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Trump Administration Wants to Turn Away Asylum Seekers · Bloomberg Law

• 0:02
  Speaker 1: This is Bloomberg Law with June Grosso from Bloomberg Radio.
• 0:09
  Speaker 2: Can the Trump administration turn away asylum seekers at the
• 0:13
  Speaker 2: US Mexico border. Federal law says that any non citizen
• 0:18
  Speaker 2: who quote arrives in the United States can apply for asylum.
• 0:23
  Speaker 2: So the answer turns on what it means to arrive
• 0:26
  Speaker 2: in the United States, and most of the oral arguments
• 0:30
  Speaker 2: at the Supreme Court today revolved around the interpretation of
• 0:34
  Speaker 2: those words. The government's attorney, the Vek Suri, said, a
• 0:38
  Speaker 2: person has to have crossed the border in order to
• 0:42
  Speaker 2: arrive in the United States.
• 0:44
  Speaker 3: You can't arrive in the United States while you're still
• 0:47
  Speaker 3: standing in Mexico.
• 0:48
  Speaker 4: That should be the end of this case.
• 0:50
  Speaker 2: But liberal Justice Katanji Brown Jackson challenged that interpretation.
• 0:56
  Speaker 5: Imagine a person who has a placard on their body
• 0:59
  Speaker 5: as they approach the border that says, you know, I
• 1:03
  Speaker 5: would like intrigue. I'm being persecuted in Mexico. Your suggestion
• 1:08
  Speaker 5: that the United States would say, unless you can figure
• 1:11
  Speaker 5: out a way to illegally cross, we're not going to
• 1:13
  Speaker 5: entertain that claim seems very peculiar.
• 1:17
  Speaker 2: And the attorney arguing on behalf of asylum seekers Kelsey
• 1:21
  Speaker 2: Cochrane said, arriving in the United States simply meant making
• 1:25
  Speaker 2: it to a port of entry until a change in
• 1:28
  Speaker 2: policy ten years ago.
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  Speaker 6: From nineteen seventeen to twenty sixteen, ninety nine years there
• 1:35
  Speaker 6: was not a single example of a turnback. So what
• 1:37
  Speaker 6: was happening is people would come through the port at
• 1:40
  Speaker 6: that point. When they were in the port, they would
• 1:42
  Speaker 6: be inspected and processing. What happened, So it's an unusual
• 1:45
  Speaker 6: scenario we have here where we have the officers standing
• 1:47
  Speaker 6: there and turning people back.
• 1:49
  Speaker 2: The justices pressed her with questions about whether an asylum
• 1:53
  Speaker 2: seeker had arrived in the United States if they reached
• 1:56
  Speaker 2: the border wall or made it almost halfway through the
• 1:59
  Speaker 2: Rio grand or cross the Rio Grande, or we're first
• 2:03
  Speaker 2: in the line waiting to enter a port of entry
• 2:06
  Speaker 2: or second in the line. Here are justice is Amy
• 2:09
  Speaker 2: Cony Barrett and Neil Gorsuch.
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  Speaker 7: How do you know under your theory when the person
• 2:14
  Speaker 7: is close enough that we could say they have arrived
• 2:17
  Speaker 7: in or arrived in the destination. I mean, what if
• 2:20
  Speaker 7: there's a queue and they're far back, or what if
• 2:22
  Speaker 7: they arrive not at a port of entry. How close
• 2:25
  Speaker 7: do you have to be to the border. Could you
• 2:27
  Speaker 7: say that someone arrives in the United States if they're
• 2:29
  Speaker 7: at a portion of the border that does not have
• 2:31
  Speaker 7: a port of entry, Like, what is it if it's
• 2:33
  Speaker 7: not crossing the physical border? What is the magic thing
• 2:38
  Speaker 7: or the dispositive thing that we're looking for where we say, ah,
• 2:40
  Speaker 7: Now that person we can say arrives in the United States.
• 2:44
  Speaker 3: Now, how come somebody who's in the line isn't in.
• 2:47
  Speaker 3: I mean, if the whole point is to make sure
• 2:49
  Speaker 3: that people are attempting to get into the country have
• 2:54
  Speaker 3: the opportunity to file asylum claims, and they've made it
• 2:58
  Speaker 3: all the way, why doesn't matter he's second in line.
• 3:02
  Speaker 2: The High Court's answers could reshape the government's asylum policy.
• 3:07
  Speaker 2: Joining me is an expert immigration law. Leon Fresco, a
• 3:10
  Speaker 2: partner at Honden Knight Leon tell us about the issue
• 3:13
  Speaker 2: in this case about asylum.
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  Speaker 1: So, in this case, which is called known versus alot Lado,
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  Speaker 1: the issue is whether a non citizen who has stopped
• 3:23
  Speaker 1: on the Mexican side of the US Mexican border are
• 3:27
  Speaker 1: they considered someone under the statute who arrived in the
• 3:30
  Speaker 1: United States for the purposes of being allowed to get
• 3:34
  Speaker 1: asylum processing under the immigration laws. So here's how this works.
• 3:39
  Speaker 1: So there's two kinds of people who tried to apply
• 3:42
  Speaker 1: for asylum. There's the people who tried to sneak across
• 3:45
  Speaker 1: the border, and so for those people, traditionally, for the
• 3:50
  Speaker 1: last thirty forty years or so, there was this understanding
• 3:55
  Speaker 1: that yes, once you got across the border, you could
• 3:58
  Speaker 1: make a claim for asylum. Now there's a separate case
• 4:01
  Speaker 1: and a separate issue involved with President Trump basically using
• 4:04
  Speaker 1: the travel ban authority to say no, if you cross
• 4:07
  Speaker 1: the border, you can't get asylum.
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  Speaker 4: But that's not an issue in this case.
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  Speaker 1: This case is about whenever you ask people what you're
• 4:17
  Speaker 1: supposed to do when you really want asylum, the issue
• 4:21
  Speaker 1: is they say, well, go to a port of entry
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  Speaker 1: and present yourself as a proper person.
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  Speaker 4: Don't create chaos and all kinds.
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  Speaker 1: Of confusion by running across the border. Go to a
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  Speaker 1: port of entry. So what happens is you go to
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  Speaker 1: a port of entry, if the government refuses to ever
• 4:38
  Speaker 1: see you, it just keeps you on the Mexican side,
• 4:41
  Speaker 1: which is what's currently happening. Then you never get to
• 4:44
  Speaker 1: apply for asylum either. So the question that this case
• 4:48
  Speaker 1: tries to deal with is what happens to those individuals
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  Speaker 1: who clearly presented themselves and said I want asylum, but
• 4:57
  Speaker 1: their human body is on the Mexican side of the
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  Speaker 1: b order. Does the US government have an obligation to
• 5:03
  Speaker 1: still process these individuals for asylum?
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  Speaker 4: That's the question.
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  Speaker 1: And the Trump administration says no, if your body's on
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  Speaker 1: the Mexican side of the border, you don't get to
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  Speaker 1: apply for asylum. And the litigants who were from this
• 5:16
  Speaker 1: organization called Al Ultra Lado said no, that's not correct,
• 5:21
  Speaker 1: and the Ninth Circuit said the same thing, that once
• 5:23
  Speaker 1: you've presented yourself for asylum, you've done what's needed. It's
• 5:28
  Speaker 1: not really mattering if your body is a few feet
• 5:31
  Speaker 1: away from the US territorial border.
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  Speaker 2: Explain the questions over the interpretation of the phrase arrives
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  Speaker 2: in the United States.
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  Speaker 1: So the asylum statute uses the quote arrives in or
• 5:47
  Speaker 1: is quote physically present in the United States. So if
• 5:51
  Speaker 1: you were just to do again an artificial intelligence or
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  Speaker 1: a dictionary or something like that, then that would be
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  Speaker 1: the end of this, because then that would mean if
• 6:02
  Speaker 1: you arrived in, your body would have to be inside
• 6:04
  Speaker 1: the United States, or if you were physically president of
• 6:06
  Speaker 1: the United States, that would mean your body would have
• 6:09
  Speaker 1: to be inside the United States. But then there's a
• 6:11
  Speaker 1: separate concept in the immigration law called an arriving alien.
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  Speaker 1: And the idea is, if you are an arriving alien
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  Speaker 1: and you're apprehended or somehow in the custody of the
• 6:23
  Speaker 1: government or even the situational awareness of the government that
• 6:28
  Speaker 1: you are an arriving alien, you're someone who can apply
• 6:30
  Speaker 1: for asylum. Yes, you're kept in detention during this time,
• 6:34
  Speaker 1: but you can apply for asylum. The law actually uses
• 6:37
  Speaker 1: this word arriving alien. So the question is, why would
• 6:41
  Speaker 1: the law use the term arriving alien if that didn't
• 6:46
  Speaker 1: mean anything, if the sort of process of arriving didn't
• 6:51
  Speaker 1: shield you in some way from being able to get asylum,
• 6:55
  Speaker 1: if the government knew about you and apprehended you in
• 6:58
  Speaker 1: some way, whether the apprehension was inside the United States
• 7:02
  Speaker 1: or to prevent you from coming inside of the United States.
• 7:06
  Speaker 1: And so that's the sort of debate or dispute here
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  Speaker 1: is once the government knows about you and is doing
• 7:12
  Speaker 1: something to stop you, then that should be the end
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  Speaker 1: of it in terms of what the plaintiffs, the immigrants
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  Speaker 1: rights groups think they think, hey, that's the answer here.
• 7:22
  Speaker 1: You are an arriving alien, you've been apprehended, you should
• 7:25
  Speaker 1: now get to apply for asylum. And the government says, yeah,
• 7:28
  Speaker 1: but that's not how that works. The arriving alien is
• 7:31
  Speaker 1: sort of for the apprehension of the person and then
• 7:35
  Speaker 1: the deportation of the person and the detention. But the
• 7:38
  Speaker 1: actual act of applying for asylum requires an actual arrival
• 7:43
  Speaker 1: and requires physical presence in the United States. And so
• 7:47
  Speaker 1: I do think that because much of this court is textualists.
• 7:51
  Speaker 1: So you have three very strong textualists on the court,
• 7:54
  Speaker 1: but then you also have people who are asking practical
• 7:57
  Speaker 1: questions amongst the conservative justices that I think out of
• 8:01
  Speaker 1: the six conservative justices, you're probably likely to find at
• 8:05
  Speaker 1: least five votes probably for the government's argument that in
• 8:11
  Speaker 1: order to be eligible for asylum, your human body actually
• 8:15
  Speaker 1: has to be inside the United States.
• 8:18
  Speaker 4: Now, they may say.
• 8:19
  Speaker 1: Look, this is very cruel that the administration can just
• 8:23
  Speaker 1: keep people out from the ports of entry when they're saying,
• 8:26
  Speaker 1: go to the ports of entry.
• 8:28
  Speaker 4: This has to be your solution. But they may say that's.
• 8:31
  Speaker 1: Something for the Congress to have to adjudicate in terms
• 8:35
  Speaker 1: of passing a bill that lets a certain amount of
• 8:38
  Speaker 1: people get screened each day, or does something else, but
• 8:43
  Speaker 1: it's not an issue for the courts to decide. I
• 8:45
  Speaker 1: think that's where this is likely going, but we'll have
• 8:48
  Speaker 1: to wait and see.
• 8:49
  Speaker 2: The Justice has posed all these hypotheticals to determine what
• 8:53
  Speaker 2: point an asylum seeker had to have reached in order
• 8:57
  Speaker 2: to be considered to have arrived in the United States.
• 9:01
  Speaker 2: So was it enough if they reached the border wall
• 9:04
  Speaker 2: or made it almost halfway through the Rio Grande, or
• 9:08
  Speaker 2: cross the Rio grand or suppose they were first in
• 9:11
  Speaker 2: line waiting to enter a port of entry, or suppose
• 9:14
  Speaker 2: they were last in line. So is the court going
• 9:17
  Speaker 2: to come down with a decision that says, Okay, here's
• 9:21
  Speaker 2: the point where you arrive and can ask for asylum.
• 9:24
  Speaker 4: That's correct. I mean.
• 9:25
  Speaker 1: The problem is it's very hard to draw a bright
• 9:27
  Speaker 1: line rule. The easiest bright line rule to draw, which
• 9:31
  Speaker 1: is why I think this is going to be appealing
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  Speaker 1: to the conservative justices, is that your body is inside
• 9:36
  Speaker 1: the United States. Once you draw the line at something else,
• 9:41
  Speaker 1: then the question is where do you draw that line?
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  Speaker 1: And this is why they talked a lot about the
• 9:46
  Speaker 1: Haitian interdiction cases where Haitians were interdicted at sea, and
• 9:52
  Speaker 1: the question was did those cases require asylum and they
• 9:56
  Speaker 1: did not. Those were considered extra territorial case and that
• 10:00
  Speaker 1: the asylum laws didn't apply to the Haitians that were
• 10:04
  Speaker 1: intredicted at sea. And so the idea is, where do
• 10:08
  Speaker 1: you draw this line if it's hard to sort of
• 10:12
  Speaker 1: say if the government is aware of you, because the
• 10:14
  Speaker 1: government can be aware of you in many different ways
• 10:17
  Speaker 1: through satellite, through drones, through some other thing. If you're
• 10:21
  Speaker 1: in Mexico and you're being stopped from coming in, that
• 10:24
  Speaker 1: doesn't mean you're in custody. You're free to leave. You
• 10:27
  Speaker 1: could go anywhere else. And so I don't know how
• 10:32
  Speaker 1: you would draw this line. But what's going to be
• 10:34
  Speaker 1: interesting is I do think, assuming that the immigrants' rights
• 10:38
  Speaker 1: groups lose here on that basis, that it's sort of
• 10:42
  Speaker 1: hard to draw a line. And so we might as
• 10:43
  Speaker 1: well read the statute the way it says, which is
• 10:46
  Speaker 1: arrives and that your body has to be in the US.
• 10:49
  Speaker 1: There's still going to be a second case that comes
• 10:51
  Speaker 1: to the Supreme Court. Well, when you do arrive and
• 10:54
  Speaker 1: you do apply for asylum, can the Trump administration still
• 10:57
  Speaker 1: ban you anyway? And I think it's going to be
• 11:00
  Speaker 1: hard for the court if they rule against the immigrants here,
• 11:03
  Speaker 1: to rule against them yet again a second time and
• 11:06
  Speaker 1: say there's just literally no way to apply for asylum
• 11:09
  Speaker 1: ever in America.
• 11:11
  Speaker 4: So we'll see.
• 11:12
  Speaker 1: But I do think the difficulty they're having with this
• 11:16
  Speaker 1: case for shadows a potential triumph for the immigrants rights
• 11:22
  Speaker 1: groups in this second case about what happens when people
• 11:25
  Speaker 1: do actually arise.
• 11:27
  Speaker 4: But again, we'll just have to wait and see.
• 11:28
  Speaker 2: What's happening now. Because during the oral arguments, they said
• 11:32
  Speaker 2: that the administration wasn't using this policy of the call
• 11:37
  Speaker 2: it metering, wasn't using this policy right now, correct.
• 11:41
  Speaker 1: They're banning everybody from asylum. So that's what they're doing
• 11:44
  Speaker 1: right now, is they're saying you're just completely banned from
• 11:48
  Speaker 1: seeking asylum at the southern border of the United States.
• 11:51
  Speaker 1: But the point is that that argument rests on the
• 11:57
  Speaker 1: fact that the reason you're banned is because you're crossing illegally.
• 12:01
  Speaker 1: So if you're crossing illegally, that's what triggers the ban.
• 12:05
  Speaker 4: So the idea is go to a.
• 12:07
  Speaker 1: Port of entry. But when you go to a port
• 12:09
  Speaker 1: of entry, you're not being allowed into the United States.
• 12:12
  Speaker 1: So that's the problem. There's no place to currently apply.
• 12:17
  Speaker 1: And so what this case would remedy is they would
• 12:20
  Speaker 1: remedy this issue that you couldn't go to.
• 12:23
  Speaker 4: A port of entry to apply for asylum.
• 12:25
  Speaker 1: Now, again, I don't think it's actually going to remedy anything,
• 12:28
  Speaker 1: because I don't think the Supreme Court is going to
• 12:31
  Speaker 1: rule that there's a way to define this statute that
• 12:34
  Speaker 1: makes any sense other than that your body has to
• 12:36
  Speaker 1: be in the US in order to have a right
• 12:39
  Speaker 1: for asylum, because where do we draw the line on
• 12:41
  Speaker 1: where your body could be outside the US. But what
• 12:45
  Speaker 1: I do think is when they then get to the
• 12:47
  Speaker 1: second case about well what about when your body is
• 12:50
  Speaker 1: in the United States, can the president still UNILA early
• 12:53
  Speaker 1: ban you, then they're going to have to look at
• 12:55
  Speaker 1: that within the context of what they decided here and
• 12:58
  Speaker 1: see that this really would mean that a president could
• 13:01
  Speaker 1: ignore all of these statutes that talk about asylum and
• 13:05
  Speaker 1: its pages and pages and pages of statutes and regulation,
• 13:08
  Speaker 1: could just ignore all of them and say this whole
• 13:10
  Speaker 1: thing doesn't exist anymore.
• 13:12
  Speaker 4: And I do think that.
• 13:13
  Speaker 1: Will probably give the court some pause, although who knows,
• 13:16
  Speaker 1: because I do think it's also natural to say, under
• 13:20
  Speaker 1: the previous scenario, we had a million people crossing the
• 13:23
  Speaker 1: border each year. Now we don't have any So one
• 13:26
  Speaker 1: certainly produces a more manageable result than the other. And
• 13:30
  Speaker 1: the Supreme Court by changing the way that the band works,
• 13:35
  Speaker 1: could potentially spark another million people at the border, which
• 13:39
  Speaker 1: they probably wouldn't want to do. The question is do
• 13:41
  Speaker 1: they also want to just allow a one hundred percent
• 13:44
  Speaker 1: ban on asylum cases.
• 13:45
  Speaker 4: So we'll have to wait and see.
• 13:47
  Speaker 2: Stay with me, Leon, coming up next. Mark Wayne Mullen
• 13:51
  Speaker 2: was sworn in today as a new Secretary of Homeland Security.
• 13:55
  Speaker 2: Our change is ahead. This is Bloomberg. Wayne Mullen was
• 14:00
  Speaker 2: sworn in today at the White House as the new
• 14:03
  Speaker 2: Secretary of Homeland Security. President Trump said he has a
• 14:07
  Speaker 2: lot of confidence in his new DHS secretary.
• 14:11
  Speaker 8: With Secretary Mullin at DHS, we will continue our record
• 14:14
  Speaker 8: setting efforts to deport these illegal alien criminals from our country,
• 14:18
  Speaker 8: and we are doing at record levels despite a very
• 14:22
  Speaker 8: unfair court system.
• 14:23
  Speaker 2: I've been talking to Leon Fresco, a partner at Holland
• 14:26
  Speaker 2: and Knight. He was the former head of the Office
• 14:29
  Speaker 2: of Immigration Litigation in the Obama administration, Leanne. I've been
• 14:33
  Speaker 2: wondering whether it would be helpful if the person who
• 14:37
  Speaker 2: leads the Department of Homeland Security actually has some background
• 14:42
  Speaker 2: or experience in immigration.
• 14:45
  Speaker 1: Well that's complicated because actually the first Homeland Security Secretary
• 14:49
  Speaker 1: was Tom Ridge, who was the governor of Pennsylvania. And
• 14:52
  Speaker 1: then the second one was Michael Turnoff, who had been
• 14:54
  Speaker 1: a judge. Yes, he'd had some law enforcement background. You
• 14:58
  Speaker 1: had Janet Apolitano who was the governor of Arizona. You
• 15:01
  Speaker 1: had Jay Johnson who was an attorney at the Defense Department.
• 15:05
  Speaker 1: The only one who worked in the immigration was quite frankly,
• 15:09
  Speaker 1: Ali Majorcus. And you know that, depending on who you
• 15:12
  Speaker 1: talk to, was either good or terrible. So I don't
• 15:16
  Speaker 1: know necessarily that experience is the issue. But what really
• 15:19
  Speaker 1: matters is the judgment, the intellectual curiosity, the getting of
• 15:24
  Speaker 1: good people to advise you. And I do think in
• 15:29
  Speaker 1: terms of this, there's a couple of things that you
• 15:31
  Speaker 1: can look toward that you know might be helpful. I
• 15:33
  Speaker 1: don't think the policies are substantively going to change, I'm
• 15:37
  Speaker 1: almost certain of that, but I do think to the
• 15:40
  Speaker 1: extent that there's an ability to exercise the policies without
• 15:44
  Speaker 1: being gratuitously inflammatory. I do think that will be helpful.
• 15:49
  Speaker 1: And we'll see if a Secretary Mullen does that. I mean,
• 15:52
  Speaker 1: he claimed that he would be doing that, but we'll
• 15:55
  Speaker 1: have to see, you know, and to the extent that
• 15:58
  Speaker 1: that can happen on an agent and see why. Basis
• 16:01
  Speaker 1: that the social media be dialed down a little bit,
• 16:04
  Speaker 1: that the rhetoric be dialed down a little bit, All
• 16:07
  Speaker 1: of that helps in terms of not creating these sort
• 16:11
  Speaker 1: of markers of inflammation that you see around the country.
• 16:15
  Speaker 1: So that will be one. The other thing he said
• 16:17
  Speaker 1: that was interesting is he would require judicial warrants to
• 16:21
  Speaker 1: enter homes or businesses, which was something that the previous
• 16:26
  Speaker 1: secretary didn't want to say that he would work with
• 16:29
  Speaker 1: the Congress when they were concerns about specific cases. So
• 16:32
  Speaker 1: we'll see if that ends up happening, and you know,
• 16:36
  Speaker 1: he may end up getting involved in this DHS shut
• 16:39
  Speaker 1: down negotiation to try to see if there's a way forward,
• 16:43
  Speaker 1: to try to see if this can finally be ended
• 16:45
  Speaker 1: so that you know, TSA and everything else can come back.
• 16:48
  Speaker 1: So we'll see, this will be his first test. If
• 16:51
  Speaker 1: he's able to come up with an interesting response to
• 16:54
  Speaker 1: the DHS shutdown and he's part of the negotiations, then
• 16:57
  Speaker 1: I think you could expect some interesting, helpful changes. But
• 17:03
  Speaker 1: if he's sort of divorced from this round of negotiations
• 17:06
  Speaker 1: and he doesn't take a role in solving it, then
• 17:09
  Speaker 1: I do think you'll pretty much then end up seeing
• 17:12
  Speaker 1: more of the same as we move forward, Because.
• 17:14
  Speaker 2: The policy itself comes from the administration, right, and in
• 17:19
  Speaker 2: this case, Stephen Miller.
• 17:22
  Speaker 1: Correct, most of the immigration policy comes from Stephen Miller
• 17:25
  Speaker 1: and comes from the White House and people who work
• 17:27
  Speaker 1: for Stephen Miller. And so the idea was that there
• 17:31
  Speaker 1: would be sort of an operational person implementing this, but
• 17:35
  Speaker 1: they wouldn't be the ones formulating the policy. But look,
• 17:38
  Speaker 1: at the end of the day, once you're the Secretary
• 17:40
  Speaker 1: of Homeland Security, you get a lot of say in
• 17:43
  Speaker 1: what gets implemented and how it can't be done without you.
• 17:46
  Speaker 1: So the only thing they can do is fire you,
• 17:48
  Speaker 1: which is quite inconvenient to have to keep firing secretaries
• 17:52
  Speaker 1: of Homeland Security. So Secretary Mullen will have the ability
• 17:56
  Speaker 1: to implement policies that he wants and to not implement
• 18:01
  Speaker 1: policies that he doesn't want. But the question is will
• 18:04
  Speaker 1: he be willing to take on some of those battles.
• 18:06
  Speaker 1: Does he have the acumen to end up doing that
• 18:10
  Speaker 1: in a way that doesn't get him fired.
• 18:12
  Speaker 4: Those are all very.
• 18:14
  Speaker 1: Important questions, and I think there's nothing to do but watch,
• 18:17
  Speaker 1: because no one can really know how that's going to
• 18:20
  Speaker 1: play out. But one thing he can do for sure
• 18:23
  Speaker 1: is to insist that everything that comes out of the
• 18:27
  Speaker 1: department take more of a tone that's not designed in
• 18:30
  Speaker 1: its purpose to be inflammatory. And I do think that
• 18:34
  Speaker 1: would be a tremendous already benefit as opposed to trying
• 18:38
  Speaker 1: you know, you have social media posts that talk in
• 18:41
  Speaker 1: a way that's very aggressive, or you have rhetoric that
• 18:44
  Speaker 1: talks in a way that's very aggressive. None of those
• 18:46
  Speaker 1: words or none of that rhetoric changes the actual number
• 18:50
  Speaker 1: of people you remove, and in fact, they could actually
• 18:53
  Speaker 1: shrink the number of people you remove. And so why
• 18:56
  Speaker 1: say it if it doesn't actually help the operational mission?
• 19:00
  Speaker 2: Have they actually stopped with the very aggressive tactics that
• 19:04
  Speaker 2: we saw, you know, in Minneapolis and Chicago, and have
• 19:09
  Speaker 2: they sort of dial that back as the borders are
• 19:13
  Speaker 2: said they would.
• 19:15
  Speaker 1: At the moment, they're focused on the cities where they
• 19:18
  Speaker 1: have cooperation for the rest of twenty twenty six because
• 19:22
  Speaker 1: they don't sort of want this to insert itself as
• 19:24
  Speaker 1: an election issue. They're trying to just focus on creating
• 19:28
  Speaker 1: their numbers of removals through these jurisdictions where they have
• 19:32
  Speaker 1: cooperation and trying to develop cooperation in more serious cases.
• 19:36
  Speaker 1: They're trying to do that in New York and in
• 19:39
  Speaker 1: Los Angeles and in Minnesota, where they say, look, would
• 19:41
  Speaker 1: some of these very serious criminals, would you please cooperate
• 19:44
  Speaker 1: with us and helping them to get removed by notifying
• 19:48
  Speaker 1: us where they are and helping us apprehend them. And
• 19:51
  Speaker 1: I do think they're making inroads there. And the question
• 19:54
  Speaker 1: is do they just want to stay with that for
• 19:56
  Speaker 1: the rest of the year or not. But I do
• 19:58
  Speaker 1: think their plan is twenty seven rolls around, or even
• 20:02
  Speaker 1: late twenty twenty six after the midterm election, to come
• 20:05
  Speaker 1: back and sort of ramp this up again. And that's
• 20:09
  Speaker 1: where we're gonna have to see where Secretary Mullin goes,
• 20:12
  Speaker 1: if he actually will allow that or will he just
• 20:15
  Speaker 1: keep what will have been going on for nine months
• 20:18
  Speaker 1: previous to that by then will he say, Look, this
• 20:21
  Speaker 1: is working, We're getting pretty good numbers, We're not inflaming people.
• 20:25
  Speaker 4: Why not just keep doing this.
• 20:27
  Speaker 2: ICE agents have been deployed to fourteen airports today to
• 20:33
  Speaker 2: help during the shutdown, as lines to get through security
• 20:37
  Speaker 2: have been growing and growing, hours long waits at some airports.
• 20:42
  Speaker 2: Minority Leader Chuck Schumer came out against it during a
• 20:45
  Speaker 2: speech on the Senate floor today.
• 20:48
  Speaker 9: ICE needs to leave the airports now. Trump needs to
• 20:52
  Speaker 9: pay TSA workers now and push Republicans to reach a deal.
• 20:58
  Speaker 9: No intimidates, no one timidation forces at are airports, no
• 21:02
  Speaker 9: more chaos at checkpoints.
• 21:04
  Speaker 4: Enough is enough.
• 21:06
  Speaker 2: What's your take on using ICE at the airports during
• 21:10
  Speaker 2: the shutdown?
• 21:11
  Speaker 1: Well, there's a lot to say about this ICE at
• 21:13
  Speaker 1: the airport's thing, and so let's just go through step
• 21:15
  Speaker 1: by step. So first the question is will they be
• 21:18
  Speaker 1: performing ICE functions or TSA functions.
• 21:21
  Speaker 4: So if you start with.
• 21:22
  Speaker 1: That question, let's say they're actually performing ICE functions, which
• 21:25
  Speaker 1: is if they're there to actually apprehend and then lead
• 21:30
  Speaker 1: to the eventual removal of people without immigration status at
• 21:33
  Speaker 1: the airport. Well, theoretically that is consistent with the real
• 21:37
  Speaker 1: ID requirement. You're not supposed to be able to fly
• 21:40
  Speaker 1: if you don't have a real ID, and so if
• 21:43
  Speaker 1: you are there without a real IDA and you're trying
• 21:46
  Speaker 1: to fly, then theoretically you are exposing yourself to removal.
• 21:51
  Speaker 1: So in that area that would just be a debate
• 21:54
  Speaker 1: about whether you should have ICE doing that or not.
• 21:56
  Speaker 1: But that seems to be not an operationally incon system thing.
• 22:00
  Speaker 1: People may not like that ICE is there, but as
• 22:02
  Speaker 1: long as they're not in masks or creating all kinds
• 22:06
  Speaker 1: of havoc, it would be theoretically consistent. Like I said,
• 22:10
  Speaker 1: with the real IDEAC, there's a different question if ICE
• 22:13
  Speaker 1: is scanning your luggage and checking your pockets and your
• 22:17
  Speaker 1: keys and all of this.
• 22:19
  Speaker 4: The issue there is one.
• 22:20
  Speaker 1: There's a TSA training issue, which is you'd have to
• 22:24
  Speaker 1: get that training to know how to use that machine
• 22:26
  Speaker 1: and what to say to people, what to do with
• 22:28
  Speaker 1: disabled people, what to do with elderly people, et cetera.
• 22:33
  Speaker 1: So I don't know that you could just implement that
• 22:35
  Speaker 1: in a day or two, but I don't think they're
• 22:37
  Speaker 1: doing that anyway.
• 22:38
  Speaker 4: But the third point is.
• 22:40
  Speaker 1: Yes, it's true the TSA agents aren't getting paid, but
• 22:44
  Speaker 1: even when the TSA agents were getting paid. That was
• 22:46
  Speaker 1: considered one of the lowest morale jobs in the government.
• 22:50
  Speaker 1: If you pay any attention when you go through the
• 22:54
  Speaker 1: TSA screening process, many times the TSA are talking about
• 23:00
  Speaker 1: out the concept of when is my next break?
• 23:04
  Speaker 4: Is it in five minutes? Is it in eight minutes?
• 23:06
  Speaker 1: You know, they're they're very attuned to not being there
• 23:10
  Speaker 1: at that's because the job is just you know, it's
• 23:14
  Speaker 1: this job of just repetition and stress and repetition, and
• 23:18
  Speaker 1: so the job is a low morale job. So the
• 23:21
  Speaker 1: point is, if you're trying to ramp up ICE numbers
• 23:25
  Speaker 1: and you're moving them into a job that is a
• 23:27
  Speaker 1: low morale job, I don't know how that's consistent with
• 23:30
  Speaker 1: your desire to increase ICE numbers. So I don't think
• 23:36
  Speaker 1: that would be in a long term thing. If ICE
• 23:39
  Speaker 1: was actually going to do TSA work, they would end
• 23:42
  Speaker 1: up with a lot of dissatisfied, low morale ICE employees.
• 23:46
  Speaker 1: So we'll just have to see how that plays out.
• 23:49
  Speaker 2: Let's talk for a minute about immigration judges, because the
• 23:52
  Speaker 2: Trump administration fired nearly one hundred immigration judges last year,
• 23:57
  Speaker 2: and over the weekend, the Merits Systems Protection Board which
• 24:02
  Speaker 2: is composed of all Republicans, endorsed the Trump administration's argument
• 24:07
  Speaker 2: that Article two permits the president to remove these immigration judges,
• 24:13
  Speaker 2: and the judges are appealing. This sounds like, you know,
• 24:16
  Speaker 2: some of the arguments that we've heard before, right.
• 24:19
  Speaker 1: This is the whole doctrine of inferior officers, which has
• 24:22
  Speaker 1: been used in many different contexts in the administration where
• 24:27
  Speaker 1: President Trump has tried to use his authority under the
• 24:30
  Speaker 1: Constitution under Article two to fire inferior officers. And the
• 24:34
  Speaker 1: question is just whether an immigration judge who is an employee.
• 24:37
  Speaker 1: Here's just to lay this out for your audience. The
• 24:40
  Speaker 1: immigration judge is not a normal judge. They're not picked
• 24:43
  Speaker 1: by the president and confirmed by the Senate. An immigration
• 24:46
  Speaker 1: judge I answers an online ad and they put their
• 24:50
  Speaker 1: resume in the online ad system, and they go through
• 24:53
  Speaker 1: a hiring process and a six week training and then
• 24:56
  Speaker 1: they're an immigration judge. And so the question is is
• 24:58
  Speaker 1: that person considered an inferior officer who exercises significant authority
• 25:06
  Speaker 1: and can actually set some precedents an immigration law, or
• 25:11
  Speaker 1: are they considered someone who's so inferior that they are
• 25:15
  Speaker 1: that they actually have civil services protections, and the meritistem
• 25:20
  Speaker 1: Protection Board says, no, these people do exercise significant authority
• 25:24
  Speaker 1: under federal law, so they can be removed by the president.
• 25:29
  Speaker 1: And I do think it's interesting because there's two kinds
• 25:31
  Speaker 1: of immigration judges. There's ones that are called normal immigration
• 25:36
  Speaker 1: judges and there's a second one called appellate immigration judges.
• 25:40
  Speaker 1: And so I think this argument is much stronger for
• 25:42
  Speaker 1: the appellate immigration judges because they do set precedents that
• 25:47
  Speaker 1: then have to be followed by the lower immigration judges.
• 25:50
  Speaker 1: So I do think in their situation, it's probably much
• 25:53
  Speaker 1: easier to argue that they exercise significant authority under federal law.
• 25:58
  Speaker 1: But under the normal immigration judge, where they're constantly in
• 26:01
  Speaker 1: the court, you know, you go to immigration court, they say,
• 26:03
  Speaker 1: I don't authority to do anything. I have to just
• 26:05
  Speaker 1: follow what I'm being told. And now they have a
• 26:08
  Speaker 1: lot of AI that's sort of guiding them through what
• 26:11
  Speaker 1: they're supposed to do in a hearing because a lot
• 26:13
  Speaker 1: of them are new and a lot of them don't
• 26:15
  Speaker 1: even have experience in immigration law. The question is, if
• 26:18
  Speaker 1: you're basically almost an AI judge at this point, what
• 26:22
  Speaker 1: do you do vis a the are you really someone
• 26:25
  Speaker 1: exercising any kind of significant authorities. So I think there
• 26:29
  Speaker 1: that's going to be a harder one, and I think
• 26:31
  Speaker 1: the federal circuit may be more amenable to saying those
• 26:35
  Speaker 1: people do have NRIT systems protection, board protection.
• 26:39
  Speaker 2: Finally, leon this week, Gregory Bavino is retiring. I'm sure
• 26:44
  Speaker 2: to applause from advocates for migrants. He was the face
• 26:49
  Speaker 2: of the administration's harsh crackdown on immigration that led to
• 26:55
  Speaker 2: the deaths of two US citizens by federal agents. Do
• 26:59
  Speaker 2: you think he would forced out forced to retire.
• 27:02
  Speaker 1: Well, what happens is when you reach a certain age,
• 27:05
  Speaker 1: you can retire and have all of your benefits. And
• 27:08
  Speaker 1: so the role he wanted to play was essentially the
• 27:11
  Speaker 1: Tom Homan role, where you know Tom Homan had been
• 27:15
  Speaker 1: the Borders are and then he sort of was a
• 27:18
  Speaker 1: little bit downgraded both by Secretary Noman by circumstances in the.
• 27:22
  Speaker 4: News related to him.
• 27:24
  Speaker 1: But then when these things happen in Minnesota, people brought
• 27:28
  Speaker 1: back Tom Homan, and even Secretary Mullin has said he
• 27:32
  Speaker 1: wants to bring back Tom Holman and work with him.
• 27:35
  Speaker 1: And so Tom Homan's thing has always been looks the
• 27:38
  Speaker 1: vision of I should be go and find people who
• 27:43
  Speaker 1: we know are undocumented and deport that. Don't just start
• 27:46
  Speaker 1: sweeping the streets, grabbing everybody you can and asking whether
• 27:50
  Speaker 1: they're here legally or not.
• 27:51
  Speaker 4: He's always been uncomfortable with that. Tom.
• 27:53
  Speaker 1: That doesn't mean he doesn't want the ultimate same outcome
• 27:56
  Speaker 1: of every undocumented person being deported.
• 27:59
  Speaker 4: He does, but he.
• 28:00
  Speaker 1: Wants to do that within the context that you go
• 28:03
  Speaker 1: after people at their home or at their address or
• 28:06
  Speaker 1: wherever that you know already are undocumented, and so you're
• 28:10
  Speaker 1: fulfilling that mission.
• 28:12
  Speaker 4: And so Bavino didn't want that.
• 28:13
  Speaker 1: He wanted to just get more efficient, so to speak,
• 28:17
  Speaker 1: and just grab people wherever they were, and that would,
• 28:21
  Speaker 1: in his view, lead to much quicker either both removals
• 28:25
  Speaker 1: or self removals, because people wouldn't want to be living
• 28:28
  Speaker 1: in an environment where they could be apprehended at any minute.
• 28:31
  Speaker 4: So when that.
• 28:32
  Speaker 1: Policy was taken away, and his leadership of that policy
• 28:35
  Speaker 1: was taken away, then it was no longer in his view,
• 28:39
  Speaker 1: sort of desirable to keep working in the administration, and
• 28:43
  Speaker 1: so that happened to a lot of people.
• 28:45
  Speaker 4: They retire in that situation.
• 28:46
  Speaker 2: Leon, Thank you for tour Deforce. Tonight we covered so
• 28:50
  Speaker 2: many immigration topics. I really appreciate your insights. That's Leon
• 28:55
  Speaker 2: Fresco of Honden Night. Coming up next. A New Jersey
• 28:59
  Speaker 2: court reaches a d deal with the Department of Justice
• 29:02
  Speaker 2: on New Jersey's next US attorney. This is Bloomberg. A
• 29:06
  Speaker 2: federal trial court has come to terms with the Justice
• 29:09
  Speaker 2: Department on appointing a career prosecutor as New Jersey's US attorney,
• 29:15
  Speaker 2: substituting him for the Trump administration's three person leadership structure
• 29:21
  Speaker 2: that's been ruled illegal. Robert Fraser, a senior trial council
• 29:25
  Speaker 2: working organized crime cases out of Newark, has been picked
• 29:29
  Speaker 2: as the office's new US attorney, and unlike in prior
• 29:34
  Speaker 2: recent instances when judicially appointed US attorneys were rapidly fired
• 29:39
  Speaker 2: by the White House, Fraser's selection was approved by DOJ.
• 29:44
  Speaker 2: Joining me is David Voriakis. Bloomberg Legal reporter David remind
• 29:49
  Speaker 2: us about the saga that started with the appointment of
• 29:54
  Speaker 2: Alina Haba, President Trump's former personal attorney as US Attorney
• 29:59
  Speaker 2: for New Jersey.
• 30:02
  Speaker 10: Haba was appointed on a one hundred and twenty day basis,
• 30:07
  Speaker 10: and some criminal defendants in New Jersey challenged the legal
• 30:12
  Speaker 10: authority of her to prosecute them. After that one hundred
• 30:16
  Speaker 10: and twenty days expired, a judge came in from Pennsylvania
• 30:21
  Speaker 10: and sitting by special designation, decided that she was illegally appointed,
• 30:27
  Speaker 10: and he put that on hold until an appeals panel ruled.
• 30:32
  Speaker 10: Then an appeals panel in December agreed that her appointment
• 30:37
  Speaker 10: was illegal and she stepped down.
• 30:40
  Speaker 2: So then in December, Attorney General Pam Bondi decides to
• 30:45
  Speaker 2: delegate the duties of running the US Attorney's office to
• 30:49
  Speaker 2: three lawyers. I mean, I've never heard of that before,
• 30:52
  Speaker 2: So tell us what the federal judge Matthew Brann ruled
• 30:56
  Speaker 2: about that.
• 30:57
  Speaker 10: Judge brand who also handled the earlier Hobba case, ruled
• 31:02
  Speaker 10: that this was a similarly flawed appointment and that their
• 31:08
  Speaker 10: appointment was also illegal, and he also put that ruling
• 31:13
  Speaker 10: on hold. Since then, there's been a lot of controversy
• 31:18
  Speaker 10: and confusion over who was running the US Attorney's office
• 31:22
  Speaker 10: in New Jersey. So there was a routine sentencing in
• 31:27
  Speaker 10: a child pornography case in which the defense lawyers challenged
• 31:32
  Speaker 10: the legal authority of the arrangement in New Jersey and
• 31:38
  Speaker 10: the judge expressed a great deal of impatience and sharply
• 31:44
  Speaker 10: criticized the line prosecutor who appeared in court and wanted
• 31:49
  Speaker 10: an explanation on what were the plans for running the
• 31:53
  Speaker 10: US Attorney's office, because there had been no real explanation
• 31:57
  Speaker 10: out of the office about who was going to lead
• 32:00
  Speaker 10: the office going forward. After Judge Brand ruled that the
• 32:05
  Speaker 10: arrangement was illegal.
• 32:06
  Speaker 2: Before we get into what happened here, explain why federal
• 32:10
  Speaker 2: judges are making decisions about US attorneys.
• 32:15
  Speaker 10: There's a federal law that if there's a vacancy in
• 32:19
  Speaker 10: a US Attorney's office, that the judges in a district
• 32:24
  Speaker 10: in this case, the state of New Jersey, would get
• 32:28
  Speaker 10: together and appoint someone to run the office as the
• 32:34
  Speaker 10: US attorney until the Senate confirms a presidential nominee. It's
• 32:40
  Speaker 10: happened a number of times in US history around the country,
• 32:44
  Speaker 10: and they did that in New Jersey to replace Alena Haba,
• 32:49
  Speaker 10: and the choice by the judges, Desiree Grace, who had
• 32:53
  Speaker 10: been the number two in the office, was immediately fired
• 32:56
  Speaker 10: by Attorney General Pam Bondi.
• 33:00
  Speaker 2: So did the federal judges then negotiate with the Justice
• 33:04
  Speaker 2: Department to come to an agreement.
• 33:07
  Speaker 10: This time, it appears that the judges must have reached
• 33:10
  Speaker 10: an agreement with the Justice Department on the latest pick,
• 33:15
  Speaker 10: because the Justice Department and Alina Habba, who now works
• 33:21
  Speaker 10: as a special assistant, if you will, for Pam Bondi,
• 33:26
  Speaker 10: embraced the pick and that pick, Robert Fraser was not
• 33:31
  Speaker 10: immediately fired as Desiree Grace had been, and as two
• 33:36
  Speaker 10: other judicially appointed US attorneys in other districts also experienced.
• 33:43
  Speaker 2: The Justice Department said, the Department of Justice thanks the
• 33:47
  Speaker 2: District Court for working with the Department to appoint Robert
• 33:50
  Speaker 2: Fraser to serve as US attorney so that once again,
• 33:54
  Speaker 2: criminal prosecutions can resume without needless challenge or delay. On
• 33:59
  Speaker 2: behalf of the peaceeople of New Jersey, So tell us
• 34:02
  Speaker 2: a little about Robert Fraser.
• 34:05
  Speaker 10: Robert Fraser is a thirty five year veteran of prosecutor's office.
• 34:11
  Speaker 10: He worked in a local prosecutor's office as well as
• 34:14
  Speaker 10: the US Attorney's office. He has a lot of experience
• 34:19
  Speaker 10: in gang cases and in organized crime cases. He has
• 34:23
  Speaker 10: a reputation as being very well regarded by his peers
• 34:29
  Speaker 10: and by the judges that he's quite meticulous in his preparation,
• 34:35
  Speaker 10: his investigations, and his trial work, and that he's someone
• 34:41
  Speaker 10: who's expected to unite the office and return them to
• 34:47
  Speaker 10: the days when it was a high functioning place.
• 34:52
  Speaker 2: Now, court selected US attorneys in eastern Virginia and northern
• 34:57
  Speaker 2: New York were terminated by the White House on this
• 35:00
  Speaker 2: same day that they'd been chosen. So is the White
• 35:03
  Speaker 2: House sort of saying we want to be consulted on
• 35:06
  Speaker 2: the US attorneys.
• 35:08
  Speaker 10: It would appear that the White House has made peace
• 35:11
  Speaker 10: with the judges in New Jersey on this choice. In
• 35:15
  Speaker 10: the previous instances in which the judges ruled against Elena
• 35:20
  Speaker 10: Habba and in which the judges districtwide chose Desiree Grace,
• 35:26
  Speaker 10: the Justice Department sharply criticized those judges as activists who
• 35:32
  Speaker 10: were working against the Trump agenda. That did not happen
• 35:36
  Speaker 10: with the selection of Robert Fraser. So one can infer
• 35:40
  Speaker 10: that the White House and Pam Bondi are comfortable with
• 35:44
  Speaker 10: this pick.
• 35:44
  Speaker 2: Well, we'll see if this kind of negotiation works in
• 35:49
  Speaker 2: the case of other US attorneys. Thanks so much, David.
• 35:52
  Speaker 2: That's Bloomberg Legal reporter David Voriakis, And that's it. For
• 35:56
  Speaker 2: this edition of The Bloomberg Law Show. Remember you can
• 35:59
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• 36:02
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• 36:05
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• 36:11
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• 36:14
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• 36:17
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