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The $100,000 Visa for Skilled Foreign Workers · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grosseo from Bloomberg Radio.
0:08
Speaker 2: A shooter with a rifle opened fire from a nearby
0:12
Speaker 2: roof onto a US Immigration and Customs Enforcement field office
0:16
Speaker 2: in Dallas today, killing one detainee and injuring two others
0:21
Speaker 2: before taking his own life. The head of the FBI,
0:24
Speaker 2: Cash Patel, released a photo on social media that shows
0:28
Speaker 2: a bullet found at the scene with the words anti
0:31
Speaker 2: ICE written in what appears to be marker. The acting
0:36
Speaker 2: Director of ICE, Todd Lyons, said, there's been a rise
0:39
Speaker 2: in threats against ICE agents.
0:42
Speaker 1: All of our officers have an increased presence now with
0:45
Speaker 1: security from Federal Protective Services just because, like I said,
0:49
Speaker 1: assaults in a threats on officer of one thousand percent.
0:52
Speaker 2: This was the third shooting this year at a Department
0:55
Speaker 2: of Homeland Security facility in Texas. Joining me is Immigrat
1:00
Speaker 2: attorney Leon Fresco, a partner at Hound and Knight. Leon
1:04
Speaker 2: I says it's officers are facing a more than one
1:07
Speaker 2: thousand percent increase in threats and assaults against them. Leon
1:13
Speaker 2: I says that it's officers are facing more than a
1:15
Speaker 2: thousand percent increase in assaults against them, including vehicles being
1:21
Speaker 2: used as weapons toward them, and doxing campaigns targeting officers
1:27
Speaker 2: and their families.
1:29
Speaker 3: These situations are terrible. The violence obviously has to stop
1:34
Speaker 3: against the ICE officers that are just there trying to
1:37
Speaker 3: do their job.
1:39
Speaker 4: In this particular.
1:40
Speaker 3: Instance, the individuals who ended up actually being shot were detainees,
1:45
Speaker 3: and so it's not clear what the shooter's intent is.
1:49
Speaker 3: But it's just a tough situation because it seems like,
1:52
Speaker 3: just in general, in every aspect of things, the default becomes,
1:57
Speaker 3: if I don't get my way through the police process
2:00
Speaker 3: or through some other manner, violence is the next mode
2:05
Speaker 3: of settling one's dispute, and everybody involved everywhere needs to
2:11
Speaker 3: end that ethos because you see, it's in all facets,
2:14
Speaker 3: it denies, it's in the detention facilities, it's in society generally.
2:19
Speaker 3: I think everybody on all side just needs to say
2:22
Speaker 3: violence is not the next stept of dispute resolution, for instance,
2:27
Speaker 3: like litigation. Litigation is another way people used to resolve disputes.
2:31
Speaker 3: It's not violent, and that just has to be taken
2:34
Speaker 3: up the table by everyone involved.
2:36
Speaker 2: Immigration advocates and others have called out aggressive tactics by
2:41
Speaker 2: ICE agents and on Saturday, California Governor Gavin Newsom signed
2:46
Speaker 2: a set of bills meant to check the Trump administration's
2:50
Speaker 2: aggressive immigration crackdown in California, including a first in the
2:55
Speaker 2: nation measure to prohibit officers from wearing masks and other
3:00
Speaker 2: is that limit their access to schools and hospitals. The
3:04
Speaker 2: question is whether a state law can be enforced on
3:07
Speaker 2: federal agents. Is that easily challengeable by the Trump administration?
3:14
Speaker 3: Well, absolutely, This is going to set up a preemption
3:17
Speaker 3: situation where there's sort of two preemption issues. One that'll
3:23
Speaker 3: just be in the court, which is, if this law presented,
3:27
Speaker 3: does the state government ever have the ability to tell
3:30
Speaker 3: the federal government how or where it can enforce federal
3:34
Speaker 3: law within the context of a state. So that will
3:37
Speaker 3: be an issue that will be squarely and clearly tied
3:41
Speaker 3: up for the courts, which is different than the sanctuary
3:43
Speaker 3: city issue, because the sanctuary city issue is about whether
3:46
Speaker 3: a state or a city can be compelled to enforce
3:50
Speaker 3: federal law. That's different than the state or a city
3:54
Speaker 3: actually limiting the manner in which the federal government enforces
3:57
Speaker 3: its laws. So, for instance, could you amine a state
4:01
Speaker 3: or a local government saying in our state, we're not
4:04
Speaker 3: going to let the federal government come into somebody's house
4:08
Speaker 3: who committed federal tax violations. You're not allowed to do it.
4:12
Speaker 3: You have to follow this other procedure. So where would
4:15
Speaker 3: that end? And so you start asking those questions. But
4:19
Speaker 3: obviously the concern is a serious one. You want the
4:22
Speaker 3: police to identify themselves at all times, or ICE in
4:25
Speaker 3: this case, to identify themselves at all times, then not
4:28
Speaker 3: have a situation where ICE can can easily be impersonated
4:33
Speaker 3: by other bad actors who will aren't Ice. So everybody
4:37
Speaker 3: has some interest in coming into a more transparent process
4:41
Speaker 3: where it's clear that it is actual immigration enforcement officers
4:45
Speaker 3: who they are, and that when someone is apprehended, that
4:49
Speaker 3: person can be identified and known where they're being housed
4:53
Speaker 3: and where they're being stationed so that the attorneys can
4:55
Speaker 3: get to them. So all of that is important. So
4:58
Speaker 3: the courts one will decide what is the level of
5:00
Speaker 3: pre empsion. But the other thing I was going to
5:02
Speaker 3: say is to the extent that it's not preempted at
5:06
Speaker 3: the moment. The next question would be, well, what does
5:09
Speaker 3: someone do. Let's say you're at some state university and
5:13
Speaker 3: ICE shows up on campus. Do you literally call the
5:16
Speaker 3: university police? And what does the university police do? Do
5:20
Speaker 3: they actually arrest the ICE agents for violating the rules?
5:25
Speaker 3: This is where I think this gets very dicey, and
5:28
Speaker 3: I probably would say that that's not going to end
5:30
Speaker 3: up happening. That there's going to be state and local
5:33
Speaker 3: police that end up getting into confrontations with ICE or
5:36
Speaker 3: they start trying to arrest ICE agents. But theoretically that
5:40
Speaker 3: is contemplated under the statute, and so I think sooner
5:45
Speaker 3: rather than later, this is going to have to be
5:47
Speaker 3: addressed by the court so that you never even get
5:49
Speaker 3: close to an unfortunate situation like this.
5:52
Speaker 2: And in twenty eighteen, California had passed a law to
5:55
Speaker 2: restrict immigration arrest at superior court buildings, but that hasn't
6:00
Speaker 2: stopped the Trump administration from detaining people at those courts
6:05
Speaker 2: this year. It's the question of whether there's an ability
6:07
Speaker 2: to enforce or not.
6:09
Speaker 3: Right, That's the point is, whenever you write a law,
6:12
Speaker 3: that's only half of the game.
6:14
Speaker 4: The other half of the game is can.
6:15
Speaker 3: You enforce the law?
6:17
Speaker 4: And if you cannot enforce.
6:18
Speaker 3: Whatever law you've written, and that law's meaningless and so
6:21
Speaker 3: there's two levels of enforcement. So the first is will
6:24
Speaker 3: the courts allow it to be enforced? But the second is,
6:27
Speaker 3: even if the courts allow it to be enforced, what
6:30
Speaker 3: actual human beings in California are actually going to try
6:34
Speaker 3: to enforce this law? And I think until both of
6:37
Speaker 3: those issues are addressed, I think you would say it's
6:39
Speaker 3: highly unlikely that the state would be able to take
6:43
Speaker 3: matters into its own hands, as has been attempted here.
6:47
Speaker 2: President Donald Trump signed a proclamation on Friday that will
6:52
Speaker 2: require a one hundred thousand dollars annual fee for H
6:56
Speaker 2: one B visas, which enables skilled workers from overseas to
7:00
Speaker 2: temporarily work in the United States. Commerce Secretary Howard Lutnick
7:05
Speaker 2: said all big companies are on board.
7:09
Speaker 5: So the whole idea is no more with these big
7:12
Speaker 5: tech companies or other big companies train foreign workers. They
7:16
Speaker 5: have to pay the government one hundred thousand dollars, then
7:19
Speaker 5: they have to pay the employee. So it's just non economic.
7:22
Speaker 5: If you're going to train somebody, you're going to train
7:26
Speaker 5: one of the recent graduates from one of the great
7:28
Speaker 5: universities across our land. Train Americans. Stop bringing in people
7:33
Speaker 5: to take our jobs. That's the policy here, one hundred
7:37
Speaker 5: thousand dollars a year for H one B visas, and
7:40
Speaker 5: all of the big companies are on board. We've spoken
7:44
Speaker 5: to them about the Golden Card.
7:45
Speaker 4: They love us, they love it, they really love it.
7:47
Speaker 4: They need it.
7:48
Speaker 2: I've been talking to immigration attorney Leon Fresco of Holland
7:51
Speaker 2: and Knight. An immigration issue that's gotten a lot of
7:55
Speaker 2: attention is President Trump signing a proclamation on frey that
8:01
Speaker 2: will require one hundred thousand dollars annual fee for H
8:05
Speaker 2: one B visas, which allows skilled workers from overseas to
8:09
Speaker 2: temporarily work in the United States. I mean, what's the
8:13
Speaker 2: fee like now at.
8:15
Speaker 3: The moment if an employer wins the lottery, Because that's
8:19
Speaker 3: the first step of this is that there are more
8:21
Speaker 3: people who want, more businesses that want H one B
8:24
Speaker 3: employees than there are slots. And there's eighty five thousand
8:28
Speaker 3: slots per year, and there's usually a demand of between
8:31
Speaker 3: four hundred and five hundred thousand people that employers want
8:35
Speaker 3: to hire for these slots. And that's just on day
8:38
Speaker 3: one of the programs. Over the rest of the year,
8:40
Speaker 3: there'd be people who would apply, but they can't because
8:44
Speaker 3: the slots are all gone.
8:45
Speaker 4: But the point is.
8:46
Speaker 3: That if you then win the lottery and you get
8:49
Speaker 3: one of those slots.
8:51
Speaker 4: It costs about five thousand.
8:53
Speaker 3: Dollars in fees to take that worker into your employee.
8:58
Speaker 3: So there's fees for the application. There's fees to get
9:01
Speaker 3: a decision in fifteen days that most employers use because
9:05
Speaker 3: they don't want to wait a year or two to
9:07
Speaker 3: get an answer. So they said they get what's called
9:09
Speaker 3: premium processing. And there's two other fees. One that's a
9:13
Speaker 3: fee to fight fraud in the system, so the money
9:16
Speaker 3: literally goes toward fraud investigators to make sure that nobody's
9:21
Speaker 3: gaming the system. And then there's another fee that actually
9:24
Speaker 3: goes toward the Department of Labor to train American workers
9:29
Speaker 3: to do high skill jobs. And so all of those
9:32
Speaker 3: fees aed up to five thousand dollars, and the idea
9:36
Speaker 3: would be that this proclamation, if enacted, would raise that
9:40
Speaker 3: fee to one hundred thousand, but it's not clear where
9:43
Speaker 3: that money would go to. It would just go to
9:46
Speaker 3: the treasury, and then within the treasury it can be
9:49
Speaker 3: allocated just I suppose for deficit reduction.
9:53
Speaker 2: Besides bringing that money into the treasury, what's the underlying
9:57
Speaker 2: purpose of this.
9:59
Speaker 3: The purpose of that fee is ostensibly to say that
10:05
Speaker 3: if an employer is using the H one B program
10:07
Speaker 3: not to hire a super skilled, highly talented employee where
10:12
Speaker 3: money isn't an object, but as instead trying to hire
10:15
Speaker 3: an employee for the purposes of undercutting the wage of
10:20
Speaker 3: a US national that it otherwise would have hired. This
10:23
Speaker 3: takes that off the table because you would never do this.
10:26
Speaker 3: You would never pay an extra one hundred thousand dollars
10:29
Speaker 3: to undercut the wages of an American. So the only
10:33
Speaker 3: reason you would pay one hundred thousand dollars is because
10:36
Speaker 3: you were hiring the best of the best, and money
10:38
Speaker 3: is no object. You really need this individual.
10:42
Speaker 4: The problem is the.
10:45
Speaker 3: Language of that proclamation is under the travel ban authority.
10:49
Speaker 3: We've talked about this many times on the show. There's
10:51
Speaker 3: a statute called IA Immigration Nationality Act, Section two twelve
10:56
Speaker 3: that basically gives the president almost unfettered authority to ban
11:01
Speaker 3: the entry of anyone the president thinks it's not in
11:05
Speaker 3: the interests of the United States to allow their entry.
11:09
Speaker 3: But the problem with that statute is it applies to
11:12
Speaker 3: banning entry. So the question is if you are a
11:16
Speaker 3: foreign student who's now attending Harvard or who's attending Stanford
11:21
Speaker 3: or MIT or cal Tech or something, and you now
11:25
Speaker 3: want to after you graduate, get an H one B
11:28
Speaker 3: because you've been hired by Nvidia or you've been hired
11:32
Speaker 3: by Facebook or Intel or Google or something. You've already
11:37
Speaker 3: entered the country, so this doesn't apply to you.
11:41
Speaker 4: And so the.
11:41
Speaker 3: Question is, does everybody know that here, does the administration
11:45
Speaker 3: think that those people are going to have to pay
11:48
Speaker 3: the one hundred thousand dollars fee or does it know that, Look,
11:53
Speaker 3: those people have entered, so they're not subject to one
11:55
Speaker 3: hundred thousand fee. If the people already here, it's understood
12:00
Speaker 3: and everybody gets it, and it's clear that if the
12:03
Speaker 3: people already here as students in US universities are not
12:06
Speaker 3: subject to the one hundred thousand feet then this is
12:09
Speaker 3: going to apply to a lot fewer people than what
12:14
Speaker 3: I think the people who are initially cheering this proposal
12:18
Speaker 3: on on the restriction AST side would have thought it's
12:22
Speaker 3: going to apply to significantly fewer people and what it
12:25
Speaker 3: actually will turn out. The most likely scenario is that
12:29
Speaker 3: this will basically only lead to a de facto ban
12:33
Speaker 3: on the ability of what are these famous Indian contractors
12:38
Speaker 3: like Whipro, Tata, Infoss, etc. Who hire more people from
12:43
Speaker 3: India directly than they do from US universities. Those people
12:48
Speaker 3: will end up being effectively banned because they will not
12:50
Speaker 3: pay one hundred thousand for those workers. And so if
12:54
Speaker 3: this survives litigation, that's probably who's going to be banned here,
12:58
Speaker 3: leon does.
12:58
Speaker 2: The Trump administration have the authority, the statutory authority to
13:03
Speaker 2: impose this one hundred thousand dollars fee because isn't the
13:07
Speaker 2: fee supposed to cover the costs of processing the application?
13:12
Speaker 3: So this is very interesting because there's a very similar
13:16
Speaker 3: type of litigation with regard to asylum, where there's a
13:20
Speaker 3: whole set of asylum statutes and then there's another one
13:23
Speaker 3: that says, yeah, but you can deny asylum for any
13:26
Speaker 3: discretionary reason, and that the courts have been fighting this
13:29
Speaker 3: out and they're still fighting it out. Which card Trump's
13:31
Speaker 3: the other card? Does the eight trump the joker? Does
13:34
Speaker 3: the joker trump the eight? Same situation here, you have
13:39
Speaker 3: a large exhaustive set of H one B statutory regime
13:44
Speaker 3: that's very clear and that you cannot change by regulation
13:48
Speaker 3: or presidential proclamation or anything else. So you would think
13:51
Speaker 3: that that would win. But you also have another statute,
13:54
Speaker 3: which is the IA two twelve F that says that
13:57
Speaker 3: the president can ban anyone that the president wants for
14:00
Speaker 3: issues of public interest, and can set any conditions upon entry.
14:05
Speaker 4: That the president wants. So the president is.
14:07
Speaker 3: Saying, well, here's a condition I'm setting upon entry.
14:10
Speaker 4: So, for instance, in twenty twenty, twenty twenty.
14:13
Speaker 3: One, there actually was a ban on these H one
14:16
Speaker 3: be holders under the COVID protocol. Those folks were banned
14:20
Speaker 3: and they couldn't come in the country. And so this
14:22
Speaker 3: is just the same thing. It's a ban, but rather
14:24
Speaker 3: than being a complete and total ban, it's a ban
14:28
Speaker 3: which you can circumvent by paying one hundred thousand dollars fee.
14:31
Speaker 3: And so when the courts analyze this, which card will
14:35
Speaker 3: be the Trump card? Will it be the banning statute
14:39
Speaker 3: that says, no matter who you are, if you're any
14:42
Speaker 3: foreign national of any kind, the president can set these
14:46
Speaker 3: conditions and terms for letting you in the country. Or
14:49
Speaker 3: will it be the large H one B statutory scheme
14:52
Speaker 3: under the idea that you can't have an exception that
14:56
Speaker 3: swallows the entire rule of immigration law so that the
15:00
Speaker 3: president can just rewrite the entire immigration code with the
15:04
Speaker 3: INA to twelve authority. So that's really the question for
15:08
Speaker 3: the course is can the president basically use INA two
15:11
Speaker 3: twelve F authority to rewrite the entire immigration code in
15:16
Speaker 3: the way the president wants to?
15:18
Speaker 4: Or is that overdoing it?
15:20
Speaker 3: And when there's a statutory regime like the H one
15:23
Speaker 3: B which is very extensive and lays out how many
15:26
Speaker 3: days the government has to make a decision, et cetera,
15:29
Speaker 3: et cetera, it's very detailed, unlike most statutes, does that
15:33
Speaker 3: actually win the debate?
15:34
Speaker 4: And we're gonna have to wait and see.
15:37
Speaker 2: The President also wants to change the lottery system. Can
15:40
Speaker 2: you explain what he's trying.
15:42
Speaker 1: To do there?
15:43
Speaker 3: Yes, this is very simple. What happens is every March,
15:47
Speaker 3: there's four hundred thousand people that want to get an
15:50
Speaker 3: H one B visa. There's eighty five thousand slots. They
15:53
Speaker 3: have a lottery. It's a blind lottery. Eighty five thousand
15:56
Speaker 3: people win three hundred and twenty five thousand loose. They
15:59
Speaker 3: want to change that to basically weight the system.
16:03
Speaker 4: So what they want to do is they.
16:05
Speaker 3: Want to find out what kind of job are you
16:07
Speaker 3: coming to do, where are you coming to do the job,
16:11
Speaker 3: and how much are you going to be paid? Because
16:13
Speaker 3: the Department of Labor has surveys and they'll say, oh,
16:17
Speaker 3: the average, the average lawyer in San Francisco makes two
16:22
Speaker 3: hundred and fifty thousand dollars a year, but in the
16:26
Speaker 3: top twenty five percent, that lawyer will make three hundred
16:29
Speaker 3: and fifty thousand, or the bottom twenty five percent that
16:32
Speaker 3: lawyer will make one hundred thousand, and so they put
16:35
Speaker 3: those as levels. Level four is the top level, Level
16:38
Speaker 3: one is the bottom level. So what they want to
16:40
Speaker 3: do is to say, if you will agree upfront that
16:44
Speaker 3: you will pay your worker the level four wage for
16:48
Speaker 3: that occupation in that location, your worker will get four
16:53
Speaker 3: lottery balls essentially instead of one. And if you pay
16:57
Speaker 3: the level three ways, your worker will get three lottery
16:59
Speaker 3: bus And if you pay the level two wage, your
17:03
Speaker 3: worker will get two lottery balls. And if you only
17:06
Speaker 3: want to pay the initial level one wage, which is
17:09
Speaker 3: the bottom twenty five percent, your worker will get one
17:13
Speaker 3: lottery ball. And that's how they'll allocate the lottery with
17:17
Speaker 3: the hope and the intention that the eighty five thousand
17:21
Speaker 3: plus will be allocated towards the highest paid individuals as
17:25
Speaker 3: opposed to just a random allocation. Now that obviously there's
17:29
Speaker 3: going to be companies who pay level one wages who
17:32
Speaker 3: will try to sue and make the same types of
17:34
Speaker 3: arguments here again it's going to be the fifty to
17:36
Speaker 3: fifty argument. Is there regulatory authority under and here there's
17:42
Speaker 3: another catch all provision in what's called IMA Section two
17:46
Speaker 3: fourteen that says that in non immigrant visas, which is
17:49
Speaker 3: what H one B is, the president by regulation can
17:53
Speaker 3: set the terms and conditions. And so that's what the
17:55
Speaker 3: president is trying to do here. But there's also, again
17:58
Speaker 3: as I indicated, pre this very long statutory authority for
18:04
Speaker 3: H one B. What you can do what you can't do,
18:07
Speaker 3: which every time somebody tries the thinker with it, they
18:10
Speaker 3: lose in court. So the question is who wins there?
18:13
Speaker 3: Does the president win under the catch all authority or
18:17
Speaker 3: does the companies that are going to sue win because
18:20
Speaker 3: they say, no, this has to be done by Congress,
18:23
Speaker 3: it cannot be done by regulation.
18:25
Speaker 2: Let's turn out to what's happening in immigration courts with bonds.
18:29
Speaker 2: For decades, immigration judges have granted bonds to immigrants and
18:33
Speaker 2: detention who the court determined would show up for future
18:37
Speaker 2: hearings and were not public safety threats. But now the
18:41
Speaker 2: Trump administration, specifically the Board of Immigration Appeals, which has
18:45
Speaker 2: a majority of Trump appointees on it, has made a
18:49
Speaker 2: new policy binding on all immigration judges that they can't
18:54
Speaker 2: grant bonds to people who cross the border unlawfully. See
19:00
Speaker 2: is being challenged in federal court by civil rights and
19:03
Speaker 2: immigration advocacy groups. What do you think their chances are?
19:08
Speaker 3: So, here's what's complicated about this case. You have a
19:12
Speaker 3: situation where previously, if someone was placed in deportation proceedings
19:18
Speaker 3: after being here for some amount of time, then they
19:22
Speaker 3: could make an argument that they could be released on
19:24
Speaker 3: bond while those proceedings were pending. Because the whole point
19:28
Speaker 3: of the immigration system is it's not a criminal system,
19:32
Speaker 3: it's a civil system, and so typically the law does
19:36
Speaker 3: not favor detention for civil anything. It's detension is meant
19:41
Speaker 3: for criminal proceedings. And even most criminals when they're going
19:45
Speaker 3: through criminal proceedings have bond that they can either apply
19:49
Speaker 3: for or not. Now what's complicated here is the law
19:54
Speaker 3: was that Again, like I said, everybody used to be
19:57
Speaker 3: able to apply for bond, with two exception if you
20:01
Speaker 3: had certain criminal convictions. The Supreme Court has said you're
20:04
Speaker 3: not eligible for bond, because the statutory authority says you're not.
20:09
Speaker 3: And secondly, if you just arrived into the US, meaning
20:13
Speaker 3: you were apprehended at the airport, or you were apprehended
20:17
Speaker 3: trying to cross the border right at that moment, then
20:20
Speaker 3: the idea was, look, we detain you. We keep you
20:23
Speaker 3: in detention at least subject to having enough beds. We
20:26
Speaker 3: don't reward this effort across the border by letting you out.
20:30
Speaker 3: We keep you in detention until we decide if you
20:33
Speaker 3: have a case to remain or if you don't have
20:35
Speaker 3: a case to remain, you get booted out. But the
20:38
Speaker 3: question is what happens with people who crossed the border illegally,
20:44
Speaker 3: but we didn't realize it until five years later, ten
20:47
Speaker 3: years later, et cetera. And so historically those people were
20:50
Speaker 3: allowed to get bond hearings because the idea was they
20:54
Speaker 3: were already here, they were circulating.
20:56
Speaker 4: In the United States.
20:58
Speaker 3: They presumably hadn't committed any criminal offenses other than the
21:02
Speaker 3: initial offense of crossing illegally. But now the administration is saying, look,
21:08
Speaker 3: this original thing that says that if we apprehend you
21:12
Speaker 3: crossing the border, we have to keep you detained forever,
21:16
Speaker 3: while where the proceedings are pending, there's no bond that
21:19
Speaker 3: applies whether it took us one minute or whether it
21:22
Speaker 3: took us five years to cut you. So that's the
21:25
Speaker 3: change in the interpretation. So this doesn't apply to someone
21:28
Speaker 3: who came legally and overstated their visa. They can still
21:31
Speaker 3: get a bond during their removal hearing. But this applies
21:34
Speaker 3: to the person who crossed illegally and they were never apprehended.
21:39
Speaker 3: And so this is really going to come down to
21:41
Speaker 3: more I think of a constitutional due process argument rather
21:46
Speaker 3: than a statutory argument, because the statute, interestingly, I think
21:52
Speaker 3: it's fifty to fifty. But what happened was it was
21:55
Speaker 3: always interpreted in the way that you get bond because
22:00
Speaker 3: people were worried.
22:01
Speaker 4: About the fact that how could someone.
22:02
Speaker 3: Have been here five years or ten years and circulating
22:07
Speaker 3: amongst the United States, not committing any crimes, etc. And
22:11
Speaker 3: then for a civil proceeding you would deny them bond,
22:15
Speaker 3: when if this were a criminal proceeding, they would be
22:18
Speaker 3: eligible for bond. What would be the constitutional authority to
22:21
Speaker 3: keep someone mandatorily detained like that, And so they always
22:26
Speaker 3: interpreted the statute in a cautious manner to say, no, no, no,
22:30
Speaker 3: give those people a bond hearing, and if they are
22:33
Speaker 3: dangerous or if some other reason exist, been fine, you
22:36
Speaker 3: can deny them bond. But if they're not dangerous, you
22:39
Speaker 3: have to let them out because they had already been
22:40
Speaker 3: out for such a long time. So ultimately the courts
22:44
Speaker 3: are going to have to struggle with not what the
22:46
Speaker 3: statute means, because the statute actually probably supports the argument
22:53
Speaker 3: that if someone processes the border illegally, whenever they're found,
22:57
Speaker 3: you have to detain them, but really the constitutionality of
23:01
Speaker 3: that concept, because the issue is that someone's really been
23:05
Speaker 3: here for that long. Is it constitutional to have them
23:09
Speaker 3: detained with no bonds for a civil proceeding when the
23:13
Speaker 3: constitution ab whores any kind of civil detention period, And
23:18
Speaker 3: so I think that's going to be the main question here.
23:21
Speaker 2: Always a lot of questions and not that many clear
23:24
Speaker 2: answers in our immigration law system. Thanks so much, Leon.
23:29
Speaker 2: That's Leon Fresco of Holland and Knight, And that's it
23:33
Speaker 2: for this edition. Of the Bloomberg Law Show. Remember you
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