Latest / Bloomberg Law / Trump's Second Attempts at Birthright Citizenship and Firing Fed's Lisa Cook

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Trump's Second Attempts at Birthright Citizenship and Firing Fed's Lisa Cook · Bloomberg Law

• 0:02
  Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
• 0:08
  Speaker 2: Is another legal fight over the fed's independence ahead, as
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  Speaker 2: President Trump is threatening to fire FED Governor Lisa Cook
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  Speaker 2: a second time. The Supreme Court, in a five to
• 0:20
  Speaker 2: four decision in June, allowed Cook to remain in her
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  Speaker 2: job while she fought Trump's bid to ouster over mortgage
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  Speaker 2: fraud accusations, faulting the President for not giving her notice
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  Speaker 2: and a chance to be heard before trying to remove her. Now,
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  Speaker 2: the Trump administration has sent Cook a letter saying Trump
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  Speaker 2: is considering removing her and giving her until August twenty
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  Speaker 2: sixth to respond to the same allegations of mortgage fraud.
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  Speaker 2: Joining me is constitutional law expert Harold Krent, a professor
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  Speaker 2: at the Chicago Kent College of Law. In its decision,
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  Speaker 2: the Supreme Court didn't specifically say what notice and comment
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  Speaker 2: to Cook was required. The Trump administration is giving her
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  Speaker 2: three weeks to respond. Do you think that meets the
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  Speaker 2: procedural protections the Court envisioned?
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  Speaker 3: So?
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  Speaker 4: A cornerstone of due process under the Supreme Courts rulings
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  Speaker 4: for the past generation have been you have noticed an
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  Speaker 4: opportunity to be heard? The notice has to be apprise
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  Speaker 4: you of what the charges are against you. The opportunity
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  Speaker 4: to be heard can be very flexible, can be informal,
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  Speaker 4: and so I think in this respect, President Trump is
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  Speaker 4: following the marching orders from the court and giving an
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  Speaker 4: informal opportunity for Lisa Cook to respond to the charges
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  Speaker 4: fact she cooked up the books with respect to the mortgage.
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  Speaker 4: The real question, though, is what's going to happen afterward,
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  Speaker 4: because she is going to respond, and then he is
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  Speaker 4: extremely likely to ignore the responses and say that he
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  Speaker 4: has cause for her dismissal and then dismiss her. Obviously,
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  Speaker 4: the cople got a court, and the court has to
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  Speaker 4: make a decision as to whether to reinstate her pending
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  Speaker 4: a more complete trial on the merits. What does cause mean?
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  Speaker 4: Does cause equal the fact that this was a mortgage fraud?
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  Speaker 4: Or was it not a mortgage fraud? Sort of two
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  Speaker 4: issues there. You know, whether it cause can relate to
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  Speaker 4: something that's not related to conduct an office, and obviously
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  Speaker 4: the mortgage fraud was way before she became a reserve officer.
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  Speaker 4: And the other issue is, you know, was it fraud
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  Speaker 4: at all? And so I think that the real issue
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  Speaker 4: here is not this notice and opportunity to be heard.
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  Speaker 4: It's what's going to happen after Trump removes her. She's
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  Speaker 4: going to run to court, and the court's going to
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  Speaker 4: have to make a balance about likelihood of success on
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  Speaker 4: the merits, the awkwardness of trying to force a president
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  Speaker 4: to deal with an officer whom the president has tried
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  Speaker 4: to remove. And it's going to be a very close case.
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  Speaker 2: So Cook can only be dismissed for cause. But in
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  Speaker 2: his opinion, the Chief Justice didn't make clear what four
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  Speaker 2: cause actually is, but he said he thought the administration's
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  Speaker 2: definition was too lenient and the defense's definition was too stringent.
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  Speaker 4: I mean, first of all, there's factual disagreement as to
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  Speaker 4: whether what she did on her mortgage application constitutes fraud
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  Speaker 4: or nothing at all. Right, So that's one issue here.
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  Speaker 4: And then the question is, as you suggest, is how
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  Speaker 4: big of an error brought here to somebody being appointed
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  Speaker 4: equals cause? I mean, in my mind, I am somewhat
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  Speaker 4: apathetic to President Trump's position in the score. If someone
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  Speaker 4: committed a murder and then it becomes uncovered before they're
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  Speaker 4: in office, that might be reason to remove them. Or
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  Speaker 4: if somebody even commits some kind of serious financial fraud
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  Speaker 4: and is appointed to the FED. If that financial fought
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  Speaker 4: is uncovered later, that might be caused to remove somebody,
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  Speaker 4: because nobody's going to have faith in their sort of
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  Speaker 4: unbiased performance of the job. Here, it's more minor. It's
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  Speaker 4: well before she is appointed to the office, and so
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  Speaker 4: the courts now have this unturned waters of deciding whether
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  Speaker 4: that kind of allegation would be sufficient to equal cause
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  Speaker 4: for removal. And there's not a really good signpost in
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  Speaker 4: the Chief Justice's opinion. But again there's also a factial
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  Speaker 4: dispute is what she did fraud or not. There's a
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  Speaker 4: lot of allegations out there, doesn't mean that she did
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  Speaker 4: anything wrong whatsoever.
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  Speaker 2: The Justice Department was cent a referral for prosecution by
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  Speaker 2: Bill Poulty, who is then what the FAHFA director, and
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  Speaker 2: they opened a criminal investigation into whether she committed mortgage fraud,
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  Speaker 2: but they've never charged her with anything. Now, maybe Todd
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  Speaker 2: Blanche now as ag will please the President and charger,
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  Speaker 2: but where does it fit in that they haven't charged her.
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  Speaker 4: I don't think that's directly relevant here, because I think
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  Speaker 4: what the President would say is, we don't have to
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  Speaker 4: have a criminal investigation in order to equal cause. We
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  Speaker 4: just have to be able to be convinced that misconduct
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  Speaker 4: occurred which would impair her ability to effectively discharge the
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  Speaker 4: responsibilities of the office. You can decouple a criminal investigation
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  Speaker 4: or criminal charges with misconduct sufficient misconduct to constitute cause
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  Speaker 4: for so I think that the president is clear on
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  Speaker 4: that score. But again, there's a whole big factual dispute
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  Speaker 4: that courts would have to resolve whether what she did
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  Speaker 4: does constitute fraud, and second, whether the fraud is significant
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  Speaker 4: enough to constitute cause for her removal some five to
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  Speaker 4: ten years later from the office.
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  Speaker 1: Would she be entitled to a jury trial then on
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  Speaker 1: that We've.
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  Speaker 4: Never seen this happen before, so we don't know if
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  Speaker 4: there would be a jury trial. I don't think there
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  Speaker 4: would be a jury trial, but there would have to
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  Speaker 4: be a hearing and the court would have to get
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  Speaker 4: evidence and then make a decision again what factually happened,
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  Speaker 4: and whether that whatever happened factually, whether that constitutes cause
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  Speaker 4: for removal, and what the court has never held, whether
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  Speaker 4: you can have someone remain in office while these charges
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  Speaker 4: are being injudicated now her term, These are Cook's term
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  Speaker 4: goes I think twenty and thirty eight, so she could
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  Speaker 4: be reinstated even if there is a six month delay
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  Speaker 4: in a hearing. But on the other hand, will a
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  Speaker 4: court order that she remain in the office pending this hearing,
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  Speaker 4: whether the last six months, nine months, or is more expedited,
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  Speaker 4: So again uncharted waters. And it's sort of amazing that
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  Speaker 4: the president just kept his vendetta going because this is
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  Speaker 4: just going to be more anguish, more headlines, and it
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  Speaker 4: really doesn't put the president in a very powerful life
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  Speaker 4: what he wants to even escort.
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  Speaker 2: Well, she raised the allegation that this is a vindictive prosecution.
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  Speaker 2: They went after her, but also they tried to go
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  Speaker 2: after Jerome Powell. Janeine Piro, the US attorney, has said
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  Speaker 2: that's not dead, even though you know a judge wouldn't
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  Speaker 2: even give her a subpoena for what she wanted from Powell.
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  Speaker 4: Of her argument will be this is pretext, just as
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  Speaker 4: it was with Jerome Powell, and that will be factored in.
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  Speaker 4: But again, the first big legal question is will a
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  Speaker 4: court order that she remain in office pending this hearing?
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  Speaker 4: And that's something that's not a simple question because it
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  Speaker 4: is really sort of undermining the president's authority to govern
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  Speaker 4: by forcing somebody to remain in office that the president
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  Speaker 4: doesn't want in the office. So that's going to be
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  Speaker 4: part of the calculus that the court is going to
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  Speaker 4: have to grapple with in deciding whether or not she
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  Speaker 4: can stay in office before hearing all of these charges,
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  Speaker 4: including the vindictive prosecution charges, She's going to have a
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  Speaker 4: very good argument given what Polti has done in other contexts.
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  Speaker 2: I mean, is the President supposed to be working with
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  Speaker 2: the FED Board? Isn't the FED Board supposed to be independent?
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  Speaker 2: Is that the whole idea?
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  Speaker 4: What the FED Chair, as we know, does regulate banks too,
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  Speaker 4: and the President has the ability to call officers who
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  Speaker 4: are protected from that real removal and job on them
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  Speaker 4: and talk about regulation strategy, and so this would be
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  Speaker 4: appropriate for the President to do so for part of it.
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  Speaker 4: And you know, the question would be again whether the
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  Speaker 4: courts would say, because of this independence that the Supreme
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  Speaker 4: Court found with respect to the FED, it's sort of
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  Speaker 4: one off that whether it's too much of an intrusion
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  Speaker 4: into the president's power to order reinstatement. Pending the hearing,
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  Speaker 4: So we're going to see the reinstatement question, and then
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  Speaker 4: we're going to presumably have a hearing after the fact
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  Speaker 4: to determine when not whether again is a vindictive prosecution.
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  Speaker 4: Did she commit fraud? Does the fraud constitute cause free move?
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  Speaker 2: What do you think about the timing on this? It
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  Speaker 2: might go back up to the Supreme Court.
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  Speaker 4: It won't go directly pre course, there's going to be
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  Speaker 4: a hearing somewhere first. It could be expedited. It probably
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  Speaker 4: will be, but again is part of this. The courts
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  Speaker 4: are decide reinstatement or not, no matter whether it's an
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  Speaker 4: expired hearing of three weeks, three months, or two years.
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  Speaker 4: And again, her term doesn't end, so at a minimum,
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  Speaker 4: the president won't be able to appoint a successor while
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  Speaker 4: this is pending. But the questions whether she can serve
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  Speaker 4: until this is resolved. So the president is forcing once
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  Speaker 4: again new legal issues and very complicated in a short
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  Speaker 4: period of time, and it may well end up being
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  Speaker 4: resolved by the Supreme Court, which usually takes time.
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  Speaker 2: Thanks so much for joining me. How that's Professor Harold
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  Speaker 2: Krant of the Chicago Kent College of Law. Coming up
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  Speaker 2: next on the Bloomberg Laws Show will turn to immigration issues.
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  Speaker 2: The President is trying a new tact on birthright citizenship
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  Speaker 2: after the Supreme Court found his first executive order restricting
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  Speaker 2: birthright citizenship to be unconstitutional, and the Department of Homeland
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  Speaker 2: Security is hiring we are basically bounty hunters to track
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  Speaker 2: down immigrants who left the US. We'll tell you why.
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  Speaker 2: I'm June Grosso and you're listening to Bloomberg.
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  Speaker 5: But they've taken birthright citizenship and they've made a joke
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  Speaker 5: out of it, and we're actually the only country of size,
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  Speaker 5: I think, just about the only country period that does
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  Speaker 5: birthright citizenship. I thought we were to win it at
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  Speaker 5: the Supreme Court. Unfortunately we had a bad decision, very
• 10:53
  Speaker 5: unfair decision. Our country suffers because of it, and we're
• 10:57
  Speaker 5: ending in a different way.
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  Speaker 2: Actually, about three thirty five countries, including Canada, Mexico, and Argentina,
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  Speaker 2: do offer unconditional birthright citizenship. But birthright citizenship has become
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  Speaker 2: a key rallying point in President Trump's second term anti
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  Speaker 2: immigration agenda. The Supreme Court, in a six to three decision,
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  Speaker 2: found Trump's first executive order restricting birthright citizenship to be unconstitutional,
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  Speaker 2: but Trump is trying again, signing a pair of executive
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  Speaker 2: orders aimed at denying birthright citizenship to certain people born
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  Speaker 2: in the US. Joining me is Leon Fresco, a partner
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  Speaker 2: at Honda Knight. He was the head of the Office
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  Speaker 2: of Immigration Litigation during the Obama administration. Leon, let's start
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  Speaker 2: with a little review of what the Supreme Court decided
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  Speaker 2: about birthright citizenship in June.
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  Speaker 6: So the first executive order was in January twenty twenty five,
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  Speaker 6: which strike the bar citizenship for or the children of
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  Speaker 6: undocumented immigrants or those here temporarily. So it said, basically,
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  Speaker 6: one parent needed to have a Green card or a
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  Speaker 6: US citizenship, a passport, birth certificate, whatever to confer citizenship
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  Speaker 6: on a child born in the United States.
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  Speaker 3: And so the.
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  Speaker 6: Supreme Court took up this issue, and whether you want
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  Speaker 6: to say it was five four sixty three, however you
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  Speaker 6: want to say it, depending on how you calculated the
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  Speaker 6: votes and concurrences and everything else. Basically said this issue
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  Speaker 6: of birthright citizenship, and the executive order didn't just conflict
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  Speaker 6: with a nineteen fifty two statute, but actually conflicted with
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  Speaker 6: the US Constitution. That the Constitution says what it says,
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  Speaker 6: and no matter what intervening facts, you have. That meant
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  Speaker 6: that you couldn't take away birthright citizenship visa VI an
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  Speaker 6: executive order. You'd have to amend the Constitution to get
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  Speaker 6: rid of rights citizenship. And so they didn't accept the
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  Speaker 6: argument that people who were here illegally were not subject
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  Speaker 6: to the jurisdiction of the United States. That was the
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  Speaker 6: government's argument that you had to have some residency here
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  Speaker 6: in order to be subject to the jurisdiction of the
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  Speaker 6: United States.
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  Speaker 2: So what do these two orders do to get around
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  Speaker 2: the Supreme Court's decision.
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  Speaker 6: The Trump administration has been very upset about this. They're
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  Speaker 6: trying to figure out ways to continue on this issue
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  Speaker 6: of birthright citizenship. And so now they've tried to see, okay,
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  Speaker 6: can we issue an executive order that tries to fall
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  Speaker 6: within the court's recognized exceptions to birthrights citizenship. So, as
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  Speaker 6: an example, the number one exception is if you are
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  Speaker 6: the children of diplomats born in the United States, you
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  Speaker 6: are subject to the jurisdiction of the United States, because
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  Speaker 6: in that situation, those children have diplomatic community and so
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  Speaker 6: when they're born here, they're not citizens of the United States.
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  Speaker 6: So the Trump administrator is trying to figure out what
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  Speaker 6: kinds of people are analogous to children who are born
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  Speaker 6: to diplomats who are here in the United States.
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  Speaker 3: And so this is what they've come up with.
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  Speaker 6: Their new executive order says any children of ambassadors or
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  Speaker 6: any other embassy employees. But then they also have added
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  Speaker 6: employees of foreign governments present in any kind of official capacity.
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  Speaker 6: So sometimes you'll have like the Irish Tourism Bureau person
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  Speaker 6: who's here, and the point would be if that Irish
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  Speaker 6: Tourism Bureau person has a child while they're in the
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  Speaker 6: United States, they would say, no, that child that does
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  Speaker 6: not get birthrights citizenship. They've also added employees of international organization,
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  Speaker 6: so like the UN, the World Bank, the IMF, etc.
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  Speaker 6: That if any of those people have children who are
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  Speaker 6: born in the United States, they would not get birthrights citizenship.
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  Speaker 6: And then they've added individuals who are the children of
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  Speaker 6: alien enemies under federal law, and people who've engaged in
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  Speaker 6: birth tourism, and also children born in US territories or
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  Speaker 6: territorial waters where citizenship is not conferred by federal statutes.
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  Speaker 6: So that's what the executive order did. And so really
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  Speaker 6: this is going to be a little bit tougher because
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  Speaker 6: it's not so easy to find people with standing here
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  Speaker 6: and plaintiffs. So someone's gonna need to actually be in
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  Speaker 6: this group, and it's going to actually have to apply
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  Speaker 6: for a passport and is actually going to have to
• 15:34
  Speaker 6: be refused a passport in order to move forward.
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  Speaker 3: And file a lawsuit here. So this is not going
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  Speaker 3: to be so simple.
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  Speaker 6: And we'll try to see who would have said that
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  Speaker 6: they would have previously gotten citizenship under pre executive order
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  Speaker 6: types of interpretations of the law that now suddenly can't
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  Speaker 6: get a passport. And then then only then what we
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  Speaker 6: see if this news court decision actually applies to these
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  Speaker 6: individuals or not.
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  Speaker 1: Is this just for show?
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  Speaker 2: I mean, how many people would these new categories cover
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  Speaker 2: that aren't covered already.
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  Speaker 6: That's really what we're gonna have to figure out is
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  Speaker 6: I can't really tell how many people will fall within
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  Speaker 6: the end bit of this and how exactly these cases.
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  Speaker 3: Will make it to the court.
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  Speaker 6: Because yes, theoretically you could have some organization try to
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  Speaker 6: file the case, but if the organization can't identify specific
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  Speaker 6: people who are actually affected by this, I don't think
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  Speaker 6: it's going to be something that actually survives a standing claim.
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  Speaker 3: So you're going to need to find one or.
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  Speaker 6: Two people here who would say, look, I am now
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  Speaker 6: affected by this. I wasn't affected by this before, and
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  Speaker 6: I tried to apply for a passport and I didn't
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  Speaker 6: get it. And only then are we going to see
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  Speaker 6: the litigation. I mean, I'm sure people will try to
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  Speaker 6: file it before then, but at the end of the day,
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  Speaker 6: I think that this is going to be tougher here
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  Speaker 6: because we're gonna have to see now.
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  Speaker 3: On the birth tourism one, again, it's the same.
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  Speaker 6: Concept here where if the government actually tries to say, well,
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  Speaker 6: you came because of birth tourism, so we're not giving
• 17:14
  Speaker 6: you your passport, it's tough to say preemptively that you're
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  Speaker 6: covered under this because you wouldn't want to identify yourself
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  Speaker 6: as someone who was covered under this. So you're gonna
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  Speaker 6: have to wait till the government actually designates you as
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  Speaker 6: someone who was born under birth tourism, which is why
• 17:30
  Speaker 6: they think they're not going to give you a passport here.
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  Speaker 6: So again hard to tell, and we're just gonna have
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  Speaker 6: to wait and see for plaintiffs to actually emerge because
• 17:39
  Speaker 6: they're actually being denied you as passport.
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  Speaker 1: It's already visa fraud.
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  Speaker 2: Isn't it to travel under the guise of tourism while
• 17:47
  Speaker 2: you're actually intending to give birth, so the child automatically
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  Speaker 2: obtains citizenship.
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  Speaker 1: That's already visa fraud, isn't it.
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  Speaker 6: Well, so this is actually a very super complicated area.
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  Speaker 6: And you might say, well, why is that? And I'll
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  Speaker 6: give you the reasons for that. First, if you were
• 18:03
  Speaker 6: to go to an embassy and say, here's a doctor's
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  Speaker 6: letter from my doctor in X country that says that
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  Speaker 6: I have a rare disease that can't be treated in
• 18:15
  Speaker 6: in my country, and so the pregnancy is going to
• 18:18
  Speaker 6: kill me unless I get access to this and this,
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  Speaker 6: and I go to the US and you have all
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  Speaker 6: of that and they predisclosed that and they let you
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  Speaker 6: in the country, they give you the visa, et cetera.
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  Speaker 6: Then that's birth tourism in a way. But that's allowed,
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  Speaker 6: and people do that all the time. People come to
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  Speaker 6: the US for high risk pregnancies who have money to
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  Speaker 6: do this and they get birth here, and so that's
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  Speaker 6: not considered birth tourism. So then the question is, well,
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  Speaker 6: then what is considered birth tourism? And so that would
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  Speaker 6: be where you've actually made a misrepresentation. So either when
• 18:50
  Speaker 6: you applied for a visa at the embassy, you knew
• 18:53
  Speaker 6: you were pregnant and you didn't disclose this you and
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  Speaker 6: you were coming for the purpose.
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  Speaker 3: Of having that child in the United.
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  Speaker 6: States States, or you already had let's say a ten
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  Speaker 6: year visa, so there was nothing to disclose to anybody
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  Speaker 6: at the embassy. But the point is you said you
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  Speaker 6: were visiting the US when you got here to the airport,
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  Speaker 6: and then you ended up having a child here for
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  Speaker 6: the purposes of giving that child US citizenship. And so
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  Speaker 6: the question is that's going to be the more likely
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  Speaker 6: scenario of where they're going to say that the birth
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  Speaker 6: tourism took place, is that someone wasn't pregnant at the
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  Speaker 6: time they got their visa, but they entered when they
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  Speaker 6: were pregnant much later, and at that time gave birth
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  Speaker 6: maybe one month or two month later or something like that.
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  Speaker 6: But that's going to be very tricky to show there
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  Speaker 6: was a misrepresentation there versus that something else happened and
• 19:50
  Speaker 6: that there was an emergency which required the parent not
• 19:53
  Speaker 6: to travel. And so all of these will actually get
• 19:56
  Speaker 6: caught up in what are called i would say fact
• 19:59
  Speaker 6: specific contextual litigation, and so.
• 20:02
  Speaker 3: None of this is very easy to determine.
• 20:04
  Speaker 6: But yes, and you can show that you actually made
• 20:07
  Speaker 6: a misrepresentation, that would.
• 20:08
  Speaker 3: Be visa fraud.
• 20:09
  Speaker 2: The State Department sat today in announcing all the visas
• 20:12
  Speaker 2: they've revoked. A US embassy in North Africa revoked over
• 20:16
  Speaker 2: one hundred visas for birth tourist parents who came to
• 20:20
  Speaker 2: the US primarily to give birth so their children would
• 20:23
  Speaker 2: get US citizenship.
• 20:25
  Speaker 6: The problem is the only way to really figure that out,
• 20:29
  Speaker 6: because you might start with a presumption, okay, how many
• 20:31
  Speaker 6: people arrived on a visitor visa, and then when they
• 20:36
  Speaker 6: arrived on a visitor visa gave birth less than ninety
• 20:39
  Speaker 6: days after they arrived on a visitor visa, and then
• 20:43
  Speaker 6: from that they would presume that that was a lie
• 20:45
  Speaker 6: and that was meant to be birth tourism. But the
• 20:47
  Speaker 6: question is are there any other extenuating circumstances in any
• 20:51
  Speaker 6: of those cases. But that's what they're currently doing, is
• 20:54
  Speaker 6: they're applying this presumption that anyone who gave birth less
• 20:58
  Speaker 6: than ninety days after they arrived in the United States
• 21:01
  Speaker 6: on a tourist visa was necessarily lying and coming for
• 21:05
  Speaker 6: birth tourism reason, and Leon, I mean.
• 21:07
  Speaker 1: Is this order retroactive.
• 21:09
  Speaker 6: So summar what's not clear is it doesn't say like
• 21:12
  Speaker 6: in the Birthright Citizenship original January twenty twenty five executive Order,
• 21:17
  Speaker 6: it said this is going to apply prospectively. This one
• 21:21
  Speaker 6: doesn't say it's going to apply prospectively. So the point is,
• 21:25
  Speaker 6: theoretically speaking, that they might when anybody comes and applies
• 21:31
  Speaker 6: for a passport, not give them said passport on the
• 21:35
  Speaker 6: grounds that they violated this executive order and then try
• 21:38
  Speaker 6: to force that issue into litigation.
• 21:40
  Speaker 2: Stay with me, Leon. Coming up next on the Bloomberg
• 21:43
  Speaker 2: Lawn Show, we'll talk about the Trump administration hiring bounty hunters.
• 21:50
  Speaker 2: The Department of Homeland Security is basically hiring bounty hunters
• 21:55
  Speaker 2: to track down immigrants who've been deported and are now
• 21:59
  Speaker 2: living in next Guatemala and Honduras. The program is called
• 22:03
  Speaker 2: the Tracing and Payment Recovery Services Program, with a cost
• 22:08
  Speaker 2: capped at nine million dollars over the next two years.
• 22:12
  Speaker 2: DHS is hiring private investigators to track down deported immigrants
• 22:17
  Speaker 2: who owe the government civil immigration fines, but their payment
• 22:22
  Speaker 2: doesn't depend on any money actually being recovered. I've been
• 22:26
  Speaker 2: talking to immigration law expertly on Fresco of Holland and
• 22:29
  Speaker 2: night Lee on. The investigators have to take photos of
• 22:33
  Speaker 2: homes or get other records like utility bills to document
• 22:38
  Speaker 2: where the deportee is living and deliver penalty notices to them,
• 22:43
  Speaker 2: but they don't have to recover any money. So what's
• 22:46
  Speaker 2: the point start by telling us about these fines.
• 22:50
  Speaker 6: There's a statue which says if you're here illegally, you
• 22:53
  Speaker 6: owe nine hundred and ninety eight dollars a day for
• 22:55
  Speaker 6: every day you're here illegally. And so some individuals have
• 22:58
  Speaker 6: been given fine of up to one point eight million dollars,
• 23:02
  Speaker 6: which is the most you can give because it only
• 23:04
  Speaker 6: has a five year statute of limitations. And so there's
• 23:07
  Speaker 6: been one hundred and three thousand total fines totaling approximately
• 23:11
  Speaker 6: eighty four billion dollars. And so now, yes, the Department
• 23:15
  Speaker 6: of Homeland Security is hiring these private companies to track
• 23:18
  Speaker 6: down immigrants in Mexico, Guatemala and Honduras to pay the
• 23:23
  Speaker 6: fines that they didn't pay even though they left. So
• 23:25
  Speaker 6: originally we were being told that the fines were to
• 23:27
  Speaker 6: make people leave. Now when the people are leaving, they're
• 23:30
  Speaker 6: still saying, well, you owe the fines.
• 23:32
  Speaker 3: And I think the reason for this.
• 23:34
  Speaker 6: Is probably not meant to collect the fine so much.
• 23:37
  Speaker 6: There were a lot of people who if they left,
• 23:40
  Speaker 6: they were being told if you leave, you could come
• 23:42
  Speaker 6: back and reapply and come into the US. That's literally
• 23:45
  Speaker 6: one of the deals that you used to hear this
• 23:48
  Speaker 6: administration say. Well, now they're saying no, no, no, you
• 23:51
  Speaker 6: can't come in until you pay these fines. So the
• 23:54
  Speaker 6: fines are being used as a basis to not let
• 23:57
  Speaker 6: people in fact come back in. And so that's why
• 24:01
  Speaker 6: I think you're seeing an insistence that you pay these
• 24:03
  Speaker 6: fines before you actually will be allowed back into the
• 24:08
  Speaker 6: United States. That's trying to create more of a permanence
• 24:11
  Speaker 6: to the ban of people who voluntarily leave the United States,
• 24:14
  Speaker 6: which is they were being asked to leave.
• 24:17
  Speaker 3: You would think you would.
• 24:17
  Speaker 6: Want to reward them leaving, but now they're being told, no,
• 24:20
  Speaker 6: you actually have to leave and now pay these fines.
• 24:23
  Speaker 2: Yeah, and so the program is set at nine million
• 24:28
  Speaker 2: dollars over the next two years. They're going to pay
• 24:31
  Speaker 2: these private investigators or bounty hunters to find people and
• 24:35
  Speaker 2: serve them with notices and get no money back for
• 24:38
  Speaker 2: a cost of nine million dollars.
• 24:40
  Speaker 1: It seems it seems obscure.
• 24:42
  Speaker 6: It does seem like one would want to take a
• 24:45
  Speaker 6: bet on the underside. Is over or under nine million
• 24:49
  Speaker 6: going to be collected from this grouper.
• 24:51
  Speaker 1: I'll go for under a Yeah, if.
• 24:53
  Speaker 6: One was that a casino, I might advise that person
• 24:56
  Speaker 6: to bet under. But nevertheless, we we shall see. Anything
• 25:01
  Speaker 6: could happen.
• 25:01
  Speaker 3: Now.
• 25:02
  Speaker 6: There may be enough people that want and need to
• 25:05
  Speaker 6: come back to the US that do pay the fines.
• 25:08
  Speaker 6: But the question is, did you need a private company
• 25:10
  Speaker 6: to do that or did that already happen because they
• 25:13
  Speaker 6: went to an embassy and we're told you have to
• 25:15
  Speaker 6: pay this fine in order to get the visa. So
• 25:17
  Speaker 6: I don't know how many people who don't want to
• 25:20
  Speaker 6: come back and who are yet tracked down by the
• 25:24
  Speaker 6: private contractor will actually only pay their fine because they
• 25:28
  Speaker 6: were tracked down by the private contractor. That to me
• 25:32
  Speaker 6: seems very unlikely that they make back their nine million,
• 25:35
  Speaker 6: But we'll have to wait and see.
• 25:36
  Speaker 2: They're using this already inside the United States right ICE
• 25:40
  Speaker 2: has awarded these skip tracing contracts.
• 25:44
  Speaker 6: Well, yes, and inside the United States it's different because
• 25:47
  Speaker 6: there's people who have assets here that you can theoretically confiscate.
• 25:52
  Speaker 6: But once someone's left the United States, then the question
• 25:55
  Speaker 6: is what can be done. It's very unlikely that another
• 25:58
  Speaker 6: country will co operate with US ICE orders telling them
• 26:03
  Speaker 6: to confiscate some property in a foreign country in order
• 26:05
  Speaker 6: to pay.
• 26:06
  Speaker 3: Fines in the United States.
• 26:07
  Speaker 6: We will have to see if any country actually would
• 26:10
  Speaker 6: willingly acquiesce to such an attempt.
• 26:14
  Speaker 2: You mentioned eighty four billion in fines. The Legal Aid
• 26:17
  Speaker 2: Society is suing over that, right.
• 26:20
  Speaker 6: Yes, correct, there's a lawsuit over this. There's a lot
• 26:22
  Speaker 6: of congressional oversight about this. You have Senator Dervin and
• 26:27
  Speaker 6: Senator Padilla saying that this shouldn't be the case and
• 26:30
  Speaker 6: trying to get the administration to roll this back. So
• 26:34
  Speaker 6: we'll see if anything happens. I mean the fines are
• 26:37
  Speaker 6: congressionally imposed, meaning the Congress has authorized the fines. I've
• 26:41
  Speaker 6: actually in cases where some of these fines have been
• 26:44
  Speaker 6: brought to my attention, I've actually been very successful in
• 26:47
  Speaker 6: getting the fines revoked when you can explain to the administration.
• 26:52
  Speaker 6: So most of these fines that are not being revoked,
• 26:54
  Speaker 6: it's because people haven't actually tried to revote them, So
• 26:58
  Speaker 6: it does become tough to make an argument as to
• 27:01
  Speaker 6: whether these fine should be revoked. I don't see long
• 27:04
  Speaker 6: term the Supreme Court saying that the fine should be revoked.
• 27:08
  Speaker 6: But what probably will happen is that at some point
• 27:11
  Speaker 6: in the next five, ten, twenty years, whenever, there will
• 27:14
  Speaker 6: be an administration who forgives these finds. I'd imagine, but
• 27:17
  Speaker 6: we'll have to wait and see.
• 27:19
  Speaker 2: Yeah, Because what Durbin and Padilla said when they complained
• 27:24
  Speaker 2: about this to Homeland Security Secretary Mark Wayne Mullen and
• 27:28
  Speaker 2: Todd Blanche in a letter, it said that the Trump
• 27:31
  Speaker 2: administration has carried out a vindictive mass deportation campaign, which
• 27:36
  Speaker 2: has included slapping arbitrary and potentially unlawful finds on dreamers,
• 27:42
  Speaker 2: survivors of domestic violence, and Green card applicants.
• 27:46
  Speaker 1: So they're saying that those are people who are here legally.
• 27:50
  Speaker 3: Yes, I mean, I've seen that happen.
• 27:52
  Speaker 6: I've seen people in those situations get fines, but when
• 27:56
  Speaker 6: they've been my clients, I've gotten those fines reversed.
• 28:00
  Speaker 3: So the question is, you know.
• 28:01
  Speaker 6: Are people actually providing this information to Ice to reverse
• 28:05
  Speaker 6: the fines. So it is unfair to say that you
• 28:08
  Speaker 6: can't get them reversed. But it's also unfair for people
• 28:11
  Speaker 6: who don't have the means to hire a lawyer and
• 28:13
  Speaker 6: don't speak English, et cetera. They're getting up potentially an
• 28:17
  Speaker 6: illegal find imposed that if they had been able to
• 28:20
  Speaker 6: speak English and respond to the government, they would have
• 28:22
  Speaker 6: been able to explain, ay, I shouldn't be fined I
• 28:25
  Speaker 6: have one of these three situations that was discussed in
• 28:28
  Speaker 6: the Padia Urban Letter. And so that's the problem here.
• 28:32
  Speaker 2: Let's turn out to the Department of Homelands Securities proposal
• 28:36
  Speaker 2: to get rid of the sixty day period, the sixty
• 28:40
  Speaker 2: day window that H one B workers have to find
• 28:43
  Speaker 2: new employment after they lose a job.
• 28:46
  Speaker 6: This is a potential, very huge story that very few
• 28:50
  Speaker 6: people who are not technocrats are talking about. But if
• 28:53
  Speaker 6: this actually gets implemented, it is a dramatically important story.
• 28:57
  Speaker 6: And why is that There's about a million people here
• 29:00
  Speaker 6: in the United States who have what's called H one
• 29:03
  Speaker 6: B status, meaning they're here on a visa where they
• 29:07
  Speaker 6: have a degree from a university and they're in a
• 29:10
  Speaker 6: specialty occupation that requires that specific degree, So doctors, lawyers, engineers,
• 29:15
  Speaker 6: et cetera. And the problem is they're waiting in a
• 29:17
  Speaker 6: green card line that is potentially you know, ten to
• 29:22
  Speaker 6: one hundred years long, depending on what country you're from.
• 29:25
  Speaker 6: And so for the people who are in this hundred
• 29:28
  Speaker 6: year line because they're from India, because what happens is
• 29:31
  Speaker 6: you're only allowed to give a seven percent of any
• 29:34
  Speaker 6: year's green card allocation to one country, So Indians have
• 29:38
  Speaker 6: a much longer line than people from other countries. So
• 29:41
  Speaker 6: what happens is with people who are from India or
• 29:45
  Speaker 6: from China or from some other places, if they get
• 29:49
  Speaker 6: terminated or you know, they get sick, they get a
• 29:51
  Speaker 6: kidney disease, they get something where they have to leave work,
• 29:55
  Speaker 6: they're allowed currently to have a sixty day grace period
• 29:58
  Speaker 6: where they can figure out, okay, let me find another
• 30:00
  Speaker 6: their employer, let me do something, and they can stay.
• 30:03
  Speaker 6: What this proposal would do, if it's finalized, is it
• 30:06
  Speaker 6: would say, on day one of your unemployment, you're here illegally,
• 30:11
  Speaker 6: meaning what you would have to do is leave the
• 30:14
  Speaker 6: country and then apply for a new H one B
• 30:18
  Speaker 6: and then come back. And you might say, well, why
• 30:20
  Speaker 6: does that matter. That doesn't sound like a big deal. Well,
• 30:23
  Speaker 6: first of all, the administration is currently trying to say
• 30:26
  Speaker 6: that if you do that, the employer is going to
• 30:28
  Speaker 6: have to pay one hundred thousand dollars for you, which
• 30:31
  Speaker 6: they won't do.
• 30:32
  Speaker 3: Now that's under litigation, and we're.
• 30:33
  Speaker 6: Gonna have to see if that one hundred thousand dollars
• 30:35
  Speaker 6: fee is legal or not. But if that one hundred
• 30:38
  Speaker 6: thousand dollars fee is ends up being held as legal,
• 30:42
  Speaker 6: then it's basically a death sentence for anyone who loses
• 30:46
  Speaker 6: their job for even one day or get sick or whatever.
• 30:50
  Speaker 6: So all of those million people could very slowly by attrition,
• 30:54
  Speaker 6: end up most of them, half of them, some very large,
• 30:57
  Speaker 6: some of them getting the poor instead of being able
• 31:01
  Speaker 6: to stay in the United States. It would be one
• 31:04
  Speaker 6: of the largest mass deportation changes that's ever been done.
• 31:08
  Speaker 6: And you might say, well, why wouldn't those people just stay.
• 31:11
  Speaker 6: This population does not stay. This population is actually very
• 31:14
  Speaker 6: compliant with the law because these are people with degrees
• 31:17
  Speaker 6: who don't want to be in a legal status for
• 31:20
  Speaker 6: even one day. So if you tell them that they're
• 31:23
  Speaker 6: going to be an illegal status for even one day,
• 31:26
  Speaker 6: they will leave. And there's been people who've been saying
• 31:30
  Speaker 6: deport all these h to one b people well, that
• 31:32
  Speaker 6: could happen, but that will end up including a lot
• 31:35
  Speaker 6: of rural doctors, a lot of researchers, and a lot
• 31:39
  Speaker 6: of other people that the United States didn't want to deport,
• 31:42
  Speaker 6: but maybe they got sick, maybe something happened, and now
• 31:46
  Speaker 6: they end up getting deported.
• 31:48
  Speaker 2: And that's just a proposed order. It has to go
• 31:50
  Speaker 2: through comment and right.
• 31:52
  Speaker 6: It would have to go through notice and comment, and
• 31:54
  Speaker 6: maybe some people would sue, but honestly, there's probably not
• 31:58
  Speaker 6: a lawsuit you could file. Blessed the court wanted to
• 32:01
  Speaker 6: just feel bad and say it was arbitrary and capricious.
• 32:05
  Speaker 6: They're allowed to change the grace period. The great period
• 32:07
  Speaker 6: was added by regulation. It could certainly be removed by regulation,
• 32:12
  Speaker 6: but it would just be an incredibly harsh thing. And
• 32:15
  Speaker 6: what would probably end up happening is that employers would
• 32:18
  Speaker 6: end up trying to figure out ways not to terminate
• 32:22
  Speaker 6: people because the employers don't want to end up becoming ice.
• 32:25
  Speaker 6: But that's what's going to end up happening. So the
• 32:27
  Speaker 6: employers will end up not terminating people that they would
• 32:31
  Speaker 6: have otherwise wanted to terminate because they realized that that
• 32:35
  Speaker 6: termination is basically the end that it's not just a termination,
• 32:38
  Speaker 6: it's an immediate deportation order, and so that creates a
• 32:42
  Speaker 6: huge problem for employers.
• 32:44
  Speaker 2: Finally, leon temporary protected status. Since the Supreme Court said
• 32:49
  Speaker 2: that the administration has the right to end temporary protected status,
• 32:55
  Speaker 2: there have been some novel arguments made in federal courts
• 32:59
  Speaker 2: to try to preserve GPS, but they all seem to
• 33:03
  Speaker 2: have failed.
• 33:04
  Speaker 6: People are really grasping at this point at any straw
• 33:07
  Speaker 6: they can to try to get TPS to remain for
• 33:10
  Speaker 6: different countries. But at this point all of these claims
• 33:13
  Speaker 6: are now losing. So it's not really productive to start
• 33:18
  Speaker 6: analyzing these claims because the Supreme Court has already said, Look,
• 33:21
  Speaker 6: if a president can invoke TPS, a president can revoke TPS,
• 33:26
  Speaker 6: and it's not reviewable, and so long term, maybe people
• 33:30
  Speaker 6: will live to fight a day or two here or there,
• 33:33
  Speaker 6: but the tps are going to be all revoked, probably
• 33:38
  Speaker 6: in the next thirty days, if not already. Some many
• 33:40
  Speaker 6: of them have already been revoked, and the question is
• 33:43
  Speaker 6: going to be now one and for that large group
• 33:47
  Speaker 6: of people who had TPS, what you're going to start
• 33:49
  Speaker 6: seeing is some of the scenes you're starting to see
• 33:52
  Speaker 6: now where Haitians are going into ice check ins and
• 33:55
  Speaker 6: they're being given ankle bracelets, or they're being detained and
• 34:00
  Speaker 6: the beginning of removal proceedings are happening for these individuals.
• 34:04
  Speaker 2: Thanks so much, Leon, always a lot of immigration issues
• 34:07
  Speaker 2: in the courts. That's Leon Fresco of Honda Knight. And
• 34:11
  Speaker 2: that's it for this edition of The Bloomberg Law Show.
• 34:14
  Speaker 2: Remember you can always get the latest legal news on
• 34:16
  Speaker 2: our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify,
• 34:21
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• 34:26
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• 34:29
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• 34:33
  Speaker 2: and you're listening to Bloomberg