Latest / Bloomberg Law / Trump Targets Naturalized US Citizens

Transcript

Trump Targets Naturalized US Citizens · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
0:08
Speaker 2: New York State is attempting to place guardrails around the
0:12
Speaker 2: Trump administration's immigration agenda with a comprehensive package of bills
0:18
Speaker 2: to limit local law enforcement from cooperating with ICE. That's
0:22
Speaker 2: led borders Our Tom Holman to threaten to flood the
0:26
Speaker 2: zone and send more ICE agents to New York than
0:29
Speaker 2: you've ever seen before, although he denies that constitutes a threat.
0:35
Speaker 3: Governor Hopelman saying, I'm threatening her. I'm not threatening her.
0:38
Speaker 3: I'm responding to the ridiculous legislation that's going to force
0:42
Speaker 3: more agents in the street because we lose the efficiency
0:45
Speaker 3: of the jail, we lose the efficiency of the two
0:47
Speaker 3: day semigig program. We got to send more agents to
0:51
Speaker 3: New York for Randan. One agent was in one bad
0:53
Speaker 3: guy in the safety and security of the jail, which
0:55
Speaker 3: is safer for the aliens, safer for the agent, certainly
0:58
Speaker 3: safer for the community. They're going to really into the street,
1:00
Speaker 3: which means now you've got to send Q Jobs team
1:02
Speaker 3: to rest them because you were arresting somebody on history.
1:05
Speaker 3: If we has access to hunalds.
1:06
Speaker 2: What weapons joining me is Leon Fresco, a partner at
1:09
Speaker 2: Holland and Knight. He was the former head of the
1:11
Speaker 2: Office of Immigration Litigation in the Obama administration. Leon start
1:16
Speaker 2: by telling us about this package of bills that New
1:20
Speaker 2: York is about to pass.
1:22
Speaker 1: Well, the bills basically would make it impossible for any
1:25
Speaker 1: jurisdiction to voluntarily cooperate with ICE by either giving ICE
1:31
Speaker 1: information about people that can be deported, or even more affirmatively,
1:35
Speaker 1: by being what's called the two to eighty seven G jurisdiction,
1:38
Speaker 1: which is the kind of jurisdiction that says, we will
1:41
Speaker 1: actually deputize our police officers to engage in ICE tactics
1:46
Speaker 1: so they can actually be forced multipliers for ICE.
1:49
Speaker 4: And there's a lot of police.
1:50
Speaker 1: Offices in Florida and in Texas that do this where
1:54
Speaker 1: if they arrest you, they're the ones who do the
1:56
Speaker 1: immigration check and they actually will refer people to ICE,
2:00
Speaker 1: even that ICE didn't even know about or care, and
2:03
Speaker 1: they'll say, hey, ICE, here, go take this person and
2:06
Speaker 1: deport them. So what New York is trying to say
2:08
Speaker 1: is no, we don't want any of that in New York,
2:11
Speaker 1: and we will actually prevent it. And there's actually very
2:14
Speaker 1: interesting case aw that comes out of the Fifth Circuit
2:16
Speaker 1: in Texas, where they basically said that states have this
2:19
Speaker 1: level of supremacy over localities. This time it was the opposite.
2:24
Speaker 1: The state of Texas didn't want the localities to be
2:26
Speaker 1: sanctuary jurisdiction, but it would work the other way. So
2:30
Speaker 1: if the state didn't want its localities to be two
2:33
Speaker 1: eighty seven G jurisdictions, it could similarly stop that. But
2:37
Speaker 1: what Tom Homan is saying is, okay, fine, if you
2:40
Speaker 1: don't want to let these police departments pick and choose
2:45
Speaker 1: who are the bad people so that they can refer
2:48
Speaker 1: them to us, then we're gonna have to go find
2:51
Speaker 1: the bad people. And so if you won't let your
2:54
Speaker 1: people vet bad people and send them to us, then
2:58
Speaker 1: we don't have any vetting of any We don't know
3:00
Speaker 1: who's here. So what you're inviting is for us to
3:03
Speaker 1: come to New York and have to start looking for
3:06
Speaker 1: whoever we can find because you're unwilling to do the
3:09
Speaker 1: work of vetting the quote unquote bad people for us.
3:12
Speaker 1: And so it's a tough argument because there is some
3:15
Speaker 1: truth to this, which is the states that sort of
3:18
Speaker 1: decide to delegate a little bit of this on their
3:21
Speaker 1: own actually do get better treatment from the Department of
3:24
Speaker 1: Homeland Security. And that is what Tom Homan is basically
3:27
Speaker 1: saying there. He's saying, Look, if you don't want to
3:30
Speaker 1: give us any cooperation and you want to leave us
3:32
Speaker 1: completely blind, what do you want us to do? Just
3:34
Speaker 1: not enforce anything in New York and just leave. We're
3:37
Speaker 1: not going to do that, And so you're gonna leave
3:40
Speaker 1: us in a position where we're gonna end up arresting
3:42
Speaker 1: all kinds of people you didn't want us to arrest
3:44
Speaker 1: because you were unwilling to engage in the vetting on
3:47
Speaker 1: the state and local land.
3:49
Speaker 2: So leon New York Governor Kathy Hokeel said, the state
3:53
Speaker 2: would help you go after the hardened criminals, the violent,
3:56
Speaker 2: the worst of the worst. Does this bill not even
3:59
Speaker 2: le room for that?
4:01
Speaker 1: So here is the problem, And a lot of this
4:04
Speaker 1: debate still tracks back to a time that I don't
4:09
Speaker 1: think exists anymore in America, which is there was a
4:12
Speaker 1: time maybe in the nineties or the early two thousands,
4:16
Speaker 1: where people were worried that the police was out there
4:19
Speaker 1: racially profiling people. Then they would mistakenly arrest people of
4:25
Speaker 1: color and then they would mistakenly then report those people
4:29
Speaker 1: of color to ICE, and then ICE would deport them
4:32
Speaker 1: and they weren't even guilty of anything.
4:34
Speaker 4: The whole thing was racist from beginning to end.
4:37
Speaker 1: And what Kathy Hochele is saying is the people we
4:41
Speaker 1: want to get to ICE are people who are convicted
4:44
Speaker 1: who have gone through the system, not people we are
4:46
Speaker 1: just arresting. But here's the point, and here's where I
4:50
Speaker 1: have sympathy for what Tom Holman is saying.
4:52
Speaker 4: If the City.
4:53
Speaker 1: Of New York doesn't want to refer someone to ICE,
4:56
Speaker 1: they don't have to refer someone to ICE.
4:58
Speaker 4: This idea that.
5:00
Speaker 1: People are accidentally referred to ICE after a racial profiling arrest.
5:05
Speaker 4: That's the kind of thing people.
5:06
Speaker 1: Were worried about again in the nineties and in the
5:09
Speaker 1: early two Now all of these jurisdictions have become sanctuary
5:12
Speaker 1: jurisdictions and they've been trained in this.
5:15
Speaker 4: Way, etc.
5:16
Speaker 1: And so this fear that we still have in twenty
5:18
Speaker 1: twenty six that jurisdictions are unwittingly or helplessly referring people
5:25
Speaker 1: to ICE who are innocent. And all the person did
5:27
Speaker 1: that was they were brown, and they were arrested by
5:30
Speaker 1: the local police, and now they're being deported. I just
5:33
Speaker 1: think the jurisdictions have a lot more control over that
5:37
Speaker 1: than people are giving them credit for. So it is
5:39
Speaker 1: a little weird that you wouldn't report people who you arrested,
5:44
Speaker 1: even if they weren't convicted, if you thought they were
5:47
Speaker 1: actually really, really bad people. So it is a fair
5:51
Speaker 1: argument to say, hey, do something local jurisdiction. Don't just
5:56
Speaker 1: do nothing, and don't just intentionally try to keep eye
6:00
Speaker 1: in the blind.
6:01
Speaker 4: But that's what's happening, and.
6:03
Speaker 1: It's because they are basically conceding a point, which is
6:08
Speaker 1: we believe that our local jurisdictions are incapable of being
6:13
Speaker 1: able to explain who is actually a threat and should
6:17
Speaker 1: be referred to ICE, as opposed to who is not
6:19
Speaker 1: a threat and shouldn't be referred to ICE.
6:22
Speaker 2: The governor is also moving to ban federal, state, and
6:25
Speaker 2: local law enforcement from wearing masks while on duty. A
6:29
Speaker 2: similar law was passed in California and a judge struck
6:33
Speaker 2: it down, but I mean a different judge in New
6:36
Speaker 2: York might uphold it or no.
6:38
Speaker 1: Well, so this is going to be tough because even
6:40
Speaker 1: in the Ninth Circuit there was a very liberal Court
6:43
Speaker 1: that said, hey, you know, this is regulating federal police enforcement,
6:48
Speaker 1: and you can't do this in any way. It doesn't
6:50
Speaker 1: matter what your intention is. Even if your intention is, look,
6:53
Speaker 1: you need to wear a helmet. If you're going to
6:55
Speaker 1: be doing unsafe things, that's for the federal government to decide.
6:59
Speaker 1: That's not for the state government to decide. And so
7:03
Speaker 1: I do think it would suffer the same fate if
7:05
Speaker 1: it's passed in New York, as they can symbolically say
7:09
Speaker 1: no masks, but at the end of the day, the
7:12
Speaker 1: courts are gonna say, no, we're not We're not going
7:14
Speaker 1: to allow the states to suddenly start putting these regulations
7:18
Speaker 1: on federal enforcement officers conducting federal enforcement. I look at
7:22
Speaker 1: a district judge can do anything, but I find it
7:25
Speaker 1: very unlikely that the Second Circuit would permit it, and
7:29
Speaker 1: definitely I don't think it would ever get to the
7:31
Speaker 1: point where the Supreme Court would permit it. And now
7:35
Speaker 1: the DHS has been fully funded with the exception of
7:38
Speaker 1: ICE and CDP, but nevertheless that's still part of the
7:42
Speaker 1: appropriations process. So if the Republicans end up funding it
7:46
Speaker 1: for the next three years, then they won that debate
7:49
Speaker 1: and that's not the issue. But if somebody individually can
7:53
Speaker 1: show that their civil rights were violated by a masked person,
7:58
Speaker 1: then they still have those lawsuit set abilities to file
8:01
Speaker 1: those cases.
8:02
Speaker 2: Since we're speaking about ICE making arrests in cities, let's
8:05
Speaker 2: turn to DC and a judge's order there. Judge Beryl
8:09
Speaker 2: Howell order the federal government in December not to arrest
8:13
Speaker 2: anyone in DC for civil immigration offenses without an administrative warrant.
8:21
Speaker 2: Tell us first, what ICE normally needs to arrest someone.
8:26
Speaker 1: Well, this is where it gets very complicated because it
8:29
Speaker 1: depends where the arrest is occurring. So normally before the
8:33
Speaker 1: Trump administration or so, we were just talking about the
8:37
Speaker 1: last thirty years of the country without really getting into
8:41
Speaker 1: post Trump and injunctions.
8:43
Speaker 4: And everything else.
8:45
Speaker 1: If you wanted to go into someone's house or into
8:47
Speaker 1: a private location, obviously you needed a warrant to be
8:51
Speaker 1: able to engage in that arrest. But if you were
8:56
Speaker 1: patrolling out in the street, then all you would need
8:59
Speaker 1: generally is a reasonable suspicion that the person is not
9:03
Speaker 1: here legally in order to arrest them if you were ICE.
9:06
Speaker 1: And in fact, that is the decision that Justice Kavanaugh
9:10
Speaker 1: wrote in the most recent Supreme Court decision then this topic.
9:15
Speaker 1: But what had happened in the DC District Court litigation
9:21
Speaker 1: is that the district judge had said that there weren't
9:24
Speaker 1: these pre arrest individualized escape determinations that were made for
9:30
Speaker 1: people who were randomly being arrested out on the street.
9:34
Speaker 1: And so what they wanted was, and let me just
9:37
Speaker 1: explain this for your listeners in plain English, what they
9:40
Speaker 1: want to limit ice to do is basically go off
9:43
Speaker 1: of a list every day that they would get warrant
9:47
Speaker 1: for these people's arrests, and they would then go off
9:50
Speaker 1: of their list and do it, but not randomly start
9:53
Speaker 1: picking people off of the street and making arrests. So,
9:57
Speaker 1: now what the court had ordered, and this was in
10:00
Speaker 1: December of twenty twenty five, the court had actually issued
10:03
Speaker 1: a preliminary injunction saying that you couldn't just arrest people
10:07
Speaker 1: in the street if you thought they were here without
10:11
Speaker 1: a status unless you actually made a probable cause finding
10:15
Speaker 1: that the person is likely to escape before a warrant
10:18
Speaker 1: can be obtained. So that was the new sort of standard.
10:22
Speaker 1: So they didn't say you needed a warrant to arrest
10:25
Speaker 1: people out in the street, but you at least needed
10:29
Speaker 1: some type of probable cause finding that would be done
10:32
Speaker 1: visa VI, some sort of paperwork that you can then
10:34
Speaker 1: show after the fact. And then now the more recent
10:38
Speaker 1: debate is, well, what does this mean likely to escape?
10:42
Speaker 1: And the government position was that they were assessing you.
10:47
Speaker 4: By looking at you and saying you were going to
10:48
Speaker 4: run away.
10:49
Speaker 1: And what the court held is, no, it's not that,
10:53
Speaker 1: it's are you actually trying to avoid legal process? And
10:57
Speaker 1: only if you could prove that that they were in
11:01
Speaker 1: hiding you were a fugitive, could you actually be arrested
11:04
Speaker 1: out on the street without a warrant. And so that's
11:07
Speaker 1: where we are at right now.
11:09
Speaker 2: What did the judge find.
11:11
Speaker 1: Well, what the judge said was Ice rode a memo
11:14
Speaker 1: that was defining what an escape risk is. And the
11:17
Speaker 1: actual definition is likely to escape before a warrant can
11:21
Speaker 1: be obtained, and so you have to actually make that determination.
11:26
Speaker 1: And so then I said, fine, we're gonna write a
11:29
Speaker 1: memo training our officers, and the training of the officers.
11:33
Speaker 1: Their memo had to do with factors that made someone
11:37
Speaker 1: an escape risk in terms of how you observed the person,
11:41
Speaker 1: and that's not what the court thought was sufficient they said,
11:45
Speaker 1: you actually had to know that the person was a
11:49
Speaker 1: fugitive essentially, and that they had no residents, no family,
11:53
Speaker 1: no employment, other things tying them here because any of
11:57
Speaker 1: those things tying them here would mean that they weren't
11:59
Speaker 1: any risk because they had the residents you could always visit,
12:03
Speaker 1: or the family you could always visit, or the employment
12:05
Speaker 1: you could always visit.
12:07
Speaker 4: So if you weren't.
12:08
Speaker 1: Taking those things into account, you couldn't just arrest someone
12:11
Speaker 1: in the middle of the street.
12:12
Speaker 4: So it's only if.
12:13
Speaker 1: You didn't have any idea where to find these people
12:16
Speaker 1: and they were fugitives and you just happened to run
12:19
Speaker 1: in front of them, could you arrest them without a warrant.
12:22
Speaker 1: Otherwise you need to get a warrant. Now, I don't
12:27
Speaker 1: know if such a sort of hamstringing order is ultimately
12:32
Speaker 1: going to be affirmed when it gets to the Supreme Court,
12:36
Speaker 1: but this is sort of the way these civil litigation
12:38
Speaker 1: matters have been working. Is the district court puts in
12:41
Speaker 1: pretty tough standards on ice, and then they worked their
12:45
Speaker 1: way through the courts and we see what we end
12:47
Speaker 1: up with.
12:48
Speaker 2: Have any other judges put similar kinds of orders in place?
12:52
Speaker 1: Well, what's been happening is in places like Los Angeles
12:56
Speaker 1: and in Portland and in other places. They've tried to
12:59
Speaker 1: say just generally that Ice can't have arrest without warrant.
13:04
Speaker 1: So they're all trying to do the same thing where
13:06
Speaker 1: they're trying to say Ice, you need to work off
13:10
Speaker 1: of a list. You can't just start arresting people in
13:13
Speaker 1: the middle of the street. Those were concerned with racial
13:15
Speaker 1: profiling and other things of that nature. But those injunctions
13:19
Speaker 1: were subsequently overturned by Justice Kevanah and a decision in
13:23
Speaker 1: the shadow docket where he said, no, no, no, there can
13:26
Speaker 1: be a reasonable suspicion and here you can look at
13:29
Speaker 1: are they in a location where it's common that undocumented
13:32
Speaker 1: people are there? Are they in a profession where it's common?
13:36
Speaker 1: And people started calling those Kavanaugh stops. And there's some
13:40
Speaker 1: belief that maybe he has come to regret that based
13:44
Speaker 1: on the events that have happened. But in any case,
13:47
Speaker 1: it hasn't been overturned, and so this decision, if it
13:50
Speaker 1: gets back to the Supreme Court, will probably tee up
13:54
Speaker 1: again this larger issue of what is Ice permitted to
13:58
Speaker 1: do and when is Ice permitted to do it?
14:00
Speaker 2: Coming up next I'll continue this conversation with Leon Fresco.
14:04
Speaker 2: The Trump administration is now targeting naturalized American citizens. This
14:10
Speaker 2: is bloomberg. The Trump administration appears to have a new
14:15
Speaker 2: target in its aggressive immigration agenda, naturalized US citizens. The
14:21
Speaker 2: Justice Department filed eleven denaturalization cases in federal courts across
14:26
Speaker 2: the country on Friday. It's a procedure that's rarely been
14:30
Speaker 2: used by prior administrations. In fact, between nineteen ninety and
14:35
Speaker 2: twenty seventeen, the government filed an average of eleven cases
14:39
Speaker 2: per year. I've been talking to immigration law expert le
14:43
Speaker 2: On Fresco of Holland and Knight. Leon, how have prior
14:46
Speaker 2: administrations treated the denaturalization process? For example, when you were
14:52
Speaker 2: in the Obama administration, there.
14:54
Speaker 1: Were two famous kinds of cases where de naturalization occurred.
14:58
Speaker 1: The first and the most famous were for Nazi war criminals.
15:01
Speaker 1: So people you didn't know they were Nazis. They got
15:04
Speaker 1: to America somewhere after World War Two, you don't.
15:07
Speaker 4: Know exactly where, and then.
15:08
Speaker 1: It turns out because you did a bunch of genealogical
15:11
Speaker 1: or research, you realize, oh no, no, no, this person was
15:14
Speaker 1: a Nazi or was working in a war camp. And
15:16
Speaker 1: sometimes they'd be eighty five years old, ninety years old
15:18
Speaker 1: or whatever, and it was just a matter of, hey,
15:21
Speaker 1: you lied about being a Nazi, You're getting deported. End
15:24
Speaker 1: the story, we're denaturalizing you. Those would happen a few
15:28
Speaker 1: times a year. That was the main one. The second one,
15:31
Speaker 1: and one that started becoming more common was after the
15:36
Speaker 1: US became a technologically dependent country, where we started getting
15:41
Speaker 1: fingerprints of people and we started taking DNA, we started
15:45
Speaker 1: realizing that there were a large number of people who
15:48
Speaker 1: had been deported changed their name and come back in
15:52
Speaker 1: and tried to create a new identity. And so that
15:55
Speaker 1: was a large group of people that the government also
15:57
Speaker 1: tried to prioritize because it said, wait, I mean, you
16:00
Speaker 1: can't just do that.
16:01
Speaker 4: That defeats the whole point of the immigration system.
16:04
Speaker 1: If you're gonna get deported and you're gonna say, while
16:07
Speaker 1: i was John Smith when I first came, but now
16:10
Speaker 1: I'm going to avoid this by saying I'm Jerry Smith
16:12
Speaker 1: and that's.
16:13
Speaker 4: The end of that. So no, that was the second.
16:15
Speaker 1: But now the Trump administration appears to be basically trying
16:19
Speaker 1: to say what we want to be able to do
16:22
Speaker 1: is have this as a law enforcement tactic to make
16:26
Speaker 1: people very worried that they're never secure in the United States,
16:30
Speaker 1: such that you could always be denaturalized for any reason.
16:34
Speaker 4: And what they're.
16:34
Speaker 1: Basically saying is, if you do something that really makes
16:39
Speaker 1: us concerned about your behavior, we're gonna start looking at
16:43
Speaker 1: everything that was filed in the past to find something
16:47
Speaker 1: where you wrote something inaccurately so that we can then
16:50
Speaker 1: say you lied on your citizenship application or your green
16:53
Speaker 1: card application and denaturalize you.
16:55
Speaker 4: And the thing is, if you really.
16:57
Speaker 1: Look at any application closely, you could probably find something.
17:01
Speaker 1: And the materiality test really matters here because, for instance,
17:05
Speaker 1: there's a very famous question about organizations and a lot
17:08
Speaker 1: of people put I wasn't in any organizations, and they
17:11
Speaker 1: might say, well, why didn't you say that you were
17:14
Speaker 1: in the Red Cross or why didn't you say that
17:17
Speaker 1: you were, you know, in this fraternity or something like that,
17:20
Speaker 1: and you're like, well, I didn't think that was what
17:22
Speaker 1: you meant. I didn't think that was a big deal.
17:24
Speaker 1: So it's things like that where they can really start
17:27
Speaker 1: to bare down and find things out and say, well,
17:30
Speaker 1: you didn't put those on your application, so you lied
17:33
Speaker 1: to us, and now we're going to try to denaturalize you,
17:36
Speaker 1: and then it'll be up to the adjudicator to decide
17:39
Speaker 1: if that was a material of this representation.
17:42
Speaker 2: I mean, what they're doing now seems to be targeting
17:45
Speaker 2: naturalized citizens. Last year, DHS officials were told to refer
17:50
Speaker 2: upwards of two hundred cases for denaturalization a month, just
17:55
Speaker 2: like immigration officials were given targets of three thousand arrests
18:01
Speaker 2: a month.
18:01
Speaker 4: Correct.
18:02
Speaker 1: So normally, again, these would be very very serious cases
18:06
Speaker 1: that would come to the attention of the department for
18:08
Speaker 1: some sort of national security reason where you said, wait
18:12
Speaker 1: a second, somebody slipped through the cracks because they made
18:15
Speaker 1: up a name or whatever they got through the system.
18:17
Speaker 1: Now there is this effort to say, how do we
18:20
Speaker 1: find people that we can denaturalize? Essentially, and I think
18:25
Speaker 1: the key is, like anything in life, is how is
18:27
Speaker 1: this going to be used at the end of the day,
18:30
Speaker 1: if it's going to be used because we're really taking
18:32
Speaker 1: a focus at people who are really national security risks
18:36
Speaker 1: that we weren't looking at. Okay, I can maybe understand it,
18:39
Speaker 1: but if it's going to be used to basically say,
18:42
Speaker 1: this is a person I want out and I can't
18:45
Speaker 1: get them out, let's look for a reason to get
18:47
Speaker 1: them out.
18:47
Speaker 4: Then that's not a traditional.
18:49
Speaker 1: Way that the denaturalization process has been used. Having said that,
18:54
Speaker 1: if the lie was material enough, then the denaturalization is appropriate.
18:58
Speaker 1: So for instance, if you were in the middle of
19:02
Speaker 1: a trial for some criminal proceeding and you didn't report it,
19:07
Speaker 1: and they said, you know, had you reported it, we
19:10
Speaker 1: might have not given you the citizenship. That's the kind
19:13
Speaker 1: of thing that is material. That is the kind of
19:16
Speaker 1: thing where they're going to be looking and giving it
19:18
Speaker 1: a lot of scrutiny where it starts to get more problematic.
19:22
Speaker 1: And again I am of two minds on all of
19:25
Speaker 1: these things, because you can find one argument for One
19:27
Speaker 1: argument again is let's say somebody has an opinion that
19:32
Speaker 1: they are holding out now on May eleventh, twenty twenty six,
19:37
Speaker 1: that you don't like and that you think is destructive
19:40
Speaker 1: to the concepts of America. But they're a naturalized citizen.
19:44
Speaker 1: The question is, can you say, on the basis that
19:47
Speaker 1: they're articulating that opinion now that they lied on their
19:50
Speaker 1: citizenship application at the time because they held those views
19:54
Speaker 1: at the time and should have disclosed that.
19:56
Speaker 4: They held those views.
19:58
Speaker 1: That's the key question, and that's going to end up
20:01
Speaker 1: being one of these cases at some point, and that's
20:04
Speaker 1: I'm sure going to get adjudicated.
20:06
Speaker 2: It's a loan process, isn't it. To try to denaturalize someone,
20:10
Speaker 2: it's not easy.
20:10
Speaker 1: Well, you have to file a complaint in the district
20:13
Speaker 1: court and you have to have a probable cause memo
20:16
Speaker 1: that gets attached saying what is the evidentiary basis for
20:20
Speaker 1: the material misrepresentation that was done on the citizenship application.
20:25
Speaker 1: And so when it's straightforward, is you said you had
20:28
Speaker 1: never been convicted of a crime, but it turns out
20:30
Speaker 1: we found this record in Montana in nineteen eighty one
20:34
Speaker 1: that you had been convicted of, you know, child molestation.
20:37
Speaker 4: Okay, you're out. That's going to be an easy one.
20:39
Speaker 1: But for these where we're trying to defer your intent
20:42
Speaker 1: based on things that happen after your citizenship, let's just
20:46
Speaker 1: say that they say you lied on the question of
20:48
Speaker 1: do you fully intend to support the United States and
20:51
Speaker 1: take an oath of allegiance. Let's just say it's that one,
20:54
Speaker 1: which is a very broad range question. And then now
20:57
Speaker 1: you start articulating sentimental America is the worst, we're doing
21:00
Speaker 1: wars in a bunch of places and things like that.
21:02
Speaker 1: And I'm not saying I support those sentiments. I'm just
21:04
Speaker 1: trying to give a fact pattern here. So if you
21:06
Speaker 1: start articulating those sentiments, can they then say, well, now
21:10
Speaker 1: that you're articulating those, that shows that you clearly lied
21:14
Speaker 1: that you were tending to have allegiance and support to
21:18
Speaker 1: the US. And if we end up getting cases like that,
21:21
Speaker 1: that's going to be very interesting to see how the.
21:23
Speaker 4: Courts rule on those.
21:25
Speaker 2: They're not going to net high numbers here that they
21:27
Speaker 2: can tout, So what's the real purpose of this. It
21:30
Speaker 2: seems like it's going to make a lot of naturalized
21:33
Speaker 2: citizens feel uncomfortable and like second class citizens.
21:37
Speaker 4: I think there's two points here.
21:38
Speaker 1: The first point is to say to everyone who was
21:41
Speaker 1: not born in the United States, don't rest on your laurels.
21:44
Speaker 1: If you get US angry enough, you could be deported.
21:47
Speaker 1: It doesn't even matter that you're a citizen. So don't
21:50
Speaker 1: just think that you're going to be able to say
21:52
Speaker 1: I'm a citizen and I can start doing things that
21:55
Speaker 1: might attract attention. So that's one. It's sort of this
21:59
Speaker 1: larger current umbrella that's trying to be built, telling everyone
22:03
Speaker 1: who was born outside of the United States, be very
22:06
Speaker 1: careful how you're behaving here because you could come under
22:10
Speaker 1: the attention of people who will then denaturalize you. So
22:14
Speaker 1: I think that's number one. But then number two, it's
22:16
Speaker 1: saying to everyone going through the process, Hey, this is
22:20
Speaker 1: never going to be done, so you've got to be careful.
22:23
Speaker 1: There will never be a time where you can rest
22:25
Speaker 1: easy in the United States, so just know that.
22:28
Speaker 4: While you're going through this system.
22:30
Speaker 1: And so I think it's designed to create uneasiness in
22:33
Speaker 1: both of those areas.
22:34
Speaker 2: I remember that before they actually met in the Oval
22:38
Speaker 2: office that Trump threatened Mayor zorin Mandami, New York City
22:43
Speaker 2: Mayor zorin Mandami, who's a naturalized citizen, with this, and.
22:47
Speaker 1: That would have been that exact kind of case we discussed,
22:50
Speaker 1: which is, if there's things you don't like about what
22:52
Speaker 1: someone is saying, now, can you say that when they
22:55
Speaker 1: were saying that they supported fully the United States at
22:57
Speaker 1: the time of their naturalization, that they were being honest.
23:01
Speaker 1: And I think that's going to be one that would
23:02
Speaker 1: be very interesting for litigation.
23:05
Speaker 2: Finally, and we've talked about this before, that is the
23:09
Speaker 2: Trump administration's policy of mandatory detention for non citizens, so
23:15
Speaker 2: non citizens not being able to get a bond hearing,
23:18
Speaker 2: and that issue has already split the circuit courts, and
23:21
Speaker 2: now it appears it's going to split them even more.
23:24
Speaker 4: So there's been a couple of decisions.
23:26
Speaker 1: The Seventh Circuit has said that ICE is incorrectly determining
23:32
Speaker 1: that if you snuck into the country and you've been
23:35
Speaker 1: here for some large amount of time, that when the
23:38
Speaker 1: government finds you, it can keep you in detention for
23:40
Speaker 1: the entire time that your deportation case.
23:43
Speaker 4: Is going on without giving you a bond hearing.
23:45
Speaker 1: And we've discussed this last time about well why is
23:48
Speaker 1: that a big deal?
23:49
Speaker 4: What does it matter? Well, the reason it's a big deal.
23:52
Speaker 1: In ninety nine percent of criminal cases, if you are
23:55
Speaker 1: accused of a crime, you still get a bond hearing,
23:58
Speaker 1: You still get the chance to say that hey, I'm
24:02
Speaker 1: not a danger to society, I'm not a flight risk,
24:06
Speaker 1: let me out while my criminal case is spending. So
24:09
Speaker 1: deportation is not even a criminal case. It's what's called
24:12
Speaker 1: a civil case. So the government has even a less
24:16
Speaker 1: constitutional ability to put you in what's called civil detention
24:21
Speaker 1: as opposed to criminal detention. So the question is if
24:25
Speaker 1: constitutionally the government is going to put you in civil detention.
24:29
Speaker 1: The idea is that it should be a very very
24:31
Speaker 1: very clear statement from the Congress that says that they
24:35
Speaker 1: wanted you to do this. So what does this law say.
24:38
Speaker 1: This law says that if you are both an applicant
24:43
Speaker 1: for admission, and what an applicant for admission is is
24:45
Speaker 1: someone who's trying to get legal status in the United States,
24:49
Speaker 1: so that would be everybody, and there's no one here
24:51
Speaker 1: who's even a documented who's not trying to get legal status.
24:55
Speaker 4: That's the whole point of this, because.
24:57
Speaker 1: If you're apprehended and you're not trying to get legal status,
25:01
Speaker 1: then you would not be contesting your deportation.
25:03
Speaker 4: You would just give up and leave.
25:05
Speaker 1: So if you're contesting your deportation, that means the only
25:08
Speaker 1: way to do that is to try to get some
25:11
Speaker 1: sort of legal status. So everyone is an applicant for admission.
25:15
Speaker 1: But then the next question, and this is what the
25:16
Speaker 1: statute says, is it also uses the words seeking admission.
25:20
Speaker 1: Those people are the ones that can be detained without.
25:24
Speaker 4: A bond hearing. So for the thirty years before this
25:28
Speaker 4: current Trump administration.
25:29
Speaker 1: So even during the prior Trump administration, the belief was
25:33
Speaker 1: that that seeking admission meant someone you apprehended right at
25:37
Speaker 1: the border, not someone who had snuck in and was
25:41
Speaker 1: here for ten years, et cetera, because that person was
25:44
Speaker 1: no longer seeking admission.
25:45
Speaker 4: You didn't catch them in the act. But what some
25:49
Speaker 4: circuits like the Eighth Circuit and the Fifth Circuit have
25:52
Speaker 4: said is none, no, no no.
25:53
Speaker 1: Seeking admission basically means the same thing as being an
25:56
Speaker 1: applicant for admission. That when you are here legally, you're
26:01
Speaker 1: always perpetually trying to seek admission. That's what you're doing forever,
26:05
Speaker 1: So it doesn't matter if you're here. And plus, why
26:08
Speaker 1: would we enforce the law in a manner that rewarded
26:12
Speaker 1: you for sneaking in.
26:13
Speaker 4: That would not make any sense. We should not do that.
26:16
Speaker 1: We should we should not treat the wily KG person
26:19
Speaker 1: who got in any better than the less WILYKG person
26:22
Speaker 1: who was apprehended. That that shouldn't be a reward of
26:25
Speaker 1: any kind.
26:26
Speaker 4: And then now you have.
26:27
Speaker 1: The Seventh Circuit and potentially the First Circuit saying no, no, no,
26:32
Speaker 1: that's not the way this has been interpreted, and why
26:36
Speaker 1: would they use these two different terms in the same
26:38
Speaker 1: statute unless they had two different meanings. And so if
26:41
Speaker 1: you're going to do this, and especially when the statute
26:44
Speaker 1: is unclear period, how are you going to say that
26:46
Speaker 1: there's a clear statement to have this atension in a
26:51
Speaker 1: way that's potentially massively unconstitutional because it's saying that in
26:55
Speaker 1: a civil proceeding you.
26:57
Speaker 4: Have no bond.
26:57
Speaker 1: And again, why does this even matter. Here's why it matters,
27:01
Speaker 1: because if you're detained while your civil immigration deportation proceeding
27:05
Speaker 1: is held, many times they detain you in the middle
27:08
Speaker 1: of nowhere. And if I'm your lawyer and I can't
27:11
Speaker 1: talk to you, and I can't find you, and I
27:14
Speaker 1: am at the complete mercy of ice if they want
27:16
Speaker 1: to give you a fax, or if they don't want
27:18
Speaker 1: to give you a fax, or if they want to
27:20
Speaker 1: let you make a phone call, or if they don't,
27:21
Speaker 1: if I can't prepare your legal argument, you're not going
27:25
Speaker 1: to win your case.
27:25
Speaker 4: It doesn't matter how good your lawyer is.
27:28
Speaker 1: And so a lot of these people that they end
27:29
Speaker 1: up detaining in the middle of nowhere, they have no
27:33
Speaker 1: access to council and they're going to lose their case,
27:36
Speaker 1: and so it really makes a difference between winning and losing.
27:39
Speaker 1: And so that's why it matters if you're.
27:41
Speaker 4: Detained or not.
27:42
Speaker 2: So the question is when, not if, this issue will
27:45
Speaker 2: reach the Supreme Court. Thanks so much, Leon. That's Leon
27:49
Speaker 2: Fresco of Hollanden Night and that's it for this edition
27:52
Speaker 2: of The Bloomberg Law Show. Remember you can always get
27:55
Speaker 2: the latest legal news on our Bloomberg Law Podcast. You
27:58
Speaker 2: can find them on Apple podcast, Spotify, and at www
28:02
Speaker 2: dot bloomberg dot com, slash podcast slash Law, and remember
28:07
Speaker 2: to tune into The Bloomberg Law Show every weeknight at
28:10
Speaker 2: ten pm Wall Street Time. I'm June Grosso and you're
28:13
Speaker 2: listening to Bloomberg