September 4, 2025 • 43 mins
Immigration law expert Leon Fresco, a partner at Holland & Knight, discusses an appeals court blocking Trump’s use of the Alien Enemies Act to deport alleged Venezuelan gang members. Judiciary expert Carl Tobias, a professor at the University of Richmond Law School, discusses Trump saying he’ll sue over the Senate’s blue slip tradition. June Grasso hosts.
See omnystudio.com/listener for privacy information.
Mark as Played
Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:02):
This is Bloomberg Law with June Grosseo from Bloomberg Radio.
Speaker 2 (00:08):
Venezuela has been a very bad actor. They've been as
you know, They've been sending millions of people into our country,
many of them trend de Aragua, some of the worst gangs,
some of the worst people anywhere in the world in
terms of gangs. And we had some in Washington, DC.
We took care of them very quickly. But they're out
of here. They've gone.
Speaker 3 (00:29):
The Trump administration used in eighteenth century wartime act to
try to quickly deport alleged members of a violent Venezuelan
gang in March, arguing that the trend Hiragua gang had
been sent to the US by Venezuela as president to
destabilize the country. But a federal appeals court has weighed
(00:50):
in for the first time blocking the administration from using
the Alien Enemies Act of seventeen ninety eight to deport
the Venezuelans, finding that quote a country's encouraging its residents
and citizens to enter this country illegally is not the
modern day equivalent of sending an armed organized force to occupy,
(01:12):
to disrupt, or to otherwise harm. The United States borders
are Tom Holman had admitted that the law was being
used to bypass normal deportation procedures like hearings in immigration court.
Speaker 4 (01:26):
I'm not arguing to hear that nobody should get due prices.
I'm just saying there's a different process.
Speaker 5 (01:30):
Under Alien Enemies Act. Unless of a process, and you
see through Title A.
Speaker 3 (01:34):
DC Federal Appellate Judge Patricia Millet had criticized the government
for not giving the Venezuelans any opportunity to challenge their removal.
Speaker 6 (01:44):
There were planeloads of people, there were no procedures in
place to notify people. Nazi's got better treatment under the
Alien Enemy Act, and has happened here where the proclamation
require the promulgation of regulations and they had hearing boards
before people removed.
Speaker 3 (02:03):
The two to one decision from the New Orleans Appellate Court,
the most conservative in the country, will most likely end
up back at the Supreme Court. Joining me is Leon Fresco,
a partner at Holland and Knight and the former head
of the Office of Immigration Litigation in the Obama administration.
Leon This case has been going on almost six months.
(02:25):
It has been up to the Supreme Court twice already
catch us up.
Speaker 1 (02:29):
This case is a case involving President Trump's proclamation in
March of twenty twenty five that the Venezuelan gang Trend
de Arragua, was a dangerous invading force into the United
States such that its members should be deported under the
Alien Enemies Act, which permits deportation without due process. Essentially,
(02:50):
the government can just apprehend anyone it says is in
the Alien Enemies Act group, which in this case is
Trend the Arragua, and deport them. And in the iteration
that occurred, people were being deported to El Savador, to
the Sea Coats Prison. Now there was two iterations of
this case. The first one started in DC, where just
Vozberg had said that the government couldn't do this, and
(03:13):
there was the debate about the flights and the debate
about whether anything that was done was proper or there
should be contempt. But nevertheless, the Supreme Court comes in
and says, no, no, no, all of that was wrong.
None of that should have been filed in DC. These
kinds of cases should be filed as habeas cases. Now,
mind you, there was a decision a couple of years
ago where just as Alito had said no more habeas
(03:36):
for immigration, but nevertheless, I think that these facts on
the ground concerned the Supreme Court so much they said, well,
you got to be able to file something, so fine,
we're back to habeas again. So you've got to file
them as habeas cases. And the habeas cases have to
be in the locations where people were being detained. Well
where were people being detained. They were being detained all
(03:58):
over Texas. So there were district court decisions all over Texas.
But now finally the main case reaches the Fifth Circuit,
and the Fifth Circuit, in a two to one decision,
grants the preliminary injunction preventing the removal of the petitioners
who were the Venezuelan nationals that the Trump administration wanted
to deport under the Alien Enemies Act, saying that at
(04:22):
the end of the day, the Alien Enemies Act doesn't
justify their removals because there isn't a declared war and
that the actions of this trend that Aragua Gang do
not constitute an invasion or a predatory incursion by a
foreign nation or a government, which requires, in their view,
military like actions directed by a foreign power. They're saying
(04:44):
this is more of some sort of a gang or
criminal type of things, but it isn't actually a military incursion.
They don't even get into anything about whether these individuals
specifically are members of trend Aragua or anything like that.
They just say that this manner of invocation of the
(05:05):
Alien Enemies Act is unlawful and so it cannot be
used to create deportation without due process. Now, they did
say if the Trump administration wants to deport these people,
they can deport them under any other grounds that's permissible,
just not this Alien Enemies Act provision that doesn't require
any due process to occur.
Speaker 3 (05:24):
So I was listening to some of Tom Holman, the
bordersar's comments in the past about this, and he kept
saying that they're terrorists. Was the argument that they're terrorists.
Speaker 1 (05:38):
Well, first of all, you're correct. There's a very concerted effort,
even in this bombing that occurred this week with the
Venezuelan and drug lords on the boat, that everybody calling
them in the administration terrorists, to try to link that
with some sort of military like action directed by a
(05:58):
foreign power, to get it as close as possible to
the Alien Enemies Act. But what this court is saying
is that's not really what these people are. These people
are not being instructed by the Venezuelan government to come
to the United States and commit war acts against the
United States. These are just individual criminals trying to basically
(06:20):
profit off of drug and gang activities. But they're not
soldiers or quasi soldiers acting on behalf of the Venezuelan government.
Speaker 3 (06:29):
This is a Fifth Circuit decision, a panel of the
Fifth Circuit, the most conservative appellate court in the country.
As you mentioned, two to one decision George W. Bush
appointee and a Biden appointee in the majority and in
descent a Trump appointee. What did the dissent argue.
Speaker 1 (06:47):
Well, the desenting judge who used to be the Solicitor
General of the State of Texas, a very well known
strong conservative judge, Judge Oldham. He basically argued that the
Alien Enemies Act is something that is so broad in
terms of the congressional authority that the courts really don't
have a role in reviewing a presidential determination under the
(07:13):
Alien Enemies Act. Basically, what he was saying is that
the courts should not be given the ability to second
guess when the president says there's a war, because this
can lead to very dangerous circumstances, and that you know,
you have the president who has all of this sort
of expertise in the sense that they have the Defense
Department and the CIA and the NSA and the Apartment
(07:37):
of Homeland Security to do all of this work and consultation,
and if they make a determination that there is a
dangerous environment akin to the environment that's required under the
Alien Enemies Act, that for the courts who are just
judges sitting there in you know, Louisiana or Texas or
(07:57):
wherever they're sitting that don't have all this access to
the Department of Defense and the Department of Homeland Security
and the NSA and the CIA, et cetera to be
able to come in and say, well, we don't actually
think this rises to the kind of war level threat
that is required under the Alien Enemies that he's saying
(08:19):
that it is incredibly dangerous because what is the limiting
principle there? Now the judges can decide what is a
war what isn't a war, and that's not what Congress
had intended here. The problem with that is, at the
end of the day. If you really have no limiting
principles on the Alien Enemies Act at all, including whether
(08:42):
it can be invoked and who it can be invoked again,
then at that point, I mean, there really would be
no way for either you or I or any of
your listeners to go into court if we were mistakenly
apprehended by Ice. Ice could say, you know, Leon or June,
you're members of this trend, that Ragua gang, and we're
sending you Tel Salvador. And you could say, yeah, but
(09:02):
I've never visited Venezuela, and I don't even know any Venezuelans,
and I'm not a member of the gang. I host
the Bloomberg. So and it won't matter because there's no
court to bring it to. And so I don't think
anyone will be fully comfortable with that kind of decision,
and I don't think the Supreme Court was comfortable with that,
(09:22):
which is why they didn't issue that decision. And moving forward,
I don't think they're going to get there in terms
of that ability to just not have any due process
determination as to these decisions.
Speaker 3 (09:36):
Yeah, Colorado judge called that argument nonsense.
Speaker 1 (09:40):
It's a difficult argument to make. I mean, look, It
all depends where you're approaching this from. If you're approaching
this from a belief system that everybody in the world
acts in good faith, then you could conceivably understand. You say, well,
why would a president ever want to do something like
this if it wasn't absolutely necessary? And why would anyone
(10:03):
ever put someone in a detention that is it absolutely necessary,
et cetera. And so under that you could understand a
decision like that. But if you were to approach it
from the perspective that sometimes people don't act in good faith,
or sometimes people make a mistake or anything else, then
maybe you do need some due process in that system,
because otherwise, what is checking those kinds of abuses from occurring.
Speaker 3 (10:28):
The ruling could be appealed to the full Circuit, the
full Fifth Circuit, or could be appealed directly to the
Supreme Court. Is there any reason to bother going for
and on bank hearing at the Fifth Circuit when the
case is just going to end up at the Supreme
Court anyway, Well, it may.
Speaker 1 (10:46):
Give you a stronger hand to show how you know
right now it's the government doesn't have the strongest hand,
and maybe you know the government wins in the Fifth
Circuit fully, and so then it would be the then
on the foreign nationals to actually that appeal to the
Supreme Court. So from that perspective, they may want to
(11:07):
strengthen their hand. But honestly, if the Trump administration is
trying to really say, hey, these are the most dangerous
people in the world and we need to get them
out as soon as possible, asking for un Bank review
of the Fifth Circuit doesn't seem to make a lot
of sense because why are you delaying getting to the
ultimate outcome here. So I don't think from a political
(11:29):
perspective it makes a lot of sense to go for
un Bank review. It may make sense from strengthening the
argument in a typical case because you might win in
the on Bank. But at the end of the day,
if what you're trying to say is, look, we need
a final answer, we need to get these theorists out
of the country as soon as possible, I think you
would want the Supreme Court to look at this as
(11:50):
soon as possible.
Speaker 3 (11:51):
So the Supreme Court never answered the question of whether
Trump's use of the Alien Enemies Act is valid. Do
you have any inkling from the way they ruled in
the two other cases how they might rule.
Speaker 1 (12:05):
Well, I think that at the end of the day,
there won't be five justices that say that you can't
review this general concept of whether it was proper to
have an Alien Enemies Act determination. Now, they may give
some very strong difference to the administration. In fact, I
would be shocked if they didn't give strong difference to
(12:27):
the administration. But they may say, look, even with very
strong difference, this isn't the kind of case that gets it.
I mean, that issue is going to be closed. I
don't think there will be any justice that says that
an individual person can't come forward and make a claim. Well, yeah,
but I'm not part of whatever group you're trying to
claim I'm a part of I think those people will
(12:49):
not nothing be able to get due process in habeas
or in some other way to be able to make
that argument that look, you may claim there's a problem,
but I'm not a member of the problem group. That's
the second thing. And then the third thing, which the
court doesn't really do too much with. It's sort of
a two to one way. They say that seven days
(13:10):
is enough to make these claims, so that the government,
if they designate you as part of the problem group.
You have seven days to file a lawsuit or you
can be deported. And you know, the dissenting judged there,
Judge Ramirez, who was the majority for most of it
but not for this, said no, you need twenty one
days at least. And you know this is all everybody's
(13:30):
just making this up out of old clause. But the
question is, you know, if you don't speak English, you
don't have access to a lawyer, what is a reasonable
amount of time to give you to file a federal
habeast complaint in the court. That's not the easiest thing
for someone to do. Imagine you know, you or I
going to China right now and trying to file a
court document there when we don't speak Chinese, we don't
(13:52):
know anything about the law, we don't know anything. You know,
what would be a reasonable amount of time to give
a person in that situation. And so that's the question here,
and you know the Supreme Court's going to have to
grapple with that too.
Speaker 3 (14:04):
Coming up next, we'll tell you why seventy six Guatemalan
children were put on planes during the early morning hours
Sunday until a judge stepped in. This is Bloomberg a
group of Guatemalan children are caught in a legal battle.
Seventy six children, one as young as seven, were put
(14:24):
on three planes in Texas during the early morning hours
Sunday to return to the Central American country, but a
judge blocked their removal after attorneys argued that the administration
was attempting to repatriate them without giving them the opportunity
to challenge their removals. Renato Castro is an immigration attorney.
Speaker 4 (14:48):
Imagine the position of the children inside those planes today.
While we were arguing over the government's practices in court,
the children were sitting in a plane at the Hardinger
Engine Airport or a Pastor airport for hours, not knowing
what's going to happen or why, or where they are
going or where they're going to be let go. Is
(15:08):
just horrendous.
Speaker 3 (15:10):
I've been talking to immigration law expert Leon Fresco, a
partner at Hollanden Knight. Leon, why were these seventy six
children put on planes over Labor Day weekend in the
early morning hours.
Speaker 1 (15:24):
So here's what happens. So in general, the Office of
Refugee Resettlement, which is part of the Department of Health
and Human Services, keeps some number of unaccompanied miners who
come into the United States and custody until they can
be given to some caring adults in the United States.
That has to be vetted by the Office of Reputee Resettlement.
(15:45):
So at the moment, the administration had identified sort of
a class of people that was in this kind of detention,
and so it's about six to seven hundred Quadamlan foreign
nationals that were miners. And what they said was, these
miners actually have parents in Guatemala that are still there.
(16:05):
And you know, this is disputed whether that's true or not,
but for the purposes of this, let's just start with
what the Trump administration is saying. They're saying that all
of these six to seven hundred miners basically ran away
from home, but they actually have parents in Guatemala. They're
not orphaned, so to speak. And so what they wanted
to do was to say, instead of having them go
(16:27):
through the whole immigration deportation process, they basically went to
these kids and said, do you want to do that
and it's going to basically end the deportation anyway and
you'll never be allowed to come in, or do you
want to sort of let bygones, be bygones, and we'll
pretend you were never here and one of these days
you could always come back legally. And so their argument
(16:47):
is that these kids consented to quote unquote voluntary departure,
which would mean they didn't have to go through any
of these proceedings, and Guatemala consented to bring these kids back,
so they were just going to fly them back to Guatemala. Well,
then the lawsuits come in, basically saying no, no, no, no, no,
this is not what's happening at all. This is a
(17:08):
deportation in cheap clothing. And they didn't give the kids
the chance to make asylum clanes or claims that they
had been traffic or claims for something known as special
immigrant juvenile status, which is that if you've been abandoned, abuser,
neglected by your parents, you can actually have a status
that allows you to remain in the United States. And
so they're saying that those opportunities should have been permitted,
(17:32):
and this was essentially a coerce deportation. And so for
now we have an injunction from a district court that
prevents this for at least the next fourteen days until
we can get to the bottom of whether this kind
of operation is legal or not.
Speaker 3 (17:48):
These kids, some as young as seven, do they just
show up at the border by themselves.
Speaker 1 (17:55):
Well, it could happen in one of two ways. They
could either show up at the border come completely unaccompanied.
Then sometimes that does happen, but more often than not,
what happens is they show up at the border with
an adult, but that adult isn't their parents, so it's
just somebody else who brought them. And then they said
where are your parents, And they say, you know, my
parents abandoned the abuse, they're neglected me. Then they get
(18:17):
put in these shelters. And what these kids are essentially
trying to do is they're trying to get this status
called special Immigrant Juvenile Status, which permits them to stay
in the United States permanently if they can show that
they've been abandoned, abuse, or neglected by their parents, and
that a state court, so it would have to be
any state, would say that it's in the best interests
(18:39):
of this child to remain with whatever now guardian has
them in the United States. Now people think this was
a sort of a manipulation of what had been meant
to occur. So I'll give you just very briefly, if
you want to say, a quintessential case. I had a
case a long, long time ago where there was a
Haitian couple and what happened was the Haitian couple traveled
(19:03):
with their child to the United States and they were
here legally, and what happened was the father shot the
mother murdered the mother, and so the mother is no
longer available. The father is now in prison for life.
And now the question is what do you do with
this three year old child? Do you send them back
on a plane to Haiti? Good luck? And so that's
what special immigrant juvenile status was meant for. Is no, no, no, no, no.
(19:25):
You know, we're not going to just send a three
year old child on a plane and say good luck
and just push them out of the plane. We're going
to try to find them some guardian like we would
have this occurred in the US, and then that guardian
doesn't have to worry about the child's status because we'll
give the child a permanent status. So that's what it
was meant for. But over the course of the last
fifteen years people figured it out. But yeah, I can
(19:47):
engineer this claim by just coming to the us by
myself as a miner and saying that my parents abandoned
the views or neglected me, and so that's why I'm
coming to the And so you've seen in some years
up to one hundred thousand of these kinds of miners
coming into the United States, and that is what the
(20:09):
Trump administration is trying to end. They're trying to end
that by basically telling these miners, look, this is going
to end in deportation, it's not going to end in
lawful status, So voluntarily agree to lead. And so that's
what they're trying to do here.
Speaker 3 (20:23):
So it is correcting an abuse, then of the system.
Speaker 1 (20:26):
Well, it's correcting what the Trump administration would argue as
an abuse of the system. The people who do this
for a living on behalf of the miners would say,
it's not an abuse of the system. So I'm not
going to opine, but I would say that I don't
think that the people who drafted these laws in Congress
probably would have consented to a situation where any miner
(20:49):
could come to the United States and just say they
were abandoned, abuse, or neglected and get a green card
to stay here. I don't think that was their intent.
I think their intent was to take care of a
situation where there was a case where it was an
unforeseen situation. And now you have an abandoned miner in
the US, and what are you going to do with
this abandoned minor.
Speaker 3 (21:10):
So there's going to be a hearing on September tenth
on a children's request to extend the temporary restraining order.
This seems like a novel issue. Do you think the
case will be one of the ones that ends up
being appealed to the appellate court and then the Supreme Court.
Speaker 1 (21:28):
I think it will eventually if it gets enjoined by
the district court permanently. I do think they will want
to go up to the appellate Court. I don't think
it will work here because it's the first circuits pretty
liberal at the moment, so they're not really citing with
the Trump administration. But then would it go all the
way up to the Supreme Court and would the Supreme
(21:49):
Court allow these kinds of voluntary because really what this
is going to come down to is is this a deportation.
If it's a deportation, they can't do it. They have
to follow certain laws in order to deport kids. These
laws are established by the Trafficking Victims Protection Reauthorization Act
of two thousand and eight, so they have to follow
all of those procedures. But what the Trump administration is
(22:10):
trying to say is these are deportations. These kids want
to go back home. And so the question is can
they get a court to agree that these kids want
to go back home or is this going to be
viewed as a coer type of situation.
Speaker 3 (22:23):
So now the Trump administration is reinstating a practice that
hasn't been used since the nineties of conducting neighborhood checks
for people who want to become citizens.
Speaker 1 (22:36):
Correct. And what's very interesting about this is, just like
in the Alien Enemies Act situation, where you had a
situation where they're re reincarnating let's say a statute that
was from seventeen eighty nine that has been used but
very rarely, and so all that is old is do again.
Here's another example where there is a statute. There's no
(22:59):
doubt that statute was written in eighteen oh two essentially,
and here in that statute, petitioners for nationalization were required
to present witnesses who could testify to their qualifications for
citizenship and then in nineteen eighty one, Congress comes in
and says, you know what, let's not do the witnesses anymore.
(23:19):
Let's just have an investigation. That's better if we need it.
And so they were doing investigations from nineteen eighty one
to nineteen ninety one, but then in nineteen ninety one
the government basically stopped because there's a waiver authority in
the statute that says, look, if the Attorney General, which
now is the Secretary of Homeland Security doesn't want to
(23:39):
do the investigation, they don't have to. They can decide
in any specific case not to do it. And so
they just decided in every case not to do it.
Post nineteen ninety one. Well, now they're bringing it back,
and they're bringing it back to determine one very specific
issue in the statute. And this is what's very interesting,
because in the statute it's that the only way you
(24:02):
can be naturalized to a US citizen is if you
are quote unquote attached to the principles of the Constitution
of the United States and well disposed to the good
order and happiness of the United States. And so now
what they're basically saying is, look, we're going to conduct
those investigations if we feel it's necessary to find out
(24:22):
if a specific person is quote unquote attached to the
principles of the Constitution of the United States and well
disposed to the good order of the United States. But
what they're also doing is they're warning everybody, look, if
you're applying for citizenships, don't make us come to your neighborhood.
Start now and give us this kind of information. Basically,
send us some references and some letters that say this
(24:45):
on your behalf already from some people, so that we
don't have to go and do this. And so they're
basically trying to add this requirement and sort of give
the carrot and the stick. The stick would be, if
you don't do it, we're going to actually go out
to your neighborhood and investigate you. But if you do
give us this information up front, then we won't have
to do this because you've given it to us upfront.
(25:08):
So they're essentially reverse engineering this requirement now that people
have to give you, you know, positive references in order for
you to get citizenship, which hasn't been needed since nineteen
ninety one.
Speaker 3 (25:20):
We've discussed other aspects of you know, seeming to add
on to the requirements for citizenship. Is the Trump administration
deliberately adding requirements or steps to the naturalization process to
slow it down or to ensure that fewer people become citizens.
Speaker 1 (25:40):
Yes, I think what they're trying to do is And
what's interesting is the previous one we talked about had
to do with good moral character and not just proving
it through an absence of bad moral character, but having
to show evidence that you actually had good moral character.
I think they realized there that that had a very specific,
expatiatory definition, and so those kinds of things wouldn't work
(26:05):
for that. So now they're attaching it instead to this
other issue about whether you have an attachment to the
US Constitution and you are disposed to the good order
and happiness of the United States, which isn't actually defined,
and so then you can make this more nebulous determination.
And what I think they want to do is to say, look,
(26:26):
if you're a person who's got all of this sort
of questionable verbal conduct I suppose where you're bashing the
US all the time, et cetera, that they don't want
to make those kind of people US citizens because at
the end of the day. Once you make someone a citizen,
then you can't support them if they've been truthful with
you the whole time. And they're basically trying to impose
(26:49):
an ethous into this system. And you can either say
it's good or it's bad. I'm not trying to give
a personal opinion here. I'm just trying to say what
I think is trying to be done is they're basically
trying to impose an ethos into the system of we
don't want people becoming citizens who aren't one hundred percent
thrilled to be Americans and aren't just going to start arguing, Oh,
(27:10):
Americas are rotten plays that's terrible. Well why did you
become a citizen then? And so from their view, they
want to sort of cut this off before the naturalization occurred.
Speaker 3 (27:21):
LeAnn, a client came to you and said, you know,
I want to start the naturalization process. Would you advise
them to wait until after the Trump administration to see
what administrations.
Speaker 1 (27:32):
That't No, I would advise them to wait. But what
I would do, and I am doing it as we speak,
is I'm saying, look, go get two or three letters
from either co workers or friends or whoever that say Hey,
this person is a good person. They have good moral character,
and they have strong allegiance to the United States. And
I think you're going to need data, and I think
(27:54):
it would be malpracticed not to put that in now
as part of a news starting now citizenship outation, I
think you need to do that, you know. I do
think if there are questions about a person's case, then
maybe you don't want to go forward. But if it's
just a normal case, I don't think you should have
a problem going forward because in the end, you can
get judicial review of a denial of a citizenship case
(28:16):
if you don't have anything to worry about, I think
a judge would say, hey, this is ridiculous, why are
you not giving this person's citizenship. But if it is
a questionable case, so for instance, you know, you take
the case of Mamood Khalil, who is a Green card
holder and he's got all of this sort of background
of literature, maybe that's not someone I'd be comfortable taking
(28:37):
on as a client at the moment, because I would say,
this is going to be a honeypot of complications. Maybe
in your best interest to wait to see if the
policy has changed.
Speaker 3 (28:48):
One more thing, before I let you go.
Speaker 2 (28:50):
Leon.
Speaker 3 (28:50):
The Trump administration is trying in different ways to restrict visas.
Tell us what the latest restrictions are for student visas.
Speaker 1 (29:00):
Currently, if you enter on a student visa, you can
stay in America for as long as it takes for
you to finish any studies you're in. So you could
enter as a high school student at an Exeter or
an Andover or one of those schools, and then go
to college, and then go to grad school and go
to PhD and you never have to leave the country.
You could be here twenty years based on that first
(29:21):
student visa you were given, and you could transfer a
bunch of times. And basically, what this new rule would
do is say no, no, no, no no. Each time you
do something, you're gonna have to check in with the
government and get permission to do so. The days of
changing schools or changing programs or going from one program
to another without checking in and getting permission to the
(29:43):
government are over. So we're only going to give you
permission for the specific program you signed up for, and
then you're going to need a new permission for any
new program. And so that certainly sounds very rationalist, but
there's a lot of problems in terms of the way
the programs work make this super complicated. For instance, the
biggest one being that they only are going to give
(30:05):
you four years to finish an undergraduate program. And if
you notice, the Department of Education basically now says that
those programs take on average six years to finish. The
majority of people are taking six years to finish a
four year program. So the question is why isn't then,
what the foreign students are being given in line with
(30:25):
what the US students are doing, especially if the foreign
students have to pay for those extra years anyway, so
it's not like they're getting them for free. They have
to pay. It's everyone's benefit. So those kinds of things
that are going to be debated as this moves forward,
but that's basically what's happening under this new rule.
Speaker 3 (30:42):
My question is why is it taking college students six
years to finish a four year program? But that's a
question for another day and another guest, thanks so much
for taking us through all these immigration issues. Leon. That's
Leon Fresco of Honda Night. Coming up next, the fight
over a seton and a tradition. You're listening to Bloomberg
(31:03):
there's been chaos around Elina Habba, President Trump's pick for
US Attorney in New Jersey. Federal criminal courts in the
state have been basically at a standstill, and a judge
rule last month that Habba has been illegally leading the
office since July first. She's been vocal about blue slips,
which she says stopped her nomination from going forward, and
(31:27):
President Trump says he'll sue of the Senate's century old
tradition of allowing home state senators to sign off on
US attorney and district court nominees. Joining me is Carl Tobias,
a professor at the University of Richmond Law School and
an expert on the federal judiciary. Explain the uproar recently
(31:49):
about the blue slips. I mean it comes mainly because
of the US attorneys who are not being approved by
the Senate on their home states.
Speaker 5 (32:01):
Yes, that has sparked it, but the problem has been
that the administration is not following the tradition of nominating
and having confirmed the US attorneys as it did in
the first Trump administration, when eighty five of them went
through all quite smoothly on voice votes in committee and
(32:25):
on the floor. But Trump has been in a big
hurry to seat people, and so he's using interims and actings,
and that has led to controversies that we've talked about before,
especially in New Jersey, but in other states or districts
around the country. In their ninety plus or so, but
(32:45):
only two have been confirmed pro for the DC District
and quinonas for the Southern District of Florida. In that context,
the President has urged Senator Grassley, the chair of the
st Judiciary Committee, to abolish the blue slips for US
attorneys as well as for district nominees to the bench,
(33:12):
and Senator Grassley has said very explicitly that he has
no intention of changing the blue slip policy for either
US attorneys or for judicial nominees.
Speaker 3 (33:26):
Trump has said that he's going to sue over this.
Tell us what the chances of that going through are.
Speaker 5 (33:33):
Well, the chances of a judge ruling in his favor
are minimal, But hopefully the White House Council and the
Justice Department will suggest to him politely that no court
is likely to rule in his favor, so it might
be better not to do that. Graffley has been very
(33:55):
clear and one hundred year history going back to nineteen
seventeen of Blueslips has been that the discretion is in
the chair of the Judiciary Committee, and different chairs have
treated in different ways, But the point is that it
has withstood the test of time, and as senators have
(34:17):
pointed out in the GOP that it actually helps to
have that when you don't have the president in the
White House of your own party. And so everyone has
agreed with Durbin's idea, and that is we won't have
separate rules for Democrats and Republicans depending on who occupies
(34:39):
the White House or who has the Senate majority. So
I think there's pretty strong agreement among senators that it
should remain in the Chair of Judiciary at that discretion.
And as you suggest with your question, in the past,
there have been a number of Supreme Court rulings that
have just said that the executive cannot dictate what the
(35:04):
rules of the House of Representatives and the Senate especially are,
And so it seems unlikely that the President will make
good on his promise to sue, and if he does,
it seems very likely that it won't go anywhere. The
judges will just kick it out. So I think it's
(35:24):
not going to happen, but that doesn't mean something won't happen.
And in fact, there's discussions on the GOP side about
ways to expedite the process now. And the easy way
with the US attorneys would be to do as they
have in the past, but that hasn't proved to be
(35:46):
what the White House wants to do and has done
so far. So you have all kinds of different variations,
but mostly interims and actings as US attorneys around the country.
Now there are a number of people who are for example,
they're a to them US attorney nominees scheduled to have
a committee vote, so I think the logjam may be
(36:06):
broken sometime soon. But Senator Durbin, in the committee and
the hearing on five nominees basically said, again, we can't
have different rules, and he traced out what had happened
in the Biden years and how a number of holds
were placed on US attorneys by GOP senators that delayed
(36:27):
Biden's ability and he only was able to name something
like sixty to permanent four year appointments. So we'll see,
but I don't think there's going to be a blanket
veto coming from Democrats, but they may take it case
by case and so it may take more time.
Speaker 3 (36:45):
Years ago, wasn't it Grassley who eliminated the blue slips
for appellate court candidates?
Speaker 5 (36:51):
Yes, in Trump one in twenty seventeen, when there were
a number of Blue states where vacancies had been left
because McConnell and the GOP blocked Obama's choices in the
last two years, many of whom were highly qualified for
the appeals courts. There was something like eighteen vacancies in
(37:12):
Blue states, and the GOP wanted to move them as
fast as possible, and so they decided to eliminate the
blue slip for appellate judges. He said then Durbin. Of course,
when Democrats came in twenty twenty one, retained that and
(37:32):
so rastly has retained it as well. At some point
in the future they may decide to not do that,
but it has to be in a fair way that
treats both parties the same way.
Speaker 3 (37:43):
So now let's talk about the Pellet nomination of Jennifer
Mascot to the Delaware seat on the Court of Appeals
for the Third Circuit, and why the Home state senators
are criticizing this.
Speaker 5 (37:58):
Well, that was ventilated in committee, especially by Senator Kohns,
who's a senior senator, longtime member of the Judiciary Committee,
and he made a strong point that the nominee mascot
has very few, if any ties to the state of Delaware.
She has a vacation home there, she spent most of
(38:19):
her adult life in the DC area, going to school
Maryland and DC, and as not a member of the
bar and hasn't really practiced there. But more affirmatively, I
think the Senator explained it clearly that you want to
have people who are familiar with the law in the
(38:40):
particular state, know the lawyers in the state, know the
judges in the state, know the customs of the state
and its legal system, especially with Delaware, which you know
is a corporate center and so sees a lot of
those kinds of cases. But he was also concerned just
about her ability to deal with district rulings in areas
(39:03):
that she wasn't familiar with because most of her work
has been an administrative law and being a law professor
and constitutional specialists, but hasn't done much if any, litigating
in the district courts or handled things like depositions, and
that's a fair amount of what she would see on
the Third Circuit. The DC Circuit has a dock at
(39:26):
much more like what she has been working on. And
in fairness, she has been in all three branches of
the federal government. She worked on the Hill for some time,
and she was in Trump once administration. In any event,
Senator Koon's just made a very strong point about the
need to have someone who is a consensus nominee. And
(39:49):
there was apparently no consultation from the White House about
her nomination with the Home State senators, and they had
already interviewed a number of Delaware lawyers and practitioners and judges.
They thought that a number of them would be excellent candidates,
but the White House didn't even speak with them or
interview anybody. And so he was concerned as the Home
(40:11):
State senator. That means, I think he's going to not
vote for her.
Speaker 3 (40:16):
We saw what happened with the last Third Circuit nominee,
which there was so much opposition to Emil Bovy and
he went through. So, I mean, do you think the
Republican senators are not going to vote for her because
of this?
Speaker 5 (40:30):
No, they're going to vote for her. I don't think
there's any question about it. I mean, if they voted
for Bov, I think there's no doubt that they'll vote
for Mascot because she doesn't have a lot of the baggage,
if you will, that Bov had involving the Department of Justice,
his representation of Trump and his private capacity, and the
(40:54):
many troubling kinds of facts that were elicted during his
hearing from the whistleblower and others about his time at
the Department of Justice. There are no questions of that
sort about Jennifer Mascot as far as I understand, I
don't think there'll be very many no votes on the
Republican side, but we'll see. I think all the senators
(41:17):
care about their home state prerogatives and want to have
on the appeals courts and the district courts people who
are from the particular district or state on those courts
because they understand the law, the customs, the practices and
all of that in the home state, and the senators
are responsible for that, and so there's concern.
Speaker 3 (41:40):
There's concern, but I mean, nothing changes, that's right, I.
Speaker 5 (41:43):
Mean, because those are their prerogatives. But they can't enforce
them when the chair of the committee is of the
other party and it is made clear that he doesn't
intend to require blue slips for circuit nominees. That's the
way it is.
Speaker 3 (42:01):
Give us an update on Trump nominations.
Speaker 5 (42:05):
Sure, at the appellate level, there have only been six
vacancies and they have confirmed to Bovi and herman Or
for the sixth circuit. There are four more, one from
Maine for the first circuit, one from California for the
ninth circuit. They've had a hearing and I think they're
still waiting for a committee both that'll come soon. Then
(42:28):
Rebecca tableson for the seventh circuit vacancy of the chief
judge who's stepping down and taking senior status. So all
of the vacancies either have nominees or people confirm. Other
people have to take senior status or retire for Trump
to fill any more pealet vacancies. So we'll see how
that proceeds. And there have been none really this year.
(42:52):
There are many who are eligible, but they haven't chosen to.
On the district level, there are nineteen nominee. They're approximately
thirty five or forty vacancies and Most of those don't
have nominees yet, but they're moving on those.
Speaker 3 (43:11):
Thanks so much for joining me, Carl. That's Professor Carl
Tobias of the University of Richmond Law School. 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 Podcasts, Spotify,
and at www dot Bloomberg dot com slash podcast Slash Law,
(43:32):
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):
Venezuela has been a very bad actor. They've been as
you know, They've been sending millions of people into our country,
many of them trend de Aragua, some of the worst gangs,
some of the worst people anywhere in the world in
terms of gangs. And we had some in Washington, DC.
We took care of them very quickly. But they're out
of here. They've gone.
Speaker 3 (00:29):
The Trump administration used in eighteenth century wartime act to
try to quickly deport alleged members of a violent Venezuelan
gang in March, arguing that the trend Hiragua gang had
been sent to the US by Venezuela as president to
destabilize the country. But a federal appeals court has weighed
(00:50):
in for the first time blocking the administration from using
the Alien Enemies Act of seventeen ninety eight to deport
the Venezuelans, finding that quote a country's encouraging its residents
and citizens to enter this country illegally is not the
modern day equivalent of sending an armed organized force to occupy,
(01:12):
to disrupt, or to otherwise harm. The United States borders
are Tom Holman had admitted that the law was being
used to bypass normal deportation procedures like hearings in immigration court.
Speaker 4 (01:26):
I'm not arguing to hear that nobody should get due prices.
I'm just saying there's a different process.
Speaker 5 (01:30):
Under Alien Enemies Act. Unless of a process, and you
see through Title A.
Speaker 3 (01:34):
DC Federal Appellate Judge Patricia Millet had criticized the government
for not giving the Venezuelans any opportunity to challenge their removal.
Speaker 6 (01:44):
There were planeloads of people, there were no procedures in
place to notify people. Nazi's got better treatment under the
Alien Enemy Act, and has happened here where the proclamation
require the promulgation of regulations and they had hearing boards
before people removed.
Speaker 3 (02:03):
The two to one decision from the New Orleans Appellate Court,
the most conservative in the country, will most likely end
up back at the Supreme Court. Joining me is Leon Fresco,
a partner at Holland and Knight and the former head
of the Office of Immigration Litigation in the Obama administration.
Leon This case has been going on almost six months.
(02:25):
It has been up to the Supreme Court twice already
catch us up.
Speaker 1 (02:29):
This case is a case involving President Trump's proclamation in
March of twenty twenty five that the Venezuelan gang Trend
de Arragua, was a dangerous invading force into the United
States such that its members should be deported under the
Alien Enemies Act, which permits deportation without due process. Essentially,
(02:50):
the government can just apprehend anyone it says is in
the Alien Enemies Act group, which in this case is
Trend the Arragua, and deport them. And in the iteration
that occurred, people were being deported to El Savador, to
the Sea Coats Prison. Now there was two iterations of
this case. The first one started in DC, where just
Vozberg had said that the government couldn't do this, and
(03:13):
there was the debate about the flights and the debate
about whether anything that was done was proper or there
should be contempt. But nevertheless, the Supreme Court comes in
and says, no, no, no, all of that was wrong.
None of that should have been filed in DC. These
kinds of cases should be filed as habeas cases. Now,
mind you, there was a decision a couple of years
ago where just as Alito had said no more habeas
(03:36):
for immigration, but nevertheless, I think that these facts on
the ground concerned the Supreme Court so much they said, well,
you got to be able to file something, so fine,
we're back to habeas again. So you've got to file
them as habeas cases. And the habeas cases have to
be in the locations where people were being detained. Well
where were people being detained. They were being detained all
(03:58):
over Texas. So there were district court decisions all over Texas.
But now finally the main case reaches the Fifth Circuit,
and the Fifth Circuit, in a two to one decision,
grants the preliminary injunction preventing the removal of the petitioners
who were the Venezuelan nationals that the Trump administration wanted
to deport under the Alien Enemies Act, saying that at
(04:22):
the end of the day, the Alien Enemies Act doesn't
justify their removals because there isn't a declared war and
that the actions of this trend that Aragua Gang do
not constitute an invasion or a predatory incursion by a
foreign nation or a government, which requires, in their view,
military like actions directed by a foreign power. They're saying
(04:44):
this is more of some sort of a gang or
criminal type of things, but it isn't actually a military incursion.
They don't even get into anything about whether these individuals
specifically are members of trend Aragua or anything like that.
They just say that this manner of invocation of the
(05:05):
Alien Enemies Act is unlawful and so it cannot be
used to create deportation without due process. Now, they did
say if the Trump administration wants to deport these people,
they can deport them under any other grounds that's permissible,
just not this Alien Enemies Act provision that doesn't require
any due process to occur.
Speaker 3 (05:24):
So I was listening to some of Tom Holman, the
bordersar's comments in the past about this, and he kept
saying that they're terrorists. Was the argument that they're terrorists.
Speaker 1 (05:38):
Well, first of all, you're correct. There's a very concerted effort,
even in this bombing that occurred this week with the
Venezuelan and drug lords on the boat, that everybody calling
them in the administration terrorists, to try to link that
with some sort of military like action directed by a
(05:58):
foreign power, to get it as close as possible to
the Alien Enemies Act. But what this court is saying
is that's not really what these people are. These people
are not being instructed by the Venezuelan government to come
to the United States and commit war acts against the
United States. These are just individual criminals trying to basically
(06:20):
profit off of drug and gang activities. But they're not
soldiers or quasi soldiers acting on behalf of the Venezuelan government.
Speaker 3 (06:29):
This is a Fifth Circuit decision, a panel of the
Fifth Circuit, the most conservative appellate court in the country.
As you mentioned, two to one decision George W. Bush
appointee and a Biden appointee in the majority and in
descent a Trump appointee. What did the dissent argue.
Speaker 1 (06:47):
Well, the desenting judge who used to be the Solicitor
General of the State of Texas, a very well known
strong conservative judge, Judge Oldham. He basically argued that the
Alien Enemies Act is something that is so broad in
terms of the congressional authority that the courts really don't
have a role in reviewing a presidential determination under the
(07:13):
Alien Enemies Act. Basically, what he was saying is that
the courts should not be given the ability to second
guess when the president says there's a war, because this
can lead to very dangerous circumstances, and that you know,
you have the president who has all of this sort
of expertise in the sense that they have the Defense
Department and the CIA and the NSA and the Apartment
(07:37):
of Homeland Security to do all of this work and consultation,
and if they make a determination that there is a
dangerous environment akin to the environment that's required under the
Alien Enemies Act, that for the courts who are just
judges sitting there in you know, Louisiana or Texas or
(07:57):
wherever they're sitting that don't have all this access to
the Department of Defense and the Department of Homeland Security
and the NSA and the CIA, et cetera to be
able to come in and say, well, we don't actually
think this rises to the kind of war level threat
that is required under the Alien Enemies that he's saying
(08:19):
that it is incredibly dangerous because what is the limiting
principle there? Now the judges can decide what is a
war what isn't a war, and that's not what Congress
had intended here. The problem with that is, at the
end of the day. If you really have no limiting
principles on the Alien Enemies Act at all, including whether
(08:42):
it can be invoked and who it can be invoked again,
then at that point, I mean, there really would be
no way for either you or I or any of
your listeners to go into court if we were mistakenly
apprehended by Ice. Ice could say, you know, Leon or June,
you're members of this trend, that Ragua gang, and we're
sending you Tel Salvador. And you could say, yeah, but
(09:02):
I've never visited Venezuela, and I don't even know any Venezuelans,
and I'm not a member of the gang. I host
the Bloomberg. So and it won't matter because there's no
court to bring it to. And so I don't think
anyone will be fully comfortable with that kind of decision,
and I don't think the Supreme Court was comfortable with that,
(09:22):
which is why they didn't issue that decision. And moving forward,
I don't think they're going to get there in terms
of that ability to just not have any due process
determination as to these decisions.
Speaker 3 (09:36):
Yeah, Colorado judge called that argument nonsense.
Speaker 1 (09:40):
It's a difficult argument to make. I mean, look, It
all depends where you're approaching this from. If you're approaching
this from a belief system that everybody in the world
acts in good faith, then you could conceivably understand. You say, well,
why would a president ever want to do something like
this if it wasn't absolutely necessary? And why would anyone
(10:03):
ever put someone in a detention that is it absolutely necessary,
et cetera. And so under that you could understand a
decision like that. But if you were to approach it
from the perspective that sometimes people don't act in good faith,
or sometimes people make a mistake or anything else, then
maybe you do need some due process in that system,
because otherwise, what is checking those kinds of abuses from occurring.
Speaker 3 (10:28):
The ruling could be appealed to the full Circuit, the
full Fifth Circuit, or could be appealed directly to the
Supreme Court. Is there any reason to bother going for
and on bank hearing at the Fifth Circuit when the
case is just going to end up at the Supreme
Court anyway, Well, it may.
Speaker 1 (10:46):
Give you a stronger hand to show how you know
right now it's the government doesn't have the strongest hand,
and maybe you know the government wins in the Fifth
Circuit fully, and so then it would be the then
on the foreign nationals to actually that appeal to the
Supreme Court. So from that perspective, they may want to
(11:07):
strengthen their hand. But honestly, if the Trump administration is
trying to really say, hey, these are the most dangerous
people in the world and we need to get them
out as soon as possible, asking for un Bank review
of the Fifth Circuit doesn't seem to make a lot
of sense because why are you delaying getting to the
ultimate outcome here. So I don't think from a political
(11:29):
perspective it makes a lot of sense to go for
un Bank review. It may make sense from strengthening the
argument in a typical case because you might win in
the on Bank. But at the end of the day,
if what you're trying to say is, look, we need
a final answer, we need to get these theorists out
of the country as soon as possible, I think you
would want the Supreme Court to look at this as
(11:50):
soon as possible.
Speaker 3 (11:51):
So the Supreme Court never answered the question of whether
Trump's use of the Alien Enemies Act is valid. Do
you have any inkling from the way they ruled in
the two other cases how they might rule.
Speaker 1 (12:05):
Well, I think that at the end of the day,
there won't be five justices that say that you can't
review this general concept of whether it was proper to
have an Alien Enemies Act determination. Now, they may give
some very strong difference to the administration. In fact, I
would be shocked if they didn't give strong difference to
(12:27):
the administration. But they may say, look, even with very
strong difference, this isn't the kind of case that gets it.
I mean, that issue is going to be closed. I
don't think there will be any justice that says that
an individual person can't come forward and make a claim. Well, yeah,
but I'm not part of whatever group you're trying to
claim I'm a part of I think those people will
(12:49):
not nothing be able to get due process in habeas
or in some other way to be able to make
that argument that look, you may claim there's a problem,
but I'm not a member of the problem group. That's
the second thing. And then the third thing, which the
court doesn't really do too much with. It's sort of
a two to one way. They say that seven days
(13:10):
is enough to make these claims, so that the government,
if they designate you as part of the problem group.
You have seven days to file a lawsuit or you
can be deported. And you know, the dissenting judged there,
Judge Ramirez, who was the majority for most of it
but not for this, said no, you need twenty one
days at least. And you know this is all everybody's
(13:30):
just making this up out of old clause. But the
question is, you know, if you don't speak English, you
don't have access to a lawyer, what is a reasonable
amount of time to give you to file a federal
habeast complaint in the court. That's not the easiest thing
for someone to do. Imagine you know, you or I
going to China right now and trying to file a
court document there when we don't speak Chinese, we don't
(13:52):
know anything about the law, we don't know anything. You know,
what would be a reasonable amount of time to give
a person in that situation. And so that's the question here,
and you know the Supreme Court's going to have to
grapple with that too.
Speaker 3 (14:04):
Coming up next, we'll tell you why seventy six Guatemalan
children were put on planes during the early morning hours
Sunday until a judge stepped in. This is Bloomberg a
group of Guatemalan children are caught in a legal battle.
Seventy six children, one as young as seven, were put
(14:24):
on three planes in Texas during the early morning hours
Sunday to return to the Central American country, but a
judge blocked their removal after attorneys argued that the administration
was attempting to repatriate them without giving them the opportunity
to challenge their removals. Renato Castro is an immigration attorney.
Speaker 4 (14:48):
Imagine the position of the children inside those planes today.
While we were arguing over the government's practices in court,
the children were sitting in a plane at the Hardinger
Engine Airport or a Pastor airport for hours, not knowing
what's going to happen or why, or where they are
going or where they're going to be let go. Is
(15:08):
just horrendous.
Speaker 3 (15:10):
I've been talking to immigration law expert Leon Fresco, a
partner at Hollanden Knight. Leon, why were these seventy six
children put on planes over Labor Day weekend in the
early morning hours.
Speaker 1 (15:24):
So here's what happens. So in general, the Office of
Refugee Resettlement, which is part of the Department of Health
and Human Services, keeps some number of unaccompanied miners who
come into the United States and custody until they can
be given to some caring adults in the United States.
That has to be vetted by the Office of Reputee Resettlement.
(15:45):
So at the moment, the administration had identified sort of
a class of people that was in this kind of detention,
and so it's about six to seven hundred Quadamlan foreign
nationals that were miners. And what they said was, these
miners actually have parents in Guatemala that are still there.
(16:05):
And you know, this is disputed whether that's true or not,
but for the purposes of this, let's just start with
what the Trump administration is saying. They're saying that all
of these six to seven hundred miners basically ran away
from home, but they actually have parents in Guatemala. They're
not orphaned, so to speak. And so what they wanted
to do was to say, instead of having them go
(16:27):
through the whole immigration deportation process, they basically went to
these kids and said, do you want to do that
and it's going to basically end the deportation anyway and
you'll never be allowed to come in, or do you
want to sort of let bygones, be bygones, and we'll
pretend you were never here and one of these days
you could always come back legally. And so their argument
(16:47):
is that these kids consented to quote unquote voluntary departure,
which would mean they didn't have to go through any
of these proceedings, and Guatemala consented to bring these kids back,
so they were just going to fly them back to Guatemala. Well,
then the lawsuits come in, basically saying no, no, no, no, no,
this is not what's happening at all. This is a
(17:08):
deportation in cheap clothing. And they didn't give the kids
the chance to make asylum clanes or claims that they
had been traffic or claims for something known as special
immigrant juvenile status, which is that if you've been abandoned, abuser,
neglected by your parents, you can actually have a status
that allows you to remain in the United States. And
so they're saying that those opportunities should have been permitted,
(17:32):
and this was essentially a coerce deportation. And so for
now we have an injunction from a district court that
prevents this for at least the next fourteen days until
we can get to the bottom of whether this kind
of operation is legal or not.
Speaker 3 (17:48):
These kids, some as young as seven, do they just
show up at the border by themselves.
Speaker 1 (17:55):
Well, it could happen in one of two ways. They
could either show up at the border come completely unaccompanied.
Then sometimes that does happen, but more often than not,
what happens is they show up at the border with
an adult, but that adult isn't their parents, so it's
just somebody else who brought them. And then they said
where are your parents, And they say, you know, my
parents abandoned the abuse, they're neglected me. Then they get
(18:17):
put in these shelters. And what these kids are essentially
trying to do is they're trying to get this status
called special Immigrant Juvenile Status, which permits them to stay
in the United States permanently if they can show that
they've been abandoned, abuse, or neglected by their parents, and
that a state court, so it would have to be
any state, would say that it's in the best interests
(18:39):
of this child to remain with whatever now guardian has
them in the United States. Now people think this was
a sort of a manipulation of what had been meant
to occur. So I'll give you just very briefly, if
you want to say, a quintessential case. I had a
case a long, long time ago where there was a
Haitian couple and what happened was the Haitian couple traveled
(19:03):
with their child to the United States and they were
here legally, and what happened was the father shot the
mother murdered the mother, and so the mother is no
longer available. The father is now in prison for life.
And now the question is what do you do with
this three year old child? Do you send them back
on a plane to Haiti? Good luck? And so that's
what special immigrant juvenile status was meant for. Is no, no, no, no, no.
(19:25):
You know, we're not going to just send a three
year old child on a plane and say good luck
and just push them out of the plane. We're going
to try to find them some guardian like we would
have this occurred in the US, and then that guardian
doesn't have to worry about the child's status because we'll
give the child a permanent status. So that's what it
was meant for. But over the course of the last
fifteen years people figured it out. But yeah, I can
(19:47):
engineer this claim by just coming to the us by
myself as a miner and saying that my parents abandoned
the views or neglected me, and so that's why I'm
coming to the And so you've seen in some years
up to one hundred thousand of these kinds of miners
coming into the United States, and that is what the
(20:09):
Trump administration is trying to end. They're trying to end
that by basically telling these miners, look, this is going
to end in deportation, it's not going to end in
lawful status, So voluntarily agree to lead. And so that's
what they're trying to do here.
Speaker 3 (20:23):
So it is correcting an abuse, then of the system.
Speaker 1 (20:26):
Well, it's correcting what the Trump administration would argue as
an abuse of the system. The people who do this
for a living on behalf of the miners would say,
it's not an abuse of the system. So I'm not
going to opine, but I would say that I don't
think that the people who drafted these laws in Congress
probably would have consented to a situation where any miner
(20:49):
could come to the United States and just say they
were abandoned, abuse, or neglected and get a green card
to stay here. I don't think that was their intent.
I think their intent was to take care of a
situation where there was a case where it was an
unforeseen situation. And now you have an abandoned miner in
the US, and what are you going to do with
this abandoned minor.
Speaker 3 (21:10):
So there's going to be a hearing on September tenth
on a children's request to extend the temporary restraining order.
This seems like a novel issue. Do you think the
case will be one of the ones that ends up
being appealed to the appellate court and then the Supreme Court.
Speaker 1 (21:28):
I think it will eventually if it gets enjoined by
the district court permanently. I do think they will want
to go up to the appellate Court. I don't think
it will work here because it's the first circuits pretty
liberal at the moment, so they're not really citing with
the Trump administration. But then would it go all the
way up to the Supreme Court and would the Supreme
(21:49):
Court allow these kinds of voluntary because really what this
is going to come down to is is this a deportation.
If it's a deportation, they can't do it. They have
to follow certain laws in order to deport kids. These
laws are established by the Trafficking Victims Protection Reauthorization Act
of two thousand and eight, so they have to follow
all of those procedures. But what the Trump administration is
(22:10):
trying to say is these are deportations. These kids want
to go back home. And so the question is can
they get a court to agree that these kids want
to go back home or is this going to be
viewed as a coer type of situation.
Speaker 3 (22:23):
So now the Trump administration is reinstating a practice that
hasn't been used since the nineties of conducting neighborhood checks
for people who want to become citizens.
Speaker 1 (22:36):
Correct. And what's very interesting about this is, just like
in the Alien Enemies Act situation, where you had a
situation where they're re reincarnating let's say a statute that
was from seventeen eighty nine that has been used but
very rarely, and so all that is old is do again.
Here's another example where there is a statute. There's no
(22:59):
doubt that statute was written in eighteen oh two essentially,
and here in that statute, petitioners for nationalization were required
to present witnesses who could testify to their qualifications for
citizenship and then in nineteen eighty one, Congress comes in
and says, you know what, let's not do the witnesses anymore.
(23:19):
Let's just have an investigation. That's better if we need it.
And so they were doing investigations from nineteen eighty one
to nineteen ninety one, but then in nineteen ninety one
the government basically stopped because there's a waiver authority in
the statute that says, look, if the Attorney General, which
now is the Secretary of Homeland Security doesn't want to
(23:39):
do the investigation, they don't have to. They can decide
in any specific case not to do it. And so
they just decided in every case not to do it.
Post nineteen ninety one. Well, now they're bringing it back,
and they're bringing it back to determine one very specific
issue in the statute. And this is what's very interesting,
because in the statute it's that the only way you
(24:02):
can be naturalized to a US citizen is if you
are quote unquote attached to the principles of the Constitution
of the United States and well disposed to the good
order and happiness of the United States. And so now
what they're basically saying is, look, we're going to conduct
those investigations if we feel it's necessary to find out
(24:22):
if a specific person is quote unquote attached to the
principles of the Constitution of the United States and well
disposed to the good order of the United States. But
what they're also doing is they're warning everybody, look, if
you're applying for citizenships, don't make us come to your neighborhood.
Start now and give us this kind of information. Basically,
send us some references and some letters that say this
(24:45):
on your behalf already from some people, so that we
don't have to go and do this. And so they're
basically trying to add this requirement and sort of give
the carrot and the stick. The stick would be, if
you don't do it, we're going to actually go out
to your neighborhood and investigate you. But if you do
give us this information up front, then we won't have
to do this because you've given it to us upfront.
(25:08):
So they're essentially reverse engineering this requirement now that people
have to give you, you know, positive references in order for
you to get citizenship, which hasn't been needed since nineteen
ninety one.
Speaker 3 (25:20):
We've discussed other aspects of you know, seeming to add
on to the requirements for citizenship. Is the Trump administration
deliberately adding requirements or steps to the naturalization process to
slow it down or to ensure that fewer people become citizens.
Speaker 1 (25:40):
Yes, I think what they're trying to do is And
what's interesting is the previous one we talked about had
to do with good moral character and not just proving
it through an absence of bad moral character, but having
to show evidence that you actually had good moral character.
I think they realized there that that had a very specific,
expatiatory definition, and so those kinds of things wouldn't work
(26:05):
for that. So now they're attaching it instead to this
other issue about whether you have an attachment to the
US Constitution and you are disposed to the good order
and happiness of the United States, which isn't actually defined,
and so then you can make this more nebulous determination.
And what I think they want to do is to say, look,
(26:26):
if you're a person who's got all of this sort
of questionable verbal conduct I suppose where you're bashing the
US all the time, et cetera, that they don't want
to make those kind of people US citizens because at
the end of the day. Once you make someone a citizen,
then you can't support them if they've been truthful with
you the whole time. And they're basically trying to impose
(26:49):
an ethous into this system. And you can either say
it's good or it's bad. I'm not trying to give
a personal opinion here. I'm just trying to say what
I think is trying to be done is they're basically
trying to impose an ethos into the system of we
don't want people becoming citizens who aren't one hundred percent
thrilled to be Americans and aren't just going to start arguing, Oh,
(27:10):
Americas are rotten plays that's terrible. Well why did you
become a citizen then? And so from their view, they
want to sort of cut this off before the naturalization occurred.
Speaker 3 (27:21):
LeAnn, a client came to you and said, you know,
I want to start the naturalization process. Would you advise
them to wait until after the Trump administration to see
what administrations.
Speaker 1 (27:32):
That't No, I would advise them to wait. But what
I would do, and I am doing it as we speak,
is I'm saying, look, go get two or three letters
from either co workers or friends or whoever that say Hey,
this person is a good person. They have good moral character,
and they have strong allegiance to the United States. And
I think you're going to need data, and I think
(27:54):
it would be malpracticed not to put that in now
as part of a news starting now citizenship outation, I
think you need to do that, you know. I do
think if there are questions about a person's case, then
maybe you don't want to go forward. But if it's
just a normal case, I don't think you should have
a problem going forward because in the end, you can
get judicial review of a denial of a citizenship case
(28:16):
if you don't have anything to worry about, I think
a judge would say, hey, this is ridiculous, why are
you not giving this person's citizenship. But if it is
a questionable case, so for instance, you know, you take
the case of Mamood Khalil, who is a Green card
holder and he's got all of this sort of background
of literature, maybe that's not someone I'd be comfortable taking
(28:37):
on as a client at the moment, because I would say,
this is going to be a honeypot of complications. Maybe
in your best interest to wait to see if the
policy has changed.
Speaker 3 (28:48):
One more thing, before I let you go.
Speaker 2 (28:50):
Leon.
Speaker 3 (28:50):
The Trump administration is trying in different ways to restrict visas.
Tell us what the latest restrictions are for student visas.
Speaker 1 (29:00):
Currently, if you enter on a student visa, you can
stay in America for as long as it takes for
you to finish any studies you're in. So you could
enter as a high school student at an Exeter or
an Andover or one of those schools, and then go
to college, and then go to grad school and go
to PhD and you never have to leave the country.
You could be here twenty years based on that first
(29:21):
student visa you were given, and you could transfer a
bunch of times. And basically, what this new rule would
do is say no, no, no, no no. Each time you
do something, you're gonna have to check in with the
government and get permission to do so. The days of
changing schools or changing programs or going from one program
to another without checking in and getting permission to the
(29:43):
government are over. So we're only going to give you
permission for the specific program you signed up for, and
then you're going to need a new permission for any
new program. And so that certainly sounds very rationalist, but
there's a lot of problems in terms of the way
the programs work make this super complicated. For instance, the
biggest one being that they only are going to give
(30:05):
you four years to finish an undergraduate program. And if
you notice, the Department of Education basically now says that
those programs take on average six years to finish. The
majority of people are taking six years to finish a
four year program. So the question is why isn't then,
what the foreign students are being given in line with
(30:25):
what the US students are doing, especially if the foreign
students have to pay for those extra years anyway, so
it's not like they're getting them for free. They have
to pay. It's everyone's benefit. So those kinds of things
that are going to be debated as this moves forward,
but that's basically what's happening under this new rule.
Speaker 3 (30:42):
My question is why is it taking college students six
years to finish a four year program? But that's a
question for another day and another guest, thanks so much
for taking us through all these immigration issues. Leon. That's
Leon Fresco of Honda Night. Coming up next, the fight
over a seton and a tradition. You're listening to Bloomberg
(31:03):
there's been chaos around Elina Habba, President Trump's pick for
US Attorney in New Jersey. Federal criminal courts in the
state have been basically at a standstill, and a judge
rule last month that Habba has been illegally leading the
office since July first. She's been vocal about blue slips,
which she says stopped her nomination from going forward, and
(31:27):
President Trump says he'll sue of the Senate's century old
tradition of allowing home state senators to sign off on
US attorney and district court nominees. Joining me is Carl Tobias,
a professor at the University of Richmond Law School and
an expert on the federal judiciary. Explain the uproar recently
(31:49):
about the blue slips. I mean it comes mainly because
of the US attorneys who are not being approved by
the Senate on their home states.
Speaker 5 (32:01):
Yes, that has sparked it, but the problem has been
that the administration is not following the tradition of nominating
and having confirmed the US attorneys as it did in
the first Trump administration, when eighty five of them went
through all quite smoothly on voice votes in committee and
(32:25):
on the floor. But Trump has been in a big
hurry to seat people, and so he's using interims and actings,
and that has led to controversies that we've talked about before,
especially in New Jersey, but in other states or districts
around the country. In their ninety plus or so, but
(32:45):
only two have been confirmed pro for the DC District
and quinonas for the Southern District of Florida. In that context,
the President has urged Senator Grassley, the chair of the
st Judiciary Committee, to abolish the blue slips for US
attorneys as well as for district nominees to the bench,
(33:12):
and Senator Grassley has said very explicitly that he has
no intention of changing the blue slip policy for either
US attorneys or for judicial nominees.
Speaker 3 (33:26):
Trump has said that he's going to sue over this.
Tell us what the chances of that going through are.
Speaker 5 (33:33):
Well, the chances of a judge ruling in his favor
are minimal, But hopefully the White House Council and the
Justice Department will suggest to him politely that no court
is likely to rule in his favor, so it might
be better not to do that. Graffley has been very
(33:55):
clear and one hundred year history going back to nineteen
seventeen of Blueslips has been that the discretion is in
the chair of the Judiciary Committee, and different chairs have
treated in different ways, But the point is that it
has withstood the test of time, and as senators have
(34:17):
pointed out in the GOP that it actually helps to
have that when you don't have the president in the
White House of your own party. And so everyone has
agreed with Durbin's idea, and that is we won't have
separate rules for Democrats and Republicans depending on who occupies
(34:39):
the White House or who has the Senate majority. So
I think there's pretty strong agreement among senators that it
should remain in the Chair of Judiciary at that discretion.
And as you suggest with your question, in the past,
there have been a number of Supreme Court rulings that
have just said that the executive cannot dictate what the
(35:04):
rules of the House of Representatives and the Senate especially are,
And so it seems unlikely that the President will make
good on his promise to sue, and if he does,
it seems very likely that it won't go anywhere. The
judges will just kick it out. So I think it's
(35:24):
not going to happen, but that doesn't mean something won't happen.
And in fact, there's discussions on the GOP side about
ways to expedite the process now. And the easy way
with the US attorneys would be to do as they
have in the past, but that hasn't proved to be
(35:46):
what the White House wants to do and has done
so far. So you have all kinds of different variations,
but mostly interims and actings as US attorneys around the country.
Now there are a number of people who are for example,
they're a to them US attorney nominees scheduled to have
a committee vote, so I think the logjam may be
(36:06):
broken sometime soon. But Senator Durbin, in the committee and
the hearing on five nominees basically said, again, we can't
have different rules, and he traced out what had happened
in the Biden years and how a number of holds
were placed on US attorneys by GOP senators that delayed
(36:27):
Biden's ability and he only was able to name something
like sixty to permanent four year appointments. So we'll see,
but I don't think there's going to be a blanket
veto coming from Democrats, but they may take it case
by case and so it may take more time.
Speaker 3 (36:45):
Years ago, wasn't it Grassley who eliminated the blue slips
for appellate court candidates?
Speaker 5 (36:51):
Yes, in Trump one in twenty seventeen, when there were
a number of Blue states where vacancies had been left
because McConnell and the GOP blocked Obama's choices in the
last two years, many of whom were highly qualified for
the appeals courts. There was something like eighteen vacancies in
(37:12):
Blue states, and the GOP wanted to move them as
fast as possible, and so they decided to eliminate the
blue slip for appellate judges. He said then Durbin. Of course,
when Democrats came in twenty twenty one, retained that and
(37:32):
so rastly has retained it as well. At some point
in the future they may decide to not do that,
but it has to be in a fair way that
treats both parties the same way.
Speaker 3 (37:43):
So now let's talk about the Pellet nomination of Jennifer
Mascot to the Delaware seat on the Court of Appeals
for the Third Circuit, and why the Home state senators
are criticizing this.
Speaker 5 (37:58):
Well, that was ventilated in committee, especially by Senator Kohns,
who's a senior senator, longtime member of the Judiciary Committee,
and he made a strong point that the nominee mascot
has very few, if any ties to the state of Delaware.
She has a vacation home there, she spent most of
(38:19):
her adult life in the DC area, going to school
Maryland and DC, and as not a member of the
bar and hasn't really practiced there. But more affirmatively, I
think the Senator explained it clearly that you want to
have people who are familiar with the law in the
(38:40):
particular state, know the lawyers in the state, know the
judges in the state, know the customs of the state
and its legal system, especially with Delaware, which you know
is a corporate center and so sees a lot of
those kinds of cases. But he was also concerned just
about her ability to deal with district rulings in areas
(39:03):
that she wasn't familiar with because most of her work
has been an administrative law and being a law professor
and constitutional specialists, but hasn't done much if any, litigating
in the district courts or handled things like depositions, and
that's a fair amount of what she would see on
the Third Circuit. The DC Circuit has a dock at
(39:26):
much more like what she has been working on. And
in fairness, she has been in all three branches of
the federal government. She worked on the Hill for some time,
and she was in Trump once administration. In any event,
Senator Koon's just made a very strong point about the
need to have someone who is a consensus nominee. And
(39:49):
there was apparently no consultation from the White House about
her nomination with the Home State senators, and they had
already interviewed a number of Delaware lawyers and practitioners and judges.
They thought that a number of them would be excellent candidates,
but the White House didn't even speak with them or
interview anybody. And so he was concerned as the Home
(40:11):
State senator. That means, I think he's going to not
vote for her.
Speaker 3 (40:16):
We saw what happened with the last Third Circuit nominee,
which there was so much opposition to Emil Bovy and
he went through. So, I mean, do you think the
Republican senators are not going to vote for her because
of this?
Speaker 5 (40:30):
No, they're going to vote for her. I don't think
there's any question about it. I mean, if they voted
for Bov, I think there's no doubt that they'll vote
for Mascot because she doesn't have a lot of the baggage,
if you will, that Bov had involving the Department of Justice,
his representation of Trump and his private capacity, and the
(40:54):
many troubling kinds of facts that were elicted during his
hearing from the whistleblower and others about his time at
the Department of Justice. There are no questions of that
sort about Jennifer Mascot as far as I understand, I
don't think there'll be very many no votes on the
Republican side, but we'll see. I think all the senators
(41:17):
care about their home state prerogatives and want to have
on the appeals courts and the district courts people who
are from the particular district or state on those courts
because they understand the law, the customs, the practices and
all of that in the home state, and the senators
are responsible for that, and so there's concern.
Speaker 3 (41:40):
There's concern, but I mean, nothing changes, that's right, I.
Speaker 5 (41:43):
Mean, because those are their prerogatives. But they can't enforce
them when the chair of the committee is of the
other party and it is made clear that he doesn't
intend to require blue slips for circuit nominees. That's the
way it is.
Speaker 3 (42:01):
Give us an update on Trump nominations.
Speaker 5 (42:05):
Sure, at the appellate level, there have only been six
vacancies and they have confirmed to Bovi and herman Or
for the sixth circuit. There are four more, one from
Maine for the first circuit, one from California for the
ninth circuit. They've had a hearing and I think they're
still waiting for a committee both that'll come soon. Then
(42:28):
Rebecca tableson for the seventh circuit vacancy of the chief
judge who's stepping down and taking senior status. So all
of the vacancies either have nominees or people confirm. Other
people have to take senior status or retire for Trump
to fill any more pealet vacancies. So we'll see how
that proceeds. And there have been none really this year.
(42:52):
There are many who are eligible, but they haven't chosen to.
On the district level, there are nineteen nominee. They're approximately
thirty five or forty vacancies and Most of those don't
have nominees yet, but they're moving on those.
Speaker 3 (43:11):
Thanks so much for joining me, Carl. That's Professor Carl
Tobias of the University of Richmond Law School. 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 Podcasts, Spotify,
and at www dot Bloomberg dot com slash podcast Slash Law,
(43:32):
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
Popular Podcasts
On Purpose with Jay Shetty
I’m Jay Shetty host of On Purpose the worlds #1 Mental Health podcast and I’m so grateful you found us. I started this podcast 5 years ago to invite you into conversations and workshops that are designed to help make you happier, healthier and more healed. I believe that when you (yes you) feel seen, heard and understood you’re able to deal with relationship struggles, work challenges and life’s ups and downs with more ease and grace. I interview experts, celebrities, thought leaders and athletes so that we can grow our mindset, build better habits and uncover a side of them we’ve never seen before. New episodes every Monday and Friday. Your support means the world to me and I don’t take it for granted — click the follow button and leave a review to help us spread the love with On Purpose. I can’t wait for you to listen to your first or 500th episode!
Stuff You Should Know
If you've ever wanted to know about champagne, satanism, the Stonewall Uprising, chaos theory, LSD, El Nino, true crime and Rosa Parks, then look no further. Josh and Chuck have you covered.
The Joe Rogan Experience
The official podcast of comedian Joe Rogan.