May 12, 2025 • 27 mins
Immigration law expert Leon Fresco, a partner at Holland & Knight and the former head of the Office of Immigration Litigation in the Obama Administration, discusses the controversial immigration cases involving the Trump administration, from the arrest of Newark’s mayor to the refusal to bring back wrongfully deported Kilmar Abrego Garcia. June Grasso hosts.
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Speaker 1 (00:02):
This is Bloomberg Law with June Grossel from Bloomberg Radio.
Abolish I Abolish, I Abolish, Ilish.
Speaker 2 (00:15):
I protests over ICE's arrest of Newark's mayor outside a
new federal immigration detention center on Friday. The arrest came
after Mayor Ross Baraka tried to join three members of
New Jersey's congressional delegation in an oversight visit. Democratic Congresswoman
Lamonica McIver said that I started pushing them as they
(00:38):
went to arrest Baraka.
Speaker 1 (00:39):
Would shoved everything. Literally the aggression that would just ruughy handled. Literally.
Speaker 2 (00:45):
I mean nobody picked up a fence to punch us,
but literally they pushed us.
Speaker 1 (00:49):
They actually ended and removed us out of the way
to get to the mayor to arrest him.
Speaker 2 (00:55):
The mayor, who said he did nothing wrong, was arrested
on federal trespass charges in the public area outside the facility.
Speaker 1 (01:04):
I didn't climb a fence. I didn't kick the door out.
I didn't bust the window like their friends did at
the Capitol.
Speaker 2 (01:09):
I didn't hurt people joining me is immigration law expertly
on Fresco, a partner at Honden Night Leon on the
three New Jersey representatives said that they have the right
to conduct oversight without prior notice, and they've done it
three times this year. Is that unusual.
Speaker 1 (01:26):
It is a very common thing in the history of
this framework where there are ice attention facilities, which is
about a thirty year phenomenon, that Congress people go into
these ice attention facilities and view them and monitor them.
There is usually some coordination so that there can actually
(01:46):
be a time and a date where the inspection takes place,
or if there's not a coordination, there's usually some sort
of event that takes place outside of the facility where
you know, there's a press conference and they're using the
facility essentially as a background to complain about something or other.
Or the third way is they'll arrive at the facility
(02:09):
and they'll say, basically like if you would walk into
an emergency room, Hey, I need to come in, and
then thirty minutes later maybe they'll be let in. The
problem is when you're trying to combine all of these
things into one event, which is we're trying to do
the emergency walk in and we're trying to do a
media event. That's where I think the people at the
(02:31):
facility didn't manage it particularly well, and so there was
this brew haha about whether there was trespassing and assault
and pushing, and then there was a question as to
what the mayor of Newark, New Jersey was doing. Was
he trying to keep the peace or was he trying
to escalate things and assault officers. And so that's where
(02:53):
he got arrested because at least ICE is claiming that
he was not part of the solution, but he was
of the problem in terms of actually pushing his way
through and trespassing and disregarding the commands of the ICE
officers with regard to the movements within the facility. So
from that perspective, that's going to be quite fascinating, to
(03:14):
the extent that now the DHS spokesperson is threatening the
arrests of the House Democratic Congress members because they are
protected under something called the Speech of the Bay Clause,
which is if they are trying to basically show that
they can engage in functions that are pursued to their
duties in Congress, which they would say this falls within that,
(03:37):
they're allowed to do that. But the Speech of the
Bay clause also has an exception for if you are
committing this kind of assault and battery on someone, you're
not covered by the speech of the Bay clause. So
this is actually going to be yet another interesting convergence
of law, which is was there really an assault and
(03:59):
battery or was this a prevention of the congress people
doing their job.
Speaker 2 (04:04):
A Homeland Security spokeswoman said members of Congress assaulted ICE
agents and body slammed a female ICE officer. I just
want to note that one of the New Jersey representatives
is eighty years old. ICE claims it has video, but
the only video they've released so far is from the
body cams of the ICE officers outside the facility, and
(04:27):
it just looks like chaos and confusion.
Speaker 1 (04:30):
I mean, all of those facilities, every inch of them,
are under video and sound, so they would have it
and we would know the answer to that question. And secondly,
all of those facilities, I've been to dozens of them,
both when I was in the government and in representing
foreign nationals who are Unfortunately in those facilities, you can't
move six feet without getting through some door or some
(04:54):
gate or something. There's nothing to storm. You'd be storming
a metal door. That would be very painful to you.
And so from that perspective it does seem unlikely. But
because I haven't seen a video, I would need to
reserve judgment on that. But nobody here has clean hands,
because certainly there's a wait for a congress member to
(05:16):
go into an ice facility that one hundred percent of
the time has to happen and has to be allowed.
But by the same token, there is probably an escalation
that occurred there when they didn't get exactly what they
wanted when they wanted it, and this is what leads
to these unfortunate conflagrations.
Speaker 2 (05:34):
So the mayor said he was there along with the
New Jersey representatives, but does he have a right to
be there as the mayor well.
Speaker 1 (05:43):
So this is actually an interesting part of what is
currently subject to a lot of federal litigation which hasn't
been decided in the Supreme Court yet, which is what
rights do states and localities have over these detention facilities
in their states and local For instance, California has passed
laws in the past that say you can't have these
(06:05):
ice attention facilities in California, and the courts, at least
the Ninth Circuit is held that that's preempted and that
the federal government is allowed to function even in a
state or a locality that says that the federal government
can't have these kinds of ice facilities in their city.
But then their question is, well, what about licensing requirements?
(06:28):
What about environmental requirements? Are all of those preempted? And
yet again, these are issues that aren't fully decided in
the courts. Is what jurisdiction or what guidance or supervision
of any kind would a mayor of a town have
over an immigration detention facility in their city. Can they
do anything at all? Or is it one hundred percent
(06:50):
preempted such that when they arrive at such a facility,
they are no different than you or I, just a
private citizen, and whatever they do, if they try to desert,
additional pressure could lead them to being arrested.
Speaker 2 (07:04):
The mayor's office is claiming that the facility is operating
without a valid certificate of occupancy, but more than a
dozen federal agents arrested him on federal trespassing charges in
a public area outside of facility that's owned by a
private prison company.
Speaker 1 (07:24):
Is that a problem, Well, it would be a problem
if he didn't actually engage in a crime. Then arresting
him is going to be a huge problem. And obviously
any time that happened, the person could file a lawsuit
and tried to get damages under the Federal Toward Claims Act.
So there's definitely possibilities of that if that's really what happened.
But again this is going to have to be subject
(07:46):
to the video and the recordings to see what happened,
and also then subject to these legal conclusions about what
jurisdiction does a mayor have, what was the mayor doing,
was the mayor inside when the mayor shouldn't have been,
or was the mayor arrested for absolutely no reason? So
we will just have to wait and see. But definitely
(08:07):
a very fascinating sequence of events that occurred last week.
Speaker 2 (08:11):
I mean, if Ice actually had a video showing this,
wouldn't they have released it to back up their point?
We would already have.
Speaker 1 (08:19):
Seen it many times. I would have seen the video,
I agree. I agree scenes most likely if you have
a video, it would have been seen, especially since the
mayor has specifically called on them to produce a video.
The fact that they have not produced a video, you know,
I think what the mayor should probably want to do
now is to try to poia the video to file
a freedom of information I requise and or the media
(08:42):
can do this, and if there are no videos, then
that's going to be the end of the story there.
Speaker 2 (08:47):
When you take the mayor's arrest with the arrest of
the judge in Wisconsin, do you think this is the
federal authorities warning local officials stay out of our business.
Speaker 1 (09:01):
Well, I think the arrest of the judge is far
more justified than the arrest of the Newark mayor, and
that the judge was openly impeding a request from ICE
to be able to actually pick someone up in the courtroom. Now,
the judge is going to have her explanation that she's
trying to manage her courtroom and the safety of the
facility and the ability to have a docket because she
(09:25):
won't have a docket if ICE is operating in her court.
So fine, there's defenses for that. But the Newark mayor,
at least if one believes his account, he's saying he
was just there supporting his members of Congress and just
making sure that the facility was up to code, so
to speak, and as soon as he was told to
VAK he did so. This is the question. Now, maybe
(09:47):
he didn't, but again, like we discussed, and the video
is going to answer all of those questions. But if
there's no video showing him basically trying to barge into
a facility where he's been told to leave and he's
not used physical force to do that, I think an
arrest there is going to be very difficult to justify.
Speaker 2 (10:06):
I've been talking to Leon Fresco, the former head of
the Office of Immigration Litigation in the Obama administration and
a partner at Honden Knight.
Speaker 1 (10:15):
Leon.
Speaker 2 (10:16):
Let's turn to the very high profile arrests of several
foreign graduate students. A couple have been released from custody.
A doctoral student at Toughs was released after six weeks
in detention. What happened there?
Speaker 1 (10:33):
So she is one of the three sort of big
students in terms of there was the original Columbia student,
Madmud Khalil, then there was an additional student who was
also a Columbia student, and there is ur the tough
student Rubsaya os third who all are under that same
guys where Secretary of State Rubio said that this individual
(10:57):
had to lead the United States because they were that
ttrumental to the foreign policy interests of the United States.
So it's not even the typical student visa cases that
are happening, which is that a student visa is being revolved,
and when the student visa is being revolved, then the
student is just in flux. No, this is sort of
(11:18):
the nuclear bomb version of this, which is we are
saying that you are basically no different than a foreign dictator.
You're that bad. You being here hurts America's foreign policy.
We have to keep you in detention, and we have
to remove you once we can, as soon as we can.
But in the meantime, you're in detention. So all three
(11:40):
of these individuals have filed federal habeas claims, and two
of them, so one of the Columbia students, most in Madawi,
and now this tough student, have been released because these
judges are finding they're not making the final judgment with
regard to some rejudgment on the statute being unconstitutional, but
seems to be where they're headed because they're saying, as
(12:02):
a matter of injunctive relief, we're going to do two
things that are quite stunning as legal conclusion. You know,
it's not clear that the Supreme Court ultimately will allow this.
We'll have to wait and see. But they said, first
of all, we're going to accept jurisdiction of these claims,
and that's very remarkable because we don't know that that's
(12:22):
actually going to be the way the law plays out
at the end of this, because the Department of Justice
is saying, no, you have to have the deportation proceeding first,
and then if there's a deportation ordered, only then can
you make these constitutional claims. So you have to be
in attention the whole time to challenge the constitutionality of
the statute and then you can do it. So the
court is saying no, no, no, no, you can do
(12:44):
this upfront in a habeas position. So a there's that,
And then secondly, we find that there's sort of this
injunction standard, a likelihood of success that you will be
able to actually show that there's a problem with this
statute such that we're going to release you from the tension.
And so you now have that in two of the
(13:05):
three cases. We're waiting for what the judge is going
to do in the third case. But it seems like
the courts aren't concerned about what is the limiting principle
for the Secretary of State to be able to say
that someone is harmful to the foreign policy interests of
the United States and just kick them out without any
sort of limiting principle as to what that means. And
(13:29):
I think if the government doesn't do a better job
of articulating a limiting principle, it's going to have a
much tougher time defending these types of deportations in the court.
Speaker 2 (13:40):
Is this without precedent to have the Secretary of State
use this provision in this way or is there law
on this.
Speaker 1 (13:47):
Well, they use it all the time for things like,
you know, a dictator seeks in the country, or some
terrorists or something. They've used it for that. But to
use it in a situation where it's a foreign student
who with you know, maybe articulating things that are very
unseemly an unclear, you know, we'll have to have that
debate as to each of these students, what they did,
(14:08):
what they didn't do. But the point is there are
already grounds of deportation for giving material supports to terrorist organizations,
and those would be much more within the compatibility of
how the immigration system usually works. If you could say, hey, look,
this person openly advocated for hamas or this person said
to donate, or this person said to do this, you
(14:31):
know whatever, it may be, okay, But this issue of
saying that by engaging in this protest, they are engaging
in conduct that is outside of the foreign policy interests
of the United States, then the question is, well, okay,
how does that determination get made? What are the limiting principles?
And what prevents any Secretary of State from doing that
(14:55):
for any reason whatsoever. So, for instance, let's say you
called on to stop fleeing the American public. Could Secretary
of State say, well, maybe we like that, but we
don't want you particularly upsetting China because we're insensitive trade negotiations,
and so you couldn't do that either. You know, you
get supported for saying China is fleeing the American public
(15:17):
on trade. So this is the question what is the
limiting principle? And I think if that's not articulated, the
courts are going to say, look, there's a vagueness problem
with this statue. That becomes quite concerning to So suppose.
Speaker 2 (15:30):
She wins this round, what happens when her student visa expires?
Speaker 1 (15:35):
Well, so this is what's bizarre about a student visa
unless and until the administration does new regulations to change this.
A student visa actually, once you're in the US doesn't
expire ever if you want to remain a student for
the rest of your life here, So if you keep
doing programs, they can keep keeping you here as a student. Now,
(15:55):
the question is how much money do you have to
be able to do this over and over again. But
it is fair to say if they tried to change
their status to anything else, they may have a tough
time doing it, no doubt about it.
Speaker 2 (16:06):
It's about due process. And you know, we had the
President last week saying he's not sure about due process,
and different people in the administration saying that due process
rights are not accorded to immigrants, although we had Justice
Scalia in an important opinion saying yes, due process is
(16:27):
accorded to immigrants. So, I mean, tell us about this
whole due process argument.
Speaker 1 (16:34):
Well, we start with the words of the Constitution, as
the Great Justice Kullia used to say, but it is
a very fair point. Well why not actually start with
the words of the Constitution. And if you were to
do what's called a control f or you know, a
word find in the Constitution. You would see that sometimes
the Constitution uses the words citizen, and sometimes it doesn't
(16:55):
use the words citizen. And so for the due process
clause of the Constitution, and it does not use the
word citizen. It uses the word person. And so there's
a lot of case saw that it said that because
the due process clause uses the word person and that citizen,
it doesn't only apply to citizens. It applies to person.
Now that's a separate question to Okay, So everybody has
(17:19):
a right to do process. And I think you wouldn't
find one justice who would say that that's not true,
because I think the reason we know this is because
we already had the nine to nothing decision in the
cases involving the alien enemies at where the Supreme Court.
You know, there was a debate about whether Trump one
or the plaintiffs won. But in any case, what the
(17:39):
Supreme Court said is everybody gets a chance to come
into court and say, I'm not an alien enemy. Are
you out of your mind? I'm built from Cleveland. Why
why am I being said to El Savador? I sell
vacuum cleaners and I was born in Cleveland. I don't
I don't get it. And so everybody gets that right
to go to court, and so everybody has that due process,
(18:02):
But the question is what process is due to you?
And I think this is where there's a debate here
about the Trump administration saying, look, we can't give all
of the people who entered the United States and set
the moment from everything that you hear, and they say,
they claim at the moment that they're really concerned with
(18:25):
just a group of people who entered between twenty twenty
one and twenty twenty four. They're saying, we'll get to
the people from before twenty twenty one later, but what
they feel is the sort of bad act that they
need to remedy is to remove the people who came
from twenty twenty one to twenty twenty four. And they're
saying that that's millions of people, which it is. It's
(18:46):
unclear how many millions, but it certainly is some number
of millions of people. And what they're saying is there's
no way we can have a trial for each one
of these people in immigration court, which is probably going
to be what ends up happening because a lot of
these folks are from Venezuela, Cuba, Nicaragua, Haiti, China at
(19:08):
other places where they can ask for asylum. And so
when these folks are asking for asylum, they will have
to have a trial about whether they're going to be
persecuted when you send them back. And so this is
the problem. The administration is saying, there's no way we
can do this. How are we going to be able
to get all of these people out? So you have
some understanding of what they're saying. But by the same token,
(19:32):
the other side says, but if you don't do this
on a case by case basis, you're going to remove
people who our law say you can't remove. And so
there's no other way to do this. You know, it
might be nice to be able to have some sort
of group thing going on, but that's not how it works.
Everybody has to make their case and that's what the
current law is. And so this is the question. It's
(19:55):
definitely not practical. There's no dispute to what Trump is
saying is that it it's not practical to have a
trial for every single person. But in the end, the
trial is not for the evil gang members benefit. It's
for build from Cleveland's benefit to be able to say, hey,
I'm built from Cleveland. Why did you arrest me I'm
(20:16):
a US citizen or somebody who already won asylum, or
somebody who actually is a dissident from Venezuela and was
you know, trying to get this Maduro out of power
and actually use theirs TV and YouTube clips of them
doing it, et cetera. So for those kind of people,
you need to do process. And the only way to
figure out which kind of person you're talking about is
(20:37):
to allow each person to make their claim.
Speaker 2 (20:40):
So I mean, there are fast trials, and couldn't they
do each of these and you know a few.
Speaker 1 (20:46):
Hours, Well you can, and they are done. I mean,
no asylum claim other than maybe a couple of cases
I've been involved with, But that's because I wonder why, yes, yes, yes,
I mean I've been in once take two three days,
and that's considered like a record amount of time to
have an asylum case. But most of them take four hours,
(21:07):
six hours. But here's the problem. I mean, even if
you had a thousand immigration court judges, and those thousand
immigration court judges worked three hundred and sixty five days,
which they do not. But let's say they work three
hundred and sixty five days, we would still be talking
(21:29):
about at the end of the day, you know, three
hundred and sixty five thousand cases or something. And so
if you're trying to deport what they claim is ten
million people, you're not going to make a vent there.
And so that's the problem that they're coming across here.
Speaker 2 (21:45):
I've been talking immigration law expert Leon Fresco of Honden
Night Stephen Miller. Over the weekend, the White House Chief
of Staff said that they're thinking about trying to suspend
Habeas corpus, which has been done I think four times
in the nation's.
Speaker 1 (22:02):
History, right, and so the Habeas corpus clause says that
it can be suspended during times of rebellion and invasion.
And so the question is is this considered a type
of invasion that they were talking about, especially when Congress
hasn't declared war. We've already seen that the courts at
the moment are not very excited about this invasion language
(22:24):
because they're not allowing it to be used in the
alien Enemies at context. So far, there's not a judge
who's reviewed any of these alien Enemies at case as
yet who has said yes, by the way, we are
under an invasion, and so the Trump administration is correct
to allow folks to be detained and deported without due
(22:45):
process because we're under an invasion. They haven't been successful
with that argument yet, and so if they're not successful
there in that context, it's going to be hard to say, well,
how can you suspend habeas corpus, which is a much
much larger list in the courts. I mean, that's a
(23:05):
monumental thing to do because it's literally the founding of
the republic is about these rights as you have for
habeas corpus, and so to suspend it, if they're not
going to say there's an invasion for the purposes of
the Alien Enemies Act, it's going to be difficult. But
what they're trying to do is they're trying to avoid
literally what we've just talked about with regard to the
(23:26):
foreign students. Those foreign students are in court filing habeas petitions,
and the people under the Alien Enemies Act are in
federal court filing habeas petition. That's their only jurisdiction that
they have to get into court. So if you suspend
abeas corpus, then they can't file those petitions. And so
the idea is you can keep them detained, give them
(23:48):
their removal process, and then maybe at the end they'll
be able to file something. But at least maybe a
lot more people will be discouraged because they won't be
able to see a quick way to get relief, which
is what Habeas does, and so they'll just try to
self support or give up or never come into country
the first place, etc. Et cetera. And so we'll see
(24:11):
if they end up doing it. But I think the
reason that even you see some hesitation from Stephen Miller
is because at the end of the day, if they
don't win any of these cases on the alien Enemies odds,
then whether we are under an invasion for the purposes
of that, it will be very hard to say why
we are under an invasion for the purposes of suspending
(24:32):
Habeas corpus.
Speaker 2 (24:33):
And speaking of Habeas corpus petitions Kilmar Abrigo Garcia, which
I don't know where that case is now. But Christy Nome,
the DHS secretary, said in Congress last week he's not
coming back.
Speaker 1 (24:46):
He's not coming back restrained. I have no doubt about it.
Why the plaints that are still holding off on doing
anything here when they hear the Secretary of Homeland Security
thing they're not going to bring him back, but perhaps
there's some other arrangement that's interesting to both sides. I
don't know what it is. I do think the plaintiffs
(25:08):
definitely wanted him back. That was why they had filed
the litigation. And so if they hadn't pushed the tieline
and they're sort of still on this Flower timeline and
you have the second Tary of Land Security say he's
not going to come back, something is going to have
to give soon. And so either you're going to see
the announcement of some settlement that works for both sides,
(25:29):
or you're going to see the litigation come back again.
And I don't know where this is going now. Having
said that, there was a case that just got decided
on Friday with regards to the Biden administration's asylum ban,
not the Trump administration's asylum ban, but the Biden administration
asylum ban. The Biden administration banned asylum by saying you
(25:52):
had to use the CBP one app if you tried
to come in the country illegally, you wouldn't be able
to get asylum. And the court held that that violates
the statutes. You can't do that or Interestingly, the plaintiffs
in that case said that there had been some wrongly
deported people under the Biden Asylum band and they asked
the judge to force the administration to bring them back,
(26:16):
and the judge there, who's known as quite a progressive judge,
that absolutely not. I can't bring them back. There's nothing
I can do about this. All I can do is
take away their deportation order. And they want to come
back and try again to apply for asylum, that's certainly
something they can do. But I can't order anybody to
bring anybody back. And so perhaps there's some belief system
(26:40):
here that's starting to take place that really the courts
can't do this and they and they can't order anybody
to be brought back. So that's what's going to be
very interesting to see.
Speaker 2 (26:50):
Thanks so much, Leon. That's Leon Fresco of Honda Night,
and that's it for this edition of the Bloomberg Law Show.
Remember you can always get the latest legal news on
our Bloomberg Glaw podcasts. You can find them on Apple Podcasts, Spotify,
and at www dot Bloomberg dot com. Slash podcast slash Law,
and remember to tune into the Bloomberg Law Show every
(27:12):
weeknight at ten pm Wall Street Time. I'm June Grosso
and you're listening to Bloomberg
This is Bloomberg Law with June Grossel from Bloomberg Radio.
Abolish I Abolish, I Abolish, Ilish.
Speaker 2 (00:15):
I protests over ICE's arrest of Newark's mayor outside a
new federal immigration detention center on Friday. The arrest came
after Mayor Ross Baraka tried to join three members of
New Jersey's congressional delegation in an oversight visit. Democratic Congresswoman
Lamonica McIver said that I started pushing them as they
(00:38):
went to arrest Baraka.
Speaker 1 (00:39):
Would shoved everything. Literally the aggression that would just ruughy handled. Literally.
Speaker 2 (00:45):
I mean nobody picked up a fence to punch us,
but literally they pushed us.
Speaker 1 (00:49):
They actually ended and removed us out of the way
to get to the mayor to arrest him.
Speaker 2 (00:55):
The mayor, who said he did nothing wrong, was arrested
on federal trespass charges in the public area outside the facility.
Speaker 1 (01:04):
I didn't climb a fence. I didn't kick the door out.
I didn't bust the window like their friends did at
the Capitol.
Speaker 2 (01:09):
I didn't hurt people joining me is immigration law expertly
on Fresco, a partner at Honden Night Leon on the
three New Jersey representatives said that they have the right
to conduct oversight without prior notice, and they've done it
three times this year. Is that unusual.
Speaker 1 (01:26):
It is a very common thing in the history of
this framework where there are ice attention facilities, which is
about a thirty year phenomenon, that Congress people go into
these ice attention facilities and view them and monitor them.
There is usually some coordination so that there can actually
(01:46):
be a time and a date where the inspection takes place,
or if there's not a coordination, there's usually some sort
of event that takes place outside of the facility where
you know, there's a press conference and they're using the
facility essentially as a background to complain about something or other.
Or the third way is they'll arrive at the facility
(02:09):
and they'll say, basically like if you would walk into
an emergency room, Hey, I need to come in, and
then thirty minutes later maybe they'll be let in. The
problem is when you're trying to combine all of these
things into one event, which is we're trying to do
the emergency walk in and we're trying to do a
media event. That's where I think the people at the
(02:31):
facility didn't manage it particularly well, and so there was
this brew haha about whether there was trespassing and assault
and pushing, and then there was a question as to
what the mayor of Newark, New Jersey was doing. Was
he trying to keep the peace or was he trying
to escalate things and assault officers. And so that's where
(02:53):
he got arrested because at least ICE is claiming that
he was not part of the solution, but he was
of the problem in terms of actually pushing his way
through and trespassing and disregarding the commands of the ICE
officers with regard to the movements within the facility. So
from that perspective, that's going to be quite fascinating, to
(03:14):
the extent that now the DHS spokesperson is threatening the
arrests of the House Democratic Congress members because they are
protected under something called the Speech of the Bay Clause,
which is if they are trying to basically show that
they can engage in functions that are pursued to their
duties in Congress, which they would say this falls within that,
(03:37):
they're allowed to do that. But the Speech of the
Bay clause also has an exception for if you are
committing this kind of assault and battery on someone, you're
not covered by the speech of the Bay clause. So
this is actually going to be yet another interesting convergence
of law, which is was there really an assault and
(03:59):
battery or was this a prevention of the congress people
doing their job.
Speaker 2 (04:04):
A Homeland Security spokeswoman said members of Congress assaulted ICE
agents and body slammed a female ICE officer. I just
want to note that one of the New Jersey representatives
is eighty years old. ICE claims it has video, but
the only video they've released so far is from the
body cams of the ICE officers outside the facility, and
(04:27):
it just looks like chaos and confusion.
Speaker 1 (04:30):
I mean, all of those facilities, every inch of them,
are under video and sound, so they would have it
and we would know the answer to that question. And secondly,
all of those facilities, I've been to dozens of them,
both when I was in the government and in representing
foreign nationals who are Unfortunately in those facilities, you can't
move six feet without getting through some door or some
(04:54):
gate or something. There's nothing to storm. You'd be storming
a metal door. That would be very painful to you.
And so from that perspective it does seem unlikely. But
because I haven't seen a video, I would need to
reserve judgment on that. But nobody here has clean hands,
because certainly there's a wait for a congress member to
(05:16):
go into an ice facility that one hundred percent of
the time has to happen and has to be allowed.
But by the same token, there is probably an escalation
that occurred there when they didn't get exactly what they
wanted when they wanted it, and this is what leads
to these unfortunate conflagrations.
Speaker 2 (05:34):
So the mayor said he was there along with the
New Jersey representatives, but does he have a right to
be there as the mayor well.
Speaker 1 (05:43):
So this is actually an interesting part of what is
currently subject to a lot of federal litigation which hasn't
been decided in the Supreme Court yet, which is what
rights do states and localities have over these detention facilities
in their states and local For instance, California has passed
laws in the past that say you can't have these
(06:05):
ice attention facilities in California, and the courts, at least
the Ninth Circuit is held that that's preempted and that
the federal government is allowed to function even in a
state or a locality that says that the federal government
can't have these kinds of ice facilities in their city.
But then their question is, well, what about licensing requirements?
(06:28):
What about environmental requirements? Are all of those preempted? And
yet again, these are issues that aren't fully decided in
the courts. Is what jurisdiction or what guidance or supervision
of any kind would a mayor of a town have
over an immigration detention facility in their city. Can they
do anything at all? Or is it one hundred percent
(06:50):
preempted such that when they arrive at such a facility,
they are no different than you or I, just a
private citizen, and whatever they do, if they try to desert,
additional pressure could lead them to being arrested.
Speaker 2 (07:04):
The mayor's office is claiming that the facility is operating
without a valid certificate of occupancy, but more than a
dozen federal agents arrested him on federal trespassing charges in
a public area outside of facility that's owned by a
private prison company.
Speaker 1 (07:24):
Is that a problem, Well, it would be a problem
if he didn't actually engage in a crime. Then arresting
him is going to be a huge problem. And obviously
any time that happened, the person could file a lawsuit
and tried to get damages under the Federal Toward Claims Act.
So there's definitely possibilities of that if that's really what happened.
But again this is going to have to be subject
(07:46):
to the video and the recordings to see what happened,
and also then subject to these legal conclusions about what
jurisdiction does a mayor have, what was the mayor doing,
was the mayor inside when the mayor shouldn't have been,
or was the mayor arrested for absolutely no reason? So
we will just have to wait and see. But definitely
(08:07):
a very fascinating sequence of events that occurred last week.
Speaker 2 (08:11):
I mean, if Ice actually had a video showing this,
wouldn't they have released it to back up their point?
We would already have.
Speaker 1 (08:19):
Seen it many times. I would have seen the video,
I agree. I agree scenes most likely if you have
a video, it would have been seen, especially since the
mayor has specifically called on them to produce a video.
The fact that they have not produced a video, you know,
I think what the mayor should probably want to do
now is to try to poia the video to file
a freedom of information I requise and or the media
(08:42):
can do this, and if there are no videos, then
that's going to be the end of the story there.
Speaker 2 (08:47):
When you take the mayor's arrest with the arrest of
the judge in Wisconsin, do you think this is the
federal authorities warning local officials stay out of our business.
Speaker 1 (09:01):
Well, I think the arrest of the judge is far
more justified than the arrest of the Newark mayor, and
that the judge was openly impeding a request from ICE
to be able to actually pick someone up in the courtroom. Now,
the judge is going to have her explanation that she's
trying to manage her courtroom and the safety of the
facility and the ability to have a docket because she
(09:25):
won't have a docket if ICE is operating in her court.
So fine, there's defenses for that. But the Newark mayor,
at least if one believes his account, he's saying he
was just there supporting his members of Congress and just
making sure that the facility was up to code, so
to speak, and as soon as he was told to
VAK he did so. This is the question. Now, maybe
(09:47):
he didn't, but again, like we discussed, and the video
is going to answer all of those questions. But if
there's no video showing him basically trying to barge into
a facility where he's been told to leave and he's
not used physical force to do that, I think an
arrest there is going to be very difficult to justify.
Speaker 2 (10:06):
I've been talking to Leon Fresco, the former head of
the Office of Immigration Litigation in the Obama administration and
a partner at Honden Knight.
Speaker 1 (10:15):
Leon.
Speaker 2 (10:16):
Let's turn to the very high profile arrests of several
foreign graduate students. A couple have been released from custody.
A doctoral student at Toughs was released after six weeks
in detention. What happened there?
Speaker 1 (10:33):
So she is one of the three sort of big
students in terms of there was the original Columbia student,
Madmud Khalil, then there was an additional student who was
also a Columbia student, and there is ur the tough
student Rubsaya os third who all are under that same
guys where Secretary of State Rubio said that this individual
(10:57):
had to lead the United States because they were that
ttrumental to the foreign policy interests of the United States.
So it's not even the typical student visa cases that
are happening, which is that a student visa is being revolved,
and when the student visa is being revolved, then the
student is just in flux. No, this is sort of
(11:18):
the nuclear bomb version of this, which is we are
saying that you are basically no different than a foreign dictator.
You're that bad. You being here hurts America's foreign policy.
We have to keep you in detention, and we have
to remove you once we can, as soon as we can.
But in the meantime, you're in detention. So all three
(11:40):
of these individuals have filed federal habeas claims, and two
of them, so one of the Columbia students, most in Madawi,
and now this tough student, have been released because these
judges are finding they're not making the final judgment with
regard to some rejudgment on the statute being unconstitutional, but
seems to be where they're headed because they're saying, as
(12:02):
a matter of injunctive relief, we're going to do two
things that are quite stunning as legal conclusion. You know,
it's not clear that the Supreme Court ultimately will allow this.
We'll have to wait and see. But they said, first
of all, we're going to accept jurisdiction of these claims,
and that's very remarkable because we don't know that that's
(12:22):
actually going to be the way the law plays out
at the end of this, because the Department of Justice
is saying, no, you have to have the deportation proceeding first,
and then if there's a deportation ordered, only then can
you make these constitutional claims. So you have to be
in attention the whole time to challenge the constitutionality of
the statute and then you can do it. So the
court is saying no, no, no, no, you can do
(12:44):
this upfront in a habeas position. So a there's that,
And then secondly, we find that there's sort of this
injunction standard, a likelihood of success that you will be
able to actually show that there's a problem with this
statute such that we're going to release you from the tension.
And so you now have that in two of the
(13:05):
three cases. We're waiting for what the judge is going
to do in the third case. But it seems like
the courts aren't concerned about what is the limiting principle
for the Secretary of State to be able to say
that someone is harmful to the foreign policy interests of
the United States and just kick them out without any
sort of limiting principle as to what that means. And
(13:29):
I think if the government doesn't do a better job
of articulating a limiting principle, it's going to have a
much tougher time defending these types of deportations in the court.
Speaker 2 (13:40):
Is this without precedent to have the Secretary of State
use this provision in this way or is there law
on this.
Speaker 1 (13:47):
Well, they use it all the time for things like,
you know, a dictator seeks in the country, or some
terrorists or something. They've used it for that. But to
use it in a situation where it's a foreign student
who with you know, maybe articulating things that are very
unseemly an unclear, you know, we'll have to have that
debate as to each of these students, what they did,
(14:08):
what they didn't do. But the point is there are
already grounds of deportation for giving material supports to terrorist organizations,
and those would be much more within the compatibility of
how the immigration system usually works. If you could say, hey, look,
this person openly advocated for hamas or this person said
to donate, or this person said to do this, you
(14:31):
know whatever, it may be, okay, But this issue of
saying that by engaging in this protest, they are engaging
in conduct that is outside of the foreign policy interests
of the United States, then the question is, well, okay,
how does that determination get made? What are the limiting principles?
And what prevents any Secretary of State from doing that
(14:55):
for any reason whatsoever. So, for instance, let's say you
called on to stop fleeing the American public. Could Secretary
of State say, well, maybe we like that, but we
don't want you particularly upsetting China because we're insensitive trade negotiations,
and so you couldn't do that either. You know, you
get supported for saying China is fleeing the American public
(15:17):
on trade. So this is the question what is the
limiting principle? And I think if that's not articulated, the
courts are going to say, look, there's a vagueness problem
with this statue. That becomes quite concerning to So suppose.
Speaker 2 (15:30):
She wins this round, what happens when her student visa expires?
Speaker 1 (15:35):
Well, so this is what's bizarre about a student visa
unless and until the administration does new regulations to change this.
A student visa actually, once you're in the US doesn't
expire ever if you want to remain a student for
the rest of your life here, So if you keep
doing programs, they can keep keeping you here as a student. Now,
(15:55):
the question is how much money do you have to
be able to do this over and over again. But
it is fair to say if they tried to change
their status to anything else, they may have a tough
time doing it, no doubt about it.
Speaker 2 (16:06):
It's about due process. And you know, we had the
President last week saying he's not sure about due process,
and different people in the administration saying that due process
rights are not accorded to immigrants, although we had Justice
Scalia in an important opinion saying yes, due process is
(16:27):
accorded to immigrants. So, I mean, tell us about this
whole due process argument.
Speaker 1 (16:34):
Well, we start with the words of the Constitution, as
the Great Justice Kullia used to say, but it is
a very fair point. Well why not actually start with
the words of the Constitution. And if you were to
do what's called a control f or you know, a
word find in the Constitution. You would see that sometimes
the Constitution uses the words citizen, and sometimes it doesn't
(16:55):
use the words citizen. And so for the due process
clause of the Constitution, and it does not use the
word citizen. It uses the word person. And so there's
a lot of case saw that it said that because
the due process clause uses the word person and that citizen,
it doesn't only apply to citizens. It applies to person.
Now that's a separate question to Okay, So everybody has
(17:19):
a right to do process. And I think you wouldn't
find one justice who would say that that's not true,
because I think the reason we know this is because
we already had the nine to nothing decision in the
cases involving the alien enemies at where the Supreme Court.
You know, there was a debate about whether Trump one
or the plaintiffs won. But in any case, what the
(17:39):
Supreme Court said is everybody gets a chance to come
into court and say, I'm not an alien enemy. Are
you out of your mind? I'm built from Cleveland. Why
why am I being said to El Savador? I sell
vacuum cleaners and I was born in Cleveland. I don't
I don't get it. And so everybody gets that right
to go to court, and so everybody has that due process,
(18:02):
But the question is what process is due to you?
And I think this is where there's a debate here
about the Trump administration saying, look, we can't give all
of the people who entered the United States and set
the moment from everything that you hear, and they say,
they claim at the moment that they're really concerned with
(18:25):
just a group of people who entered between twenty twenty
one and twenty twenty four. They're saying, we'll get to
the people from before twenty twenty one later, but what
they feel is the sort of bad act that they
need to remedy is to remove the people who came
from twenty twenty one to twenty twenty four. And they're
saying that that's millions of people, which it is. It's
(18:46):
unclear how many millions, but it certainly is some number
of millions of people. And what they're saying is there's
no way we can have a trial for each one
of these people in immigration court, which is probably going
to be what ends up happening because a lot of
these folks are from Venezuela, Cuba, Nicaragua, Haiti, China at
(19:08):
other places where they can ask for asylum. And so
when these folks are asking for asylum, they will have
to have a trial about whether they're going to be
persecuted when you send them back. And so this is
the problem. The administration is saying, there's no way we
can do this. How are we going to be able
to get all of these people out? So you have
some understanding of what they're saying. But by the same token,
(19:32):
the other side says, but if you don't do this
on a case by case basis, you're going to remove
people who our law say you can't remove. And so
there's no other way to do this. You know, it
might be nice to be able to have some sort
of group thing going on, but that's not how it works.
Everybody has to make their case and that's what the
current law is. And so this is the question. It's
(19:55):
definitely not practical. There's no dispute to what Trump is
saying is that it it's not practical to have a
trial for every single person. But in the end, the
trial is not for the evil gang members benefit. It's
for build from Cleveland's benefit to be able to say, hey,
I'm built from Cleveland. Why did you arrest me I'm
(20:16):
a US citizen or somebody who already won asylum, or
somebody who actually is a dissident from Venezuela and was
you know, trying to get this Maduro out of power
and actually use theirs TV and YouTube clips of them
doing it, et cetera. So for those kind of people,
you need to do process. And the only way to
figure out which kind of person you're talking about is
(20:37):
to allow each person to make their claim.
Speaker 2 (20:40):
So I mean, there are fast trials, and couldn't they
do each of these and you know a few.
Speaker 1 (20:46):
Hours, Well you can, and they are done. I mean,
no asylum claim other than maybe a couple of cases
I've been involved with, But that's because I wonder why, yes, yes, yes,
I mean I've been in once take two three days,
and that's considered like a record amount of time to
have an asylum case. But most of them take four hours,
(21:07):
six hours. But here's the problem. I mean, even if
you had a thousand immigration court judges, and those thousand
immigration court judges worked three hundred and sixty five days,
which they do not. But let's say they work three
hundred and sixty five days, we would still be talking
(21:29):
about at the end of the day, you know, three
hundred and sixty five thousand cases or something. And so
if you're trying to deport what they claim is ten
million people, you're not going to make a vent there.
And so that's the problem that they're coming across here.
Speaker 2 (21:45):
I've been talking immigration law expert Leon Fresco of Honden
Night Stephen Miller. Over the weekend, the White House Chief
of Staff said that they're thinking about trying to suspend
Habeas corpus, which has been done I think four times
in the nation's.
Speaker 1 (22:02):
History, right, and so the Habeas corpus clause says that
it can be suspended during times of rebellion and invasion.
And so the question is is this considered a type
of invasion that they were talking about, especially when Congress
hasn't declared war. We've already seen that the courts at
the moment are not very excited about this invasion language
(22:24):
because they're not allowing it to be used in the
alien Enemies at context. So far, there's not a judge
who's reviewed any of these alien Enemies at case as
yet who has said yes, by the way, we are
under an invasion, and so the Trump administration is correct
to allow folks to be detained and deported without due
(22:45):
process because we're under an invasion. They haven't been successful
with that argument yet, and so if they're not successful
there in that context, it's going to be hard to say, well,
how can you suspend habeas corpus, which is a much
much larger list in the courts. I mean, that's a
(23:05):
monumental thing to do because it's literally the founding of
the republic is about these rights as you have for
habeas corpus, and so to suspend it, if they're not
going to say there's an invasion for the purposes of
the Alien Enemies Act, it's going to be difficult. But
what they're trying to do is they're trying to avoid
literally what we've just talked about with regard to the
(23:26):
foreign students. Those foreign students are in court filing habeas petitions,
and the people under the Alien Enemies Act are in
federal court filing habeas petition. That's their only jurisdiction that
they have to get into court. So if you suspend
abeas corpus, then they can't file those petitions. And so
the idea is you can keep them detained, give them
(23:48):
their removal process, and then maybe at the end they'll
be able to file something. But at least maybe a
lot more people will be discouraged because they won't be
able to see a quick way to get relief, which
is what Habeas does, and so they'll just try to
self support or give up or never come into country
the first place, etc. Et cetera. And so we'll see
(24:11):
if they end up doing it. But I think the
reason that even you see some hesitation from Stephen Miller
is because at the end of the day, if they
don't win any of these cases on the alien Enemies odds,
then whether we are under an invasion for the purposes
of that, it will be very hard to say why
we are under an invasion for the purposes of suspending
(24:32):
Habeas corpus.
Speaker 2 (24:33):
And speaking of Habeas corpus petitions Kilmar Abrigo Garcia, which
I don't know where that case is now. But Christy Nome,
the DHS secretary, said in Congress last week he's not
coming back.
Speaker 1 (24:46):
He's not coming back restrained. I have no doubt about it.
Why the plaints that are still holding off on doing
anything here when they hear the Secretary of Homeland Security
thing they're not going to bring him back, but perhaps
there's some other arrangement that's interesting to both sides. I
don't know what it is. I do think the plaintiffs
(25:08):
definitely wanted him back. That was why they had filed
the litigation. And so if they hadn't pushed the tieline
and they're sort of still on this Flower timeline and
you have the second Tary of Land Security say he's
not going to come back, something is going to have
to give soon. And so either you're going to see
the announcement of some settlement that works for both sides,
(25:29):
or you're going to see the litigation come back again.
And I don't know where this is going now. Having
said that, there was a case that just got decided
on Friday with regards to the Biden administration's asylum ban,
not the Trump administration's asylum ban, but the Biden administration
asylum ban. The Biden administration banned asylum by saying you
(25:52):
had to use the CBP one app if you tried
to come in the country illegally, you wouldn't be able
to get asylum. And the court held that that violates
the statutes. You can't do that or Interestingly, the plaintiffs
in that case said that there had been some wrongly
deported people under the Biden Asylum band and they asked
the judge to force the administration to bring them back,
(26:16):
and the judge there, who's known as quite a progressive judge,
that absolutely not. I can't bring them back. There's nothing
I can do about this. All I can do is
take away their deportation order. And they want to come
back and try again to apply for asylum, that's certainly
something they can do. But I can't order anybody to
bring anybody back. And so perhaps there's some belief system
(26:40):
here that's starting to take place that really the courts
can't do this and they and they can't order anybody
to be brought back. So that's what's going to be
very interesting to see.
Speaker 2 (26:50):
Thanks so much, Leon. That's Leon Fresco of Honda Night,
and that's it for this edition of the Bloomberg Law Show.
Remember you can always get the latest legal news on
our Bloomberg Glaw podcasts. You can find them on Apple Podcasts, Spotify,
and at www dot Bloomberg dot com. Slash podcast slash Law,
and remember to tune into the Bloomberg Law Show every
(27:12):
weeknight at ten pm Wall Street Time. I'm June Grosso
and you're listening to Bloomberg
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