaker 1: prove that the person was acting so far outside of
• 19:34
  Speaker 1: the scope and bounds of their employment.
• 19:36
  Speaker 3: That they can be prosecuted. And we will find out
• 19:38
  Speaker 3: soon enough.
• 19:39
  Speaker 1: It's hard with these very fact intentive cases to predict
• 19:42
  Speaker 1: what will happen, but it will certainly be a federal
• 19:46
  Speaker 1: court that gets to decide this not a state court,
• 19:48
  Speaker 1: so at least from the perspective of the ICE agent,
• 19:51
  Speaker 1: they can say it's somebody who's not part of the
• 19:54
  Speaker 1: state machinery who's going to decide this.
• 19:56
  Speaker 2: Yeah, I'm still surprised. I think stunt is a better word.
• 20:00
  Speaker 2: That nothing has been done about the shootings, the killings
• 20:05
  Speaker 2: of Alex Pretty and Renee Good. I mean, the federal
• 20:09
  Speaker 2: government is not doing anything there.
• 20:12
  Speaker 1: Well, I think they said there were investigations. I think
• 20:15
  Speaker 1: it's going to be up to the Congress to push
• 20:17
  Speaker 1: for a report on those investigations. And if those reports
• 20:21
  Speaker 1: say that unlawful conduct was done, I mean, nothing is
• 20:25
  Speaker 1: outside of the statute of limitations yet, so presumably a
• 20:29
  Speaker 1: US attorney in Minnesota could prosecute there, or even if
• 20:34
  Speaker 1: the Trump administration ends, the five year statute of limitations
• 20:37
  Speaker 1: would not have expired and a subsequent US attorney could
• 20:41
  Speaker 1: decide to prosecute there. So I don't think this story
• 20:44
  Speaker 1: is over one way or the other.
• 20:45
  Speaker 3: Year.
• 20:46
  Speaker 2: So you mentioned New York and Governor Hockel signed this legislation,
• 20:51
  Speaker 2: and we've talked before about massed US ICE agents and
• 20:56
  Speaker 2: how it's already been ruled in California that the state
• 21:00
  Speaker 2: can interfere with that. So what about the rest of
• 21:03
  Speaker 2: this The new law also bans local law enforcement agencies
• 21:08
  Speaker 2: from entering into agreements that police officers be deputized as
• 21:13
  Speaker 2: immigration agents. I didn't realize across the country how many
• 21:16
  Speaker 2: officers have been deputized. Almost sixteen thousand.
• 21:20
  Speaker 1: Right, There's a statue called INA Section two eighty seven G,
• 21:24
  Speaker 1: which allows ICE, the Secretary of Homeland Security to deputize
• 21:29
  Speaker 1: state and local officers to perform ICE functions. So what
• 21:32
  Speaker 1: that means is, let's say if you were in one
• 21:35
  Speaker 1: of these two eighty seven G communities and the officers
• 21:38
  Speaker 1: got training and had an agreement, when they pulled someone
• 21:41
  Speaker 1: over on the side of the road, they could actually
• 21:44
  Speaker 1: do an ICE check to determine if this person was
• 21:47
  Speaker 1: undocumented or not, and could actually detain the person for
• 21:51
  Speaker 1: the amount of time necessary to transfer them over to ICE.
• 21:54
  Speaker 3: And so what the State of New.
• 21:57
  Speaker 1: York is saying is we want to ban our localities
• 22:01
  Speaker 1: from entering into these two eighty seven G agreements with
• 22:04
  Speaker 1: the federal government. What's interesting is there was some very
• 22:07
  Speaker 1: interesting fifth circuit law during the first Trump administer engine
• 22:11
  Speaker 1: or the state of Texas did the opposite. They said,
• 22:13
  Speaker 1: we want to ban our localities from being sanctuary cities,
• 22:17
  Speaker 1: and the cities challenge that saying you can't do that.
• 22:20
  Speaker 1: We have a right to have our own interpretation of
• 22:23
  Speaker 1: federal law. And the Fifth Circuit said, no, the states
• 22:26
  Speaker 1: have supremacy over the cities, and if the states want
• 22:29
  Speaker 1: the cities to be non sanctuary cities, that's their right.
• 22:33
  Speaker 1: They have supremacy over the cities. So New York is
• 22:36
  Speaker 1: taking that same mentality and flipping it and saying rather
• 22:40
  Speaker 1: than saying that the cities can't be sanctuary cities, it's.
• 22:43
  Speaker 3: Saying no, no, no, the opposite. You can't be two eighty
• 22:46
  Speaker 3: seven G cities. You can't be the kind of cities
• 22:49
  Speaker 3: that report people dies.
• 22:51
  Speaker 1: And so I assume if the cities tried to challenge
• 22:55
  Speaker 1: that in the second circuit, the second Circuit would say
• 22:58
  Speaker 1: the same thing, would say that the state supremacy over
• 23:01
  Speaker 1: the cities and that the state can indeed preclude the
• 23:03
  Speaker 1: cities from being ina to eighty seven G cities.
• 23:07
  Speaker 2: So Governor Hokeel has tried to make this distinction between
• 23:12
  Speaker 2: cooperating with federal authorities on serious crimes but not participating
• 23:17
  Speaker 2: in broader immigration enforcement is drawing that kind of line
• 23:21
  Speaker 2: even possible.
• 23:23
  Speaker 1: I think the problem is is in all of the
• 23:26
  Speaker 1: intermediary stuff. So here's what everybody means, and here's why
• 23:30
  Speaker 1: everything is lost in the translator. And here's where I
• 23:32
  Speaker 1: have a lot of sympathy for the Trump administration, and
• 23:35
  Speaker 1: even there have been democratic administrations that have said, hey,
• 23:38
  Speaker 1: you need to start cooperating.
• 23:39
  Speaker 3: Here's the issue. In a state like New York.
• 23:42
  Speaker 1: By the time someone is convicted of a serious crime,
• 23:47
  Speaker 1: they've probably been arrested many times before then, they've probably
• 23:51
  Speaker 1: been given many chances, they've probably.
• 23:53
  Speaker 3: Been let out, and so a lot of damage has
• 23:56
  Speaker 3: been done.
• 23:57
  Speaker 1: It's very rare that the first time out of the box,
• 24:00
  Speaker 1: someone commits a serious enough crime that they get convicted
• 24:03
  Speaker 1: and now they're reported to ICE. So yes, in that situation,
• 24:07
  Speaker 1: the state of New York cooperates with ICE and says,
• 24:11
  Speaker 1: someone who's been finally convicted of a crime that's so
• 24:14
  Speaker 1: serious and so repetitive that they finally get put in
• 24:18
  Speaker 1: jail as a felon does get reported to ICE after
• 24:21
  Speaker 1: their jail term is done. So yes, that's true. But
• 24:24
  Speaker 1: as I'm sure a lot of your listeners know, there's
• 24:27
  Speaker 1: a lot of people who go through the system many times,
• 24:30
  Speaker 1: who are arrested, who are let out on bail, who
• 24:32
  Speaker 1: do a lot of very serious crimes and bad things,
• 24:35
  Speaker 1: and those people never get reported to ICE, and so
• 24:38
  Speaker 1: in the meantime, they're doing a lot of damage, they're
• 24:41
  Speaker 1: committing a lot of crime, they're harming a lot of people.
• 24:44
  Speaker 1: And what these Secretary of Homeland securities say is, you've
• 24:47
  Speaker 1: got to report those people to us make our lives
• 24:50
  Speaker 1: easier so that we don't have to go get random
• 24:53
  Speaker 1: grandmothers and farmers and other people like that. If you
• 24:57
  Speaker 1: just would report these people that got arrested and got
• 25:01
  Speaker 1: let out on bail and didn't get anything and got
• 25:03
  Speaker 1: a diversion or their fifth chance, their case was dismissed
• 25:07
  Speaker 1: or whatever, we could actually deport these people who are
• 25:10
  Speaker 1: actually committing crimes in their communities. The problem is there's
• 25:15
  Speaker 1: still a mentality that exists from the eighties and the
• 25:18
  Speaker 1: nineties that people get arrested in large part only because
• 25:22
  Speaker 1: of their race and not because of any actual crimes
• 25:25
  Speaker 1: they're committing. And so the fear was, well, if we
• 25:28
  Speaker 1: report arrested, non convicted people to ICE, there's going to
• 25:33
  Speaker 1: be a lot of unjust deportations because these people were
• 25:37
  Speaker 1: unlawfully arrested because of their race or whatever else. They
• 25:41
  Speaker 1: didn't actually commit a crime. But this is really a
• 25:44
  Speaker 1: matter of, look, do you trust your local police department
• 25:48
  Speaker 1: or not, because if you do, then you would say
• 25:52
  Speaker 1: that that's probably happening less hopefully in twenty twenty six
• 25:56
  Speaker 1: than it was in the eighties and the nineties and
• 25:59
  Speaker 1: in the first part of this century, such that now
• 26:03
  Speaker 1: when you're arresting people, you're probably arresting them many, many
• 26:06
  Speaker 1: times before they actually get any kind of serious punishment,
• 26:10
  Speaker 1: and so maybe that does need to be revisited. So
• 26:13
  Speaker 1: those people are reported to ICE before they're fifth or
• 26:16
  Speaker 1: sixth or seventh the rest and so that's where everything
• 26:19
  Speaker 1: is getting lost in the translation. And I think that's
• 26:22
  Speaker 1: where there needs to be a better faith conversation between
• 26:26
  Speaker 1: these cities and these states and the Secretary of Homeland
• 26:29
  Speaker 1: Security to try to get at this problem that a
• 26:32
  Speaker 1: lot of local governments are not doing anything with the
• 26:35
  Speaker 1: people they're arresting, and so hence they're committing a lot
• 26:38
  Speaker 1: of crime, but they otherwise could be placed into deportation proceedings.
• 26:43
  Speaker 2: Conversations might actually help here. Thanks So much Leon. That's
• 26:47
  Speaker 2: Leon Fresco of Holland and Knight. And that's it for
• 26:50
  Speaker 2: this edition of The Bloomberg Law Show. Remember you can
• 26:52
  Speaker 2: always get the latest legal news on our Bloomberg Law Podcast.
• 26:56
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• 26:59
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• 27:04
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• 27:07
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• 27:11
  Speaker 2: you're listening to Bloomberg