WEBVTT - Glitches in the Trump Immigration Proposal

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<v Speaker 1>Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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<v Speaker 1>day we bring you insight and analysis into the most

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<v Speaker 1>important legal news of the day. You can find more

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<v Speaker 1>episodes of the Bloomberg Law Podcast on Apple podcast, SoundCloud

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<v Speaker 1>and on Bloomberg dot com slash podcasts. President Trump's new

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<v Speaker 1>immigration proposal seems to be over before it's begun. Even

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<v Speaker 1>Republicans are not taking it as a serious effort to

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<v Speaker 1>pass legislation. Here's Texas Republican Senator John Cornyn, well, I

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<v Speaker 1>think it's obviously just a start, but rather than have

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<v Speaker 1>these debates over how do we compromise between border security

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<v Speaker 1>and and immigration, uh, you know, benefits, I think it's

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<v Speaker 1>a clear statement of what our immigration policy should be.

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<v Speaker 1>Joining me is Leon Fresco, a partner at hollanden Night

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<v Speaker 1>and the former Deputy Assistant Attorney General for the Office

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<v Speaker 1>of Immigration Litigation at the Justice Department. Leon. Under Trump's proposal,

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<v Speaker 1>green card applicants would be evaluated on this new points system,

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<v Speaker 1>with a two step process beginning with the Civics test

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<v Speaker 1>and a background check. How would this work? Well, the

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<v Speaker 1>the quite frankly, would be very very difficult to administer

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<v Speaker 1>because at the end of the day. What happens is,

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<v Speaker 1>in a lot of these countries that use point systems,

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<v Speaker 1>you would normally have to reach a certain threshold the points,

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<v Speaker 1>and then you'd come into that country. But here you'd

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<v Speaker 1>have to first go through the civics and background tests.

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<v Speaker 1>Then you'd have to start giving all of these different

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<v Speaker 1>credentials and proving you have them, like that you have

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<v Speaker 1>a work offer, that you have a degree that qualifies

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<v Speaker 1>that your age is your age, etcetera. That would all

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<v Speaker 1>be given a certain amount of points, and then you'd

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<v Speaker 1>be ranked amongst other people also applying for a limited

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<v Speaker 1>set of green cards, and then every six months or

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<v Speaker 1>so they'd have a sort of okay, let's take the

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<v Speaker 1>top fifties thousand people who are ranked for this six

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<v Speaker 1>month period. And the point is from beginning to end,

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<v Speaker 1>that will actually end up taking two to three years

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<v Speaker 1>before someone who actually started this process would be able

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<v Speaker 1>to get a green card from this process, so it's

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<v Speaker 1>actually almost impossible to administer today. A federal appeals court

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<v Speaker 1>ruled against Trump ending the DOCKER program, saying the administration

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<v Speaker 1>acted in an arbitrary and capricious manner, but there is

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<v Speaker 1>no plan for the Dreamers in Trump's current proposal. What

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<v Speaker 1>kind of a gap does that leave, Well, it leads

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<v Speaker 1>a huge gap, because at the end of the day,

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<v Speaker 1>it has always been very, very difficult to get bipartisan

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<v Speaker 1>consensus on immigration unless you have basically three elements. You

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<v Speaker 1>need to have something on enforcement, something that makes it

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<v Speaker 1>for better for the economy, for the business community, and

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<v Speaker 1>something for the compassionate side of the immigration equation. And

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<v Speaker 1>those are the only bills that I've ever actually either

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<v Speaker 1>passed in the House or the Senate, the ones that

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<v Speaker 1>have something in each of those areas. And if you try,

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<v Speaker 1>I believe, one of those critical areas out of immigration legislation,

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<v Speaker 1>it never passes. Is there any proposal in this legislation

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<v Speaker 1>for what the Trump administration Republicans have complained about, what

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<v Speaker 1>they call catch and release, Well, they're certainly trying to

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<v Speaker 1>In all of these Republican bills, including this proposal, they're

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<v Speaker 1>trying to get at two or three things. Number One,

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<v Speaker 1>that families who are apprehended at the border can be

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<v Speaker 1>detained together, regardless of how much the length of time

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<v Speaker 1>is until their case is decided. Right now it's limited

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<v Speaker 1>to twenty days. And the other main one that they

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<v Speaker 1>try to do is that unaccompanied miners who are currently

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<v Speaker 1>not able to be removed on an expedited basis would

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<v Speaker 1>be re permitted, so the law would return to what

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<v Speaker 1>it was before two thousand and eight, to be removed

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<v Speaker 1>on an expedited basis, meaning within ten days or so

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<v Speaker 1>if they cannot clearly articulate an asylum claim. Looking at

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<v Speaker 1>a recent poll, this surprised me. According to the poll

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<v Speaker 1>by a animist you gov that was released earlier this month,

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<v Speaker 1>Americans that immigration was the most important issue for them

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<v Speaker 1>that trails only healthcare among the top priorities. Does that

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<v Speaker 1>mean that President Trump has succeeded in bringing it to

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<v Speaker 1>national attention across the board? Absolutely? Uh. I tell people

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<v Speaker 1>this all the time, which is, this is the first

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<v Speaker 1>president in my lifetime that's actually had immigration as their

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<v Speaker 1>most important issue. And this is since the internet. This

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<v Speaker 1>is the first president that's had immigration as an Internet

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<v Speaker 1>page issue on the White House website. And so certainly,

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<v Speaker 1>when the president talks about something constantly, it's going to

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<v Speaker 1>become a top issue in certain people's minds. But I

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<v Speaker 1>think even amongst those people's minds, well, they look at

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<v Speaker 1>it and they say, well, what's actually been done on

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<v Speaker 1>this issue in the last two years, and people start

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<v Speaker 1>to realize that whether you take a compassion only or

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<v Speaker 1>enforcement only solution, it won't work. Just why the enforcement

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<v Speaker 1>only approach so far has led to more people being

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<v Speaker 1>apprehended as opposed to less people being apprehended. There was

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<v Speaker 1>a series of tweets from Trump after his speech suggesting

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<v Speaker 1>new actions to crack down on illegal immigrants. In one tweet,

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<v Speaker 1>he said, please do not make yourselves too comfortable. You

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<v Speaker 1>will be leaving soon, and a White House spokesman left

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<v Speaker 1>open the possibility that Trump might use an arcane law

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<v Speaker 1>called the Insurrection Act to allow him to use the

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<v Speaker 1>military to remove illegal immigrants. Is that even doable? So

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<v Speaker 1>for hundreds of years, we've had this concept called post commentatives,

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<v Speaker 1>which is that you cannot use the military to enforce

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<v Speaker 1>US domestic laws. And secondly, we have statutes in plays

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<v Speaker 1>that when someone is coming to the United States to

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<v Speaker 1>seek asylum that certain processes have to be followed until

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<v Speaker 1>that person can be moved. And so by using an

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<v Speaker 1>alien and Insurrection Act, unless you've actually seen evidence that

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<v Speaker 1>some significant group of people are trying to actually overthrow

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<v Speaker 1>the government of the United States by pours, then that

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<v Speaker 1>would not work. In fact, we've had threats much worse

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<v Speaker 1>than this during the Cold War and no such actions

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<v Speaker 1>were used, and so there would be no basis, No

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<v Speaker 1>judge worth any law degree would ever actually allow alien

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<v Speaker 1>and insurrection laws to be used during this period when

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<v Speaker 1>it's just people are seeking asylum. Leon, we've seen a

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<v Speaker 1>term where the Supreme Court has evaded a lot of

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<v Speaker 1>controversial issues. Are they likely to take up data well,

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<v Speaker 1>if there ends up being a circuit split on DOCCA,

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<v Speaker 1>I think for sure. But even if the administration says

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<v Speaker 1>that this is so important to the government you have

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<v Speaker 1>to take it up, then still it's highly highly likely

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<v Speaker 1>they will take it up. But the only thing is

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<v Speaker 1>by the time DOCCA gets decided, which would be sometime

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<v Speaker 1>in either June of or later, then there will basically

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<v Speaker 1>be a referendum on this issue as part of the

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<v Speaker 1>general elections, and so at the end of the day

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<v Speaker 1>we won't really know the fate of DOCCA until the

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<v Speaker 1>next presidential all right, thanks so much, Leon, As always,

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<v Speaker 1>it's great to have you on. That's Leon Fresco. He's

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<v Speaker 1>partner at Holland and Nightne. He was the former Deputy

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<v Speaker 1>Assistant A G. For the Office of Immigration Litigation at

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<v Speaker 1>the Justice Department. Thanks for listening to the Bloomberg Law Podcast.

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<v Speaker 1>You can subscribe and listen to the show on Apple Podcasts, SoundCloud,

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<v Speaker 1>and on bloomberg dot com slash podcast. I'm June Brosso.

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<v Speaker 1>This is Bloomberg