1 00:00:02,759 --> 00:00:07,000 Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio. 2 00:00:08,680 --> 00:00:12,440 Speaker 2: The Trump administration is once again appealing to the Supreme 3 00:00:12,520 --> 00:00:15,760 Speaker 2: Court as it tests the boundaries of the government's power 4 00:00:15,840 --> 00:00:20,120 Speaker 2: to deport migrants. The Department of Homeland Security is asking 5 00:00:20,160 --> 00:00:23,600 Speaker 2: the court to block a judge's order that requires the 6 00:00:23,640 --> 00:00:27,680 Speaker 2: government to give people ten days notice and an opportunity 7 00:00:27,720 --> 00:00:31,400 Speaker 2: to object before they're deported to places other than their 8 00:00:31,440 --> 00:00:35,800 Speaker 2: home countries. Joining me is immigration law expert Leon Fresco, 9 00:00:36,200 --> 00:00:38,440 Speaker 2: a partner at Holland and Knight and the former head 10 00:00:38,440 --> 00:00:42,040 Speaker 2: of the Office of Immigration Litigation in the Obama administration. 11 00:00:43,240 --> 00:00:47,600 Speaker 2: A Massachusetts federal judge ordered the government last month to 12 00:00:47,640 --> 00:00:52,040 Speaker 2: give people ten days notice and an opportunity to object 13 00:00:52,120 --> 00:00:54,280 Speaker 2: before they are sent to a country which is not 14 00:00:54,400 --> 00:00:58,160 Speaker 2: their home country, and he said last week that the 15 00:00:58,240 --> 00:01:01,720 Speaker 2: administration violated his earlier decisions. 16 00:01:02,040 --> 00:01:05,320 Speaker 1: Well, what happened was, this is a case where there 17 00:01:05,360 --> 00:01:09,240 Speaker 1: are a number of foreign nationals who did commit sometimes 18 00:01:09,319 --> 00:01:13,039 Speaker 1: very heinous crimes, and they're from Laos, Vietnam and some 19 00:01:13,120 --> 00:01:16,399 Speaker 1: other places that don't really accept people that the US 20 00:01:16,480 --> 00:01:19,560 Speaker 1: is trying to deport back to those countries. And so 21 00:01:19,760 --> 00:01:23,200 Speaker 1: the US tried to arrange a scenario whereby it could 22 00:01:23,240 --> 00:01:26,640 Speaker 1: deport those people to South Sudan as part of a 23 00:01:26,640 --> 00:01:30,600 Speaker 1: diplomatic arrangement it was having with South Sudan to free 24 00:01:30,680 --> 00:01:33,800 Speaker 1: up some issues because earlier in the year South Sudanese 25 00:01:33,800 --> 00:01:37,319 Speaker 1: people couldn't get visas to travel to the United States, 26 00:01:37,680 --> 00:01:40,160 Speaker 1: and so this was part of a global arrangement where 27 00:01:40,200 --> 00:01:43,160 Speaker 1: that would be thick and that also South Sudan would 28 00:01:43,160 --> 00:01:46,559 Speaker 1: agree to accept people that the United States was trying 29 00:01:46,640 --> 00:01:51,320 Speaker 1: to deport to other countries, not South Sudan. The people 30 00:01:51,480 --> 00:01:54,080 Speaker 1: who were going to be deported to South Sudan heard 31 00:01:54,120 --> 00:01:57,400 Speaker 1: about this and said, well, wait a second, I can't 32 00:01:57,440 --> 00:02:00,400 Speaker 1: be deported to South Sudan. I'm not from there. That's 33 00:02:00,480 --> 00:02:02,680 Speaker 1: very dangerous. It's a country in the middle of a 34 00:02:02,720 --> 00:02:06,320 Speaker 1: civil war. And so they tried to file convention against 35 00:02:06,400 --> 00:02:10,240 Speaker 1: torture claims. There was actually this case filed in the 36 00:02:10,280 --> 00:02:13,840 Speaker 1: District of Massachusetts, which was a habeas claim saying I 37 00:02:13,880 --> 00:02:16,800 Speaker 1: can't be deported without being given the opportunity to have 38 00:02:16,880 --> 00:02:20,640 Speaker 1: an adjudication as to whether the conditions in South Sudan 39 00:02:20,680 --> 00:02:23,480 Speaker 1: are tent amounts to torturing me, because if you just 40 00:02:23,880 --> 00:02:25,800 Speaker 1: drop me off there what am I supposed to do. 41 00:02:25,840 --> 00:02:28,000 Speaker 1: I'm going to start to that because you know, it's 42 00:02:28,000 --> 00:02:29,560 Speaker 1: not a place where you could just go and get 43 00:02:29,560 --> 00:02:33,760 Speaker 1: a job and start working. And so that was the claim. 44 00:02:34,520 --> 00:02:38,040 Speaker 1: And at that time the District Court, at the US government, 45 00:02:38,400 --> 00:02:40,960 Speaker 1: we're arguing about, well, how do you do these claims? 46 00:02:40,960 --> 00:02:43,480 Speaker 1: Can you do them where these people were, which is 47 00:02:43,480 --> 00:02:46,519 Speaker 1: at the moment, they're being detained in Djibouti, a different 48 00:02:46,560 --> 00:02:50,080 Speaker 1: African country where it's just sort of a military operation 49 00:02:50,919 --> 00:02:56,120 Speaker 1: and there's not really this ability to long term have 50 00:02:56,320 --> 00:02:59,440 Speaker 1: these folks there. There was this debate about where do 51 00:02:59,520 --> 00:03:02,800 Speaker 1: these conventions and against torture claims get decided, or do 52 00:03:02,800 --> 00:03:05,079 Speaker 1: you have to bring the people back to the United States. 53 00:03:05,360 --> 00:03:08,000 Speaker 1: The federal government didn't want to bring back the people 54 00:03:08,040 --> 00:03:10,880 Speaker 1: to the United States. It asked that they'd be allowed 55 00:03:10,919 --> 00:03:14,720 Speaker 1: to make these adjudications in Djibouti. The judge said, okay, fine, 56 00:03:14,760 --> 00:03:17,880 Speaker 1: I will let you do that. And then after that 57 00:03:18,120 --> 00:03:20,000 Speaker 1: the government said, no, wait a second, this is way 58 00:03:20,040 --> 00:03:24,320 Speaker 1: too complicated. We actually can't do it in Djibouti. And 59 00:03:24,520 --> 00:03:27,440 Speaker 1: so now the government has gone to the Supreme Court 60 00:03:27,520 --> 00:03:31,200 Speaker 1: and said, just let us do these deportations. The judge 61 00:03:31,240 --> 00:03:34,680 Speaker 1: shouldn't be allowed to prevent us from doing this. 62 00:03:35,760 --> 00:03:37,920 Speaker 2: The Supreme Court has said that the government has to 63 00:03:37,960 --> 00:03:41,880 Speaker 2: give people a reasonable amount of time in order to 64 00:03:42,000 --> 00:03:46,920 Speaker 2: challenge their deportations, but it hasn't spelled out exactly what 65 00:03:46,960 --> 00:03:50,240 Speaker 2: that means, how much time even. But is this situation 66 00:03:50,560 --> 00:03:53,800 Speaker 2: different from the cases that the Supreme Court has dealt 67 00:03:53,800 --> 00:03:57,480 Speaker 2: with because these migrants have already been through the immigration 68 00:03:57,760 --> 00:04:01,760 Speaker 2: system and there are orders of deep against them. 69 00:04:02,400 --> 00:04:06,080 Speaker 1: Correct. The problem is here, these individuals have an order 70 00:04:06,080 --> 00:04:09,600 Speaker 1: of deportation that can be executed at any point to 71 00:04:09,720 --> 00:04:12,800 Speaker 1: their home country, whether it's Llows or Vietnam or whatever, 72 00:04:13,400 --> 00:04:16,640 Speaker 1: and it can also be executed to any other country 73 00:04:17,080 --> 00:04:20,720 Speaker 1: so long as in any of those other countries, there's 74 00:04:20,760 --> 00:04:24,400 Speaker 1: not a likelihood that these individuals will be tortured. And 75 00:04:24,480 --> 00:04:28,839 Speaker 1: so the question is, well, can these individuals make that claim, 76 00:04:29,400 --> 00:04:31,560 Speaker 1: where can they make that claim, When can they make 77 00:04:31,600 --> 00:04:34,160 Speaker 1: that claim, how long do they have to make that claim? 78 00:04:34,960 --> 00:04:38,880 Speaker 1: And does the district court have the ability to interrupt 79 00:04:38,920 --> 00:04:44,159 Speaker 1: that when a person has already been moved outside of 80 00:04:44,200 --> 00:04:46,400 Speaker 1: the United States. And I think that's what the debate 81 00:04:46,480 --> 00:04:48,920 Speaker 1: is going to be, because I think where the federal 82 00:04:48,960 --> 00:04:51,599 Speaker 1: government is concerned is what are we supposed to do 83 00:04:51,680 --> 00:04:54,599 Speaker 1: now that these individuals are in Africa? How do we 84 00:04:55,000 --> 00:04:56,800 Speaker 1: deal with this? Are we going to be forced to 85 00:04:56,839 --> 00:05:00,279 Speaker 1: bring them back to the United States or will be 86 00:05:00,360 --> 00:05:04,920 Speaker 1: forced to actually adjudicate these cases inside of Djibouti, which 87 00:05:04,920 --> 00:05:08,080 Speaker 1: is where the people are now, or can we finalize 88 00:05:08,120 --> 00:05:11,440 Speaker 1: our intentions to deport them to South Sudan? And will 89 00:05:11,440 --> 00:05:14,960 Speaker 1: there just be prophylactic language in the future about what 90 00:05:15,120 --> 00:05:18,120 Speaker 1: is required in the future if they're going to do 91 00:05:18,160 --> 00:05:20,919 Speaker 1: one of these third country deportations. But really we're in 92 00:05:21,040 --> 00:05:24,360 Speaker 1: uncharted territory here, and the Supreme Court is going to 93 00:05:24,440 --> 00:05:27,720 Speaker 1: have to set some standards and some guidelines because if 94 00:05:27,720 --> 00:05:31,880 Speaker 1: the federal government really is focused on these third country deportations, 95 00:05:32,440 --> 00:05:34,719 Speaker 1: then they're going to need to be done in a 96 00:05:34,800 --> 00:05:38,479 Speaker 1: manner that everybody's comfortable with. And the complication with South 97 00:05:38,520 --> 00:05:40,680 Speaker 1: Sudan is just imagine any of us. I mean, if 98 00:05:40,680 --> 00:05:43,120 Speaker 1: any of us get dropped off in South Sudan, what 99 00:05:43,160 --> 00:05:46,000 Speaker 1: do we do next? If there's no food, there's no job. 100 00:05:46,279 --> 00:05:48,240 Speaker 1: You know, if you end up being deported to a 101 00:05:48,279 --> 00:05:52,520 Speaker 1: place where you know that the solution is just the starvation, 102 00:05:53,320 --> 00:05:56,000 Speaker 1: does that end up violating the Convention against torture. 103 00:05:56,600 --> 00:05:58,880 Speaker 2: So how do you think the Supreme Court will approach 104 00:05:59,000 --> 00:06:02,920 Speaker 2: this and how it's handled the other deportation cases. 105 00:06:03,360 --> 00:06:06,160 Speaker 1: The Supreme Court is going to have to decide where 106 00:06:06,160 --> 00:06:08,800 Speaker 1: can these individuals make these claims? Are they allowed to 107 00:06:08,800 --> 00:06:13,239 Speaker 1: make these claims at all? What district court jurisdiction exists here? 108 00:06:13,800 --> 00:06:18,719 Speaker 1: And I don't necessarily think that the Supreme Court, given 109 00:06:18,760 --> 00:06:20,760 Speaker 1: what we've seen so far, is going to be too 110 00:06:20,839 --> 00:06:24,360 Speaker 1: friendly toward this concept of not being able to give 111 00:06:24,400 --> 00:06:27,920 Speaker 1: people an opportunity to make a claim that a deportation 112 00:06:28,040 --> 00:06:31,240 Speaker 1: of sub Sudan is tent amount to torturing. 113 00:06:31,279 --> 00:06:34,960 Speaker 2: That this case is among a growing number of instances 114 00:06:35,000 --> 00:06:40,000 Speaker 2: where judges are finding that the government isn't fully complying 115 00:06:40,080 --> 00:06:43,920 Speaker 2: with court orders having to do with immigration. The Supreme 116 00:06:43,960 --> 00:06:47,360 Speaker 2: Court sort of addressed that peripherally in a case blocking 117 00:06:47,360 --> 00:06:52,359 Speaker 2: the administration from sending more Venezuelans to a Salvador in 118 00:06:52,440 --> 00:06:56,400 Speaker 2: prison by referring to the case of kilmar Arbrigo Garcia, 119 00:06:56,440 --> 00:07:00,359 Speaker 2: who was wrongfully deported as a cautionary tale. But it 120 00:07:00,400 --> 00:07:05,960 Speaker 2: hasn't addressed that issue of not following court orders directly yet. 121 00:07:06,560 --> 00:07:09,840 Speaker 1: Right what the Supreme Court has said is at the moment, 122 00:07:09,880 --> 00:07:14,120 Speaker 1: we're not going to let the Trump administration deport anyone 123 00:07:14,120 --> 00:07:17,960 Speaker 1: else in the future under this Alien Enemies Act, which 124 00:07:18,000 --> 00:07:20,600 Speaker 1: is the law that the Trump administration has wanted to 125 00:07:20,720 --> 00:07:24,360 Speaker 1: use to deport Venezuelan from the trend A Ragua gang 126 00:07:24,560 --> 00:07:27,680 Speaker 1: to El savad or into other places without due process, 127 00:07:27,680 --> 00:07:30,440 Speaker 1: saying they're just members of this gang and that means 128 00:07:30,440 --> 00:07:33,640 Speaker 1: they can be apprehended and deported without seeing a judge. 129 00:07:34,240 --> 00:07:36,400 Speaker 1: And so what the Supreme Court has said, we're putting 130 00:07:36,400 --> 00:07:39,080 Speaker 1: an end to that for the moment, until the lower 131 00:07:39,120 --> 00:07:43,280 Speaker 1: courts can percolate a series of decisions as to a 132 00:07:43,760 --> 00:07:46,560 Speaker 1: what kind of notice is required be, what kind of 133 00:07:46,600 --> 00:07:50,880 Speaker 1: factors can be reviewed by the courts, and see is 134 00:07:50,960 --> 00:07:54,960 Speaker 1: this even constitutional, this usage of the Alien Enemies Act 135 00:07:55,000 --> 00:07:59,560 Speaker 1: in this particular situation. And the Supreme Court will decide 136 00:07:59,720 --> 00:08:03,480 Speaker 1: all of those questions, presumably in one global case, or 137 00:08:03,520 --> 00:08:07,480 Speaker 1: maybe it will break them up unclear. But there's that 138 00:08:07,600 --> 00:08:10,480 Speaker 1: issue with the whole framework of the Alien Enemies Act. 139 00:08:10,760 --> 00:08:13,600 Speaker 1: But now there's this new issue of well, what about 140 00:08:13,600 --> 00:08:16,600 Speaker 1: if someone does have a deportation order already, so we've 141 00:08:16,600 --> 00:08:20,040 Speaker 1: cleared that first step, but now what the issue is 142 00:08:20,040 --> 00:08:22,600 Speaker 1: is you want to send them to a country where 143 00:08:23,040 --> 00:08:26,680 Speaker 1: the country is potentially very dangerous to send that person to. 144 00:08:27,200 --> 00:08:29,120 Speaker 1: You know, you are allowed to send people to a 145 00:08:29,120 --> 00:08:33,160 Speaker 1: third country, but if that third country is dangerous, what 146 00:08:33,679 --> 00:08:36,280 Speaker 1: thoice do we put in this context? And does it 147 00:08:36,360 --> 00:08:39,760 Speaker 1: end up being the exact same as in the context 148 00:08:39,920 --> 00:08:42,040 Speaker 1: of the Alien Enemies Act? Are we going to do 149 00:08:42,080 --> 00:08:44,360 Speaker 1: the same? Are we going to do differently? What are 150 00:08:44,400 --> 00:08:46,720 Speaker 1: we going to do? And so I think again, the 151 00:08:46,760 --> 00:08:49,120 Speaker 1: Supreme Court's going to have to grapple with those issues. 152 00:08:49,640 --> 00:08:52,920 Speaker 2: And I know I've asked you this question several times before, 153 00:08:53,000 --> 00:08:56,680 Speaker 2: but what happened to the case of Ki or Brigo Garcia. 154 00:08:57,360 --> 00:08:59,439 Speaker 1: Well, I mean that case is still pending and the 155 00:08:59,679 --> 00:09:03,040 Speaker 1: district judge is trying to work their way through content 156 00:09:03,200 --> 00:09:07,480 Speaker 1: proceeding to try to figure out again what the government 157 00:09:08,080 --> 00:09:12,000 Speaker 1: is able to do to facilitate mister Abrago Garcia's return 158 00:09:12,400 --> 00:09:15,880 Speaker 1: to the United States. You had a congressman try to 159 00:09:16,280 --> 00:09:20,120 Speaker 1: visit Abrago Garcia, and that Congressman, Glen Ivy, was not 160 00:09:20,280 --> 00:09:25,320 Speaker 1: permitted to see a Brago Garcia. And so now we're 161 00:09:25,400 --> 00:09:29,120 Speaker 1: in the do or die situation where basically the District 162 00:09:29,160 --> 00:09:31,400 Speaker 1: Court is going to have to make some decisions about 163 00:09:31,840 --> 00:09:35,160 Speaker 1: doesn't want to hold the Trump administration in contempt unless 164 00:09:35,200 --> 00:09:39,439 Speaker 1: and until it brings Flabrago Garcia back into the United States. 165 00:09:39,480 --> 00:09:42,400 Speaker 1: And then, of course will the Fourth Circuit agree with 166 00:09:42,480 --> 00:09:45,880 Speaker 1: whatever is decided, and then finally will the Supreme Court 167 00:09:45,920 --> 00:09:50,200 Speaker 1: agree with whatever is decided here. But we start from 168 00:09:50,240 --> 00:09:53,880 Speaker 1: the understanding that the deportation was a mistake, and so 169 00:09:53,960 --> 00:09:56,960 Speaker 1: the question is what happens then, because what the administration 170 00:09:57,080 --> 00:09:59,280 Speaker 1: is saying is, look, if we bring him back, what's 171 00:09:59,280 --> 00:10:02,200 Speaker 1: gonna end up happening is the reason he wasn't deported 172 00:10:02,240 --> 00:10:04,880 Speaker 1: in the first place was because he feared gangs that 173 00:10:05,000 --> 00:10:07,920 Speaker 1: no longer exist in Al Salvador. So we're going to 174 00:10:07,960 --> 00:10:10,920 Speaker 1: win this case anyway. So the question is will there 175 00:10:11,000 --> 00:10:14,360 Speaker 1: be some dispensation given to having a hearing like this 176 00:10:15,440 --> 00:10:18,320 Speaker 1: outside of the United States, or will there be a 177 00:10:18,400 --> 00:10:23,319 Speaker 1: requirement that this individual will be brought back and given 178 00:10:23,400 --> 00:10:27,440 Speaker 1: the same hearing and then presumably removed again outside of 179 00:10:27,480 --> 00:10:28,559 Speaker 1: the United States. 180 00:10:28,840 --> 00:10:31,760 Speaker 2: Okay, stay with me. Leon coming up next on the 181 00:10:31,760 --> 00:10:35,840 Speaker 2: Bloomberg Lawn Show. I'll continue this conversation with immigration law 182 00:10:35,920 --> 00:10:39,960 Speaker 2: expert Leon Fresco. Ice appears to be employing a new 183 00:10:40,080 --> 00:10:43,760 Speaker 2: strategy that it used in arresting a high school student 184 00:10:43,920 --> 00:10:47,240 Speaker 2: in New York City. I'm June Grosso, and you're listening 185 00:10:47,320 --> 00:10:52,400 Speaker 2: to Bloomberg. In immigration courts from New York to Seattle, 186 00:10:52,640 --> 00:10:57,480 Speaker 2: Homeland Security officials are ramping up enforcement actions in what 187 00:10:57,520 --> 00:10:59,840 Speaker 2: appears to be an effort to test out a new 188 00:11:00,120 --> 00:11:05,440 Speaker 2: strategy to speed up deportations. Government attorneys are asking judges 189 00:11:05,520 --> 00:11:09,120 Speaker 2: to dismiss cases against migrants who are there for scheduled 190 00:11:09,160 --> 00:11:13,480 Speaker 2: hearings and then waiting ICE agents arrest the migrants and 191 00:11:13,600 --> 00:11:18,040 Speaker 2: put them in expedited removal proceedings. That's what reportedly happened 192 00:11:18,040 --> 00:11:21,600 Speaker 2: to a New York City high school student from Venezuela 193 00:11:21,679 --> 00:11:25,280 Speaker 2: last week. New York City Mayor Eric Adams, who's allowed 194 00:11:25,360 --> 00:11:29,080 Speaker 2: ICE agents on Rikers Island, said he couldn't get involved 195 00:11:29,080 --> 00:11:31,280 Speaker 2: because New York is a sanctuary city. 196 00:11:31,720 --> 00:11:34,880 Speaker 3: Well, we have to be extremely careful because the New 197 00:11:34,960 --> 00:11:39,320 Speaker 3: York City Council laws. I'm limited on what coination I 198 00:11:39,360 --> 00:11:42,400 Speaker 3: can do, and so sometimes there's a blessing and it's 199 00:11:42,400 --> 00:11:42,840 Speaker 3: a curse. 200 00:11:43,440 --> 00:11:46,600 Speaker 2: I've been talking to immigration law expert Leon Fresco of 201 00:11:46,679 --> 00:11:50,840 Speaker 2: Holland and Knight. Leon, so this Venezuelan high school student 202 00:11:51,720 --> 00:11:56,680 Speaker 2: was in immigration court for a regularly scheduled hearing, and 203 00:11:56,760 --> 00:12:00,199 Speaker 2: after the case against him was dismissed, I say and 204 00:12:00,360 --> 00:12:04,760 Speaker 2: arrested him. His lawyer says, he's here legally seeking asylum, 205 00:12:05,240 --> 00:12:08,760 Speaker 2: but the Trump administration says he's here illegally. And apparently 206 00:12:08,800 --> 00:12:10,800 Speaker 2: this is not an isolated scenario. 207 00:12:11,280 --> 00:12:16,040 Speaker 1: What's happening is this, So the Biden administration had this 208 00:12:16,120 --> 00:12:21,280 Speaker 1: program called the CBP one app parole program, which what 209 00:12:21,360 --> 00:12:26,240 Speaker 1: it said was don't just cross the border illegally. That's 210 00:12:26,320 --> 00:12:29,400 Speaker 1: creating a lot of chaos on the southern border. We 211 00:12:29,480 --> 00:12:31,959 Speaker 1: can't have it. Go to a port of entry, get 212 00:12:32,000 --> 00:12:34,440 Speaker 1: an appointment to go to a port of entry under 213 00:12:34,480 --> 00:12:37,360 Speaker 1: the CBP one app and then if we think that 214 00:12:37,520 --> 00:12:41,160 Speaker 1: you're a legitimate asylum seeker, will parole you into the 215 00:12:41,160 --> 00:12:44,800 Speaker 1: country legally, so you have a legal status while you're 216 00:12:44,800 --> 00:12:47,360 Speaker 1: here trying to get asylum, and you'll go through the 217 00:12:47,400 --> 00:12:51,760 Speaker 1: asylum case. So what's happening now is that the Trump 218 00:12:51,840 --> 00:12:54,719 Speaker 1: administration is saying, for all those people who have been 219 00:12:54,800 --> 00:12:58,679 Speaker 1: led in legally to do an asylum case and immigration court, 220 00:12:59,080 --> 00:13:04,920 Speaker 1: we are going to cancel your legal admission. We're going 221 00:13:05,000 --> 00:13:09,000 Speaker 1: to close that case, and we're going to pretend like 222 00:13:09,840 --> 00:13:11,920 Speaker 1: none of that had happened, and we're going to put 223 00:13:11,920 --> 00:13:16,440 Speaker 1: you in expedited removal, which says that if you are 224 00:13:16,880 --> 00:13:19,480 Speaker 1: here for less than two years and you never had 225 00:13:19,480 --> 00:13:23,320 Speaker 1: a legal basis for coming, you can be removed on 226 00:13:23,360 --> 00:13:26,800 Speaker 1: an expedited basis. But what that requires is for the 227 00:13:26,840 --> 00:13:29,680 Speaker 1: person to be arrested and then they have to have 228 00:13:29,720 --> 00:13:32,680 Speaker 1: a new adjudication as to whether they have a credible 229 00:13:32,720 --> 00:13:36,640 Speaker 1: asylum case, and if they don't, they can immediately be removed. 230 00:13:36,679 --> 00:13:39,600 Speaker 1: But if they do, then they're basically back at square one, 231 00:13:40,000 --> 00:13:42,520 Speaker 1: which is the same immigration court hearing that they were 232 00:13:42,600 --> 00:13:48,319 Speaker 1: arrested at minutes ago. So this bronze student was exactly 233 00:13:48,440 --> 00:13:51,640 Speaker 1: this situation where they were let in legally under the 234 00:13:51,640 --> 00:13:57,719 Speaker 1: CBP one parole app but now they're arrested, placed in 235 00:13:57,800 --> 00:14:00,720 Speaker 1: expedited removal proceedings, and. 236 00:14:00,640 --> 00:14:03,880 Speaker 2: This type of scenario is being played out in immigration 237 00:14:04,120 --> 00:14:05,600 Speaker 2: courts across the country. 238 00:14:06,200 --> 00:14:09,360 Speaker 1: So there's basically three goals of this. Number one is 239 00:14:10,679 --> 00:14:14,160 Speaker 1: maybe twenty twenty five percent of the people that they're 240 00:14:14,160 --> 00:14:17,200 Speaker 1: going to do this too won't actually be able to 241 00:14:17,240 --> 00:14:20,440 Speaker 1: show that they have a credible asylum claim. And so 242 00:14:20,880 --> 00:14:23,520 Speaker 1: with that group, they can just remove them outside of 243 00:14:23,560 --> 00:14:27,560 Speaker 1: the United States, and so that increases the removal number. 244 00:14:27,680 --> 00:14:31,480 Speaker 1: So that's goal number one. Goal number two is to 245 00:14:31,560 --> 00:14:34,840 Speaker 1: the extent people are now scared to go to immigration court. 246 00:14:35,160 --> 00:14:37,680 Speaker 1: When you don't show up the immigration court, you get 247 00:14:37,680 --> 00:14:40,400 Speaker 1: what's called an in absentia of removal order, which is 248 00:14:40,600 --> 00:14:43,920 Speaker 1: you basically lose by default. You get ordered deported and 249 00:14:44,040 --> 00:14:45,760 Speaker 1: that's the end of it. And as long as the 250 00:14:45,760 --> 00:14:48,200 Speaker 1: government can show that you had notice of the hearing, 251 00:14:48,840 --> 00:14:51,720 Speaker 1: then that did you know, Unless there was some earthquake 252 00:14:51,880 --> 00:14:54,880 Speaker 1: or some bridge collapsed or something and that prevented you 253 00:14:54,880 --> 00:14:57,800 Speaker 1: from going to the hearing that day, you're pretty much 254 00:14:57,840 --> 00:15:00,200 Speaker 1: in a bad position there. But the government, and if 255 00:15:00,200 --> 00:15:03,480 Speaker 1: they get these in absent to removal orders, can also 256 00:15:03,760 --> 00:15:08,560 Speaker 1: try to execute those, and that also is easier than 257 00:15:08,600 --> 00:15:11,560 Speaker 1: trying to win a removal order in a hearing. So 258 00:15:11,800 --> 00:15:14,600 Speaker 1: that's the second reason to do this is people stop 259 00:15:14,680 --> 00:15:17,440 Speaker 1: going to court, they get in upsent to removal orders, 260 00:15:17,440 --> 00:15:20,000 Speaker 1: you can deport them more easily. And then the third 261 00:15:20,080 --> 00:15:23,680 Speaker 1: is people will be so afraid about finishing this process 262 00:15:23,720 --> 00:15:26,640 Speaker 1: they'll just take matters into their own hands and go home. 263 00:15:26,880 --> 00:15:29,160 Speaker 1: And so that's really the purpose of this is to 264 00:15:29,200 --> 00:15:33,720 Speaker 1: create this level of fear that people either don't show 265 00:15:33,800 --> 00:15:35,960 Speaker 1: up the court and they get ordered deported or they 266 00:15:36,000 --> 00:15:38,560 Speaker 1: go home. But if they do go to court, they're 267 00:15:38,560 --> 00:15:40,680 Speaker 1: going to get arrested. If you haven't been in this 268 00:15:40,800 --> 00:15:43,640 Speaker 1: country for more than two years, what will happen is 269 00:15:43,680 --> 00:15:48,200 Speaker 1: you will be arrested and put into these expedited removal proceedings. 270 00:15:48,800 --> 00:15:51,240 Speaker 1: And what that will do is for some segment of 271 00:15:51,280 --> 00:15:56,560 Speaker 1: the people, they will be deported immediately. For a larger segment, 272 00:15:56,640 --> 00:16:00,000 Speaker 1: let's say seventy to seventy five percent, they will be 273 00:16:00,160 --> 00:16:02,520 Speaker 1: placed back into the same proceeding they were supposed to 274 00:16:02,560 --> 00:16:05,880 Speaker 1: go to court for that day, but after having been 275 00:16:06,000 --> 00:16:09,600 Speaker 1: arrested and detained and having to pay out a bond, 276 00:16:10,160 --> 00:16:13,640 Speaker 1: and so all of this is very scary and unsettling, 277 00:16:14,160 --> 00:16:17,600 Speaker 1: and that's part of the strategy is to impose those 278 00:16:17,680 --> 00:16:20,800 Speaker 1: kinds of conditions to make it as onderous as possible 279 00:16:20,800 --> 00:16:23,120 Speaker 1: for the people here without status to remain here. 280 00:16:23,520 --> 00:16:26,080 Speaker 2: So then will this student definitely get a hearing. 281 00:16:26,920 --> 00:16:29,400 Speaker 1: Well, so they will first have to show that they 282 00:16:29,440 --> 00:16:32,720 Speaker 1: have a credible asylum playing and of course, because the 283 00:16:32,760 --> 00:16:35,840 Speaker 1: student is from Venezuela, probably will not be that difficult, 284 00:16:35,840 --> 00:16:39,440 Speaker 1: because Venezuela does crack down on political dissidents. If this 285 00:16:39,520 --> 00:16:44,080 Speaker 1: person can show that they had some political oppression in 286 00:16:44,120 --> 00:16:47,480 Speaker 1: the past or they have some political issue, they can 287 00:16:47,520 --> 00:16:51,600 Speaker 1: clear that threshold, and then they'll actually have an asylum hearing, 288 00:16:51,920 --> 00:16:53,880 Speaker 1: which was the whole purpose of why they went to 289 00:16:53,960 --> 00:16:54,960 Speaker 1: court in the first place. 290 00:16:55,320 --> 00:16:58,600 Speaker 2: So now let's turn from high school to college and 291 00:16:58,720 --> 00:17:01,920 Speaker 2: graduate school. There's going to be a hearing this week 292 00:17:02,240 --> 00:17:05,800 Speaker 2: to determine whether a judge should extend a temporary block 293 00:17:06,320 --> 00:17:10,200 Speaker 2: that's keeping the Trump administration from canceling the student visas 294 00:17:10,520 --> 00:17:15,280 Speaker 2: of nearly seven thousand international students at Harvard. This being 295 00:17:15,359 --> 00:17:18,919 Speaker 2: part of Trump's campaign against Harvard tell us about the 296 00:17:18,960 --> 00:17:19,680 Speaker 2: issues here. 297 00:17:20,080 --> 00:17:24,760 Speaker 1: So basically what happened is the Trump administration has been 298 00:17:24,880 --> 00:17:28,560 Speaker 1: trying to get information from Harvard with regard to a 299 00:17:28,560 --> 00:17:32,040 Speaker 1: lot of its practices, but including also the nature of 300 00:17:32,080 --> 00:17:35,359 Speaker 1: its students that are there as foreign students and the 301 00:17:35,440 --> 00:17:38,920 Speaker 1: nature of their conduct. But the issue is that there's 302 00:17:38,960 --> 00:17:41,560 Speaker 1: a normal process where that happens. That it's called the 303 00:17:41,720 --> 00:17:46,000 Speaker 1: every two years recertification, and then there's an application, and 304 00:17:46,040 --> 00:17:49,359 Speaker 1: then if you want to deny the ability for students 305 00:17:49,400 --> 00:17:51,760 Speaker 1: to come. You have to issue an order saying you 306 00:17:51,800 --> 00:17:56,000 Speaker 1: intend to deny re certification, and then there's an opportunity 307 00:17:56,040 --> 00:18:00,480 Speaker 1: to respond, and then there's an appeal and that essentially 308 00:18:00,520 --> 00:18:02,679 Speaker 1: a court case and all of that. And what the 309 00:18:02,680 --> 00:18:05,480 Speaker 1: Trump administration tried to do is to skip all of that. 310 00:18:06,320 --> 00:18:09,800 Speaker 1: And what the court immediately said was you can't do that, 311 00:18:09,920 --> 00:18:13,680 Speaker 1: and you'd a temporary restraining order saying you can't skip 312 00:18:14,080 --> 00:18:17,000 Speaker 1: all of those steps and just take a school out 313 00:18:17,040 --> 00:18:20,000 Speaker 1: of the student an exchange visitor program. And the reason 314 00:18:20,040 --> 00:18:23,280 Speaker 1: you can is because there's a lot of reliance interests involved. 315 00:18:23,280 --> 00:18:26,439 Speaker 1: There's thousands of students. They can't just all go to 316 00:18:26,560 --> 00:18:30,000 Speaker 1: Yale or Stanford or somewhere else because all those schools 317 00:18:30,000 --> 00:18:34,160 Speaker 1: have admissions processes and so you can't just transfer. It's 318 00:18:34,160 --> 00:18:37,199 Speaker 1: not that easy. And if you are one of the 319 00:18:37,200 --> 00:18:41,000 Speaker 1: students who's on a status called OPT, which is called 320 00:18:41,080 --> 00:18:44,680 Speaker 1: optional practical Training, which is something that allows you as 321 00:18:44,720 --> 00:18:48,159 Speaker 1: a student to work after you graduate in the field 322 00:18:48,200 --> 00:18:51,399 Speaker 1: that you graduated from. It allows you to get practical experience, 323 00:18:51,680 --> 00:18:55,280 Speaker 1: then there's nowhere you can transfer because you finished your degree. 324 00:18:55,640 --> 00:18:57,840 Speaker 1: So you could be working, for instance, right now at 325 00:18:57,880 --> 00:19:01,639 Speaker 1: Microsoft or at Google wherever it may be, or even 326 00:19:01,680 --> 00:19:05,280 Speaker 1: at a hospital or you know, doing something medical wherever 327 00:19:05,320 --> 00:19:08,640 Speaker 1: you may be, and if your status gets canceled, then 328 00:19:08,680 --> 00:19:11,320 Speaker 1: that's the end of it. Then you're here illegally. There's 329 00:19:11,320 --> 00:19:13,760 Speaker 1: nothing you can do. You have to go home. And 330 00:19:13,880 --> 00:19:18,439 Speaker 1: so this lawsuit actually, you know, for those people in 331 00:19:18,520 --> 00:19:23,359 Speaker 1: that status, that saves them from falling out of legal status. 332 00:19:23,400 --> 00:19:26,520 Speaker 1: But if that temporary restraining order is lifted, all of 333 00:19:26,560 --> 00:19:30,320 Speaker 1: those people who are in this optional practical training status 334 00:19:30,520 --> 00:19:33,040 Speaker 1: will immediately have to go home. There's going to be 335 00:19:33,080 --> 00:19:35,920 Speaker 1: no way for them to stay legally. They'll have ten 336 00:19:36,000 --> 00:19:38,520 Speaker 1: days to just leave the United States and then from 337 00:19:38,600 --> 00:19:40,840 Speaker 1: abroad to have to figure out if there's some other 338 00:19:40,920 --> 00:19:44,600 Speaker 1: visa program that can take advantage of. Similarly, for the 339 00:19:44,640 --> 00:19:47,480 Speaker 1: students who actually are at Harvard, they're going to have 340 00:19:47,520 --> 00:19:50,920 Speaker 1: to make some decisions regardless, which is do we keep 341 00:19:51,080 --> 00:19:56,600 Speaker 1: having to worry about injunction, go injunction? Yes, injunction lifting 342 00:19:56,640 --> 00:19:59,280 Speaker 1: it and do we want to live under that stress 343 00:19:59,520 --> 00:20:01,960 Speaker 1: or do we want to just transfer to some other 344 00:20:02,080 --> 00:20:04,679 Speaker 1: school or do we just want to leave the United 345 00:20:04,720 --> 00:20:08,639 Speaker 1: States period? Because this is way too stressful, and so 346 00:20:09,200 --> 00:20:13,000 Speaker 1: for a lot of those individuals, I don't imagine they're 347 00:20:13,000 --> 00:20:14,920 Speaker 1: going to want to stay at Harvard and see how 348 00:20:14,960 --> 00:20:18,720 Speaker 1: this ends. And so that creates a very difficult issue 349 00:20:18,720 --> 00:20:21,879 Speaker 1: for Harvard, which is that it's going to lose a 350 00:20:21,880 --> 00:20:25,000 Speaker 1: lot of these students even if it wins its litigation. 351 00:20:25,359 --> 00:20:30,000 Speaker 2: Also, Secretary of State Marco Rubio has ordered US embassies 352 00:20:30,320 --> 00:20:36,720 Speaker 2: worldwide to stop scheduling interviews for student visas because they're 353 00:20:37,000 --> 00:20:43,360 Speaker 2: weighing stricter vetting of applicants social media profiles correct. 354 00:20:43,400 --> 00:20:48,000 Speaker 1: So USCIS had already said this for domestic visa cases, 355 00:20:48,400 --> 00:20:51,240 Speaker 1: and now Secretary of State Rubio is trying to add 356 00:20:51,280 --> 00:20:56,080 Speaker 1: more meat on these bones for foreign student cases to 357 00:20:56,160 --> 00:20:59,560 Speaker 1: give people very specific guidance as to when a visa 358 00:20:59,600 --> 00:21:03,000 Speaker 1: should be denied and when a visa should be approved. 359 00:21:03,040 --> 00:21:06,760 Speaker 1: So at the moment, because that guidance doesn't exist, what 360 00:21:07,080 --> 00:21:10,240 Speaker 1: the Secretary of State said is stop scheduling new appointments 361 00:21:10,320 --> 00:21:13,600 Speaker 1: until we can get this guidance out. Everything I'm told 362 00:21:13,720 --> 00:21:16,040 Speaker 1: is that this will be shortly, so it should be 363 00:21:16,040 --> 00:21:18,320 Speaker 1: a week or two for this guidance to come out. 364 00:21:18,359 --> 00:21:20,120 Speaker 1: It's not going to be something that's going to ban 365 00:21:20,720 --> 00:21:24,199 Speaker 1: all students from coming in forever, but it definitely is 366 00:21:24,240 --> 00:21:27,359 Speaker 1: going to be yet one more very difficult obstacle because 367 00:21:27,400 --> 00:21:30,800 Speaker 1: in a lot of these embassies there's already a backlog 368 00:21:30,840 --> 00:21:33,679 Speaker 1: of appointments and some students never get in. So they 369 00:21:33,720 --> 00:21:36,800 Speaker 1: all need to get their visa appointment and their visa 370 00:21:36,880 --> 00:21:40,399 Speaker 1: by August. If they either can't get an appointment or 371 00:21:40,600 --> 00:21:43,119 Speaker 1: now they can get an appointment, but the problem is 372 00:21:43,160 --> 00:21:47,960 Speaker 1: their case is now taking longer to decide because everybody's 373 00:21:48,080 --> 00:21:51,400 Speaker 1: case now can't be decided at the window. It has 374 00:21:51,440 --> 00:21:55,320 Speaker 1: to be decided after somebody goes and looks through all 375 00:21:55,359 --> 00:21:59,680 Speaker 1: of their social media. Then that's going to be a 376 00:21:59,720 --> 00:22:02,520 Speaker 1: different process which will lead to many more students not 377 00:22:02,600 --> 00:22:05,080 Speaker 1: being able to enter the United States. So what that 378 00:22:05,240 --> 00:22:08,919 Speaker 1: leads to in practice is instead of the normal cycle 379 00:22:08,960 --> 00:22:11,680 Speaker 1: where you get admitted into school in April or May, 380 00:22:12,160 --> 00:22:14,359 Speaker 1: you apply for your visa and you are ready to 381 00:22:14,359 --> 00:22:17,040 Speaker 1: come in in September, it may now be that you 382 00:22:17,119 --> 00:22:20,360 Speaker 1: have to start school in January or maybe even one 383 00:22:20,480 --> 00:22:25,840 Speaker 1: year later in September of the following year, which obviously 384 00:22:25,920 --> 00:22:29,880 Speaker 1: then leads to making America less attractive for foreign students 385 00:22:29,920 --> 00:22:32,720 Speaker 1: to come study, which either is the intent or is 386 00:22:32,760 --> 00:22:35,240 Speaker 1: it I don't know what the intent is here. It 387 00:22:35,240 --> 00:22:39,440 Speaker 1: may also just be to really not have people who 388 00:22:39,480 --> 00:22:43,359 Speaker 1: are putting some very terrible things on their social media 389 00:22:43,680 --> 00:22:47,040 Speaker 1: study in the United States because they're dangerous to the country. So, well, 390 00:22:47,080 --> 00:22:50,359 Speaker 1: that's the way. And see how this is implemented in reality. 391 00:22:50,400 --> 00:22:53,200 Speaker 1: And if in reality what's happening is that the only 392 00:22:53,240 --> 00:22:56,720 Speaker 1: people excluded are people you really wouldn't want to come, 393 00:22:56,760 --> 00:22:59,920 Speaker 1: then you know, then it's a change that is defensible 394 00:23:00,119 --> 00:23:03,199 Speaker 1: and arguable. But if it's really a change that just 395 00:23:03,320 --> 00:23:07,120 Speaker 1: leads to a gridlock so that no one can come 396 00:23:07,160 --> 00:23:11,159 Speaker 1: in the country, even if you're a student from Sweden 397 00:23:11,640 --> 00:23:15,919 Speaker 1: who's here to study electrical engineering or medicine, then that 398 00:23:16,119 --> 00:23:17,840 Speaker 1: becomes a more difficult problem. 399 00:23:18,080 --> 00:23:21,600 Speaker 2: Are there other countries that are popular for students? 400 00:23:22,560 --> 00:23:26,040 Speaker 1: Absolutely so. Students from around the world study in all 401 00:23:26,119 --> 00:23:29,680 Speaker 1: of these countries that you might expect. Canada, they study 402 00:23:29,720 --> 00:23:33,240 Speaker 1: in Australia, they study in New Zealand, they study in 403 00:23:33,520 --> 00:23:37,320 Speaker 1: the United Kingdom, and so every one of these countries. 404 00:23:37,440 --> 00:23:39,560 Speaker 1: It is very interesting. They all go through ebbs and 405 00:23:39,640 --> 00:23:43,280 Speaker 1: flows where they take more students and they take less students. 406 00:23:43,320 --> 00:23:47,400 Speaker 1: They crack down, they loosen up. We've cracked down, We've 407 00:23:47,440 --> 00:23:50,359 Speaker 1: loosened up. Now we're in a sort of crackdown stage again, 408 00:23:50,840 --> 00:23:54,520 Speaker 1: so other countries might loosen up their statuses again. And 409 00:23:54,560 --> 00:23:57,560 Speaker 1: it's very interesting how sort of this happens. So no 410 00:23:57,680 --> 00:24:03,080 Speaker 1: country is linearly they're throw these student visas or against them. 411 00:24:03,440 --> 00:24:05,800 Speaker 1: It's always seems to be an ebb and flow amongst 412 00:24:05,800 --> 00:24:09,400 Speaker 1: all these countries that have universities that bring in foreign students, 413 00:24:09,440 --> 00:24:13,240 Speaker 1: where at some times they're really trying to attract foreign 414 00:24:13,280 --> 00:24:16,480 Speaker 1: students and they say, hey, this is a lot of 415 00:24:16,480 --> 00:24:18,320 Speaker 1: money for our schools and a lot of money for 416 00:24:18,359 --> 00:24:20,840 Speaker 1: our economy, and we're trying to bring in the best 417 00:24:20,880 --> 00:24:24,160 Speaker 1: and brightest, and then at other times they decide, no, no, no, no, 418 00:24:24,200 --> 00:24:27,760 Speaker 1: this is competition for our workers and competition for our 419 00:24:27,920 --> 00:24:30,680 Speaker 1: slots in our schools. So no, in fact, we don't 420 00:24:30,680 --> 00:24:34,080 Speaker 1: want these people. And it's really a back and forth 421 00:24:34,119 --> 00:24:37,320 Speaker 1: that no country has sort of reached the consensus on 422 00:24:37,359 --> 00:24:39,240 Speaker 1: what it thinks of these foreign students. 423 00:24:39,520 --> 00:24:44,280 Speaker 2: Finally found this very interesting. So Scadden Arps was one 424 00:24:44,320 --> 00:24:47,440 Speaker 2: of the law firms who cut a deal with Trump 425 00:24:47,800 --> 00:24:50,919 Speaker 2: to avoid being targeted by him, and they cut one 426 00:24:50,960 --> 00:24:55,159 Speaker 2: hundred million dollar deal to take on causes he supports, 427 00:24:55,240 --> 00:25:00,479 Speaker 2: and what was listed was fighting anti semitism, promoting justice, 428 00:25:00,560 --> 00:25:05,080 Speaker 2: and assisting veterans active military, law enforcement and government officials. 429 00:25:05,520 --> 00:25:10,160 Speaker 2: But now it appears that they're helping an immigrant try 430 00:25:10,200 --> 00:25:15,080 Speaker 2: to avoid removal from the United States, which seems to 431 00:25:15,119 --> 00:25:19,400 Speaker 2: be counter to what the deal was with Trump. 432 00:25:20,080 --> 00:25:25,359 Speaker 1: Well, so here's what's interesting. For many, many years, law 433 00:25:25,359 --> 00:25:29,280 Speaker 1: firms have done these immigration cases for several reasons. Number 434 00:25:29,320 --> 00:25:32,840 Speaker 1: one is that a lot of pro bono cases, big 435 00:25:32,920 --> 00:25:36,520 Speaker 1: law firms can't do them because many times what happens 436 00:25:36,560 --> 00:25:39,879 Speaker 1: is there's conflicts where if you're suing any sort of 437 00:25:39,920 --> 00:25:43,439 Speaker 1: private entity, you'd probably be suing a private entity that 438 00:25:43,560 --> 00:25:46,280 Speaker 1: is either a client or adjacent to a client, and 439 00:25:46,320 --> 00:25:48,399 Speaker 1: so that's very hard. So one of the things you 440 00:25:48,400 --> 00:25:50,480 Speaker 1: can do very easily in a law firm is through 441 00:25:50,720 --> 00:25:54,439 Speaker 1: the government, because the government has its own lawyers, and 442 00:25:54,520 --> 00:25:58,760 Speaker 1: so immigration cases have traditionally been viewed as an area 443 00:25:58,760 --> 00:26:02,280 Speaker 1: where law firms can do work because the other side 444 00:26:02,320 --> 00:26:04,520 Speaker 1: is the government, so they have their own set of lawyers, 445 00:26:04,520 --> 00:26:09,440 Speaker 1: there's no conflict, and also they're discreet enough cases that 446 00:26:10,040 --> 00:26:13,479 Speaker 1: the law firms can do then. But what happens is now, 447 00:26:13,520 --> 00:26:17,119 Speaker 1: if you're in one of these situations where you're theoretically 448 00:26:17,560 --> 00:26:20,760 Speaker 1: running a foul of what the Trump administration has already 449 00:26:21,080 --> 00:26:24,080 Speaker 1: reached the settlement with your law firm to do. Then, 450 00:26:24,160 --> 00:26:26,720 Speaker 1: if you have a pro bono department in your law firm, 451 00:26:26,960 --> 00:26:29,280 Speaker 1: you're going to have to figure out what it is 452 00:26:29,320 --> 00:26:31,800 Speaker 1: you're doing with this kind of work. And if the 453 00:26:31,800 --> 00:26:34,720 Speaker 1: Trump administration says we don't want you doing this work, 454 00:26:34,960 --> 00:26:37,160 Speaker 1: then you're going to have to decide whether you want 455 00:26:37,160 --> 00:26:39,760 Speaker 1: to go where the other law firms are going and 456 00:26:40,000 --> 00:26:42,320 Speaker 1: litigate or what you want to do there. But yes, 457 00:26:42,480 --> 00:26:46,200 Speaker 1: certainly that does create a very complicated issue there. 458 00:26:46,320 --> 00:26:50,359 Speaker 2: Thanks so much as always, Leon, that's Leon Fresco of Honda, Knight, 459 00:26:51,240 --> 00:26:55,639 Speaker 2: Johnson and Johnson's failure to resolve mass toward talent litigation 460 00:26:55,840 --> 00:26:59,159 Speaker 2: through the bankruptcy system was not only a setback for 461 00:26:59,200 --> 00:27:03,879 Speaker 2: the pharmaceutical giant, but also a costly blow for plaintiff's 462 00:27:03,960 --> 00:27:06,919 Speaker 2: lawyers who got behind the effort. Jay and J is 463 00:27:06,960 --> 00:27:10,600 Speaker 2: not appealing the dismissal of its third TALC unit bankruptcy 464 00:27:11,040 --> 00:27:14,439 Speaker 2: and is instead returning to civil court to face about 465 00:27:14,520 --> 00:27:18,879 Speaker 2: sixty thousand lawsuits alleging its baby powder and other consumer 466 00:27:19,040 --> 00:27:23,399 Speaker 2: tel products were tainted with cancer causing asbestos joining me 467 00:27:23,440 --> 00:27:27,280 Speaker 2: is Bloomberg Lawn correspondent Alex Woolf. Alex give us little 468 00:27:27,280 --> 00:27:31,440 Speaker 2: of the flavor of the history of this litigation, so as. 469 00:27:31,359 --> 00:27:35,560 Speaker 4: Jay and Jay tells that they have been the victors 470 00:27:35,680 --> 00:27:40,560 Speaker 4: in much of this calculated litigation over the past decade. 471 00:27:40,600 --> 00:27:45,639 Speaker 4: I believe they won sixteen out of seventeen cases that 472 00:27:45,680 --> 00:27:49,840 Speaker 4: have gone to trial. But in twenty twenty one they 473 00:27:49,880 --> 00:27:53,879 Speaker 4: were hit with a multi billion dollar verdict. The case 474 00:27:54,280 --> 00:27:59,360 Speaker 4: was appealed and the award was dropped slightly, but enough 475 00:27:59,400 --> 00:28:02,760 Speaker 4: to make a large dent in the company at that point. 476 00:28:02,760 --> 00:28:06,360 Speaker 4: In twenty twenty one, the company then began looking at 477 00:28:06,760 --> 00:28:11,080 Speaker 4: alternative ways to address just a mountain of litigations that 478 00:28:11,280 --> 00:28:15,240 Speaker 4: was continuing to grow more and more, sort of as 479 00:28:15,280 --> 00:28:18,240 Speaker 4: each month and year past. These are given with ovarian 480 00:28:18,280 --> 00:28:23,399 Speaker 4: cancer who alleged that the company's baby powder and shower 481 00:28:23,480 --> 00:28:28,359 Speaker 4: to shower products was the cause of their cancer, and 482 00:28:28,440 --> 00:28:29,240 Speaker 4: so Jay and. 483 00:28:29,320 --> 00:28:33,880 Speaker 2: J decided to use this strategy, a bankruptcy strategy that's 484 00:28:33,920 --> 00:28:36,240 Speaker 2: referred to as the Texas two Steps. 485 00:28:36,280 --> 00:28:39,920 Speaker 4: So, beginning of twenty twenty one, they hired a group 486 00:28:39,920 --> 00:28:42,560 Speaker 4: of attorneys from the law firm of Jones Day who 487 00:28:42,680 --> 00:28:47,840 Speaker 4: had sort of pioneered this strategy of taking a large 488 00:28:47,840 --> 00:28:50,720 Speaker 4: corporation that's facing sort of a mountain of mass tort 489 00:28:50,760 --> 00:28:56,440 Speaker 4: litigation and using a Texas state law to separate the 490 00:28:56,640 --> 00:29:00,920 Speaker 4: healthy operating business from its mass tort life abilities and 491 00:29:00,960 --> 00:29:05,200 Speaker 4: then put a new subsidiary housed with all of those 492 00:29:05,240 --> 00:29:10,480 Speaker 4: liabilities into bankruptcy. So Jy and J employed Jones Day 493 00:29:10,600 --> 00:29:14,800 Speaker 4: and did this exact thing in twenty twenty one, starting 494 00:29:15,480 --> 00:29:18,120 Speaker 4: a case first in the Western District of North Carolina 495 00:29:18,320 --> 00:29:21,200 Speaker 4: that then got bumped up to New Jersey where the 496 00:29:21,200 --> 00:29:24,240 Speaker 4: company is based. From there, there there were a number 497 00:29:24,320 --> 00:29:28,960 Speaker 4: of trial and error cases where the courts just sort 498 00:29:29,000 --> 00:29:31,880 Speaker 4: of kept saying, no, you cannot do this. The company 499 00:29:32,200 --> 00:29:36,240 Speaker 4: went back to the group of plaintiffs again and came 500 00:29:36,320 --> 00:29:39,880 Speaker 4: up with another deal. This time it was to bring 501 00:29:39,920 --> 00:29:42,600 Speaker 4: a case in the Southern District of Texas, where the 502 00:29:42,680 --> 00:29:44,880 Speaker 4: law is a little bit different. So this was the 503 00:29:45,360 --> 00:29:50,040 Speaker 4: third case was one in the Houston Bankruptcy Court last ball. 504 00:29:50,760 --> 00:29:53,320 Speaker 2: This was different because J and J approached it in 505 00:29:53,360 --> 00:29:54,080 Speaker 2: a different way. 506 00:29:55,000 --> 00:29:58,880 Speaker 4: In this case, so Jane J's subsidiary, which you know 507 00:29:59,160 --> 00:30:04,320 Speaker 4: is very much controlled by the parent corporation, it reached 508 00:30:04,360 --> 00:30:08,840 Speaker 4: a deal and it conducted a vote sort of before 509 00:30:08,920 --> 00:30:12,200 Speaker 4: the bankruptcy started and said, you know, we have eighty 510 00:30:12,240 --> 00:30:14,840 Speaker 4: three percent I believe of the claimants in this case 511 00:30:15,600 --> 00:30:20,120 Speaker 4: support a plan that we've already negotiated and put together 512 00:30:21,000 --> 00:30:24,080 Speaker 4: neatly for the purpose of filing for bankruptcy, and at 513 00:30:24,080 --> 00:30:26,320 Speaker 4: that point sort of asking the court just sort of 514 00:30:26,360 --> 00:30:29,560 Speaker 4: blessed the work that it had already done outside of 515 00:30:29,600 --> 00:30:31,720 Speaker 4: the bankruptcy. 516 00:30:31,120 --> 00:30:33,600 Speaker 2: Forum and tell us what the judge decided. 517 00:30:34,320 --> 00:30:35,200 Speaker 1: There was a two. 518 00:30:35,040 --> 00:30:39,880 Speaker 4: Week trial this year where there are lots of attorneys 519 00:30:39,880 --> 00:30:43,520 Speaker 4: and experts on caalcul litigation who spoke at the end 520 00:30:43,520 --> 00:30:47,000 Speaker 4: of it all. The judge there said that there were 521 00:30:47,080 --> 00:30:51,880 Speaker 4: problems with some of the voting procedures where you had 522 00:30:51,960 --> 00:30:55,960 Speaker 4: a lot of plaints attorneys who used the power of 523 00:30:55,960 --> 00:30:59,200 Speaker 4: attorneys to vote on behalf of several thousand people, and 524 00:30:59,200 --> 00:31:02,320 Speaker 4: that judge said that that that does not pass muster 525 00:31:02,400 --> 00:31:06,800 Speaker 4: or under the bankruptcy Code. And he also found some 526 00:31:06,880 --> 00:31:11,120 Speaker 4: issues with some of the additional relief that Johnson and 527 00:31:11,200 --> 00:31:14,800 Speaker 4: Johnson wanted through this case, which was providing releases from 528 00:31:14,840 --> 00:31:22,000 Speaker 4: litigation for dozens and dozens of third parties, including retailers 529 00:31:22,000 --> 00:31:23,160 Speaker 4: that sold baby powder. 530 00:31:24,160 --> 00:31:28,000 Speaker 2: So the judge dismisses the bankruptcy and Jay and Jay 531 00:31:28,200 --> 00:31:31,600 Speaker 2: is not going to appeal. It is that surprising, I 532 00:31:31,600 --> 00:31:33,719 Speaker 2: think some people would say, as they were surprised that 533 00:31:34,240 --> 00:31:36,320 Speaker 2: the company was very quick. 534 00:31:36,080 --> 00:31:40,600 Speaker 4: To react to the judges ruling at at the very 535 00:31:40,680 --> 00:31:43,520 Speaker 4: very end of March. They immediately came out and said, 536 00:31:44,120 --> 00:31:46,440 Speaker 4: we are going to return to the civil tourts system. 537 00:31:46,480 --> 00:31:50,160 Speaker 4: We won't pursue this bankruptcy strategy anymore, and we're going 538 00:31:50,200 --> 00:31:53,560 Speaker 4: to go back to the courtroom where we were doing 539 00:31:53,600 --> 00:31:57,400 Speaker 4: a good job and winning cases sort of before we 540 00:31:57,480 --> 00:31:59,320 Speaker 4: even launched the strategy to begin with. 541 00:32:00,120 --> 00:32:02,800 Speaker 2: How many cases are there that the plaintiff's firms now 542 00:32:02,800 --> 00:32:07,800 Speaker 2: have to decide whether to go forward and litigate them? 543 00:32:08,760 --> 00:32:08,960 Speaker 1: Right? 544 00:32:09,040 --> 00:32:13,160 Speaker 4: So what I found interesting was that you know, these 545 00:32:13,240 --> 00:32:17,800 Speaker 4: bankruptcies either and this third one in particular, when it started, 546 00:32:18,080 --> 00:32:21,880 Speaker 4: it put on pause about sixty thousand lawsuits. But when 547 00:32:21,920 --> 00:32:25,400 Speaker 4: it's all said and done, there were ninety three thousand 548 00:32:25,560 --> 00:32:30,760 Speaker 4: I believe bankruptcy claims so port litigation claims against the company. 549 00:32:30,800 --> 00:32:33,920 Speaker 4: So that means that there were another thirty thousand or 550 00:32:33,960 --> 00:32:36,960 Speaker 4: so people that said, you know, I have what would 551 00:32:37,000 --> 00:32:39,920 Speaker 4: be a viable lawsuit against the company. But I just 552 00:32:39,920 --> 00:32:42,240 Speaker 4: haven't filed it yet, but I can assert this claim 553 00:32:42,240 --> 00:32:45,120 Speaker 4: to bankruptcy. So when the bankruptcy is thrown out, you 554 00:32:45,200 --> 00:32:48,800 Speaker 4: then have this these thirty three thousand or so people 555 00:32:49,960 --> 00:32:52,440 Speaker 4: that now must make a choice. You know, do I 556 00:32:52,520 --> 00:32:54,400 Speaker 4: really have a lawsuit that I want to file and 557 00:32:55,640 --> 00:32:59,000 Speaker 4: litigate and pursue and potentially you know, go to trial, 558 00:32:59,400 --> 00:33:05,440 Speaker 4: or or just sort of let it go. In this case, 559 00:33:06,080 --> 00:33:12,120 Speaker 4: many of those claims are held or were represented by 560 00:33:12,240 --> 00:33:15,880 Speaker 4: just a couple of large plaintiffs firms that sort of 561 00:33:15,920 --> 00:33:20,760 Speaker 4: saw an opportunity to settle on mass in a bankruptcy 562 00:33:20,840 --> 00:33:24,000 Speaker 4: setting as opposed to litigating cases or trying to reach 563 00:33:24,040 --> 00:33:27,000 Speaker 4: some sort of settlement outside of the bankruptcy forum. 564 00:33:27,400 --> 00:33:30,560 Speaker 2: I assume most plaintiffs would want to go forward. Isn't 565 00:33:30,600 --> 00:33:32,600 Speaker 2: this on a contingency fee basis? 566 00:33:33,080 --> 00:33:35,560 Speaker 4: I think that it comes down to sort of what 567 00:33:35,760 --> 00:33:40,040 Speaker 4: the retainer agreement say for each law firm and then 568 00:33:40,080 --> 00:33:43,080 Speaker 4: their clients. In this case, I know that there was 569 00:33:43,160 --> 00:33:46,960 Speaker 4: some discussion during the trial over whether or not you know, 570 00:33:46,960 --> 00:33:50,800 Speaker 4: at least one of the firms was only representing clients 571 00:33:50,840 --> 00:33:55,160 Speaker 4: for the purpose of the bankruptcy case. But undoubtedly there 572 00:33:55,200 --> 00:33:59,640 Speaker 4: are several thousand of these claimants that indeed do want 573 00:33:59,680 --> 00:34:02,600 Speaker 4: to suicivil lawsuit, and yes, they are all on a 574 00:34:02,640 --> 00:34:04,520 Speaker 4: contingency basis with these. 575 00:34:04,360 --> 00:34:08,480 Speaker 2: Firms and tell us about the costs of bringing these 576 00:34:08,520 --> 00:34:09,839 Speaker 2: cases for the attorneys. 577 00:34:10,280 --> 00:34:13,640 Speaker 4: So you know, if you're just filing one individual suit, 578 00:34:15,239 --> 00:34:16,880 Speaker 4: it might not seem like all that much. You know, 579 00:34:16,880 --> 00:34:20,120 Speaker 4: a few hundred dollars for filing fees, maybe up to 580 00:34:20,160 --> 00:34:24,319 Speaker 4: one thousand dollars to get all the medical records, you know, 581 00:34:24,440 --> 00:34:28,799 Speaker 4: plus you know, just obviously standards, labor and expenses that 582 00:34:28,880 --> 00:34:32,719 Speaker 4: go with getting a case on file and sort of 583 00:34:32,719 --> 00:34:35,440 Speaker 4: getting getting it in motion to begin with. When you're 584 00:34:35,440 --> 00:34:37,520 Speaker 4: talking about just one case, but it doesn't seem like 585 00:34:37,560 --> 00:34:40,120 Speaker 4: all that much. But when you're talking about thousands of 586 00:34:40,160 --> 00:34:43,360 Speaker 4: cases that these plaintiffs firms didn't prepare to have to 587 00:34:43,440 --> 00:34:47,080 Speaker 4: file in a civil court, that adds up to potentially 588 00:34:47,080 --> 00:34:48,200 Speaker 4: millions of dollars. 589 00:34:48,640 --> 00:34:50,480 Speaker 2: Did the judge find any bad faith? 590 00:34:51,320 --> 00:34:57,120 Speaker 4: The judge did not find that these plaintiffs firms either 591 00:34:57,320 --> 00:35:01,719 Speaker 4: filed claims or pursued on their clients behal in bad faith. 592 00:35:01,960 --> 00:35:04,680 Speaker 4: He just said that they just went about the voting 593 00:35:04,719 --> 00:35:06,000 Speaker 4: process incorrectly. 594 00:35:06,920 --> 00:35:09,759 Speaker 2: So some of these plaintiff's firms. Perhaps all of them 595 00:35:10,200 --> 00:35:15,680 Speaker 2: had to get money from litigation financers to go forward 596 00:35:15,680 --> 00:35:16,520 Speaker 2: with these cases. 597 00:35:17,440 --> 00:35:22,120 Speaker 4: In this case, I don't know exactly how much each 598 00:35:22,160 --> 00:35:27,279 Speaker 4: of these firms involved has borrowed. It would be it 599 00:35:27,280 --> 00:35:31,400 Speaker 4: would stretch the imagination to think that, you know, for instance, 600 00:35:31,640 --> 00:35:34,400 Speaker 4: of one of the lawyers testified that he spent sixty 601 00:35:34,440 --> 00:35:39,680 Speaker 4: eight million dollars marketing the law firm to acquire claimants 602 00:35:39,680 --> 00:35:42,759 Speaker 4: with the purpose of bringing them through bankruptcy. It would 603 00:35:42,760 --> 00:35:45,960 Speaker 4: stretch the imagination that he hasn't borrowed that money to 604 00:35:45,960 --> 00:35:48,040 Speaker 4: begin with, that he could just pay that out of pocket. 605 00:35:48,400 --> 00:35:54,200 Speaker 4: But undoubtedly there are loans that these firms do have 606 00:35:54,239 --> 00:35:57,280 Speaker 4: to pay back which are based on their docative cases 607 00:35:58,520 --> 00:36:00,760 Speaker 4: that they have in in house. 608 00:36:01,280 --> 00:36:04,440 Speaker 2: Some of these were financed, the loans were structured in 609 00:36:04,480 --> 00:36:06,280 Speaker 2: different ways than normally. 610 00:36:07,080 --> 00:36:07,319 Speaker 1: Yeah. 611 00:36:07,400 --> 00:36:11,960 Speaker 4: So so typically, you know, litigation funders that this industry 612 00:36:11,960 --> 00:36:15,680 Speaker 4: that's existed now for you know, some two decades or 613 00:36:15,680 --> 00:36:20,920 Speaker 4: so in the US. UH, they typically have had invested 614 00:36:21,200 --> 00:36:25,840 Speaker 4: money into pursuing commercial cases. You know, maybe maybe you 615 00:36:25,880 --> 00:36:28,879 Speaker 4: know some one large you know, det the company's sort 616 00:36:28,880 --> 00:36:33,040 Speaker 4: of case and only in I believe, you know, the 617 00:36:33,120 --> 00:36:38,560 Speaker 4: last decade or so, uh, did these same investment firms, 618 00:36:38,600 --> 00:36:44,440 Speaker 4: these these litigation funders start looking towards mass torts plaintiff 619 00:36:44,480 --> 00:36:48,319 Speaker 4: sparts for these uh, for these investments as well. And 620 00:36:48,920 --> 00:36:52,200 Speaker 4: it's structured a little bit differently because instead of investing 621 00:36:52,239 --> 00:36:56,319 Speaker 4: in just sort of one single uh civil case, it 622 00:36:56,360 --> 00:37:02,960 Speaker 4: would be a whole dock of cases related to a litigation. 623 00:37:03,120 --> 00:37:06,879 Speaker 4: So you know, it would be like one loan that's 624 00:37:06,920 --> 00:37:11,000 Speaker 4: based upon thousands and thousands of cases. 625 00:37:11,640 --> 00:37:14,239 Speaker 2: Is it possible that some of these firms go out 626 00:37:14,239 --> 00:37:15,440 Speaker 2: of business because of this? 627 00:37:15,640 --> 00:37:15,840 Speaker 4: Or no? 628 00:37:16,480 --> 00:37:17,600 Speaker 2: Might taking it too far? 629 00:37:18,680 --> 00:37:23,200 Speaker 4: That is a good question. I I you know, I truthfully, 630 00:37:23,200 --> 00:37:29,520 Speaker 4: I don't know the answer to that question. I I 631 00:37:29,520 --> 00:37:33,600 Speaker 4: imagine that many of them look towards other funders to 632 00:37:34,080 --> 00:37:38,640 Speaker 4: sort of help them out and refinance. But yeah, you're 633 00:37:38,719 --> 00:37:41,280 Speaker 4: you are getting into the inner workings of an industry 634 00:37:41,280 --> 00:37:44,239 Speaker 4: that is still sort of figuring out sort of just 635 00:37:44,760 --> 00:37:46,120 Speaker 4: how all of this works. 636 00:37:46,560 --> 00:37:50,440 Speaker 2: Okay, this JAY and J case, is it unique as 637 00:37:50,480 --> 00:37:52,080 Speaker 2: far as bankruptcy cases go? 638 00:37:52,760 --> 00:37:56,320 Speaker 4: I think that it is very unique. And the route 639 00:37:56,320 --> 00:37:59,560 Speaker 4: that it's taken, you know, through the civil court and 640 00:37:59,600 --> 00:38:05,640 Speaker 4: then so taking this bite at the apple three times 641 00:38:05,719 --> 00:38:07,160 Speaker 4: in the bankruptcy court. 642 00:38:07,239 --> 00:38:08,120 Speaker 1: That that is. 643 00:38:09,760 --> 00:38:15,040 Speaker 4: That is a very unique pattern. However, it is not 644 00:38:15,320 --> 00:38:22,799 Speaker 4: the first large company I will say, actually, it's not 645 00:38:22,840 --> 00:38:27,799 Speaker 4: the first parent of large parents of a company to 646 00:38:27,920 --> 00:38:30,800 Speaker 4: have its subsidiary thrown out of the bankruptcy while facing 647 00:38:31,239 --> 00:38:35,920 Speaker 4: mass tot litigation. The same thing happened to a a 648 00:38:36,080 --> 00:38:42,440 Speaker 4: unit of three M that manufactured combat ear plug and 649 00:38:42,640 --> 00:38:46,080 Speaker 4: in that case, when the I believe it was a 650 00:38:46,160 --> 00:38:49,839 Speaker 4: court of bankrupcy court in Indiana through its case out, uh, 651 00:38:50,360 --> 00:38:53,640 Speaker 4: it then reads a large settlement with the same group 652 00:38:53,680 --> 00:38:56,000 Speaker 4: of claimants in a civil court. 653 00:38:56,560 --> 00:38:59,399 Speaker 2: Thanks so much Alex for joining me. That's Bloomberg Blog 654 00:38:59,440 --> 00:39:02,640 Speaker 2: correspond Alex Wolf and that's it for this edition of 655 00:39:02,640 --> 00:39:05,279 Speaker 2: The Bloomberg Law Show. Remember you can always get the 656 00:39:05,360 --> 00:39:08,600 Speaker 2: latest legal news on our Bloomberg Law podcasts. You can 657 00:39:08,600 --> 00:39:12,839 Speaker 2: find them on Apple Podcasts, Spotify, and at www dot 658 00:39:12,880 --> 00:39:17,040 Speaker 2: Bloomberg dot com, slash podcast Slash Law, And remember to 659 00:39:17,080 --> 00:39:20,160 Speaker 2: tune into The Bloomberg Law Show every weeknight at ten 660 00:39:20,200 --> 00:39:23,960 Speaker 2: pm Wall Street Time. I'm June Grosso and you're listening 661 00:39:24,080 --> 00:39:24,719 Speaker 2: to Bloomberg