December 3, 2025 • 39 mins
Intellectual property litigator Terence Ross, a partner at Katten Muchin Rosenman, discusses Supreme Court oral arguments in a $1 billion music piracy case. Then immigration law expert Leon Fresco, a partner at Holland & Knight, discusses Supreme Court arguments in an asylum case. June Grasso hosts.
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Episode Transcript
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Speaker 1 (00:02):
This is Bloomberg Law with June Grosseo from Bloomberg Radio.
Speaker 2 (00:08):
The music industry faced off against internet providers at the
Supreme Court this week. At stake billions of dollars and
specifically a one billion dollar jury verdict against Cox Communications
for not shutting down the accounts of customers who pirated
more than ten thousand copyrighted songs by artists like Beyonce
(00:31):
and Justin Timberlake. The lawyers painted pictures of extreme consequences
if the court ruled against their client. Here are Joshua
Rosenkrantz for the internet provider Cox, and Paul Clement for
the music labels and publishers.
Speaker 3 (00:47):
The consequences of plaintiff's position are cataclysmic. There is no
shortfire way for an ISP to avoid liability, and the
only way it can is to cut off the Internet,
not just for the accused infringer, but for anyone else
(01:08):
who happens to use the same connection. That could be
entire towns, universities, or hospitals.
Speaker 4 (01:15):
If Cox is right on the law, then Cox could
take tens of thousands of copyright notices and throw them
in the trash, and they could have its employees say
f the DMCA. That is, in fact what the record says,
which is why they're asking you for an extreme rule.
Speaker 2 (01:29):
The issue is whether Internet providers should be held responsible
for contributing to copyright infringement when they know their customers
are pirating music but don't terminate their Internet access. Some justices,
like Samuel Alito, questioned whether forcing Internet service providers to
cut off infringers could affect institutions like hospitals or universities.
Speaker 1 (01:55):
What is an I supposed to do with a university
account that as let's say, seventy thousand users? What is
the university supposed to do?
Speaker 2 (02:05):
But other justices seem skeptical that Cox had done enough
to stop the piracy, and questioned whether a ruling too
favorable to Internet service providers would allow them to ignore
clear copyright infringement by their users. Here are Justices Sonya,
So to Mayor and Amy Cony Barrett, you did.
Speaker 5 (02:26):
Nothing and in fact, counselor your clients sort of lais
a fair attitude towards the respondents is probably what got
the jury upset.
Speaker 6 (02:40):
What incentive would you have to do anything if you won?
You if you win? And mere knowledge isn't enough? Why
would you bother to send out any notices in the future, Well,
your abligation.
Speaker 2 (02:50):
B my guest is intellectual property litigator Terrence Ross, a
partner at Katin Yutchen Rosenman. Terry explained the issue here.
Speaker 7 (03:00):
The issue in the case involves process by which music companies,
by music companies don't really mean recording companies track online
that I'm sharing of musical compositions that they owned. The
copyright in the process allows them to identify the IP
address and the ISP that is providing the service to
(03:25):
that IP address, and so the music companies recording companies
regularly a daily basis, in fact, send notices of infringement
to the ISPs that are providing the internet service to
these infringers. And there are days in which they're sending
out ten thousand notices to each individual ISP service, and
(03:50):
the recording companies finally became fed up that the ISPs
were not doing something. They wanted the ISPs to cut
off service to these identified infringers, and the ISP's dragged
their heels doing anything taking any real concrete action to
stop it. And so the Recording got me finally sued
(04:13):
Cox Cable Company, which is one of the largest ISPs
in the nation, alleging that they had engaged in contributory
copyright infringement.
Speaker 2 (04:23):
In its papers, Cox had argued that Grandma will be
thrown off the Internet because Junior visited and illegally downloaded songs.
Did some of the justices seem to pick up on
that concern.
Speaker 7 (04:37):
There was only one justice who seemed to give some
credence that, and that was just as the lead up.
He was the only justice who really seemed to buy
into the position by Cox that it was hesitant to
kick people off because of and then you can fill
in the blank as to what the reason is their grandmother,
their university, their hospital. In fact, the hypothetic posed at
(05:01):
oral argument in the Supreme Court was what happens when
all you can do is identify that the IP address
belongs to university or you were going to shut down
the entire university. One of those odd hypotheticals that takes
the case the extreme. The facts are actually contrast to that,
and indeed none of the other justices seemed to buy
(05:22):
into that argument. The reality is that over a period
of time and issue, Cox had received one hundred and
sixty three thousand notices of infringement and had kicked off
of its service only thirty two customers. The policy of
compliance used by Cox was described in some detail both
(05:46):
of the Supreme Court and in the Lower Court, and
it was subw wha they fare to use the word
that one of the justices used to describe it. They
had originally started off to say, well, if we get
three notices about a particular user, we're going to tell
them we're cutting off their service. That rose gradually over
(06:07):
time from being a three strikes you're out policy to
being a thirteen strikes and you're aut policy, and the
thirteen strikes to reset every six months, so if you
didn't get to thirteen within the six month period, you
went back to zero, or if you got kicked off
after six months off, you got put back on. They
also capped the number of notices that they were accepting
(06:29):
from recording companies at three hundred a day. And then
probably the worst fact of all in which got brought
up at the Supreme Court, if you could believe it,
was the head of a copyright compliance at Cox sent
out an email to the people in charge of enforcing
copyright policy in which he said f the DMCA f
(06:52):
the DMCA. Now, the DMCA refers to the Digital Millennium
Copyright Act, which is one of the key statutes that
shoe here and which requires ISPs to set up a
policing mechanism against copyright infringement if they want to claim
the safe harbor that is embedded in the Digital Millennium
(07:14):
Copyright Act. In response to that, one of the minions
for the head of Compliance wrote back saying, but we're
helping law breaking customers, And there were dozens of emails
like this amongst the compliance group of Cocks. That just
manifested a complete disdain for copyright laws, which obviously impacted
the jury because the jury below had awarded a billion
(07:37):
dollars in damages against Cox. And in the Supreme Court
argument it was clear that outside of Justice Alito, none
of the eight other justices were buying what Cox was
trying to claim was their reason for not cutting off people,
that you'd kick Grandma's off of the Internet. The other
eight justices just didn't buy it, and it was a
(07:58):
loser argument for Cock.
Speaker 2 (08:00):
So then can you tell where most of the justices
do stand?
Speaker 7 (08:04):
That's always a tough question. In this case, I think
it's covered the most, I think, outside of Justice Alito,
the other eight judges were just incredibly skeptical of Cox's
excuses for allowing this widespread infringement to go on. In
the record below, there's apparently one period of time at
which twenty one percent of all traffic on the COXS
(08:26):
internet connections twenty one percent involved copyright in fringe. And
the lawsuit below didn't go after every single mom and
pop business or every single college student. It was targeted
only at distributors, not people who were downloading the occasional song,
but people who were copying music digitally and distributing it
(08:49):
on a mass scale. So there was this enormous skepticism
expressed by the justice except for Justice Alita, that Cox
really was and fulfilling it its obligation and needed to
do something differently now. On the other hand, there also
seemed to be some concern about the size of the
(09:10):
jury verdict and whether or not the actions of Cox
were sufficient to constitute willful contributory infringement, which is what
set them up for much larger scale of damages than
if they had been found to be just ordinary copyright infringement.
Speaker 2 (09:30):
So what's the standard that the justices would use here.
Cox contends that under a two thousand and five Supreme
Court ruling, it can't be held liable for contributory infringement
unless it affirmatively fostered piracy or clearly intended to promote it.
The music companies say it's enough that Cox's new subscribers
(09:53):
were using its service to download songs illegally.
Speaker 7 (09:58):
The case on appeal is the Supreme Court present it
to pretty crisp issues for decision. The first issue, which
I think is where the real fight is going to be,
is whether or not contributory copyright infringement required some sort
of affirmative action by the defendant. The second question presented
for review was whether or not wilfulness required some sort
(10:24):
of knowledge of customer infringement. Now, the problem with that
second question, the Wilfes standard, is that cops had failed
to object in the trial court to the instruction that
the judge gave to the jury about how to find wilfulness.
So after the case has finished, all the evidence has submitted,
(10:47):
and the attorneys have beda closing argument, and just before
the jury goes into the jury room to make a decision,
the judge reads to them a series of instructions as
to what the law is, and one of those instructions
will go something like Sony Music Corporation. Here is alleged
that the contributor copyright infringement was wilful on the part
of costs. In order for you to find wilfulness you
(11:09):
must consider the falling factors. And typically if a party
doesn't believe the judge has stayed at the law correctly
to the jury, they get up and they object, and
indeed they don't even have to do it at the
time of trial. These during instructions are sent out to
the lawyers while advance, and you file the objection with
courts saying, well, objected this, and give the court a
(11:30):
chance to refine it, improve it so that there's no
objection here. The Cox folks, for whatever reason, failed to
object to the wilfulness instruction, and that means they waived
any objection to wilfulness and had really no excuse in
their briefing as to why they did that or why
they should be excused from that. They pointed to a
(11:52):
prior case. This is a series of litigations. Here a
prior case that was styled bmg Urtus from US it
Group versus Cox, also coming out of the same Virginia court,
and in that case they had objected to wilfulness and
it had been overruled by the Fourth Circuit, but that
case was not on appeal. Here, the case that was
(12:13):
on appeal, they failed to object to the wilfulness instruction,
and in fact, the fact that they'd done so the
first trial but not in the second trial, so want
to suggest that they knew they were supposed to do
that and then failed to do it. So I just
don't see question number two as being resolved in any
way in favor of Cox, and indeed I suspect the
court won't reach it so that we will get no
(12:35):
further instruction from the Supreme Court on what constitutes wilfulness.
I think the court is focused really on the position
that Cox is arguing that contributory infring for infringement required
some sort of affirmative act and that, as they phrased it,
they can't be a contributory infringer by providing internet service
(12:58):
to one of their custom commercial.
Speaker 8 (13:01):
So then do you think that they'll send it back
to the lower court with an instruction.
Speaker 7 (13:08):
I just don't know what they're going to do here.
I have to be frank this is one of the
more opaque oral arguments I've listened to. The other commentators
have argued that the Court might be looking for some
sort of middle ground. Indeed, I think it was Justice
so Too my Or commented at one point during the
(13:30):
argument that the Court was being forced to choose between
two extreme positions, and in particular Justice so my Or,
who was very skeptical of Cox's position but also didn't
quite like the extreme argument being made by Sony Music Corp.
In the recording company, seems really perplexed as to what
(13:51):
to do. Genuinely perplexed. The problem the Supreme Court faces
here is that the standard for contributory copyright infringement has
been pretty well settled in this court for more than
a century. As early as nineteen twelve, there was a
case that involved mimeograph machines. If you remember those, they
(14:13):
were a pre xerox machines way of doing sort of
a mass production, mass production, you know, a couple hundred
and there was a case in which a publisher sued
a mimeograph company for knowingly selling mimeograph materials to a
company that it knew was engaged in infringing copyright works
(14:36):
by using the mimiograph machine. And the standard was set
out there and has been repeated over and over since
that time nineteen twelve. And the standard is pretty simple.
If you provide something that you know is going to
be used by a person to commit copyright infringement, you've
engaged in contributory infringement. And the path cases haven't spoken
(14:59):
in terms of detail an affirmative act, although one could
argue this did not come up. With the Supreme Court
hearing that providing the Internet service is an affirmative act.
The Cox Company argued the Supre Court that that's not
an affirmative act, but that's sort of a stretch in
order to try to get around that line cases, the
Cox Company argued that contributory infringement is really akin to
(15:23):
aiding and a betting liability in the context of torts
and criminal laws. And that's a real stretch that I
think is just dead wrong. It would give the court
a way to get out of this dilemma, but it
would mean the Court would have to overturn half a
dozen cases going back to nineteen twelve for over a
century and say now they're not good law anymore. I
(15:45):
don't see the Court doing that here. So I just
don't see question number two as being resolved in any
way in favor of Cox, and indeed, I suspect the
Court won't reach it so that we will get no
further instruction from the Supreme Court on what constitutes wilfulness.
I think the Court is focused really on the position
(16:08):
that Cox is arguing that contributory in infringement required some
sort of affirmative act, and that, as they phrased it,
they can't be a contributory infringer by providing internet service
to one of their customers.
Speaker 8 (16:23):
So then do you think that they'll send it back
to the lower court with an instruction.
Speaker 7 (16:30):
I just don't know what they're going to do here.
I have to be frank. This is one of the
more opaque oral arguments I have listened to. The other
commentators have argued that the Court might be looking for
some sort of middle ground. Indeed, I think it was
Justice sodomy Or commented at one point during the argument
(16:54):
that the Court was being forced to choose between two
extreme positions and ticlar Justice somai Or, who was very
skeptical of Cox's position but also didn't quite like the
extreme argument being made by Sony Music corpor In. The
recording company seems really perplexed as to what to do,
(17:14):
genuinely perplexed. The problem the Supreme Court faces here is
that the standard for contributory copyright infringement has been pretty
well settled in this court for more than a century.
As early as nineteen twelve, there was a case that
involved minograph machines. If you remember those, they were a
(17:36):
pre xerox machines way of doing sort of a mass production,
mass production, you know, a couple hundred and there was
a case in which a publisher sued a mimeograph company
for knowingly selling mimeograph materials to a company that it
knew was engaged in infringing copyright works by using the
(18:00):
miniograph machine. And the standard was set out there and
has been repeated over and over since that time nineteen twelve.
And the standard is pretty simple. If you provide something
that you know is going to be used by a
person to commit copyright infringement, you've engaged in contributory infringement.
(18:20):
And the past cases haven't spoken in terms of needing
an affirmative Act, although one could argue this did not
come up with the Supreme Court hearing that providing the
internet service is an affirmative act. The COTS company argued
court that that's not an affirmative act. But that's sort
of a stretch in order to try to get around
that line cases. The co's company argued that contributory infringement
(18:45):
is really a kin to aiding and a betting liability
in the context of torts and criminal laws. And that's
a real stretch that I think is just dead wrong.
It would give the Court a way to get out
of this dilemma, but it would mean the Court would
have to overturn half a dozen cases going back to
nineteen twelve for over a century and say now they're
(19:07):
not good law anymore. I don't see the Court doing
that here.
Speaker 2 (19:10):
Do you think we'll see that Justice is coming up
with some sort of middle ground.
Speaker 7 (19:15):
Oh, it's a shame that Justice Ginsburg is no longer
on the Court, as we've had many conversations about our
knowledge of copyright law and her ability to copy together
coalitions or positions under the Copyright Act that we're actually
quite pragmatic and useful. And I just don't see anybody
(19:36):
either with that depth of knowledge to copyright law or
the ability to do that sort of log rolling on
this court. And so I think it's going to be
real struggle for this Court to come up with some
sort of middle ground, particularly in light of the fact
that the law here is just so set for such
a long period time and fits exactly into the past
case law, and these sort of odd cases that co
(20:00):
cited to the Supreme Court, including this recent gun distribution
case in the case Supreme Court to site recently where
the gun companies were being sued for deaths in Mexico,
and the argument was they were aiding embedding this criminal activity.
And the gun company said, well, we sold the guns
to dealers in Texas, not knowing what they were going
(20:22):
to do with them, and if anybody's contributed to them,
but it's not us. We had no knowledge of it.
And that case just doesn't fit here, either legally or factually.
And yet cops sort of did a lot on that.
I mean, it was almost as if there's a oh, hey,
we believe we cite to some case in which the
(20:42):
second Circuit, which everybody believes in on the Supreme Court,
that'll get us over the humpire it's just such a
stretch that in fact backfires. One starts to think, well,
what's wrong with their case? That that's the best they've got.
Speaker 2 (20:55):
And that's a question they didn't ask during two hours
of Supreme Court oral argument. Thanks so much, Terry, as always,
that's Terrence Ross of Catain Mutchen Rosenman. Turning now to
another Supreme Court case this week, the Court considered the
federal judiciary's role in asylum cases, and the justices appeared
(21:16):
open to allowing courts to defer to administrative decisions on
whether immigrants have shown they face harm serious enough to
qualify for asylum. Joining me is immigration law expert Leon Fresco,
a partner at hollanden Knight. So asylum seekers can ask
a federal appeals court to review their case if the
(21:36):
Board of Immigration Appeals denies their asylum claim. This case
is about the role of the federal appeals court versus
the role of the Board of Immigration Appeals.
Speaker 1 (21:47):
Correct. Basically, here's the issue. What a person asks for asylum.
They have to prove, at the end of the day
that they have what's called a well founded fear of
future person acution on the basis of their race, religion,
political origin, social group, things like that. One of the
(22:07):
main parts of such a case. There's a presumption that
if you have experienced what's called past persecution, there's a
presumption that you will then have a well founded fear
of future persecution. So what does that mean. That means
that people go into immigration court and they explain what
(22:28):
happened in their country that caused them to leave, and
there's cross examination and the judge can ask questions. At
the end of all of this, there's two determinations. One
did the person experience past persecution? And number two was
it on the basis of one of the protected grounds.
So in this Supreme Court case, what happened was there
(22:51):
literally was no dispute about the credibility of the facts
raised by the foreign national in this case, Douglas Umberto Oriana,
who said that he fled El Salvador after repeated threats
and violence from a hitman linked to a drug lord,
and he said that the drug lord shot his hot
(23:12):
brothers and tracked and thread in his family. And so
since there was no dispute about the facts, there was
not a factual issue that was being raised on appeal. Instead,
the court said I'm going to take all of the
facts that you've presented today as true, and I'm going
to say that they still do not rise to the
level of the high level of this word persecution such
(23:36):
that we can say that you experienced past persecution such
that you would get the presumption of future persecution. So
now mister Orias Oriana then says, well, how is that possible.
I would like to get review of that. And so
when it gets to the First Circuit Court of Appeals,
(23:57):
the first Circuit says, We're going to defer to the
Board of Immigration Appeals, which is the administrative court that
decides this issue at the end of the day. We're
gonna defer to them and say that even though the
facts are not in dispute, we still have to give
some difference to their decision in terms of let's say
(24:19):
there's a scale and you're weighing it, how many pebbles
go on one scale, how many pebbles go on the
other scale, that even that determination gets some difference. That
the federal courts can't just reweigh the evidence on their
ends and decide whether the facts that were undisputed in
(24:41):
a particular case constituted persecution such that the person should
win their asylum case. So that creates sort of a
circuit split.
Speaker 2 (24:51):
So the case goes to the Supreme Court. What are
the justices going to decide?
Speaker 1 (24:57):
The Supreme Court then has to decide, Okay, what happens
in a case like this where there's not a dispute
about the actual facts, but there's a dispute about whether
the facts when you weigh them, there's quote unquote significant
enough pebbles on the scale. Does the foreign national win
or do they lose? Can we reweigh that on our
(25:20):
own or do we have to give some different under
some standard of deferential review? And so the foreign nationals
obviously claiming there should be the Novo review. The Court
should look at this and say, okay, we're the threads
here that were undisputed sufficient to say that that was
past persecution. And the government says no, no, no, the
(25:42):
standard is actually much different and that this is actually
a mixed question of law and fact, and so you
have to treat that with some type of deferential review.
And so you had justices like Justice Go It's saying
a reasonable fact find their standard as opposed to the
(26:04):
Novo review, and others wanted to weigh it even more
deferentially potentially than even that and say that basically, if
there's substantial evidence to support the determination of the lower
administrative court, that's enough. So that would be even a
broader deferential standard. And it appears as if really there's
(26:29):
not a lot of excitement in the Supreme Court for
having a complete the novo review of this process. So
the issue is really going to be how much difference
is given in these types of cases moving forward.
Speaker 2 (26:41):
So leon just to clarify, everyone accepts that the facts
of the asylum claim are determined by the court below,
the immigration court, So the only question is how the
federal appellate court is going to weigh those facts.
Speaker 1 (26:56):
Correct. So what the lower court said in this case was, yes,
all these very bad and serious things happened to you,
but when we put all those pebbles on the stone,
they're not sufficiently weighty enough on the scale to actually
constitute persecution for the purposes of winning your case. And
(27:17):
then the question is, Okay, when this gets to the
federal court, can they literally reweigh all of that exact
evidence and say no, no, no, those stones do weigh enough
to tip the scales in favor of the foreign national
or are they stuck with Hey, if this is in
any way defensible, we have to keep this decision the
way it is. And it seemed like the Supreme Court
(27:40):
did want to give more difference than rather reweighing all
of the facts in the case, even if they're undisputed,
to decide if they need the legal standard of past persecution.
Speaker 2 (27:53):
If the appeals court can't reweigh what the lower court decided,
it's not much of a you, is it correct?
Speaker 1 (28:01):
I mean, there would only be a review if essentially
what happened was somebody goes into immigration court and they say,
the government came in and shot me one time in
the left arm because I'm a dissident, and then they left,
and then two weeks later they shot me in the
right arm, and then three weeks later they shot me
(28:23):
in the left leg, and they said, you want this
to keep going or are you're going to stop being
a dissident? And then the immigration judge says, well, that
doesn't seem like sufficient persecution. You only got shot three times.
Maybe in a case like that, then the court would say, well,
there's no way a reasonable fact finder could come to
that determination that that wasn't persecution, because then you'd have
(28:46):
this sort of reasonable fact finder deference or some other
standard like that. But it's not, it's not never will
we review it. So they're not saying never, but as
opposed to a case like this, where they're saying, okay, threats,
how serious are the threats? Or the threats very serious?
They might say, look, this is the kind of case
(29:06):
that falls into gray zone. And when you're in the
gray zone, the government wins.
Speaker 2 (29:11):
I'm curious, what do you think about the threats in
this case? Do you think they were serious enough for
an asylum claim?
Speaker 1 (29:18):
I think it's really in the gray zone. I think
this is the problem when they talk about sort of
bad facts make bad law, is this is the exact
type of case where one judge would definitely grant asylum
one hundred out of one hundred times and another judge
would never grant the asylum zero out of one hundred times,
because people just approach these cases with different levels of
(29:40):
sympathy and different levels of concern and different standards in
their mind of what constitutes persecution. And so the problem
is when you have such subjective it's not ai deciding
this case of people with their various levels of subjectiveness,
and unfortunately they bring their life experiences and preferences into
(30:03):
the court system and things that they've seen and perhaps
other cases that they've heard in similar context, which they're
not technically supposed to do. But you know, they're sitting
there in Immigration court and they're listening to hundreds of
these cases a year, and so some of them start
sounding similar, and they start then either sounding more sympathetic
or less, depending on how many of these you hear
(30:25):
and what you're hearing on different days. And so because
all of that's happening, it really does become problematic in
terms of the subjectiveness of the process. But what the
Supreme Court's trying to figure out is where does the
subjectiveness stop. Does it stop at the Court of Appeals
or does it stop at the administrative level. And it
(30:46):
seems like they're going to stop it at the administrative
level for the most part, and not bring in sort
of a new antiseptic Court of Appeals who's just reading
a transcript without any other context than decide is this
sufficient persecution. It did really seem like any of the
Supreme Court justices wanted to do that the NOVO.
Speaker 2 (31:07):
What's happening as far as the Trump administration's position on
granting asylum.
Speaker 1 (31:13):
Well, after this horrible attack on the National Guard where
one of them has passed away and the other is
clinging to their life. The Afghan foreign national who had
come in during the withdrawal from Afghanistan, and then he
subsequently got asylum because he wasn't able to get what's
called a special immigrant visa due to various timing issues.
(31:34):
So this individual ends up getting asylum. And so because
of that, the Trump administration has said that the asylum
system needs an overhaul in terms of the way in
which people applying for asylum are being scrutinized. So at
the moment, there's currently a pause, meaning the entire country,
(31:56):
nobody who's applied for asylum is going to get a decision. Now,
interestingly about that is that is also a nothing in
immigration is simple, because somebody might say, oh, well, that's
a simple solution. Just hold all these cases in abeyance
and no one will get asylum and we won't have
this problem. But you know, nothing is simple like that.
(32:17):
There's always two sides to every coin. And the point
is these human beings are here, so it's not like
they're sitting in some other country and you're holding these
cases in abeyance. When someone applies for asylum, the number
one criteria of being able to get asylum is that
your body is here in America. So they're here already
and they're applying, and so if you hold their case
(32:38):
in abeyance, sure there's some people who won't get the
protection of asylum. That's certainly better than not having it,
but there's a lot of other people who you might
have wanted to deport and get them out faster, who
you're not doing that because you're holding all the cases
in abeyance and you're not making any decisions. So from
that standpoint, I don't think this is a long term
(33:02):
or durable solution. Now, they may do something else, and
they may try to figure out some way to have
a blanket denial of all asylum planes, but I don't
think the courts are going to let them do that,
and so I think this is just an effort to
sort of count this for as long as possible until
some other solution can be done to limit the way
(33:23):
a number of people getting asylum, But just a pause
in and of itself definitely has these conflicting outcomes because yes,
people don't get asylum when you have a pause, but
also people who have no business staying in the country
get to stay longer because their cases remain pending.
Speaker 2 (33:44):
Let's turn now to these arrests that immigration officials are making.
So DC federal Judge Beryl Howell ruled that US officials
have to stop enforcing this policy of conducting warrantless immigration
arrests without probable cause to believe in arrestee is likely
(34:05):
to escape before officials can obtain an administrative warrant. I mean,
that's basic law, isn't it that you can only make
an immigration arrest without a warrant if the individual is
violating an immigration law or is likely to escape before
agents can get a warrant.
Speaker 1 (34:22):
So this is a very tricky issue because this is
about a policy as opposed to an actual police officer
doing something. So what do I mean by that? What
I mean is if a police officer is just observing
in the middle of there, or an ice officer. Let's
be more precise about this, If an ice officer is
(34:43):
just observing in the middle of their daily operations of
what they're doing at ice the war. You know, they're
serving a warrantyer, they're looking at an investigation here, and
they happen to see somebody crossing the border illegally or
something like that happening right in front of and they
can arrest that person. They don't need a warrant, they
(35:03):
don't need probable cause of escape risk or anything like that.
They're allowed to make that arrest because they're observing an
immigration violation in front of them. What's complicated about this
DC District Court case is they're saying that's different than
having a policy in place that is saying, hey, Ice,
(35:25):
go around and create a mass enforcement effort that does
not require warrants. Just go around and start basically asking
people about their immigration status and start arresting people anytime
you see anyone that looks suspicious to you. So the
issue in this case is whether a policy like that
(35:47):
can be put in place. Now the administration would say
doesn't have a policy like that, And then there's the
words about the arguments about well, that's what the leaders
are articulating is the policy, so that it becomes the
fact though policy that that's what that you're trying to accomplish.
So the court says, fine, that is a policy that
has had where the administration, whether there's a piece of
(36:11):
paper or not, that says it has this policy of
saying civil immigration arrest can be done without having a
probable cause determination of escape risk, and so is that
legal or not? And this has actually come up in
other places. It's come up in LA, it's come up
in Chicago, and in all these places, the district courts
(36:33):
have held that what ICE needs to be doing is
every day going through a list of people that it
knows has undocumented status and going and finding those people,
whether it's at their work or at their home or wherever,
but not just sweeping around looking around saying, oh, this
person looks weird, go find them. Now. The complication is oh,
(36:56):
and so, by the way, So what happens is in
the district court here December second issues a injunction saying, no,
you can't do this anymore. You now need to have
probable cause that the person is both unlawfully present and
likely to escape, and you need a warrant to do
these arrests. So it's basically back to what the Los
(37:19):
Angeles Court held and the Chicago court held is you
need to have a list every day of undocumented people
that you go and apprehend, or you need to have
a police officer who's actually looking at something, not pursued
to a policy, but just as doing their job and
observing some immigration crime happening. Yes, they can make an arrest.
(37:40):
They don't need to go get a warrant to do it.
But otherwise you can't just have these sweeping patrols. The
problem is, just as Cavanagh has already held in a
case involving the Los Angeles issue, that there can be
these arrests, you know, they're sort of called now Cavanah stops,
where you you can have these sort of inquiries that
(38:03):
ICE is making if they feel like this is the
kind of situation where normally undocumented people are in a
particular location, or there's some intelligence that they hang out
at a particular place or do a particular thing, you
could make these quote unquote Kavanaugh stop. So I think
that as this case goes up to the DC Circuit
(38:24):
and back to the Supreme Court, it will probably run
up against the same problem where the Supreme Court has
already said that they can, with reasonable suspicion start asking
people about their immigration stutus and.
Speaker 2 (38:38):
That decision was made on the emergency docket without full
briefing or oral arguments. Thanks so much, Leon. That's Leon Fresco,
a partner at Hollanden Knight. And that's it for this
edition of The Bloomberg Law Show. Remember you can always
get the latest legal news on our Bloomberg Law Podcast.
You can find them on Apple podcast, Spotify, and at
(39:01):
www dot Bloomberg dot com, slash podcast, Slash Law, and
remember to tune into The Bloomberg Law Show every weeknight
at ten pm Wall Street Time. I'm June Grosso and
you're listening to Bloomberg
This is Bloomberg Law with June Grosseo from Bloomberg Radio.
Speaker 2 (00:08):
The music industry faced off against internet providers at the
Supreme Court this week. At stake billions of dollars and
specifically a one billion dollar jury verdict against Cox Communications
for not shutting down the accounts of customers who pirated
more than ten thousand copyrighted songs by artists like Beyonce
(00:31):
and Justin Timberlake. The lawyers painted pictures of extreme consequences
if the court ruled against their client. Here are Joshua
Rosenkrantz for the internet provider Cox, and Paul Clement for
the music labels and publishers.
Speaker 3 (00:47):
The consequences of plaintiff's position are cataclysmic. There is no
shortfire way for an ISP to avoid liability, and the
only way it can is to cut off the Internet,
not just for the accused infringer, but for anyone else
(01:08):
who happens to use the same connection. That could be
entire towns, universities, or hospitals.
Speaker 4 (01:15):
If Cox is right on the law, then Cox could
take tens of thousands of copyright notices and throw them
in the trash, and they could have its employees say
f the DMCA. That is, in fact what the record says,
which is why they're asking you for an extreme rule.
Speaker 2 (01:29):
The issue is whether Internet providers should be held responsible
for contributing to copyright infringement when they know their customers
are pirating music but don't terminate their Internet access. Some justices,
like Samuel Alito, questioned whether forcing Internet service providers to
cut off infringers could affect institutions like hospitals or universities.
Speaker 1 (01:55):
What is an I supposed to do with a university
account that as let's say, seventy thousand users? What is
the university supposed to do?
Speaker 2 (02:05):
But other justices seem skeptical that Cox had done enough
to stop the piracy, and questioned whether a ruling too
favorable to Internet service providers would allow them to ignore
clear copyright infringement by their users. Here are Justices Sonya,
So to Mayor and Amy Cony Barrett, you did.
Speaker 5 (02:26):
Nothing and in fact, counselor your clients sort of lais
a fair attitude towards the respondents is probably what got
the jury upset.
Speaker 6 (02:40):
What incentive would you have to do anything if you won?
You if you win? And mere knowledge isn't enough? Why
would you bother to send out any notices in the future, Well,
your abligation.
Speaker 2 (02:50):
B my guest is intellectual property litigator Terrence Ross, a
partner at Katin Yutchen Rosenman. Terry explained the issue here.
Speaker 7 (03:00):
The issue in the case involves process by which music companies,
by music companies don't really mean recording companies track online
that I'm sharing of musical compositions that they owned. The
copyright in the process allows them to identify the IP
address and the ISP that is providing the service to
(03:25):
that IP address, and so the music companies recording companies
regularly a daily basis, in fact, send notices of infringement
to the ISPs that are providing the internet service to
these infringers. And there are days in which they're sending
out ten thousand notices to each individual ISP service, and
(03:50):
the recording companies finally became fed up that the ISPs
were not doing something. They wanted the ISPs to cut
off service to these identified infringers, and the ISP's dragged
their heels doing anything taking any real concrete action to
stop it. And so the Recording got me finally sued
(04:13):
Cox Cable Company, which is one of the largest ISPs
in the nation, alleging that they had engaged in contributory
copyright infringement.
Speaker 2 (04:23):
In its papers, Cox had argued that Grandma will be
thrown off the Internet because Junior visited and illegally downloaded songs.
Did some of the justices seem to pick up on
that concern.
Speaker 7 (04:37):
There was only one justice who seemed to give some
credence that, and that was just as the lead up.
He was the only justice who really seemed to buy
into the position by Cox that it was hesitant to
kick people off because of and then you can fill
in the blank as to what the reason is their grandmother,
their university, their hospital. In fact, the hypothetic posed at
(05:01):
oral argument in the Supreme Court was what happens when
all you can do is identify that the IP address
belongs to university or you were going to shut down
the entire university. One of those odd hypotheticals that takes
the case the extreme. The facts are actually contrast to that,
and indeed none of the other justices seemed to buy
(05:22):
into that argument. The reality is that over a period
of time and issue, Cox had received one hundred and
sixty three thousand notices of infringement and had kicked off
of its service only thirty two customers. The policy of
compliance used by Cox was described in some detail both
(05:46):
of the Supreme Court and in the Lower Court, and
it was subw wha they fare to use the word
that one of the justices used to describe it. They
had originally started off to say, well, if we get
three notices about a particular user, we're going to tell
them we're cutting off their service. That rose gradually over
(06:07):
time from being a three strikes you're out policy to
being a thirteen strikes and you're aut policy, and the
thirteen strikes to reset every six months, so if you
didn't get to thirteen within the six month period, you
went back to zero, or if you got kicked off
after six months off, you got put back on. They
also capped the number of notices that they were accepting
(06:29):
from recording companies at three hundred a day. And then
probably the worst fact of all in which got brought
up at the Supreme Court, if you could believe it,
was the head of a copyright compliance at Cox sent
out an email to the people in charge of enforcing
copyright policy in which he said f the DMCA f
(06:52):
the DMCA. Now, the DMCA refers to the Digital Millennium
Copyright Act, which is one of the key statutes that
shoe here and which requires ISPs to set up a
policing mechanism against copyright infringement if they want to claim
the safe harbor that is embedded in the Digital Millennium
(07:14):
Copyright Act. In response to that, one of the minions
for the head of Compliance wrote back saying, but we're
helping law breaking customers, And there were dozens of emails
like this amongst the compliance group of Cocks. That just
manifested a complete disdain for copyright laws, which obviously impacted
the jury because the jury below had awarded a billion
(07:37):
dollars in damages against Cox. And in the Supreme Court
argument it was clear that outside of Justice Alito, none
of the eight other justices were buying what Cox was
trying to claim was their reason for not cutting off people,
that you'd kick Grandma's off of the Internet. The other
eight justices just didn't buy it, and it was a
(07:58):
loser argument for Cock.
Speaker 2 (08:00):
So then can you tell where most of the justices
do stand?
Speaker 7 (08:04):
That's always a tough question. In this case, I think
it's covered the most, I think, outside of Justice Alito,
the other eight judges were just incredibly skeptical of Cox's
excuses for allowing this widespread infringement to go on. In
the record below, there's apparently one period of time at
which twenty one percent of all traffic on the COXS
(08:26):
internet connections twenty one percent involved copyright in fringe. And
the lawsuit below didn't go after every single mom and
pop business or every single college student. It was targeted
only at distributors, not people who were downloading the occasional song,
but people who were copying music digitally and distributing it
(08:49):
on a mass scale. So there was this enormous skepticism
expressed by the justice except for Justice Alita, that Cox
really was and fulfilling it its obligation and needed to
do something differently now. On the other hand, there also
seemed to be some concern about the size of the
(09:10):
jury verdict and whether or not the actions of Cox
were sufficient to constitute willful contributory infringement, which is what
set them up for much larger scale of damages than
if they had been found to be just ordinary copyright infringement.
Speaker 2 (09:30):
So what's the standard that the justices would use here.
Cox contends that under a two thousand and five Supreme
Court ruling, it can't be held liable for contributory infringement
unless it affirmatively fostered piracy or clearly intended to promote it.
The music companies say it's enough that Cox's new subscribers
(09:53):
were using its service to download songs illegally.
Speaker 7 (09:58):
The case on appeal is the Supreme Court present it
to pretty crisp issues for decision. The first issue, which
I think is where the real fight is going to be,
is whether or not contributory copyright infringement required some sort
of affirmative action by the defendant. The second question presented
for review was whether or not wilfulness required some sort
(10:24):
of knowledge of customer infringement. Now, the problem with that
second question, the Wilfes standard, is that cops had failed
to object in the trial court to the instruction that
the judge gave to the jury about how to find wilfulness.
So after the case has finished, all the evidence has submitted,
(10:47):
and the attorneys have beda closing argument, and just before
the jury goes into the jury room to make a decision,
the judge reads to them a series of instructions as
to what the law is, and one of those instructions
will go something like Sony Music Corporation. Here is alleged
that the contributor copyright infringement was wilful on the part
of costs. In order for you to find wilfulness you
(11:09):
must consider the falling factors. And typically if a party
doesn't believe the judge has stayed at the law correctly
to the jury, they get up and they object, and
indeed they don't even have to do it at the
time of trial. These during instructions are sent out to
the lawyers while advance, and you file the objection with
courts saying, well, objected this, and give the court a
(11:30):
chance to refine it, improve it so that there's no
objection here. The Cox folks, for whatever reason, failed to
object to the wilfulness instruction, and that means they waived
any objection to wilfulness and had really no excuse in
their briefing as to why they did that or why
they should be excused from that. They pointed to a
(11:52):
prior case. This is a series of litigations. Here a
prior case that was styled bmg Urtus from US it
Group versus Cox, also coming out of the same Virginia court,
and in that case they had objected to wilfulness and
it had been overruled by the Fourth Circuit, but that
case was not on appeal. Here, the case that was
(12:13):
on appeal, they failed to object to the wilfulness instruction,
and in fact, the fact that they'd done so the
first trial but not in the second trial, so want
to suggest that they knew they were supposed to do
that and then failed to do it. So I just
don't see question number two as being resolved in any
way in favor of Cox, and indeed I suspect the
court won't reach it so that we will get no
(12:35):
further instruction from the Supreme Court on what constitutes wilfulness.
I think the court is focused really on the position
that Cox is arguing that contributory infring for infringement required
some sort of affirmative act and that, as they phrased it,
they can't be a contributory infringer by providing internet service
(12:58):
to one of their custom commercial.
Speaker 8 (13:01):
So then do you think that they'll send it back
to the lower court with an instruction.
Speaker 7 (13:08):
I just don't know what they're going to do here.
I have to be frank this is one of the
more opaque oral arguments I've listened to. The other commentators
have argued that the Court might be looking for some
sort of middle ground. Indeed, I think it was Justice
so Too my Or commented at one point during the
(13:30):
argument that the Court was being forced to choose between
two extreme positions, and in particular Justice so my Or,
who was very skeptical of Cox's position but also didn't
quite like the extreme argument being made by Sony Music Corp.
In the recording company, seems really perplexed as to what
(13:51):
to do. Genuinely perplexed. The problem the Supreme Court faces
here is that the standard for contributory copyright infringement has
been pretty well settled in this court for more than
a century. As early as nineteen twelve, there was a
case that involved mimeograph machines. If you remember those, they
(14:13):
were a pre xerox machines way of doing sort of
a mass production, mass production, you know, a couple hundred
and there was a case in which a publisher sued
a mimeograph company for knowingly selling mimeograph materials to a
company that it knew was engaged in infringing copyright works
(14:36):
by using the mimiograph machine. And the standard was set
out there and has been repeated over and over since
that time nineteen twelve. And the standard is pretty simple.
If you provide something that you know is going to
be used by a person to commit copyright infringement, you've
engaged in contributory infringement. And the path cases haven't spoken
(14:59):
in terms of detail an affirmative act, although one could
argue this did not come up. With the Supreme Court
hearing that providing the Internet service is an affirmative act.
The Cox Company argued the Supre Court that that's not
an affirmative act, but that's sort of a stretch in
order to try to get around that line cases, the
Cox Company argued that contributory infringement is really akin to
(15:23):
aiding and a betting liability in the context of torts
and criminal laws. And that's a real stretch that I
think is just dead wrong. It would give the court
a way to get out of this dilemma, but it
would mean the Court would have to overturn half a
dozen cases going back to nineteen twelve for over a
century and say now they're not good law anymore. I
(15:45):
don't see the Court doing that here. So I just
don't see question number two as being resolved in any
way in favor of Cox, and indeed, I suspect the
Court won't reach it so that we will get no
further instruction from the Supreme Court on what constitutes wilfulness.
I think the Court is focused really on the position
(16:08):
that Cox is arguing that contributory in infringement required some
sort of affirmative act, and that, as they phrased it,
they can't be a contributory infringer by providing internet service
to one of their customers.
Speaker 8 (16:23):
So then do you think that they'll send it back
to the lower court with an instruction.
Speaker 7 (16:30):
I just don't know what they're going to do here.
I have to be frank. This is one of the
more opaque oral arguments I have listened to. The other
commentators have argued that the Court might be looking for
some sort of middle ground. Indeed, I think it was
Justice sodomy Or commented at one point during the argument
(16:54):
that the Court was being forced to choose between two
extreme positions and ticlar Justice somai Or, who was very
skeptical of Cox's position but also didn't quite like the
extreme argument being made by Sony Music corpor In. The
recording company seems really perplexed as to what to do,
(17:14):
genuinely perplexed. The problem the Supreme Court faces here is
that the standard for contributory copyright infringement has been pretty
well settled in this court for more than a century.
As early as nineteen twelve, there was a case that
involved minograph machines. If you remember those, they were a
(17:36):
pre xerox machines way of doing sort of a mass production,
mass production, you know, a couple hundred and there was
a case in which a publisher sued a mimeograph company
for knowingly selling mimeograph materials to a company that it
knew was engaged in infringing copyright works by using the
(18:00):
miniograph machine. And the standard was set out there and
has been repeated over and over since that time nineteen twelve.
And the standard is pretty simple. If you provide something
that you know is going to be used by a
person to commit copyright infringement, you've engaged in contributory infringement.
(18:20):
And the past cases haven't spoken in terms of needing
an affirmative Act, although one could argue this did not
come up with the Supreme Court hearing that providing the
internet service is an affirmative act. The COTS company argued
court that that's not an affirmative act. But that's sort
of a stretch in order to try to get around
that line cases. The co's company argued that contributory infringement
(18:45):
is really a kin to aiding and a betting liability
in the context of torts and criminal laws. And that's
a real stretch that I think is just dead wrong.
It would give the Court a way to get out
of this dilemma, but it would mean the Court would
have to overturn half a dozen cases going back to
nineteen twelve for over a century and say now they're
(19:07):
not good law anymore. I don't see the Court doing
that here.
Speaker 2 (19:10):
Do you think we'll see that Justice is coming up
with some sort of middle ground.
Speaker 7 (19:15):
Oh, it's a shame that Justice Ginsburg is no longer
on the Court, as we've had many conversations about our
knowledge of copyright law and her ability to copy together
coalitions or positions under the Copyright Act that we're actually
quite pragmatic and useful. And I just don't see anybody
(19:36):
either with that depth of knowledge to copyright law or
the ability to do that sort of log rolling on
this court. And so I think it's going to be
real struggle for this Court to come up with some
sort of middle ground, particularly in light of the fact
that the law here is just so set for such
a long period time and fits exactly into the past
case law, and these sort of odd cases that co
(20:00):
cited to the Supreme Court, including this recent gun distribution
case in the case Supreme Court to site recently where
the gun companies were being sued for deaths in Mexico,
and the argument was they were aiding embedding this criminal activity.
And the gun company said, well, we sold the guns
to dealers in Texas, not knowing what they were going
(20:22):
to do with them, and if anybody's contributed to them,
but it's not us. We had no knowledge of it.
And that case just doesn't fit here, either legally or factually.
And yet cops sort of did a lot on that.
I mean, it was almost as if there's a oh, hey,
we believe we cite to some case in which the
(20:42):
second Circuit, which everybody believes in on the Supreme Court,
that'll get us over the humpire it's just such a
stretch that in fact backfires. One starts to think, well,
what's wrong with their case? That that's the best they've got.
Speaker 2 (20:55):
And that's a question they didn't ask during two hours
of Supreme Court oral argument. Thanks so much, Terry, as always,
that's Terrence Ross of Catain Mutchen Rosenman. Turning now to
another Supreme Court case this week, the Court considered the
federal judiciary's role in asylum cases, and the justices appeared
(21:16):
open to allowing courts to defer to administrative decisions on
whether immigrants have shown they face harm serious enough to
qualify for asylum. Joining me is immigration law expert Leon Fresco,
a partner at hollanden Knight. So asylum seekers can ask
a federal appeals court to review their case if the
(21:36):
Board of Immigration Appeals denies their asylum claim. This case
is about the role of the federal appeals court versus
the role of the Board of Immigration Appeals.
Speaker 1 (21:47):
Correct. Basically, here's the issue. What a person asks for asylum.
They have to prove, at the end of the day
that they have what's called a well founded fear of
future person acution on the basis of their race, religion,
political origin, social group, things like that. One of the
(22:07):
main parts of such a case. There's a presumption that
if you have experienced what's called past persecution, there's a
presumption that you will then have a well founded fear
of future persecution. So what does that mean. That means
that people go into immigration court and they explain what
(22:28):
happened in their country that caused them to leave, and
there's cross examination and the judge can ask questions. At
the end of all of this, there's two determinations. One
did the person experience past persecution? And number two was
it on the basis of one of the protected grounds.
So in this Supreme Court case, what happened was there
(22:51):
literally was no dispute about the credibility of the facts
raised by the foreign national in this case, Douglas Umberto Oriana,
who said that he fled El Salvador after repeated threats
and violence from a hitman linked to a drug lord,
and he said that the drug lord shot his hot
(23:12):
brothers and tracked and thread in his family. And so
since there was no dispute about the facts, there was
not a factual issue that was being raised on appeal. Instead,
the court said I'm going to take all of the
facts that you've presented today as true, and I'm going
to say that they still do not rise to the
level of the high level of this word persecution such
(23:36):
that we can say that you experienced past persecution such
that you would get the presumption of future persecution. So
now mister Orias Oriana then says, well, how is that possible.
I would like to get review of that. And so
when it gets to the First Circuit Court of Appeals,
(23:57):
the first Circuit says, We're going to defer to the
Board of Immigration Appeals, which is the administrative court that
decides this issue at the end of the day. We're
gonna defer to them and say that even though the
facts are not in dispute, we still have to give
some difference to their decision in terms of let's say
(24:19):
there's a scale and you're weighing it, how many pebbles
go on one scale, how many pebbles go on the
other scale, that even that determination gets some difference. That
the federal courts can't just reweigh the evidence on their
ends and decide whether the facts that were undisputed in
(24:41):
a particular case constituted persecution such that the person should
win their asylum case. So that creates sort of a
circuit split.
Speaker 2 (24:51):
So the case goes to the Supreme Court. What are
the justices going to decide?
Speaker 1 (24:57):
The Supreme Court then has to decide, Okay, what happens
in a case like this where there's not a dispute
about the actual facts, but there's a dispute about whether
the facts when you weigh them, there's quote unquote significant
enough pebbles on the scale. Does the foreign national win
or do they lose? Can we reweigh that on our
(25:20):
own or do we have to give some different under
some standard of deferential review? And so the foreign nationals
obviously claiming there should be the Novo review. The Court
should look at this and say, okay, we're the threads
here that were undisputed sufficient to say that that was
past persecution. And the government says no, no, no, the
(25:42):
standard is actually much different and that this is actually
a mixed question of law and fact, and so you
have to treat that with some type of deferential review.
And so you had justices like Justice Go It's saying
a reasonable fact find their standard as opposed to the
(26:04):
Novo review, and others wanted to weigh it even more
deferentially potentially than even that and say that basically, if
there's substantial evidence to support the determination of the lower
administrative court, that's enough. So that would be even a
broader deferential standard. And it appears as if really there's
(26:29):
not a lot of excitement in the Supreme Court for
having a complete the novo review of this process. So
the issue is really going to be how much difference
is given in these types of cases moving forward.
Speaker 2 (26:41):
So leon just to clarify, everyone accepts that the facts
of the asylum claim are determined by the court below,
the immigration court, So the only question is how the
federal appellate court is going to weigh those facts.
Speaker 1 (26:56):
Correct. So what the lower court said in this case was, yes,
all these very bad and serious things happened to you,
but when we put all those pebbles on the stone,
they're not sufficiently weighty enough on the scale to actually
constitute persecution for the purposes of winning your case. And
(27:17):
then the question is, Okay, when this gets to the
federal court, can they literally reweigh all of that exact
evidence and say no, no, no, those stones do weigh enough
to tip the scales in favor of the foreign national
or are they stuck with Hey, if this is in
any way defensible, we have to keep this decision the
way it is. And it seemed like the Supreme Court
(27:40):
did want to give more difference than rather reweighing all
of the facts in the case, even if they're undisputed,
to decide if they need the legal standard of past persecution.
Speaker 2 (27:53):
If the appeals court can't reweigh what the lower court decided,
it's not much of a you, is it correct?
Speaker 1 (28:01):
I mean, there would only be a review if essentially
what happened was somebody goes into immigration court and they say,
the government came in and shot me one time in
the left arm because I'm a dissident, and then they left,
and then two weeks later they shot me in the
right arm, and then three weeks later they shot me
(28:23):
in the left leg, and they said, you want this
to keep going or are you're going to stop being
a dissident? And then the immigration judge says, well, that
doesn't seem like sufficient persecution. You only got shot three times.
Maybe in a case like that, then the court would say, well,
there's no way a reasonable fact finder could come to
that determination that that wasn't persecution, because then you'd have
(28:46):
this sort of reasonable fact finder deference or some other
standard like that. But it's not, it's not never will
we review it. So they're not saying never, but as
opposed to a case like this, where they're saying, okay, threats,
how serious are the threats? Or the threats very serious?
They might say, look, this is the kind of case
(29:06):
that falls into gray zone. And when you're in the
gray zone, the government wins.
Speaker 2 (29:11):
I'm curious, what do you think about the threats in
this case? Do you think they were serious enough for
an asylum claim?
Speaker 1 (29:18):
I think it's really in the gray zone. I think
this is the problem when they talk about sort of
bad facts make bad law, is this is the exact
type of case where one judge would definitely grant asylum
one hundred out of one hundred times and another judge
would never grant the asylum zero out of one hundred times,
because people just approach these cases with different levels of
(29:40):
sympathy and different levels of concern and different standards in
their mind of what constitutes persecution. And so the problem
is when you have such subjective it's not ai deciding
this case of people with their various levels of subjectiveness,
and unfortunately they bring their life experiences and preferences into
(30:03):
the court system and things that they've seen and perhaps
other cases that they've heard in similar context, which they're
not technically supposed to do. But you know, they're sitting
there in Immigration court and they're listening to hundreds of
these cases a year, and so some of them start
sounding similar, and they start then either sounding more sympathetic
or less, depending on how many of these you hear
(30:25):
and what you're hearing on different days. And so because
all of that's happening, it really does become problematic in
terms of the subjectiveness of the process. But what the
Supreme Court's trying to figure out is where does the
subjectiveness stop. Does it stop at the Court of Appeals
or does it stop at the administrative level. And it
(30:46):
seems like they're going to stop it at the administrative
level for the most part, and not bring in sort
of a new antiseptic Court of Appeals who's just reading
a transcript without any other context than decide is this
sufficient persecution. It did really seem like any of the
Supreme Court justices wanted to do that the NOVO.
Speaker 2 (31:07):
What's happening as far as the Trump administration's position on
granting asylum.
Speaker 1 (31:13):
Well, after this horrible attack on the National Guard where
one of them has passed away and the other is
clinging to their life. The Afghan foreign national who had
come in during the withdrawal from Afghanistan, and then he
subsequently got asylum because he wasn't able to get what's
called a special immigrant visa due to various timing issues.
(31:34):
So this individual ends up getting asylum. And so because
of that, the Trump administration has said that the asylum
system needs an overhaul in terms of the way in
which people applying for asylum are being scrutinized. So at
the moment, there's currently a pause, meaning the entire country,
(31:56):
nobody who's applied for asylum is going to get a decision. Now,
interestingly about that is that is also a nothing in
immigration is simple, because somebody might say, oh, well, that's
a simple solution. Just hold all these cases in abeyance
and no one will get asylum and we won't have
this problem. But you know, nothing is simple like that.
(32:17):
There's always two sides to every coin. And the point
is these human beings are here, so it's not like
they're sitting in some other country and you're holding these
cases in abeyance. When someone applies for asylum, the number
one criteria of being able to get asylum is that
your body is here in America. So they're here already
and they're applying, and so if you hold their case
(32:38):
in abeyance, sure there's some people who won't get the
protection of asylum. That's certainly better than not having it,
but there's a lot of other people who you might
have wanted to deport and get them out faster, who
you're not doing that because you're holding all the cases
in abeyance and you're not making any decisions. So from
that standpoint, I don't think this is a long term
(33:02):
or durable solution. Now, they may do something else, and
they may try to figure out some way to have
a blanket denial of all asylum planes, but I don't
think the courts are going to let them do that,
and so I think this is just an effort to
sort of count this for as long as possible until
some other solution can be done to limit the way
(33:23):
a number of people getting asylum, But just a pause
in and of itself definitely has these conflicting outcomes because yes,
people don't get asylum when you have a pause, but
also people who have no business staying in the country
get to stay longer because their cases remain pending.
Speaker 2 (33:44):
Let's turn now to these arrests that immigration officials are making.
So DC federal Judge Beryl Howell ruled that US officials
have to stop enforcing this policy of conducting warrantless immigration
arrests without probable cause to believe in arrestee is likely
(34:05):
to escape before officials can obtain an administrative warrant. I mean,
that's basic law, isn't it that you can only make
an immigration arrest without a warrant if the individual is
violating an immigration law or is likely to escape before
agents can get a warrant.
Speaker 1 (34:22):
So this is a very tricky issue because this is
about a policy as opposed to an actual police officer
doing something. So what do I mean by that? What
I mean is if a police officer is just observing
in the middle of there, or an ice officer. Let's
be more precise about this, If an ice officer is
(34:43):
just observing in the middle of their daily operations of
what they're doing at ice the war. You know, they're
serving a warrantyer, they're looking at an investigation here, and
they happen to see somebody crossing the border illegally or
something like that happening right in front of and they
can arrest that person. They don't need a warrant, they
(35:03):
don't need probable cause of escape risk or anything like that.
They're allowed to make that arrest because they're observing an
immigration violation in front of them. What's complicated about this
DC District Court case is they're saying that's different than
having a policy in place that is saying, hey, Ice,
(35:25):
go around and create a mass enforcement effort that does
not require warrants. Just go around and start basically asking
people about their immigration status and start arresting people anytime
you see anyone that looks suspicious to you. So the
issue in this case is whether a policy like that
(35:47):
can be put in place. Now the administration would say
doesn't have a policy like that, And then there's the
words about the arguments about well, that's what the leaders
are articulating is the policy, so that it becomes the
fact though policy that that's what that you're trying to accomplish.
So the court says, fine, that is a policy that
has had where the administration, whether there's a piece of
(36:11):
paper or not, that says it has this policy of
saying civil immigration arrest can be done without having a
probable cause determination of escape risk, and so is that
legal or not? And this has actually come up in
other places. It's come up in LA, it's come up
in Chicago, and in all these places, the district courts
(36:33):
have held that what ICE needs to be doing is
every day going through a list of people that it
knows has undocumented status and going and finding those people,
whether it's at their work or at their home or wherever,
but not just sweeping around looking around saying, oh, this
person looks weird, go find them. Now. The complication is oh,
(36:56):
and so, by the way, So what happens is in
the district court here December second issues a injunction saying, no,
you can't do this anymore. You now need to have
probable cause that the person is both unlawfully present and
likely to escape, and you need a warrant to do
these arrests. So it's basically back to what the Los
(37:19):
Angeles Court held and the Chicago court held is you
need to have a list every day of undocumented people
that you go and apprehend, or you need to have
a police officer who's actually looking at something, not pursued
to a policy, but just as doing their job and
observing some immigration crime happening. Yes, they can make an arrest.
(37:40):
They don't need to go get a warrant to do it.
But otherwise you can't just have these sweeping patrols. The
problem is, just as Cavanagh has already held in a
case involving the Los Angeles issue, that there can be
these arrests, you know, they're sort of called now Cavanah stops,
where you you can have these sort of inquiries that
(38:03):
ICE is making if they feel like this is the
kind of situation where normally undocumented people are in a
particular location, or there's some intelligence that they hang out
at a particular place or do a particular thing, you
could make these quote unquote Kavanaugh stop. So I think
that as this case goes up to the DC Circuit
(38:24):
and back to the Supreme Court, it will probably run
up against the same problem where the Supreme Court has
already said that they can, with reasonable suspicion start asking
people about their immigration stutus and.
Speaker 2 (38:38):
That decision was made on the emergency docket without full
briefing or oral arguments. Thanks so much, Leon. That's Leon Fresco,
a partner at Hollanden Knight. And that's it for this
edition of The Bloomberg Law Show. Remember you can always
get the latest legal news on our Bloomberg Law Podcast.
You can find them on Apple podcast, Spotify, and at
(39:01):
www dot Bloomberg dot com, slash podcast, Slash Law, and
remember to tune into The Bloomberg Law Show every weeknight
at ten pm Wall Street Time. I'm June Grosso and
you're listening to Bloomberg
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