1 00:00:00,040 --> 00:00:02,720 Speaker 1: Donald Trump has vowed to step up federal efforts to 2 00:00:03,160 --> 00:00:06,760 Speaker 1: deport foreigners who are in the country illegally. Today, the U. S. 3 00:00:06,760 --> 00:00:09,719 Speaker 1: Supreme Court heard a case likely to have important implications 4 00:00:09,760 --> 00:00:12,719 Speaker 1: for that push and the powers the new administration will have. 5 00:00:13,440 --> 00:00:16,560 Speaker 1: The case centers on the government's power to detain people 6 00:00:16,600 --> 00:00:20,279 Speaker 1: who are facing deportation proceedings. A federal appeals court said 7 00:00:20,320 --> 00:00:22,280 Speaker 1: many of those people have a right to a bond 8 00:00:22,320 --> 00:00:25,919 Speaker 1: hearing before an immigration judge and the possibility of release 9 00:00:26,239 --> 00:00:28,600 Speaker 1: if they are held for more than six months. The 10 00:00:28,640 --> 00:00:32,159 Speaker 1: group includes legal permanent residents, as well as immigrants in 11 00:00:32,200 --> 00:00:36,040 Speaker 1: the country illegally and people seeking asylum. With us to 12 00:00:36,040 --> 00:00:39,040 Speaker 1: talk about the case are Neil's friends In, director of 13 00:00:39,040 --> 00:00:42,040 Speaker 1: the Immigration Clinic at U s c's Gould School of Law, 14 00:00:42,479 --> 00:00:45,400 Speaker 1: and John Fear, legal policy analyst at the Center for 15 00:00:45,400 --> 00:00:48,440 Speaker 1: Immigration Studies. John, if I can start with you, just 16 00:00:49,000 --> 00:00:51,400 Speaker 1: can you just give us a brief summary of what 17 00:00:51,600 --> 00:00:55,600 Speaker 1: the appeals court decided in this case. Yeah, Basically, what 18 00:00:55,640 --> 00:00:58,480 Speaker 1: the CLU was asking with the Ninth Circuit decided was 19 00:00:58,640 --> 00:01:03,440 Speaker 1: that the government must provide individualized bond hearings to assess 20 00:01:03,600 --> 00:01:07,240 Speaker 1: the danger and flight risk for individual who has in 21 00:01:07,319 --> 00:01:10,440 Speaker 1: attention when that comes up to six months, and then 22 00:01:10,480 --> 00:01:15,000 Speaker 1: every six months thereafter. The argument is that a person 23 00:01:15,040 --> 00:01:18,200 Speaker 1: should not be detained for a lengthy period of time. 24 00:01:19,920 --> 00:01:24,399 Speaker 1: Nils tell us about the government's argument in this case, Well, 25 00:01:24,440 --> 00:01:29,360 Speaker 1: I mean, the government's argument is based upon a congressional 26 00:01:29,600 --> 00:01:33,600 Speaker 1: statute um and there are several statutes that issue that 27 00:01:33,720 --> 00:01:39,040 Speaker 1: provide in certain circumstances for mandatory detention without the ability 28 00:01:39,120 --> 00:01:42,959 Speaker 1: of an immigration judge to make an individualized determination regarding 29 00:01:43,400 --> 00:01:48,040 Speaker 1: potential public safety risk or or or flight risk. And uh. 30 00:01:48,400 --> 00:01:51,440 Speaker 1: The Ninth Circuit has said that the Governess the congressional 31 00:01:51,480 --> 00:01:55,560 Speaker 1: statutes that issue could not have intended to provide for 32 00:01:55,680 --> 00:02:00,480 Speaker 1: indefinite detention without an individualized hearing before a judge. John, 33 00:02:00,480 --> 00:02:03,320 Speaker 1: there's a lot of statutory complexity here, and there are 34 00:02:03,320 --> 00:02:06,000 Speaker 1: different groups of people involved in the case. Can you 35 00:02:06,040 --> 00:02:09,239 Speaker 1: just lay out who they are? There are legal permanent residents, 36 00:02:09,240 --> 00:02:13,440 Speaker 1: there are people who are in the country illegally, uh, 37 00:02:13,680 --> 00:02:17,440 Speaker 1: and and describe whether those should be treated differently under 38 00:02:17,440 --> 00:02:20,320 Speaker 1: the law. And people thinking asylum as well. I think 39 00:02:20,320 --> 00:02:23,800 Speaker 1: there's probably a stronger case for individuals who are here 40 00:02:23,880 --> 00:02:28,079 Speaker 1: legally as LPRs. A legal permanent residence. Um, but a 41 00:02:28,120 --> 00:02:30,480 Speaker 1: stronger case. You mean, for for for a bond hearing, 42 00:02:30,560 --> 00:02:33,680 Speaker 1: for a bond hearing. Yes, But once you open that door, 43 00:02:34,040 --> 00:02:36,160 Speaker 1: the problem is that it starts to expand to every 44 00:02:36,160 --> 00:02:40,200 Speaker 1: other category of of non citizen. And that's really what 45 00:02:40,240 --> 00:02:43,839 Speaker 1: this is about. UM. The government, the administration, the OBOM 46 00:02:43,919 --> 00:02:47,960 Speaker 1: administration is concerned about the fact that if this were 47 00:02:48,160 --> 00:02:50,799 Speaker 1: to move forward in the Supreme Court were to come 48 00:02:50,800 --> 00:02:55,079 Speaker 1: out with the ruling, it would effectively be rewriting immigration 49 00:02:55,320 --> 00:02:59,200 Speaker 1: law and removing a lot of the uh political branches 50 00:02:59,480 --> 00:03:02,480 Speaker 1: plantary power over immigration away from them, away from the 51 00:03:02,480 --> 00:03:06,080 Speaker 1: executive branch, away from the legislative branch. And once you 52 00:03:06,080 --> 00:03:09,160 Speaker 1: start going down that road, the Supreme Court ends up 53 00:03:09,200 --> 00:03:12,400 Speaker 1: creating some results that maybe you're difficult to deal with. 54 00:03:12,600 --> 00:03:16,000 Speaker 1: They did this in the past with a case regarding 55 00:03:16,440 --> 00:03:19,560 Speaker 1: prolonged attention back in two thousand one. Is that Vilast 56 00:03:19,639 --> 00:03:23,840 Speaker 1: case where the Supreme Court decided that after six months 57 00:03:23,840 --> 00:03:27,079 Speaker 1: of detention, if a foreign country will not take back 58 00:03:27,200 --> 00:03:31,840 Speaker 1: their criminal illegal immigrant, that they have to be released 59 00:03:32,280 --> 00:03:35,720 Speaker 1: if there's no foreseeable likelihood of deportation in the future. 60 00:03:35,920 --> 00:03:38,440 Speaker 1: And that was actually something that was part of the 61 00:03:38,600 --> 00:03:41,960 Speaker 1: debates over the past six months or so during the election. 62 00:03:42,400 --> 00:03:46,320 Speaker 1: The concern was that the State Department wasn't able to 63 00:03:46,440 --> 00:03:51,680 Speaker 1: negotiate these returns. As a result, we had thousands, thousands 64 00:03:51,720 --> 00:03:54,600 Speaker 1: of convicted criminals released into our neighborhoods because of that 65 00:03:54,720 --> 00:03:57,440 Speaker 1: six month mark. That's the results you get from the 66 00:03:57,520 --> 00:04:01,320 Speaker 1: judiciary getting involved in a very calm flex topics. Niels, 67 00:04:02,120 --> 00:04:04,840 Speaker 1: one of the plaintiffs in this case, was detained three 68 00:04:04,920 --> 00:04:07,920 Speaker 1: years before he won his case. I read about immigrants 69 00:04:08,000 --> 00:04:12,360 Speaker 1: being detained as long as nine years. The average amount 70 00:04:12,360 --> 00:04:16,520 Speaker 1: of time is about a year according to some sources. 71 00:04:16,600 --> 00:04:23,440 Speaker 1: So does do process or fairness demand that these immigrants 72 00:04:23,560 --> 00:04:27,720 Speaker 1: get a hearing before a judge if the system overload 73 00:04:27,839 --> 00:04:32,279 Speaker 1: is causing these unusual delays. I mean, one of the 74 00:04:32,360 --> 00:04:36,720 Speaker 1: cases that the Supreme Court today is reviewing was a 75 00:04:36,760 --> 00:04:40,279 Speaker 1: companion case to this uh Zavetous case that John was 76 00:04:40,320 --> 00:04:45,200 Speaker 1: referring to, where the Supreme Court upheld the constitutionality of 77 00:04:45,279 --> 00:04:48,080 Speaker 1: one of the mandatory detention provisions. And one of the 78 00:04:48,160 --> 00:04:51,599 Speaker 1: primary reasons the court did that in the Devor versus 79 00:04:51,640 --> 00:04:56,280 Speaker 1: Kim case was because of factual representations from the government 80 00:04:56,640 --> 00:05:01,400 Speaker 1: that detained cases moved fairly quickly and as you just said, 81 00:05:01,760 --> 00:05:04,919 Speaker 1: there there are you know, hundreds, if not thousands of 82 00:05:04,960 --> 00:05:09,680 Speaker 1: individuals who are facing prolonged attention for reasons over which 83 00:05:09,720 --> 00:05:14,400 Speaker 1: they have no control uh, delays in the immigration court docket, 84 00:05:14,520 --> 00:05:19,400 Speaker 1: delays UH in the appellate court dockets. And so you 85 00:05:19,440 --> 00:05:22,560 Speaker 1: know the Demor versus Kim holding which was very much 86 00:05:22,600 --> 00:05:26,960 Speaker 1: based upon a factual representation that these cases move quickly. Um. 87 00:05:27,040 --> 00:05:29,320 Speaker 1: The the the A c l U argument is that 88 00:05:29,440 --> 00:05:32,159 Speaker 1: case should not control given the fact that we have 89 00:05:32,279 --> 00:05:35,159 Speaker 1: these lengthy delays. John, what do you make of that 90 00:05:35,200 --> 00:05:37,080 Speaker 1: issue of the air of the government made. It's a 91 00:05:37,120 --> 00:05:39,919 Speaker 1: it's a very unusual situation that the government made a 92 00:05:39,960 --> 00:05:43,359 Speaker 1: factual representation. The court included it in its opinion. It 93 00:05:43,440 --> 00:05:46,200 Speaker 1: was basically how long the average or maybe it was 94 00:05:46,279 --> 00:05:49,320 Speaker 1: median detention time is for this group of people. The 95 00:05:49,360 --> 00:05:51,200 Speaker 1: government i think said it was five and a half months, 96 00:05:51,200 --> 00:05:52,680 Speaker 1: and it turns out it was more than a year. 97 00:05:53,120 --> 00:05:54,839 Speaker 1: And then in the course of this case they file 98 00:05:54,880 --> 00:05:57,760 Speaker 1: a letter saying we we we made a mistake earlier. 99 00:05:57,920 --> 00:05:59,560 Speaker 1: Do you think that will have an effect on how 100 00:05:59,600 --> 00:06:04,080 Speaker 1: the court views the current case? It probably would, Um. 101 00:06:04,480 --> 00:06:06,760 Speaker 1: I think that brings us to the original question. Though, 102 00:06:06,800 --> 00:06:10,040 Speaker 1: should the Supreme Court be deciding what is appropriate in 103 00:06:10,120 --> 00:06:14,560 Speaker 1: terms of detention, or is would they hold in accordance 104 00:06:14,560 --> 00:06:16,960 Speaker 1: with the plinary power doctrine that this is an issue 105 00:06:17,040 --> 00:06:21,599 Speaker 1: for the political branches, because it's not just immigration and attention. 106 00:06:21,640 --> 00:06:25,160 Speaker 1: We're talking about um all sorts of powers that are 107 00:06:25,160 --> 00:06:29,400 Speaker 1: in the executive branch, national security concerns, international relations, foreign 108 00:06:29,400 --> 00:06:32,279 Speaker 1: relations issues. There are so many things that the Court 109 00:06:32,360 --> 00:06:36,520 Speaker 1: simply doesn't have the capacity to contemplate. As as far 110 00:06:36,600 --> 00:06:39,240 Speaker 1: as the actual long term detention goes, I think most 111 00:06:39,240 --> 00:06:43,360 Speaker 1: would agree that long term detention should be limited and 112 00:06:43,400 --> 00:06:46,320 Speaker 1: that the government certainly should be more efficient. But there's 113 00:06:46,320 --> 00:06:49,040 Speaker 1: an important point here, and that is that these are 114 00:06:49,080 --> 00:06:53,239 Speaker 1: not jails. These are detention centers that people are free 115 00:06:53,240 --> 00:06:55,400 Speaker 1: to leave at any time. They can return home, but 116 00:06:55,440 --> 00:06:58,400 Speaker 1: they are choosing to fight the case, oftentimes at the 117 00:06:58,400 --> 00:07:02,960 Speaker 1: request of these immigration attorney groups who simultaneously are working 118 00:07:03,000 --> 00:07:06,920 Speaker 1: to undermine immigration enforcement elsewhere, which results in more people 119 00:07:07,279 --> 00:07:09,400 Speaker 1: into the system. It seems to me, if you want 120 00:07:09,400 --> 00:07:11,280 Speaker 1: to have a more efficient system, one of the things 121 00:07:11,280 --> 00:07:14,360 Speaker 1: you have to do is have better immigration enforcement. We're 122 00:07:14,360 --> 00:07:18,640 Speaker 1: talking about the Supreme Court case argued today involving people 123 00:07:18,680 --> 00:07:20,720 Speaker 1: who are about to be deported or who are threatened 124 00:07:20,720 --> 00:07:23,840 Speaker 1: with deportation, and whether they are entitled to a bond 125 00:07:23,840 --> 00:07:27,720 Speaker 1: hearing before an immigration judge. Our guests are John Fear, 126 00:07:27,880 --> 00:07:31,120 Speaker 1: legal policy analyst at the Center for Immigration Studies, and 127 00:07:31,200 --> 00:07:34,239 Speaker 1: Neil's friends and director of the Immigration Clinic at USC 128 00:07:34,400 --> 00:07:40,200 Speaker 1: S Gould School of Law. Um. Neil's uh. The argument 129 00:07:40,240 --> 00:07:43,120 Speaker 1: today was the court was pretty divided, and one thing 130 00:07:43,160 --> 00:07:48,800 Speaker 1: that conservative justices said was, um, hey, the immigration Statute 131 00:07:48,840 --> 00:07:53,000 Speaker 1: just doesn't allow for these these uh hearings. Uh. Justice 132 00:07:53,000 --> 00:07:56,280 Speaker 1: Alito said it was a really tough argument that the A. C. 133 00:07:56,440 --> 00:08:00,800 Speaker 1: L U lawyer was making. Um is he right about that? Well, 134 00:08:00,840 --> 00:08:03,240 Speaker 1: I mean, I mean, Justice the Lado is right that 135 00:08:03,360 --> 00:08:06,880 Speaker 1: the statute uh, you know, on its face does provide 136 00:08:06,880 --> 00:08:10,800 Speaker 1: for mandatory detention. Uh. The Ninth Circuit decision in the 137 00:08:10,880 --> 00:08:14,800 Speaker 1: case basically said this could not be Congress's intent because 138 00:08:14,840 --> 00:08:18,960 Speaker 1: Congress could not have intended to authorize indefinite detention of 139 00:08:19,000 --> 00:08:21,960 Speaker 1: an individual regardless of the length of time. And so 140 00:08:22,080 --> 00:08:25,080 Speaker 1: the Ninth Circuit decision was a decision that was based 141 00:08:25,120 --> 00:08:28,520 Speaker 1: on the doctrine of constitutional avoidance. If we can find 142 00:08:28,600 --> 00:08:31,920 Speaker 1: some way to construe this statute to read it in 143 00:08:32,000 --> 00:08:35,440 Speaker 1: a constitutional manner. Uh, that's what the Court should do. 144 00:08:35,520 --> 00:08:37,880 Speaker 1: So and so that's where the Ninth Circuit came up 145 00:08:37,920 --> 00:08:40,720 Speaker 1: with this, this six month rule. A right to a 146 00:08:40,800 --> 00:08:44,040 Speaker 1: hearing after six months, not a right to release, but 147 00:08:44,160 --> 00:08:46,520 Speaker 1: a right to a hearing on whether or not it's 148 00:08:46,559 --> 00:08:49,120 Speaker 1: safe for you to be released or not. Um. And 149 00:08:49,160 --> 00:08:52,920 Speaker 1: so if Justice Aldo's question indicates, uh, you know the 150 00:08:52,960 --> 00:08:55,560 Speaker 1: way the Court is going to come down on this decision, 151 00:08:55,880 --> 00:08:58,880 Speaker 1: that will then present the Court with a clear constitutional 152 00:08:58,960 --> 00:09:02,200 Speaker 1: question that will have to be answered. Can Congress provide 153 00:09:02,200 --> 00:09:05,800 Speaker 1: for mandatory detention without any opportunity for a person to 154 00:09:05,880 --> 00:09:08,679 Speaker 1: prove that they should be released? John, I want to 155 00:09:08,720 --> 00:09:11,400 Speaker 1: pick up on something you said earlier about these being 156 00:09:11,400 --> 00:09:14,920 Speaker 1: detention centers and they can walk out of them. But 157 00:09:15,120 --> 00:09:17,439 Speaker 1: have you considered that some of the people who are 158 00:09:17,440 --> 00:09:20,360 Speaker 1: in these detention centers some of the stories are, for example, 159 00:09:20,400 --> 00:09:22,800 Speaker 1: a US Army veteran who has been living here for 160 00:09:22,840 --> 00:09:26,600 Speaker 1: fifty years and doesn't really know any other country. Some 161 00:09:26,679 --> 00:09:30,160 Speaker 1: of these people are married and have jobs and have children. 162 00:09:30,440 --> 00:09:32,960 Speaker 1: So if you tell them just walk out, they have 163 00:09:33,040 --> 00:09:35,360 Speaker 1: to walk out to another country where they may not 164 00:09:35,400 --> 00:09:37,720 Speaker 1: even know. When you want to know the language. Well. 165 00:09:37,800 --> 00:09:39,840 Speaker 1: I do think that there are individual cases, like I 166 00:09:39,840 --> 00:09:42,560 Speaker 1: mentioned that the assets LPRs, for example, that may have 167 00:09:43,240 --> 00:09:47,160 Speaker 1: compelling arguments. Um, we have a Habeas corpus review process 168 00:09:47,320 --> 00:09:52,959 Speaker 1: of individual petitioning physiciary about any constitutional concerns they might 169 00:09:52,960 --> 00:09:55,880 Speaker 1: have about prolonged attention? Does that really work? Are you 170 00:09:55,920 --> 00:09:58,760 Speaker 1: able to get a habeas corpus hearing? Are all these 171 00:09:58,760 --> 00:10:01,600 Speaker 1: people able to get habeas corpius hearings? They have a 172 00:10:01,600 --> 00:10:04,080 Speaker 1: constitutional right to I believe that they should be able 173 00:10:04,120 --> 00:10:06,400 Speaker 1: to do so. I don't have any numbers for you 174 00:10:06,520 --> 00:10:09,760 Speaker 1: on that, But the question becomes, even if they can't, 175 00:10:10,040 --> 00:10:13,640 Speaker 1: are we then saying that any individual who comes to 176 00:10:13,720 --> 00:10:16,319 Speaker 1: the border who may or may not have a legitimate 177 00:10:16,320 --> 00:10:19,440 Speaker 1: asylum claim should only detained for a short period of 178 00:10:19,440 --> 00:10:22,400 Speaker 1: time and then released into the US because you're not 179 00:10:22,440 --> 00:10:24,839 Speaker 1: asking for them to be released, you're asking for them 180 00:10:24,840 --> 00:10:27,120 Speaker 1: to have a hearing. Well, that's different. And the bond 181 00:10:27,160 --> 00:10:30,240 Speaker 1: hearing determines whether or not they have a criminal background, 182 00:10:30,240 --> 00:10:32,120 Speaker 1: which again most of them are not because there's no 183 00:10:32,200 --> 00:10:34,319 Speaker 1: record really at all. They're there, they just arrived to 184 00:10:34,400 --> 00:10:37,800 Speaker 1: the country, and to whether or not they're likely flight risk, 185 00:10:38,040 --> 00:10:39,439 Speaker 1: and what we do know this is some might do 186 00:10:39,520 --> 00:10:41,440 Speaker 1: have numbers for you on is that when you look 187 00:10:41,480 --> 00:10:46,319 Speaker 1: at immigration court data. Between two thousand and twelve, seventy 188 00:10:47,800 --> 00:10:50,680 Speaker 1: of aliens who were set free during these type of 189 00:10:50,720 --> 00:10:54,559 Speaker 1: proceedings were ultimately removed, uh when they weren't even in 190 00:10:54,600 --> 00:10:56,480 Speaker 1: the court that they they didn't show up for their 191 00:10:56,600 --> 00:11:00,000 Speaker 1: actual hearing after they were released. That's a very significant 192 00:11:00,040 --> 00:11:02,839 Speaker 1: problem here because that basically means for those people, we 193 00:11:02,920 --> 00:11:05,960 Speaker 1: have an effective open border that if the stream court 194 00:11:06,040 --> 00:11:09,079 Speaker 1: rules a certain way, the executive branch would I really 195 00:11:09,080 --> 00:11:14,120 Speaker 1: have no control over neils if the government wins this case. 196 00:11:14,800 --> 00:11:17,880 Speaker 1: How much additional leverage does that give the Trump administration 197 00:11:17,960 --> 00:11:20,319 Speaker 1: in its efforts to deport people? Well, I mean it 198 00:11:20,320 --> 00:11:25,280 Speaker 1: would certainly give additional legal authority to the new administration 199 00:11:25,360 --> 00:11:29,840 Speaker 1: in regard to using detention for longer periods of time 200 00:11:30,040 --> 00:11:33,920 Speaker 1: for you know, for larger numbers of of immigrants. Um, 201 00:11:33,960 --> 00:11:37,880 Speaker 1: how that plays out practically? Uh? Is you know as 202 00:11:37,920 --> 00:11:41,760 Speaker 1: another question because the detention centers there are PROCs they're 203 00:11:41,760 --> 00:11:44,880 Speaker 1: almost fifty thou immigrants detained as we speak in the 204 00:11:44,960 --> 00:11:49,160 Speaker 1: United States. That is something that the Obama administration has 205 00:11:49,200 --> 00:11:54,600 Speaker 1: expanded its use. It's very expensive um and certainly the 206 00:11:54,600 --> 00:11:57,880 Speaker 1: Trump If given the legal authority, the Trump administration could 207 00:11:57,920 --> 00:12:01,760 Speaker 1: expand on detention, but it will quire uh, you know, 208 00:12:01,960 --> 00:12:05,280 Speaker 1: significant amounts of money from Congress. Okay, we're gonna have 209 00:12:05,320 --> 00:12:07,000 Speaker 1: to leave it there. I want to thank our guests, 210 00:12:07,080 --> 00:12:09,560 Speaker 1: Neil's friends In the director of the Immigration Clinic at 211 00:12:09,600 --> 00:12:12,640 Speaker 1: USC's Gould School of Law, and John fear, a legal 212 00:12:12,679 --> 00:12:15,080 Speaker 1: policy analyst at the Center for Immigration Studies.