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Speaker 1: This is Bloomberg Law, with June Grossel from Bloomberg Radio.

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Speaker 2: During oral arguments this week, the Supreme Court justices struggle

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Speaker 2: with the question of whether a geofence warrant that compelled

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Speaker 2: Google to share location data from cell phones New York

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Speaker 2: crime scene is an unlawful search that violates the Fourth Amendment.

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Speaker 2: Justice has ran through hypotheticals trying to compare the process

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Speaker 2: to a traditional physical search of a hotel or storage locker. Some,

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Speaker 2: like Chief Justice John Roberts, expressed concerns about the surveillance

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Speaker 2: of locations like churches or political rallies.

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Speaker 3: One of the central concerns that's been voiced, of course,

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Speaker 3: is what's to prevent the government from using this to

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Speaker 3: find out the identities of everybody at a particular church,

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Speaker 3: a particular political organization. What are the restraints that would

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Speaker 3: prevent that from becoming a problem.

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Speaker 2: Others were concerned that the government's position on publicly visible

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Speaker 2: movements would extend to private residences. Here's Justice Amy Coney Barrett.

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Speaker 4: Now you're telling Justice Kagan really that if you go

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Speaker 4: into a private home, it wouldn't be a search. I mean,

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Speaker 4: if you trace location services, I mean I understand in

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Speaker 4: this case, and is that true that in this case

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Speaker 4: you're saying you didn't pick him up in any home.

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Speaker 3: Well, your honor, he eventually stopped at the end of

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Speaker 3: his journey away from the bank at a group of homes.

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Speaker 5: But there's testimonies his page one.

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Speaker 4: Twent not inside the home.

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Speaker 5: We couldn't tell which home he was even in.

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Speaker 4: Okay, but you really are saying that you could track

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Speaker 4: someone going inside a home. Justice Soda Mayor asked mister

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Speaker 4: Yunikowski about movements inside of home, movements to the bathroom,

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Speaker 4: movements to the bedroom, all of that.

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Speaker 2: My guest his former federal prosecutor, George Newhouse of Richard's Carrington. George,

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Speaker 2: will you explain what geofence warrant is and how police

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Speaker 2: use them.

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Speaker 1: Geofans warrants are the latest technology innovation that's raising some

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Speaker 1: very interesting Fourth Amendment issues. So essentially, Google, which is

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Speaker 1: everywhere ubiquitous, collects and a massive amount of data location

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Speaker 1: data from you and me and people with phones who

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Speaker 1: walk around. And they have to agree to allow this,

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Speaker 1: by the way, so you can turn your location services off,

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Speaker 1: but most people don't, and Google collects information about millions

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Speaker 1: of its customers. But what's amazing about the geofence is

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Speaker 1: it's able to sort through this massive amount of data

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Speaker 1: and here are all the people that were within one

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Speaker 1: hundred and fifty yards at a particular time and date.

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Speaker 1: So it's very useful and was used in this case

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Speaker 1: to identify the suspect. So it's like a search warrant

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Speaker 1: in reverse. Normally, they know who the suspect is and

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Speaker 1: they want to search for physical evidence. In this case,

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Speaker 1: the geofence warrants allow law enforcement to locate the suspect

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Speaker 1: they otherwise don't know. It's ingenius and of course in

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Speaker 1: very novel technology.

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Speaker 2: In this case is about a bank robber who actually

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Speaker 2: eluded police until they turned to the geofence warrant.

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Speaker 1: Correct His name is Shatri. He robbed a Virginia bank.

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Speaker 1: Probably walked in with a demand note and no one

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Speaker 1: knew who he was, and he walked out by the

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Speaker 1: way with one hundred thousand dollars in cash. So it

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Speaker 1: was a very successful bank robber. He got away. He

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Speaker 1: was on surveillance video, but otherwise no one knew who

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Speaker 1: he was. The police didn't know he was, but they

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Speaker 1: saw something interesting on the surveillance they saw him talking

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Speaker 1: on his phone, so they knew he had a cell phone,

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Speaker 1: and of course most of us, wherever you go, your

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Speaker 1: cell phone is with you. And oh, by the way,

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Speaker 1: that means that your cell phone is pinging towers and

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Speaker 1: Google and telling people what your location is. So knowing

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Speaker 1: that he had a phone, they prepared the search Worm,

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Speaker 1: which is literally a judicially signed document that required Google

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Speaker 1: to search through all this data and produce They did

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Speaker 1: actually a three products. Was the first one was animized,

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Speaker 1: meaning they didn't identify who the customers were, but they

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Speaker 1: identified how many and location, and then they did several

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Speaker 1: different tiers until they got to the third tier with

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Speaker 1: more information, and then Google was able to give them

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Speaker 1: the names and phone numbers of three suspects, one of

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Speaker 1: whom was Shatrey, and that led to a real search

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Speaker 1: warrant for his house where guess what, they found one

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Speaker 1: hundred thousand dollars in cash, easily incriminating him.

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Speaker 2: So, now what's the question before the Supreme Court?

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Speaker 1: So typically in these cases, the first question is was

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Speaker 1: the application to Google? It's a warrant? But was that

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Speaker 1: a search under the Fourth Amendment? Because typically if it's

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Speaker 1: a search, it has to pass the reasonableness question. And

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Speaker 1: of course, one of the things that Justice has talked

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Speaker 1: about in the argument was, you know, normally, if you

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Speaker 1: have a warrant, you're in good shape. A lot of

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Speaker 1: these test cases where they're acting without a warrant. Here

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Speaker 1: they had a warrant, and the question was did the

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Speaker 1: warrant then have probable cause sufficient to allow the judge

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Speaker 1: to sign the magistrate to sign the warrant. And of

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Speaker 1: course they didn't have probable casts as to any specific individual.

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Speaker 1: That's the twist in this case. So they weren't looking

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Speaker 1: for evidence. They were looking to see who did it

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Speaker 1: the identification, and that's novel.

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Speaker 2: There was a lot of concern about the broadness of

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Speaker 2: the Trump administration's position here, and you had justices like

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Speaker 2: the Chief Justice saying, what's to prevent the government from

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Speaker 2: using this to find out the identities of everybody at

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Speaker 2: a particular church, a particular political organization. Justice Amy Cony

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Speaker 2: Barrett said, so you could track someone going inside a home,

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Speaker 2: movements to the bathroom, movements to the bedroom, all of that.

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Speaker 1: Well, first of all, I think they're overstating the preciseness

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Speaker 1: of the technology. It's not that precise. Really, it's a geocircle.

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Speaker 1: It's one hundred yards. They don't necessarily know where you're

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Speaker 1: going or what you're doing, but they can see where

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Speaker 1: you are. And yes, those concerns were raised. I think

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Speaker 1: the response of that is, well, first of all, it

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Speaker 1: can't be used for general surveillance. You have to be

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Speaker 1: investigating a criminal action, bank robbery, or national security ors.

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Speaker 1: You know, they were worried about identifying murderers and other

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Speaker 1: people who committed crimes. So I don't think it be

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Speaker 1: used that far. But the concern is that some of

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Speaker 1: the people talking about this said, this case is unique

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Speaker 1: because the principle of government seems to be search first

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Speaker 1: and develop suspicion or evidence later, and normally it's the

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Speaker 1: other way around. They get the evidence first and then

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Speaker 1: they use that to further identify the individuals responsible. So

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Speaker 1: I think that's probably less of a concern. But the

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Speaker 1: breadth of this particular tool in the hands of law

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Speaker 1: enforcement is staggering.

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Speaker 2: And any other concerns that you heard from the justices.

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Speaker 1: Well, again they're always concerned now when they deal with

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Speaker 1: these cases. Because the way technology develops so fast, it

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Speaker 1: quickly outstrips prior cases. I mean, the last time we

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Speaker 1: had a significant Fourth Amendment search of this nature, it

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Speaker 1: would be Carpenter at the California case where the police

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Speaker 1: seized and then searched a cell phone incident to arrest.

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Speaker 1: And of course the courts are concerned about protecting the

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Speaker 1: privacy of individuals. The argument that the government made in

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Speaker 1: this case, which I think is a pretty strong argument, is,

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Speaker 1: in a sense, everyone who carries a cell phone, they

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Speaker 1: may not know that Google is doing this, but they've

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Speaker 1: consented to location services, so at that point they have it,

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Speaker 1: and they phrases a diminished expectation of privacy, and that's

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Speaker 1: usually where it turns.

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Speaker 5: Cat.

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Speaker 2: Do you think they'll come out well.

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Speaker 1: I mean I listened to the argument, which was interesting.

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Speaker 1: I didn't see the argument as quite as divided as

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Speaker 1: some of the commentators have. I think quite clearly the

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Speaker 1: action will be affirmed. What they're probably likely to do

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Speaker 1: is write an opinion that will seek to put some

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Speaker 1: guardrails up, put some parameters. Here's what the police have

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Speaker 1: to do. Things that they can't do would be including,

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Speaker 1: you know, start following people around. And there are lots

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Speaker 1: of uses that they could conceivably be concerned about that

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Speaker 1: by writing a narrow opinion affirming the conviction and the

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Speaker 1: use of the geofense in this case, the court may

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Speaker 1: be trying to put up boundaries, as they did in

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Speaker 1: the Miranda decision and in other decisions in the past.

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Speaker 2: It seems when privacy is at stake, it's something that

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Speaker 2: concerns them personally, and the oral arguments are a lot livelier,

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Speaker 2: with more energy.

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Speaker 1: Energy, and good humor. At one point, Barrett commented that

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Speaker 1: she was aware that when she walked into Nordstroms or

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Speaker 1: one of these stores where she was shopping, that the

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Speaker 1: store seemed to know she was there. And this is true.

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Speaker 1: This is what Google does with his data. It sells

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Speaker 1: the data and then you immediately get text messages asking

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Speaker 1: if you are interested in a special on XYZ. So

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Speaker 1: you say, oh my gosh, my phone knows exactly where

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Speaker 1: I am and what I'm doing. And the justices all

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Speaker 1: seem to enjoy that. But so the point is when

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Speaker 1: the justices can relate to the use of the technology

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Speaker 1: in their own personal lives, then they stand up and

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Speaker 1: they take attention, and they tend to be very careful

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Speaker 1: in the opinion because it affects them as well as

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Speaker 1: everyone else.

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Speaker 2: It's a learning experience sometimes for us and for them.

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Speaker 1: Correct anyway, a fascinating case and it'll be interesting to

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Speaker 1: see where it comes out. But it's clear to me

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Speaker 1: and a few others that although they were interested in

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Speaker 1: a lot of the variations and the particular concerns were expressed,

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Speaker 1: that seems to be a clear majority of the court,

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Speaker 1: the justices who are supporting law enforcement. I want to

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Speaker 1: make sure that the tools of the law enforcement trade

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Speaker 1: are enabled.

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Speaker 2: And do you think that it could hamper police in

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Speaker 2: their investigations if they have to comply with certain requirements

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Speaker 2: that were referred to.

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Speaker 1: Well, again, it's hard to say yes if the court

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Speaker 1: said you cannot obtain a search one unless you have

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Speaker 1: more specific information about the individual. And there was also

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Speaker 1: some disconcern about what we call the lack of particularity

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Speaker 1: very general warrant. In fact, there was discussion about comparing

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Speaker 1: it to the general warrants that were issued by the

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Speaker 1: British authorities and the revolution that led to the Fourth Amendment.

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Speaker 1: But I think they will add enough to make sure

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Speaker 1: that this is a tool. It's going to be very useful.

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Speaker 1: But of course the other problem is it will also

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Speaker 1: continue to develop as technology develops. We are entering an

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Speaker 1: age of surveillance. I hate to say this, and that's

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Speaker 1: the one thing that everyone should be concerned about.

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Speaker 2: That certainly seemed to cut across the ideological divide. Thanks

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Speaker 2: so much for your insights, George. That's form our federal prosecutor,

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Speaker 2: George Newhouse of Richard's Carrington. President Trump's past remarks disparaging

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Speaker 2: Haiti became part of the oral arguments in two cases

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Speaker 2: before the Supreme Court this week that tests the Department

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Speaker 2: of Homeland Securities power to end temporary protections for migrants

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Speaker 2: from crisis ridden countries like Haiti in Syria. Just as

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Speaker 2: Sonya Soto, Mayors said that trump Comes past comments about

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Speaker 2: Haiti seemed to show that an improper discriminatory purpose may

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Speaker 2: have played a part in the decision to cut off

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Speaker 2: temporary protected status.

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Speaker 6: That Haiti is a quote filthy, dirty and disgusting s

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Speaker 6: whole country. I'm quoting him, and where he complained that

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Speaker 6: the United States takes people from such countries instead of

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Speaker 6: people from Norway, Sweden or Denmark, where he declared illegal.

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Speaker 6: Where he declared illegal immigrants which he associated with TPS

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Speaker 6: as poisoning the blood of America.

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Speaker 2: The administration told the court that those past remarks by

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Speaker 2: the president were not racist and shouldn't get in the

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Speaker 2: way of the government stripping away temporary protections from migrants.

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Speaker 2: But the overarching question was whether judges have authority to

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Speaker 2: even review the DHS secretary's decision. Some of the conservative justices,

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Speaker 2: like Clarence Thomas, question that.

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Speaker 7: Would you be kind enough to say what else is

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Speaker 7: reviewable under despite the jurisdiction stripping provision, because it seems

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Speaker 7: pretty broad. It says there's no judicial review of any

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Speaker 7: determination of the Attorney General.

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Speaker 2: My guest is immigration law expert Leon Fresco, a partner

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Speaker 2: at Hollanden Knight. Leons start by giving us the background

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Speaker 2: of these cases.

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Speaker 5: In September and in June of twenty twenty five, the

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Speaker 5: DHS Secretary at the time, Christinom terminated temporary protected status

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Speaker 5: designations for Siri and Haiti. What that means is the

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Speaker 5: president has the ability to at any time say that

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Speaker 5: the conditions in a country are so unacceptable that it

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Speaker 5: would not be a good idea to deport people to

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Speaker 5: those countries, and then that triggers an eighteen month period

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Speaker 5: called tenporary protected status, So that had been done under

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Speaker 5: the Biden administration for Syria and Haiti, and the Trump

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Speaker 5: administration lifted these designations for Syria and Haiti because they

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Speaker 5: said that there was no more need for this and

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Speaker 5: they said it was in the national interests of the

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Speaker 5: United States to not have TPS, which was a subsequent

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Speaker 5: argument in this case that what does that have to

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Speaker 5: do with anything here? This is sort of a larger

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Speaker 5: issue of what are the conditions in those countries. But nevertheless,

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Speaker 5: the immigration advocates found plaintiffs who were Syrian and Haitian

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Speaker 5: to sue the Department of Homeland Security over their TPS

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Speaker 5: revocation termination, and those cases work their way up the

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Speaker 5: district court and the appellate court, and they're now before

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Speaker 5: the Supreme Court on the issue of whether those designations

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Speaker 5: are reviewable, and if they are reviewable, what can be reviewed.

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Speaker 2: So several of the conservative justice has sort of harped

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Speaker 2: on the fact that the nineteen ninety law that created

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Speaker 2: TPS says there's no judicial review of the secretary's determination.

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Speaker 5: Correct, And there's a lot of case law on this

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Speaker 5: issue of judicial review, and the big one is mcnaery

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Speaker 5: that's a big case that had to deal with other

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Speaker 5: parts of the Immigration Code where they say there's no

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Speaker 5: judicial review. And the issue that comes into play is

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Speaker 5: does that mean everything is not subject to judicial review

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Speaker 5: or the final decision isn't subject to judicial review? And

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Speaker 5: this is where there was a lot of debate and

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Speaker 5: discussion there because the idea was, well, fine, if you

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Speaker 5: really did a good job analyzing the issue, you contacted

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Speaker 5: the State Department, you've had your experts on the ground

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Speaker 5: tell you that Haiti was fine and that Syria was fine, well,

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Speaker 5: then that wouldn't be something subject to review. But what

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Speaker 5: if everybody had found out Let's say they had put

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Speaker 5: it on YouTube as an example, where you blindfold the

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Speaker 5: secretary and you say throw a dart and wherever the

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Speaker 5: dark lands, that's what we're gonna do with TPS. We're

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Speaker 5: either gonna do yes or no. Could you review that?

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Speaker 5: Would you have any remedy if that's how they made

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Speaker 5: the decision on TPS. And it looked like there was

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Speaker 5: three justices who said even that would not be reviewable,

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Speaker 5: but there seemed to be about five justices who thought,

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Speaker 5: wait a second, and really something like that happened where

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Speaker 5: you just made a mockery of the review process on

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Speaker 5: whether to terminate or whether to renew TPS. Then that

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Speaker 5: might be something we would need to look at, because

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Speaker 5: how could you just allow a situation like that to

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Speaker 5: stand leon and.

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Speaker 2: The liberal justices brought this up. Then Homeland Security Secretary

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Speaker 2: Christy Nome, did she take any of the required steps

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Speaker 2: in canceling the GPS protections.

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Speaker 5: That's the concern that they have is they say that

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Speaker 5: at the end of the day, she really didn't review

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Speaker 5: the country conditions that were necessary. She really didn't have

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Speaker 5: the consultations that were necessary in order to make the

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Speaker 5: determinations that it actually was safe to deport people to

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Speaker 5: Syria and Tahiti. They said, this was just a very

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Speaker 5: brief email to the State Department and then boilerplate responses

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Speaker 5: saying there were no foreign policy concerns. And so they're saying, look,

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Speaker 5: we're not saying you have to have a massive trial here,

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Speaker 5: but if that's all you do, and then by the way,

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Speaker 5: you discuss in your revocation, notice that it's just in

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Speaker 5: the national interest to revoke this. You know that the

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Speaker 5: American people not be subjected to immigration from these countries.

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Speaker 5: That's not really what matters in these determinations. What the

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Speaker 5: statute says matters are the conditions on the ground and

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Speaker 5: whether it has become safe to port those individuals to

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Speaker 5: those countries based on the conditions on the ground.

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Speaker 2: And lawyers for the immigrants pointed to State Department advisories

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Speaker 2: that warn US citizens not to travel to either country

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Speaker 2: because of risks of terrorism, kidnapping, and armed conflict. Can

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Speaker 2: you lay out where you think the justices stand.

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Speaker 5: It looks to me like there will be five votes

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Speaker 5: Jackson Kagan Soto mayor. But also it looks like Justice

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Speaker 5: Barrett and Justice Roberts that are signaling concerned with this

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Speaker 5: idea that there might have been some administrative pretext and

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Speaker 5: procedural irregularity there, and that what would happen is you

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Speaker 5: would not have a categorical rule that says, under no

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Speaker 5: circumstances is anything reviewable. But what it would say is

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Speaker 5: you can have review as to whether the procedures that

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Speaker 5: the Congress requested were followed, and if they were, whatever

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Speaker 5: the outcome is that can't be reviewed because at the

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Speaker 5: end of the day, you need to have some ability

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Speaker 5: there to say, hey, there's deference given to these determinations

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Speaker 5: This is not the province of judges to say whether

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Speaker 5: Haiti is too dangerous or whether serious to dangerous. How

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Speaker 5: do the judges know that? But you have to follow

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Speaker 5: the procedures. You can't throw a dart on a dark

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Speaker 5: board and figure this out. And it looked like there

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Speaker 5: were three Justices Thomas, Alito and possibly gorzag who seemed

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Speaker 5: to be concerned that this TPS question. It isn't just

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Speaker 5: about deference to President Trump, but it's also about the

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Speaker 5: fact that there's foreign policy questions here about what we

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Speaker 5: say about foreign countries, and the vast majority of time

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Speaker 5: when you say that something implicates foreign policy, that then

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Speaker 5: becomes what is known as a political question, which means

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Speaker 5: it's not something the courts will elect to review. They'll say, look,

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Speaker 5: that's fully in the province of the president, and we

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Speaker 5: don't get involved in that. I don't know where just

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Speaker 5: this Kavanaugh will go seem very uncertain based on the argument,

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Speaker 5: but I think there's at least five votes to say

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Speaker 5: you can have review as to whether the procedure was followed,

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Speaker 5: but that judicial review of whether the right decision was made.

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Speaker 2: So last week the Supreme Court considered how much discretion

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Speaker 2: immigration officers should have at the border tell us what

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Speaker 2: the question is here and whether this comes up often

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Speaker 2: or not.

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Speaker 5: So this is a complicated issue. So I'll give you

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Speaker 5: this example. So a lot of times people they get

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Speaker 5: what's called the green card, which means that they're lawful

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Speaker 5: permanent residents of the United States. And so when they

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Speaker 5: get that, they're finally relieved that they're not going to

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Speaker 5: have to sweat it out every time they travel and

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Speaker 5: come back into the United States, because the idea is

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Speaker 5: they should be allowed to live in the United States

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Speaker 5: and the story. But there are some occasions where that's

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Speaker 5: not true, where you can actually be scrutinized you try

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Speaker 5: to come back in the country. One of the main

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Speaker 5: ones is the question of whether you abandoned your lawful

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Speaker 5: permanent residency. And this comes up all the time. People

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Speaker 5: will will live outside of the US for way too

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Speaker 5: long and they'll try to come back in, and the

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Speaker 5: customs of Border Protection will say are you really living here?

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Speaker 5: That happens a lot, that would probably happen thousands of

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Speaker 5: times a year. But another one will be and that's

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Speaker 5: the one that happened in this case, was did you

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Speaker 5: commit a criminal act when you were in the United

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Speaker 5: States or outside of the United States that we were

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Speaker 5: not aware of previously, but now we're aware of it.

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Speaker 5: And because you've committed that criminal act, now you are

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Speaker 5: subject to deportation. And so in this case, that's what happened.

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Speaker 5: They said that this person, mister Loo, had a pending

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Speaker 5: criminal charge. So what they said was, look, we know

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Speaker 5: that it would be bad, simply unfair to just you know,

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Speaker 5: you've boarded a plane with a green card, you haven't

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Speaker 5: been ordered deported, you haven't even been convicted of a crime.

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Speaker 5: You just have a pending criminal charge. So we know

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Speaker 5: it would be totally unlawful and unreasonable to not let

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Speaker 5: you in the country. So but what they did was

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Speaker 5: they kind of tried to do this weird middle ground

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Speaker 5: thing where they said, well, here's what we're going to do.

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Speaker 5: We're not going to admit you into the country as

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Speaker 5: a lawful permanent resident. We're going to admit you into

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Speaker 5: the country as a parole ee. And what a parole is,

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Speaker 5: it's illegal fiction. It's just saying we will let your

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Speaker 5: body into the US so that your body can be here.

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Speaker 5: But when you're a parole ee, your legal body, not

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Speaker 5: your actual body. Your actual bodies in the US, your

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Speaker 5: legal body is still outside the US. And what that

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Speaker 5: means is the government could at any time revoke that

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Speaker 5: parole and deport you. And so that's what actually happens

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Speaker 5: here is had they admit him as a lawful permanent resident,

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Speaker 5: they would have subsequently had no basis to deport him.

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Speaker 5: But because they admitted him as a parole ee, what

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Speaker 5: they subsequently did was say, ha, well, we admitted you

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Speaker 5: as a parole now we're going to revoke your parole.

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Speaker 5: And so this Supreme Court case really came down to

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Speaker 5: the issue of whether the CBPS allowed to do that

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Speaker 5: or whether they have to admit anyone who enters with

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Speaker 5: a Green card as a green card holder. So that's

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Speaker 5: the first question, but sort of the deeper question, which

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Speaker 5: was really at the heart of this, and this is

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Speaker 5: why this case is so interesting, is and I teach

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Speaker 5: this talk because I teach immigration law at GW Law School.

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Speaker 5: I teach in my very first class that for the

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Speaker 5: longest time, the immigration law was based on good faith,

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Speaker 5: meaning good faith of the applicant and good faith of

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Speaker 5: the government. And if you stop basing immigration law on

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Speaker 5: good faith, the whole system collapses. Well, here this was

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Speaker 5: testing that concept because what the plaintiffs and the side

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Speaker 5: for the foreign nationals we're saying was you can't trust

400
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Speaker 5: the government to act in a good faith manner here.

401
00:23:11,960 --> 00:23:14,320
Speaker 5: Look at what they did here, So from now on

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Speaker 5: that can't happen. And what the conservatives and the enforcement

403
00:23:17,840 --> 00:23:20,280
Speaker 5: but we're saying is, do you really think that our

404
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Speaker 5: government is just going to psychotically not let Green card

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Speaker 5: holders in just so that they could deport them later.

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Speaker 5: But the point is, if the Supreme Court doesn't act

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Speaker 5: to prevent this, they will have that authority to do

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Speaker 5: that to Green card holders, which is to say, for

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Speaker 5: any reason, we're not going to let you in with

410
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Speaker 5: your green card. We know we can't ban you, so

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Speaker 5: we'll parole you in and if for any reason we

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Speaker 5: want to provoke your parole later, we can do it.

413
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Speaker 5: Even though there was no actual reason to deport you.

414
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Speaker 5: They can just buy the legal fiction of you re

415
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Speaker 5: entering the country just decide to do this to you.

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Speaker 5: So that's the question, and the court really struggling with

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Speaker 5: this issue. There was a lot of skepticism at the

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Speaker 5: issue that there would be no standard at the border

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Speaker 5: by which the government could be prevented from saying that

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Speaker 5: you're not a lawful permanent resident. This really troubled people,

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Speaker 5: But they also don't want a MENI trial at the

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Speaker 5: airport about whether you should be admitted or not. So

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Speaker 5: this is very hard to figure out where this is

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Speaker 5: going to go. But I do think there's going to

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Speaker 5: be some constraints as to what the CBP, the Customs

426
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Speaker 5: of Border Protection could do in terms of trying to

427
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Speaker 5: figure out when they can refuse to allow you to

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Speaker 5: enter as a lawful permanent resident if you present a

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Speaker 5: lawful permanent resident card and one other thing. The argument

430
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Speaker 5: got so crazy that people were talking about why not

431
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Speaker 5: just dismiss this case as improvidently granted and go back

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Speaker 5: to the Second Circuits decision. You know, we're going to

433
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Speaker 5: create a Pandora's box here, so the outcome is possible here.

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Speaker 5: So this doesn't happen all the time. It might happen

435
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Speaker 5: a few thousand times a year. But it's really a

436
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Speaker 5: question of do you want to give the government. Do

437
00:25:10,040 --> 00:25:12,920
Speaker 5: you trust it enough to give it the authority where

438
00:25:12,920 --> 00:25:16,119
Speaker 5: it can ruin any Green Card holder's life for any reason,

439
00:25:16,600 --> 00:25:19,080
Speaker 5: or do you want to put that constraint and that's

440
00:25:19,160 --> 00:25:21,879
Speaker 5: where it really comes down to whether you believe the

441
00:25:21,920 --> 00:25:25,119
Speaker 5: government largely acts in good faith or whether you believe

442
00:25:25,160 --> 00:25:27,520
Speaker 5: the government largely doesn't act in good faith.

443
00:25:27,960 --> 00:25:31,400
Speaker 2: That's a more loaded question nowadays than it was probably

444
00:25:31,680 --> 00:25:35,600
Speaker 2: years ago. I've been talking to Leon Fresco of Holland

445
00:25:35,640 --> 00:25:38,360
Speaker 2: and Knight. He was the former head of the Office

446
00:25:38,359 --> 00:25:42,639
Speaker 2: of Civil Immigration Litigation in the Obama administration. So let's

447
00:25:42,640 --> 00:25:45,520
Speaker 2: turn out to an issue that will most likely end

448
00:25:45,600 --> 00:25:48,240
Speaker 2: up at the Supreme Court because there's a split in

449
00:25:48,280 --> 00:25:54,160
Speaker 2: the circuits mandatory detention for all. So the Second Circuit

450
00:25:54,160 --> 00:25:57,600
Speaker 2: here in New York ruled unanimously, with a Trump appointee

451
00:25:57,600 --> 00:26:02,840
Speaker 2: on the panel, that the Admitisstration can't jail immigrants without

452
00:26:02,840 --> 00:26:05,639
Speaker 2: the chance to seek bond. Have they been trying to

453
00:26:05,680 --> 00:26:06,040
Speaker 2: do this?

454
00:26:06,640 --> 00:26:09,720
Speaker 5: So this is a very complicated case. So let me

455
00:26:09,760 --> 00:26:14,040
Speaker 5: give you the original way this worked, and then what happened,

456
00:26:14,040 --> 00:26:17,360
Speaker 5: and then the case. So in nineteen ninety six, there

457
00:26:17,480 --> 00:26:22,160
Speaker 5: was a law called the Illegal Immigration Enforcement and Responsibility Act,

458
00:26:22,640 --> 00:26:26,840
Speaker 5: and that law said that there was an issue called

459
00:26:27,000 --> 00:26:30,679
Speaker 5: expedited removal, where if you just showed up at the

460
00:26:30,720 --> 00:26:33,840
Speaker 5: border or a port of entry and you didn't have

461
00:26:34,400 --> 00:26:39,040
Speaker 5: any reason to be here, then the government could detain

462
00:26:39,160 --> 00:26:44,880
Speaker 5: you without bond until your removal proceedings were concluded, and

463
00:26:44,960 --> 00:26:50,000
Speaker 5: then they could deport you. But the way that statute

464
00:26:50,080 --> 00:26:53,480
Speaker 5: was written, it says, if you are an alien meaning

465
00:26:53,480 --> 00:26:56,120
Speaker 5: you're not a US citizen, you're a foreign national who

466
00:26:56,200 --> 00:27:00,159
Speaker 5: is an applicant for admission meaning you want to one

467
00:27:00,240 --> 00:27:04,280
Speaker 5: day be legally admitted into the United States, you must

468
00:27:04,359 --> 00:27:07,760
Speaker 5: be detained mandatorily. But it says if you are an

469
00:27:07,800 --> 00:27:11,000
Speaker 5: alien seeking admission, So it has two different things in

470
00:27:11,040 --> 00:27:15,479
Speaker 5: the same statute, applicant for admission and seeking admission. So

471
00:27:16,200 --> 00:27:19,320
Speaker 5: for the first thirty years after that statute was written,

472
00:27:19,920 --> 00:27:25,720
Speaker 5: the way that the immigration authorities thought about this was

473
00:27:25,760 --> 00:27:30,000
Speaker 5: as follows. If you were apprehended at the border or

474
00:27:30,040 --> 00:27:33,560
Speaker 5: at the port of entry, or at the seaport or airport,

475
00:27:33,640 --> 00:27:36,480
Speaker 5: whatever it may be, that that was a person who

476
00:27:36,520 --> 00:27:39,480
Speaker 5: was an applicant for admission and seeking admission, that person

477
00:27:39,520 --> 00:27:44,640
Speaker 5: could be detained and that person didn't have an opportunity

478
00:27:44,680 --> 00:27:48,760
Speaker 5: to seek bond if their removal proceedings were pending. But

479
00:27:49,480 --> 00:27:52,000
Speaker 5: if you had stuck across the border and made it

480
00:27:52,040 --> 00:27:56,480
Speaker 5: through and you are no longer being chased, we never

481
00:27:56,520 --> 00:27:59,720
Speaker 5: even knew you were here. You just entered. At that point,

482
00:27:59,720 --> 00:28:02,919
Speaker 5: you were you're no longer seeking admission. You weren't caught

483
00:28:03,080 --> 00:28:05,720
Speaker 5: while you were trying to seek admission to the United States.

484
00:28:05,880 --> 00:28:08,720
Speaker 5: You were caught well after that. And that would be

485
00:28:08,760 --> 00:28:12,240
Speaker 5: a person that would be subject to the normal immigration

486
00:28:12,480 --> 00:28:17,680
Speaker 5: removal statutes, which say that if you either overstayed your visa.

487
00:28:17,800 --> 00:28:20,439
Speaker 5: That one everybody agrees. If you overstayed your visa and

488
00:28:20,480 --> 00:28:23,400
Speaker 5: your cought yes you can be deported, and yes you're

489
00:28:23,400 --> 00:28:26,280
Speaker 5: placed in removal proceedings, but you are entitled to a

490
00:28:26,320 --> 00:28:30,960
Speaker 5: bond hearing to determine whether you should be detained during

491
00:28:31,320 --> 00:28:34,360
Speaker 5: these proceedings. And you are entitled to bond if you're

492
00:28:34,400 --> 00:28:37,719
Speaker 5: not a flight risk or if you're not dangerous to society.

493
00:28:37,840 --> 00:28:42,000
Speaker 5: So everybody agrees to that with people that overstay their visa.

494
00:28:42,120 --> 00:28:46,040
Speaker 5: But there's this question that the Trump administration has decided

495
00:28:46,080 --> 00:28:50,120
Speaker 5: to resuscitate, which is, well, is this really true for

496
00:28:50,200 --> 00:28:54,280
Speaker 5: the people who stuck across the border and didn't get caught.

497
00:28:54,520 --> 00:28:56,640
Speaker 5: What are they more like? Are they more like the

498
00:28:56,760 --> 00:29:01,000
Speaker 5: visa overstate people or are they more like the people

499
00:29:01,040 --> 00:29:05,040
Speaker 5: who were just apprehended at the border. And so the

500
00:29:05,080 --> 00:29:09,040
Speaker 5: Trump administration decided to say no, no, no. They are

501
00:29:09,280 --> 00:29:12,040
Speaker 5: just like the people who were apprehended at the border.

502
00:29:12,360 --> 00:29:15,600
Speaker 5: It doesn't matter that they were successful in sneaking across.

503
00:29:15,920 --> 00:29:19,520
Speaker 5: They should be not rewarded for that. They should also

504
00:29:19,600 --> 00:29:24,560
Speaker 5: be mandatorily detained. So what you've been seeing is thousands

505
00:29:24,600 --> 00:29:27,520
Speaker 5: of habeas petitions being filed because people who went to

506
00:29:27,600 --> 00:29:32,160
Speaker 5: immigration court for their hearings were suddenly being put in detention,

507
00:29:32,760 --> 00:29:35,160
Speaker 5: even though they had been given bond. They were suddenly

508
00:29:35,240 --> 00:29:38,800
Speaker 5: being told, we don't have any authority to give you bond,

509
00:29:38,960 --> 00:29:41,400
Speaker 5: so you're going to be put in detention, and people

510
00:29:41,440 --> 00:29:43,280
Speaker 5: have been filing federal habeases.

511
00:29:43,640 --> 00:29:46,720
Speaker 2: Tell us more about the split between the Second Circuit

512
00:29:47,120 --> 00:29:49,080
Speaker 2: and the Fifth Circuit and the Eighth Circuit.

513
00:29:49,480 --> 00:29:52,360
Speaker 5: In the Fifth Circuit and in the Eighth Circuit, those

514
00:29:52,600 --> 00:29:57,080
Speaker 5: courts agreed with the Trump administration. But now this Second

515
00:29:57,160 --> 00:30:00,320
Speaker 5: Circuit is the first court that agrees with the foreign

516
00:30:00,480 --> 00:30:05,040
Speaker 5: national litigants. And they say that because this statute uses

517
00:30:05,360 --> 00:30:09,320
Speaker 5: two different terms in the same statute for mandatory detention,

518
00:30:09,760 --> 00:30:12,160
Speaker 5: not only do you have to be an applicant for admission,

519
00:30:12,520 --> 00:30:15,000
Speaker 5: which is everybody in the immigration court is an applicant

520
00:30:15,040 --> 00:30:20,040
Speaker 5: for permission, because if you're fighting your deportation, you're necessarily

521
00:30:20,200 --> 00:30:23,800
Speaker 5: saying I want to be admitted here legally, don't deport me.

522
00:30:23,920 --> 00:30:27,560
Speaker 5: So yes, that part's true. But because the statute also

523
00:30:27,680 --> 00:30:33,000
Speaker 5: uses the words seeking admission, that that means currently that

524
00:30:33,040 --> 00:30:36,560
Speaker 5: the verbiage of that means you have to be caught

525
00:30:36,760 --> 00:30:40,880
Speaker 5: when you're trying to enter the United States when you're

526
00:30:40,920 --> 00:30:45,800
Speaker 5: first asking for permission, not subsequently much later. And so

527
00:30:45,960 --> 00:30:48,800
Speaker 5: that's what the Second Circuit says, and they say, look,

528
00:30:48,920 --> 00:30:52,880
Speaker 5: thirty years of this matters. And it also matters that

529
00:30:53,480 --> 00:30:56,880
Speaker 5: when you're detaining people for not committing a crime, but

530
00:30:57,040 --> 00:31:00,360
Speaker 5: for immigration, which is a civil matter, if you're going

531
00:31:00,400 --> 00:31:04,880
Speaker 5: to hold people without bond, that's a serious constitutional problem

532
00:31:05,160 --> 00:31:07,760
Speaker 5: because even criminals get bonded. I mean, you can murder

533
00:31:07,800 --> 00:31:12,040
Speaker 5: somebody and potentially get bond. So why would someone who

534
00:31:12,680 --> 00:31:16,200
Speaker 5: just has an immigration violation not be entitled to bond?

535
00:31:16,640 --> 00:31:18,360
Speaker 5: And so that's what the court said is in a

536
00:31:18,400 --> 00:31:22,480
Speaker 5: case like that where there's serious constitutional concerns, if there's

537
00:31:22,520 --> 00:31:25,880
Speaker 5: an ambiguity where the law can be read fifty to

538
00:31:25,880 --> 00:31:28,720
Speaker 5: fifty one way, fifty to fifty the other, we can't

539
00:31:28,760 --> 00:31:33,080
Speaker 5: possibly choose the one that creates constitutional concerns, and so

540
00:31:33,160 --> 00:31:36,680
Speaker 5: that's why the Second Circuit decided to say that those

541
00:31:36,720 --> 00:31:39,760
Speaker 5: individuals are now entitled to bond. Now, this case is

542
00:31:39,760 --> 00:31:41,720
Speaker 5: for sure going to go to the Supreme Court because

543
00:31:41,720 --> 00:31:44,240
Speaker 5: there's a circuit split, and the Supreme Court will have

544
00:31:44,320 --> 00:31:45,640
Speaker 5: to decide what to do next.

545
00:31:46,280 --> 00:31:48,440
Speaker 2: I'm waiting for you to say one day, this is

546
00:31:48,480 --> 00:31:53,800
Speaker 2: an easy case because these immigration cases are all so complicated.

547
00:31:54,240 --> 00:31:57,720
Speaker 2: We've talked often about the way ICE officers mask themselves

548
00:31:57,840 --> 00:32:03,040
Speaker 2: up and a California law that required ICE agents to

549
00:32:03,200 --> 00:32:08,560
Speaker 2: identify themselves in public has been temporarily blocked by the

550
00:32:08,680 --> 00:32:11,440
Speaker 2: Ninth Circuit. First of all, tell us about the law

551
00:32:11,440 --> 00:32:11,880
Speaker 2: it self.

552
00:32:12,600 --> 00:32:15,680
Speaker 5: It's in the California Penal Code, and it says that

553
00:32:15,760 --> 00:32:20,040
Speaker 5: if you are a non uniformed federal law enforcement officer,

554
00:32:20,400 --> 00:32:23,080
Speaker 5: which they're really kind of triggering toward ICE, because ICE

555
00:32:23,160 --> 00:32:25,680
Speaker 5: is the ones that wear the masks and the non

556
00:32:25,960 --> 00:32:30,760
Speaker 5: identifying uniforms, if you're performing law enforcement duties, you can

557
00:32:30,840 --> 00:32:34,320
Speaker 5: be criminally prosecuted for that. So you have a duty

558
00:32:34,640 --> 00:32:40,720
Speaker 5: to display identification. And if you don't display identification and

559
00:32:40,760 --> 00:32:45,680
Speaker 5: you're non uniformed in California, the California Police can essentially

560
00:32:45,800 --> 00:32:48,400
Speaker 5: arrest ICE agents and place them.

561
00:32:48,240 --> 00:32:51,040
Speaker 2: In jail and explain why. The appeals courts said that

562
00:32:51,160 --> 00:32:56,800
Speaker 2: California law is an unlawful attempt to regulate the federal government.

563
00:32:57,040 --> 00:33:01,520
Speaker 5: And so the question was does that byolate the supremacy clause,

564
00:33:01,720 --> 00:33:06,960
Speaker 5: And the debate is California is saying, yes, we agree

565
00:33:07,000 --> 00:33:11,040
Speaker 5: that we're regulating the federal government in that sense, because

566
00:33:11,080 --> 00:33:13,320
Speaker 5: we're telling them that if they want to have ICE

567
00:33:13,360 --> 00:33:15,880
Speaker 5: operating in California, they have to be visible. They have

568
00:33:15,960 --> 00:33:18,560
Speaker 5: to say their eyes and they can't have masks. But

569
00:33:18,640 --> 00:33:21,680
Speaker 5: we're doing this for public safety reasons and we're not

570
00:33:21,800 --> 00:33:27,040
Speaker 5: actually interfering in their operations. Ice can still deport whoever

571
00:33:27,080 --> 00:33:29,680
Speaker 5: it wants, It can still capture whoever it wants. It

572
00:33:29,800 --> 00:33:33,080
Speaker 5: just has to identify itself. So they were trying to

573
00:33:33,120 --> 00:33:37,640
Speaker 5: say that should be an exception, and the federal government

574
00:33:37,720 --> 00:33:42,160
Speaker 5: was saying no, no, no, any regulation of federal law enforcement

575
00:33:42,240 --> 00:33:45,640
Speaker 5: officers and agencies. It doesn't matter how good your reason is,

576
00:33:46,000 --> 00:33:48,920
Speaker 5: or how benevolent your reason is or anything. It's just

577
00:33:48,960 --> 00:33:52,239
Speaker 5: not possible under the supremacy clause because then we end

578
00:33:52,320 --> 00:33:55,680
Speaker 5: up with an eye of the beholder situation of who

579
00:33:55,720 --> 00:33:59,240
Speaker 5: thinks what regulation is in the best interests and the

580
00:33:59,320 --> 00:34:02,480
Speaker 5: good faith and all of that, that's not really what matters.

581
00:34:02,520 --> 00:34:07,160
Speaker 5: The supremacy clause is a strict liability situation here where

582
00:34:07,160 --> 00:34:12,080
Speaker 5: you can't have any direct regulation by states or localities

583
00:34:12,360 --> 00:34:15,200
Speaker 5: of federal officers and agents and the performance of their

584
00:34:15,239 --> 00:34:19,400
Speaker 5: federal duties. And these judges were not so conservative, and

585
00:34:19,480 --> 00:34:23,560
Speaker 5: they agreed unanimously that an injunction was necessary to the

586
00:34:23,600 --> 00:34:26,279
Speaker 5: California law because they said, yeah, at the end of

587
00:34:26,320 --> 00:34:30,320
Speaker 5: the day, you can't have any direct regulation. It doesn't

588
00:34:30,320 --> 00:34:33,319
Speaker 5: matter that there's a minimal burden, or that it's a

589
00:34:33,320 --> 00:34:36,680
Speaker 5: safety issue, that it's not interfering or anything like that.

590
00:34:37,040 --> 00:34:39,160
Speaker 5: It's just saying there's a very bright line rule, and

591
00:34:39,239 --> 00:34:44,320
Speaker 5: you can't process that. The states cannot directly regulate federal operation.

592
00:34:44,480 --> 00:34:48,400
Speaker 5: They can't put rules that federal officers have to follow,

593
00:34:48,719 --> 00:34:51,560
Speaker 5: and especially not criminal rules where they go to jail

594
00:34:51,920 --> 00:34:54,720
Speaker 5: if they don't follow those rules. So I don't think

595
00:34:55,120 --> 00:34:58,520
Speaker 5: that this is a case where the Supreme Court's going

596
00:34:58,600 --> 00:35:01,319
Speaker 5: to need to do anything. BECA think that at the

597
00:35:01,360 --> 00:35:03,080
Speaker 5: end of the day, it may just finish there at

598
00:35:03,080 --> 00:35:06,440
Speaker 5: the Ninth Circuit. But it's very interesting in Tenth by

599
00:35:06,480 --> 00:35:10,520
Speaker 5: California and a very interesting decision by the Ninth Circuit.

600
00:35:11,000 --> 00:35:14,000
Speaker 2: I mean, the way the ICE officers are masked up, A,

601
00:35:14,160 --> 00:35:18,320
Speaker 2: it looks frightening, but B you have no idea who's

602
00:35:18,680 --> 00:35:22,520
Speaker 2: arresting you, who's stopping you. I mean, it's really discomforting

603
00:35:22,560 --> 00:35:25,040
Speaker 2: in so many ways, and there's nothing that California or

604
00:35:25,040 --> 00:35:26,640
Speaker 2: any state can do about it.

605
00:35:27,000 --> 00:35:29,439
Speaker 5: Well, the answer to that is you have to put

606
00:35:29,440 --> 00:35:32,640
Speaker 5: that in an appropriations bill. And that's why we currently

607
00:35:32,640 --> 00:35:36,080
Speaker 5: have a shutdown of the Department of Homeland Security. Is

608
00:35:36,640 --> 00:35:39,279
Speaker 5: you know, and I mean, yes, the TSA is back

609
00:35:39,320 --> 00:35:43,200
Speaker 5: because President Trump is using money from other legislation to

610
00:35:43,200 --> 00:35:45,400
Speaker 5: pay for them and everything. But you have the Secretary

611
00:35:45,400 --> 00:35:47,200
Speaker 5: of Homeland Security saying they're going to run out of

612
00:35:47,200 --> 00:35:50,480
Speaker 5: money in May, and it is currently shut down the

613
00:35:50,480 --> 00:35:53,520
Speaker 5: Department of Homeland Security in essence because there they don't

614
00:35:53,520 --> 00:35:57,759
Speaker 5: have appropriations because of this issue. That the issue is

615
00:35:57,800 --> 00:36:01,680
Speaker 5: that the Democrats in the Congress want ICE and CVP

616
00:36:01,920 --> 00:36:06,839
Speaker 5: to operate under specific guidelines like this, and the Republicans

617
00:36:06,880 --> 00:36:10,040
Speaker 5: don't want ICE and CVP to operate under specific guidelines

618
00:36:10,080 --> 00:36:13,000
Speaker 5: like this. But this is the forum in which it

619
00:36:13,080 --> 00:36:16,680
Speaker 5: has to be settled because if it's settled in the

620
00:36:16,719 --> 00:36:19,879
Speaker 5: federal courts, then you know, you could just you could

621
00:36:19,960 --> 00:36:22,879
Speaker 5: see where people would be nervous about this kind of thing,

622
00:36:22,960 --> 00:36:27,279
Speaker 5: because suppose some other states said, look, if you want

623
00:36:27,280 --> 00:36:31,240
Speaker 5: to enforce civil rights law in our state, you can't

624
00:36:31,280 --> 00:36:33,759
Speaker 5: be of a certain race or something, or we're gonna

625
00:36:33,840 --> 00:36:38,080
Speaker 5: arrest you, or you know, who knows what conditions people

626
00:36:38,160 --> 00:36:42,239
Speaker 5: can start putting in if they were not so belevolent,

627
00:36:42,280 --> 00:36:45,200
Speaker 5: and who decides whether those conditions are benevolent or not.

628
00:36:45,800 --> 00:36:48,719
Speaker 5: And so it is really just easier to have a

629
00:36:48,719 --> 00:36:53,319
Speaker 5: bright line rule that says, hey, the federal government gets

630
00:36:53,360 --> 00:36:58,280
Speaker 5: to decide how it's federal officers and operators do things.

631
00:36:58,320 --> 00:37:00,960
Speaker 5: The states have no role, and if they break the law,

632
00:37:01,040 --> 00:37:03,400
Speaker 5: you can always file a Bibbins lawsuit. If they broke

633
00:37:03,400 --> 00:37:07,160
Speaker 5: the law visa viu specifically, you can file a Bibbins

634
00:37:07,239 --> 00:37:10,640
Speaker 5: lawsuit section nineteen eighty three, whatever it takes to say

635
00:37:10,880 --> 00:37:13,759
Speaker 5: I want to get paid because my civil rights were violated,

636
00:37:14,280 --> 00:37:17,800
Speaker 5: or on the larger scale, you think there's a problem,

637
00:37:17,880 --> 00:37:21,799
Speaker 5: then you do the political advocacy necessary to get that

638
00:37:21,960 --> 00:37:25,719
Speaker 5: changed in an appropriations bill. And that's literally the fight

639
00:37:25,760 --> 00:37:26,799
Speaker 5: that we're having right now.

640
00:37:27,600 --> 00:37:31,279
Speaker 2: Leon, do you know when ICE officers started masking up

641
00:37:31,360 --> 00:37:31,680
Speaker 2: like this?

642
00:37:32,400 --> 00:37:34,960
Speaker 5: I do not think that that happened anytime before the

643
00:37:35,000 --> 00:37:40,279
Speaker 5: Trump administration. It might have happened on very specific targeted

644
00:37:40,320 --> 00:37:44,000
Speaker 5: operations where there were very dangerous people involved, but not

645
00:37:44,160 --> 00:37:47,920
Speaker 5: as a matter of just uniform practice that happened in

646
00:37:48,000 --> 00:37:49,480
Speaker 5: this most recent administration.

647
00:37:49,840 --> 00:37:52,480
Speaker 2: We covered a lot today, Leon, Thanks so much. That's

648
00:37:52,600 --> 00:37:55,480
Speaker 2: Leon Fresco of Holland and Knight. And that's it for

649
00:37:55,520 --> 00:37:58,160
Speaker 2: this edition of The Bloomberg Law Show. Remember you can

650
00:37:58,200 --> 00:38:01,360
Speaker 2: always get the latest legal news on our Bloomberg Law Podcast.

651
00:38:01,680 --> 00:38:04,719
Speaker 2: You can find them on Apple Podcasts, Spotify, and at

652
00:38:04,880 --> 00:38:09,920
Speaker 2: www dot Bloomberg dot com, slash podcast Slash Law, and

653
00:38:10,000 --> 00:38:13,040
Speaker 2: remember to tune into The Bloomberg Law Show every weeknight

654
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Speaker 2: at ten pm Wall Street Time. I'm June Grosso, and

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Speaker 2: you're listening to Bloomberg