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Speaker 1: You're listening to Bloomberg Law with June Grasso from Bloomberg Radio.

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Speaker 1: President Trump says he'll be placing a sixty day pause

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Speaker 1: in the issuance of green cards to limit competition for jobs.

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Speaker 1: Joining is Leon Fresco, a partnered Hollandon Knight, explain what

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Speaker 1: his decision would do. So, the core of President Trump's

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Speaker 1: decision is actually quite simple in that it only affects

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Speaker 1: human beings that are outside of the United States, not

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Speaker 1: human beings that are inside of the United States. And

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Speaker 1: it only affects those human beings insofar as they are

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Speaker 1: applying for a green card, not for any other more

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Speaker 1: temporary viva. And what it is saying is for those

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Speaker 1: human beings who are applying for green cards, they are

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Speaker 1: not elegible to actually obtain their green card for the

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Speaker 1: next sixty days or whatever the orders actually issued them.

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Speaker 1: So how many people would that affect? Because green cards

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Speaker 1: are also notoriously slow in processing. Sure, well, I would

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Speaker 1: say that there's a couple of ways to look at

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Speaker 1: It's hard to get an actual number for employment based

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Speaker 1: green cards. Most of the people who get them, about

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Speaker 1: eight percent er so are in the United States already,

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Speaker 1: so it wouldn't affect that group. It would affect about

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Speaker 1: twenty percent that are not in the United States. But

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Speaker 1: even of those, to the extent that that group consists

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Speaker 1: of healthcare workers, there is some belief, although obviously the

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Speaker 1: order has not been actually issued yet, it's hard to

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Speaker 1: read that the healthcare industry's exempt from this, and so

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Speaker 1: it wouldn't be a lot of people. Now to the

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Speaker 1: extent that family green cards are also implicated, then there

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Speaker 1: are a lot more family members who are abroad waiting

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Speaker 1: for green cards, and so that could be in the

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Speaker 1: tens of thousands that are affected. But we need to

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Speaker 1: wait and see what the order actually indicates. So the

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Speaker 1: clear are you supposed to have a green card before

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Speaker 1: you work? And how often is that ignored? Well, so,

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Speaker 1: there are two types of visas. There's what are known

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Speaker 1: as non immigrant visas and immigrant visas, and so a

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Speaker 1: non immigrant visa is a temporary visa that allows you

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Speaker 1: to come into the United States for a specific purpose.

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Speaker 1: None of those, apparently, although we have not seen the

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Speaker 1: order yet, are effective. So that includes the H one

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Speaker 1: B visa, which is for high skilled workers, the L

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Speaker 1: visa for people being transferred from their companies, the al

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Speaker 1: visas for outstanding Einstein type workers, the p visas for

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Speaker 1: athletes and entertainers, none of that is affected. What is

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Speaker 1: affected is to the extent that anyone abroad actually wants

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Speaker 1: to come here and work permanently. That is what's apparently

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Speaker 1: been affected for the next sixty days. President Stop said

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Speaker 1: at a White House preefing on Tuesday, it would be

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Speaker 1: wrong and unjust for Americans laid off by the virus

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Speaker 1: to be replaced by new immigrant labor flown in from abroad.

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Speaker 1: So this is supposedly to take care of that problem,

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Speaker 1: but from what you say, it doesn't really address that problem. Well,

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Speaker 1: it addresses it, but in a very narrow way for

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Speaker 1: a very concrete group of people. And so the issue

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Speaker 1: is what makes this very complicated is this a large,

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Speaker 1: large number of the people who are actually seeking work

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Speaker 1: in the United States as foreign nationals are already here.

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Speaker 1: They either came as visitors or students or something else,

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Speaker 1: and then they're trying to change their status. And what

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Speaker 1: happens is that the president of a band authority only

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Speaker 1: permits him to ban people if they're trying to enter

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Speaker 1: the United States. He doesn't have the power to just

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Speaker 1: stop the applications filed by people already lawfully admitted into

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Speaker 1: the United States for some other purpose. And so that's

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Speaker 1: why when his initial tweet was issued, people were very

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Speaker 1: skeptical and we're immediately wanting to see the order because

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Speaker 1: they knew it couldn't actually shut down the whole immigration system. Moreover,

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Speaker 1: the fact that our embassies and consulates are basically closed

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Speaker 1: all around the world anyway for the next sixty days

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Speaker 1: means that his band functionally probably wouldn't have banned too

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Speaker 1: many people, because you need to go to the embassies

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Speaker 1: anyway as your final step of getting a green card

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Speaker 1: to do an interview. And none of those folks are

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Speaker 1: going to be able to have interviews anyway, because they

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Speaker 1: were in countries where things were not open due to

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Speaker 1: the coronavirus. And so that's why people are maybe a

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Speaker 1: little bit skeptical as to the coverage of this executive order.

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Speaker 1: Let's just say the executive order goes through and it

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Speaker 1: is challenged, and by the way, the a c l

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Speaker 1: U has said that they don't know yet whether they're

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Speaker 1: going to challenge it because they haven't seen it. So

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Speaker 1: if it is challenged, let's talk about the Supreme Court,

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Speaker 1: and how the Supreme in Court might handle this challenge

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Speaker 1: that it's a sixty day temporary band and it's actually

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Speaker 1: only sixty days, it's very unlikely to get to the

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Speaker 1: Supreme Court and actually be adjudicated within those sixty days.

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Speaker 1: If this is something that keeps being renewed, well, then

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Speaker 1: you have to ask the question why is this band

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Speaker 1: continuing to be renewed. And so there's two different reasons

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Speaker 1: that are being given, and one is, Okay, we're trying

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Speaker 1: to protect people from the coronavirus. So to the extent

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Speaker 1: that that's true, you're gonna have to make it a

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Speaker 1: much narrower order than an entire band globally, because some

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Speaker 1: countries will have had this and have gone through it,

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Speaker 1: and others will have not had it and not gone

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Speaker 1: through it, etcetera. And then secondly, to the extentment to

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Speaker 1: save American workers for jobs, you have to be very

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Speaker 1: careful there because, especially in the employment Green card context,

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Speaker 1: many times the folks have already proven that there's not

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Speaker 1: a U. S worker available to do that job. And

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Speaker 1: so in that situation, it's hard for the President to

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Speaker 1: actually use a criteria that's not permitted under the law.

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Speaker 1: The law already covered that issue, and so he's basically saying, well,

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Speaker 1: I don't care that's the law covered this issue. I'm

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Speaker 1: still going to ban people. Leon. Let's say we were

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Speaker 1: back to normal times. In what situation would the Supreme

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Speaker 1: Court grant review of a decision made by a lower

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Speaker 1: court on this order. Well, the way it would work

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Speaker 1: practically is, if the President's proclamation ends up being enjoined,

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Speaker 1: there's a chance the Supreme Court would take the case.

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Speaker 1: If the President's proclamation is not enjoyed, it's actually very

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Speaker 1: unlikely that they would take the case. But if they

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Speaker 1: took the case based on a band from a lower court,

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Speaker 1: then I think they would actually look at the legitimacy.

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Speaker 1: This is what the Hawaii decision in the original Travel

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Speaker 1: Bank talked about. They look at whether it is facially

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Speaker 1: bona fide and legitimate. So I look at the legitimacy

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Speaker 1: of the decision. Is there actually something that this is

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Speaker 1: based on. The complication would be even just a global

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Speaker 1: band without any waivers or any any discussion about the

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Speaker 1: individual applicants, It's going to be hard to keep this

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Speaker 1: ban in place. I'm not saying that maybe you don't

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Speaker 1: reflectively get five votes just no matter what. But this

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Speaker 1: case actually poses a more complicated dilemma than the travel

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Speaker 1: band case. I want to take a broader look at

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Speaker 1: immigration right now during the time of the pandemic, because

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Speaker 1: while the rest of the courts around the country are

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Speaker 1: basically grinding to halt, immigration courts are projected to issue

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Speaker 1: nearly six more deportation orders this year than last year,

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Speaker 1: and some are going forward even having cleaning crews in

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Speaker 1: hazmat suits when necessary. Well, the immigration courts have a conundrum.

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Speaker 1: So there's what's called the detained docket and the non

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Speaker 1: detained docket. The detained docket is there are people stuck

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Speaker 1: in immigration detention, and so you want to get their

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Speaker 1: cases resolved as soon as humanly possible so that they

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Speaker 1: don't remain in detention. The nonindtained docket means that the

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Speaker 1: perfect the government is trying to remove them, but they're

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Speaker 1: not in detention and so there's no sense of urgency.

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Speaker 1: So the non detained docket courts are closed until May fifteen. Now,

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Speaker 1: the detained docket courts, the reason that they're open is

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Speaker 1: because the government is in a very difficult spot where

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Speaker 1: if it just lets people language in detention that is

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Speaker 1: too is unconstitutional, but it doesn't want to release certain

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Speaker 1: people from detention. And this is where it becomes very

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Speaker 1: complicated because surely most people in immigration detention, there's not

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Speaker 1: really a problem releasing them because they haven't committed a

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Speaker 1: violent crime. For the cases where people have committed a

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Speaker 1: violent crime, you are caught in between a rock and

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Speaker 1: a hard place. Do you release those individuals into the

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Speaker 1: community and then have to try to pick them up later,

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Speaker 1: or do you continue these court proceedings so that they're

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Speaker 1: not sitting there languishing in detention. And then the other

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Speaker 1: complication is, but what if the country we're trying to

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Speaker 1: deport them too is an accepting people right now because

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Speaker 1: of the coronavirus, Well, then this whole court proceeding is

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Speaker 1: for not just lawyers and judges are getting sick because

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Speaker 1: you're not going to be able to actually secure a

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Speaker 1: removal anyway, even if the court proceeding doug go on,

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Speaker 1: and in that situation, then even further consideration needs to

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Speaker 1: be given to releasing the detainees. The National Association of

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Speaker 1: Immigration Judges is saying that it's unsafe and calling for

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Speaker 1: the courts to be closed. If that happened. That would

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Speaker 1: mean keeping those detainees in custody, right, it would require

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Speaker 1: a very difficult choice for the government. If you close

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Speaker 1: the detained immigration courts, the government would then have to decide,

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Speaker 1: do we want to face the possibility of getting many

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Speaker 1: lawsuits because our people are admittedly languishing in civil detention,

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Speaker 1: not criminal they've already served their criminal penalty. Civil detention

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Speaker 1: that is designed for removal only indefinitely. You have no

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Speaker 1: idea when they're going to get out of detention, and

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Speaker 1: so those cases are very compelling. Or do you have

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Speaker 1: to release these individuals into the public and then face

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Speaker 1: the possibility that a violent crime could be committed. And

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Speaker 1: so most of the time, if you have any kind

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Speaker 1: of confidence that the person won't do something wrong again,

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Speaker 1: you would want to release that person. But there are

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Speaker 1: some people that you'd have a high degree of confidence

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Speaker 1: they do something wrong again, And the question is what

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Speaker 1: do you do. Do you keep them in detention or

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Speaker 1: do you at least try to operate the immigration courts

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Speaker 1: as safely as possible to see if you can actually

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Speaker 1: get a removal order ready to go and get them

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Speaker 1: removed so that they are to stay in the tension

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Speaker 1: leon why can't the immigration courts operate largely by video

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Speaker 1: conferencing or phone conferencing as other courts are. So this

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Speaker 1: can and cannot work. It depends. It's a little bit complicated.

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Speaker 1: And here is why. In the detained docket system you

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Speaker 1: have potentially three to four different sources of what's going on.

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Speaker 1: You have where is the judge going to be sitting,

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Speaker 1: where is the client going to be sitting because they're

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Speaker 1: in the tension, mind you, and where is the lawyer

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Speaker 1: going to be sitting? And the problem is the lawyer

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Speaker 1: needs to be able to confer with their client about

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Speaker 1: what's going on in the case, and you can't really

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Speaker 1: do that be a video conference where everybody's listening to

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Speaker 1: you and there aren't. Really It would basically require a

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Speaker 1: whole new imagination of this system in order to get

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Speaker 1: it to work where there would be a secure line

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Speaker 1: between detainees and their clients, I wouldn't be monitored, and

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Speaker 1: that they could talk during the case, etcetera, etcetera. And

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Speaker 1: so it's not that it's technologically impossible. If that all

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Speaker 1: of that would require an investment that you have to

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Speaker 1: examine whether it's going to be a short term investment

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Speaker 1: or a long term investment, And it doesn't justify a

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Speaker 1: short term investment, but it would of course justify a

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Speaker 1: long term investment. I want to ask you about a

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Speaker 1: claim that President Trump made yesterday that new border wall

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Speaker 1: is constantly being built, and also he tweeted this morning

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Speaker 1: in the meantime, even without this order, our southern border

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Speaker 1: added substantially by the one seventy miles of new border wall.

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Speaker 1: Are there one hundred seventy miles of new border wall

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Speaker 1: and is it constantly being built? Well, all of this

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Speaker 1: is in the eye of the beholder, meaning it all

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Speaker 1: depends what you want to define as all. Because if

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Speaker 1: you want to define a wall as a wall, like

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Speaker 1: the Berlin Wall or the Great Wall of China, you

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Speaker 1: don't have that. If you want to define it as fencing,

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Speaker 1: then the question is what fencing are you calling wall?

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Speaker 1: Because there's even more than a hundred seventy miles of fencing,

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Speaker 1: but some of that fencing is quite easy to get through,

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Speaker 1: and then some of the new fencing that has been

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Speaker 1: put in during this administration is more difficult to get through.

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Speaker 1: And so the question then becomes what kind of fencing

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Speaker 1: it is? And that it is possible there's a hundred

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Speaker 1: seventy miles of this new strong fencing, but in the end,

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Speaker 1: all that was was fencing that replaced other fencing that

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Speaker 1: was there. And so I don't know what problem we're

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Speaker 1: trying to solve for there, but to the extent that

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Speaker 1: someone wants to make that claim, there definitely can be

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Speaker 1: a way to make that plain dead. Leon Fresco, a

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Speaker 1: partner's Hound Night. Thanks for listening to the Bloomberg Law Podcast.

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Speaker 1: You can subscribe and listen to the show on Apple podcast, SoundCloud,

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Speaker 1: and on Bloomberg dot com slash podcast. I'm June Brosso.

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Speaker 1: This is Bloomberg m