WEBVTT - Win for H-1B Visa Holders & Circuits In Play Post-Election 0:00:03.200 --> 0:00:08.000 This is Bloomberg Law with June Brusso from Bloomberg Radio. 0:00:10.280 --> 0:00:13.240 Immigration will no doubt be a top issue in the 0:00:13.280 --> 0:00:14.600 presidential campaign. 0:00:15.040 --> 0:00:17.680 Donald Trump does not care about border security. 0:00:18.720 --> 0:00:20.440 He only cares about himself. 0:00:20.920 --> 0:00:24.599 Vice President Kamala Harris has come out swinging, trying to 0:00:24.640 --> 0:00:28.240 flip the script on former President Donald Trump on his 0:00:28.400 --> 0:00:33.080 favorite issue, blaming Trump for convincing Republicans to tank the 0:00:33.159 --> 0:00:37.440 bipartisan border deal earlier this year. For their part, Republicans 0:00:37.479 --> 0:00:41.000 are blaming Harris for the migrant crisis, calling her a 0:00:41.040 --> 0:00:46.520 failed border czar. GOP Vice presidential candidate JD. Vance went 0:00:46.600 --> 0:00:49.600 down to the southern border last week to make his point. 0:00:50.000 --> 0:00:53.640 They stopped deportations on day one. They stopped construction of 0:00:53.680 --> 0:00:55.800 the border wall on day one. We see the border 0:00:55.800 --> 0:00:58.840 wall sitting here ready to be completed behind us, and 0:00:58.920 --> 0:01:01.560 that can't happen because of Kamala Harris's administration. 0:01:01.840 --> 0:01:06.560 There are seemingly endless court cases around immigration issues, but 0:01:06.760 --> 0:01:10.440 one rule that's been litigated for almost a decade has 0:01:10.480 --> 0:01:13.800 sort of flown under the radar, but now it's withstood 0:01:13.920 --> 0:01:18.320 another federal appeals court challenge. The DC's Circuit Court has 0:01:18.440 --> 0:01:23.319 okay to rule extending employment authorization to spouses of H 0:01:23.440 --> 0:01:27.319 one B visa holders. Joining me is immigration law expertly 0:01:27.440 --> 0:01:29.920 on Fresco, a partner at Holland and knight Lee, and 0:01:29.959 --> 0:01:32.679 I think we need to start with a basic understanding 0:01:33.000 --> 0:01:36.200 of what an H one B visa is and what 0:01:36.240 --> 0:01:37.480 an H four visa is. 0:01:37.840 --> 0:01:40.319 So an H to one B visa is a visa 0:01:40.400 --> 0:01:43.520 that people can obtain in the United States if they 0:01:43.560 --> 0:01:46.520 are providing what it's called high skill labor or what 0:01:46.640 --> 0:01:50.000 is actually in the statute called a specialty occupation, which 0:01:50.080 --> 0:01:53.800 is a job that requires at least a bachelor's degree 0:01:53.840 --> 0:01:57.440 to perform as designated by the Department of Labor, and 0:01:57.680 --> 0:02:01.640 the person has the exact specific degree required to perform 0:02:01.720 --> 0:02:04.960 that job. So each year there's a lottery because there's 0:02:04.960 --> 0:02:08.480 many more companies that want these visas that exist, and 0:02:08.520 --> 0:02:11.680 there's eighty five thousand of these visas per year, and 0:02:11.720 --> 0:02:16.400 so what happens is about seventy percent of them are 0:02:16.520 --> 0:02:19.680 taken by people from India. Because of both the English 0:02:19.760 --> 0:02:23.639 language and the large population and the amount of high 0:02:23.680 --> 0:02:27.240 skilled education and training people from India tend to get. 0:02:27.760 --> 0:02:30.040 This is the largest group of people who get it, 0:02:30.520 --> 0:02:32.760 and so they come to the United States on these 0:02:32.800 --> 0:02:36.359 Age one B visas, their spouses and their children can 0:02:36.360 --> 0:02:39.040 come with them, and the name of their visa is 0:02:39.080 --> 0:02:42.400 called an age four visa. So the principal worker is 0:02:42.440 --> 0:02:44.720 on the H one B, the spouse and the children 0:02:44.800 --> 0:02:48.919 are on the age four visa, And when you arrive, 0:02:49.280 --> 0:02:52.120 the people on age four visas are not allowed to work. 0:02:52.639 --> 0:02:57.200 But what happens is that the people then apply for 0:02:57.320 --> 0:03:00.720 Green cards. And there was a regulation that the Obama 0:03:00.760 --> 0:03:06.320 administration did in twenty fifteen that said that if an 0:03:06.360 --> 0:03:09.760 Indian national and this is really only related to Indian 0:03:09.840 --> 0:03:12.840 nationals at the beginning, Now it's related to a lot 0:03:12.880 --> 0:03:16.560 of other people because what happened was there are only 0:03:16.639 --> 0:03:20.120 one hundred and twenty thousand employment based Green cards that 0:03:20.160 --> 0:03:23.480 are permitted each year, and there are many many more 0:03:23.560 --> 0:03:27.960 people in the pool waiting for green cards than are 0:03:28.400 --> 0:03:32.079 permitted to apply each year. There's about a million people 0:03:32.080 --> 0:03:34.760 in the backlog right now. And what makes it worse 0:03:35.240 --> 0:03:39.040 is there's something called a per country limit on Green cards, 0:03:39.160 --> 0:03:42.560 which means that any one country can only get ninety 0:03:42.560 --> 0:03:46.600 eight hundred of the green cards each year, which means 0:03:46.880 --> 0:03:49.560 that the Indian line is about two hundred years long. 0:03:49.640 --> 0:03:52.240 It's really really long, and someone who gets in the 0:03:52.240 --> 0:03:54.200 line now won't get a Green card. They will be 0:03:54.360 --> 0:03:58.240 stuck here permanently on this quasi H one B status. 0:03:58.280 --> 0:04:01.160 So what the Obama administration said is if you're stuck 0:04:01.200 --> 0:04:05.800 in that status, your spouse can work. So that's what 0:04:06.000 --> 0:04:10.040 this H four EAD case was about, was about this 0:04:10.200 --> 0:04:14.760 Obama regulation from twenty to fifteen that said that the 0:04:14.840 --> 0:04:18.520 spouses of people in this backlog, which is people who've 0:04:18.520 --> 0:04:22.719 been approved for a Green card ostensibly because they meet 0:04:22.760 --> 0:04:25.719 the criteria. They came on an H one B, but 0:04:25.800 --> 0:04:28.559 they've been approved for a Green card as a matter 0:04:28.600 --> 0:04:32.120 of merit, but they cannot receive the green card because 0:04:32.279 --> 0:04:35.240 of the backlog, which is two hundred years long, so 0:04:35.279 --> 0:04:38.480 they will never receive it. That the spouse of this 0:04:38.520 --> 0:04:42.120 person who is an aged four can't work because what 0:04:42.200 --> 0:04:45.400 they didn't want is people just permanently here in flux 0:04:45.480 --> 0:04:49.000 with no rights. Ever, so the Obama administration did a 0:04:49.040 --> 0:04:52.719 regulation that allowed these people to work. And then what 0:04:52.839 --> 0:04:57.800 happens is a restrictionist group who ostensibly designated itself as 0:04:57.839 --> 0:05:00.479 a labor union, but isn't really a labor you it's 0:05:00.480 --> 0:05:03.840 more of an association of members of people who want 0:05:03.880 --> 0:05:09.200 restrictionist trade policies called Safe Jobs USA file the lawsuit 0:05:09.240 --> 0:05:11.440 saying that regulation was illegal. 0:05:11.960 --> 0:05:15.120 This has been going on for nearly a decade, since twenty. 0:05:15.000 --> 0:05:20.080 Fifteen, correct, This case has been going on in various iterations. 0:05:20.120 --> 0:05:23.480 What happened was the lawsuit was filed in twenty fifteen, 0:05:24.080 --> 0:05:27.680 it worked its way through the Trump administration. The Trump 0:05:27.720 --> 0:05:32.680 administration was actually going to repeal the Obama regulation, but 0:05:32.839 --> 0:05:35.479 because this lawsuit happened, they decided to just let this 0:05:35.600 --> 0:05:39.120 lawsuit play out. Well, it's very interesting was an immigration 0:05:39.240 --> 0:05:43.599 group called Immigration Voice, who represents the foreign nationals that 0:05:43.640 --> 0:05:47.839 are in this backlog, intervened which prevented the Trump administration 0:05:47.960 --> 0:05:52.760 from reaching a pollusive settlement with the folks who have 0:05:52.880 --> 0:05:55.640 filed the lawsuit, because otherwise the Trump administration would have 0:05:55.640 --> 0:05:57.880 just settled and said, you know what, this is illegal. 0:05:58.120 --> 0:06:00.760 Were taking this away, but they couldn't because there was 0:06:00.800 --> 0:06:04.400 an intervention by a group called Immigration Voice that allowed 0:06:04.400 --> 0:06:08.560 this case to continue. So that group continued the case 0:06:08.800 --> 0:06:12.880 and they kept getting ruling after ruling saying that the 0:06:13.680 --> 0:06:19.600 regulation was lawful, until finally, in a different case called WASHTEC, 0:06:20.000 --> 0:06:23.960 which was about a different policy called optional practical Training, 0:06:24.000 --> 0:06:28.120 which allows people on student visus to work. The Supreme 0:06:28.120 --> 0:06:35.400 Court basically said it is okay to create work permits 0:06:35.440 --> 0:06:39.440 for certain classes of immigrants, meaning that this power has 0:06:39.480 --> 0:06:44.360 been given by Congress to the administration. And because that's 0:06:44.360 --> 0:06:47.080 been given by Congress, there are no several issues, there's 0:06:47.120 --> 0:06:50.200 nothing to interpret. The law is very clear that the 0:06:50.279 --> 0:06:54.920 administration can designate different pathways for work for people who 0:06:54.960 --> 0:06:58.080 are illegally. That's not a question about people who are 0:06:58.080 --> 0:07:00.880 here illegally. But the spy of an H one B 0:07:01.480 --> 0:07:05.600 recipient is here legally, and so the question is can 0:07:05.680 --> 0:07:09.520 they work. And the plaintiffs had said no, they can't 0:07:09.520 --> 0:07:12.679 because there was no statute saying that they could specifically work. 0:07:13.280 --> 0:07:16.720 But the Court held, and has now held many many 0:07:16.800 --> 0:07:20.760 different times, most recently now the DC Circuit yet again, 0:07:21.280 --> 0:07:25.720 after this Washteck case, has held yet again that there 0:07:25.760 --> 0:07:29.360 is no Major Questions doctrine. There's no Chevron doctrine, there's 0:07:29.480 --> 0:07:32.760 nothing here Low or Bride. None of these things apply 0:07:33.280 --> 0:07:36.080 because there's a statue that, even though it doesn't say 0:07:36.560 --> 0:07:40.960 that H four thousands can work, it says that the 0:07:41.000 --> 0:07:45.840 Secretary of Homeland Security can declare any legal immigrant ability 0:07:45.880 --> 0:07:49.320 to work if they issue a regulation doing so, which 0:07:49.400 --> 0:07:51.200 had been indeed done in this case. 0:07:51.480 --> 0:07:54.880 This case seems to be the perfect example of endless 0:07:54.920 --> 0:07:58.520 litigation going in circles. I mean, how does this case 0:07:58.600 --> 0:07:59.320 keep going? 0:08:00.120 --> 0:08:04.520 Well, it keeps going because the Supreme Court itself hasn't 0:08:04.560 --> 0:08:09.880 shut down this specific case. So what happened was this case. 0:08:09.960 --> 0:08:14.040 It was denied on standing, Then the standing case was 0:08:14.040 --> 0:08:17.800 brought back by the DC Circuit back to the district court. 0:08:17.880 --> 0:08:21.360 Then it was granted on the merit. Then the case 0:08:21.520 --> 0:08:25.160 was pending and stayed for the wash Tech case. I 0:08:25.280 --> 0:08:27.840 was in the Supreme Court. Then the wash Tech case 0:08:27.920 --> 0:08:31.040 was decided in favor of the administration's ability to give 0:08:31.120 --> 0:08:36.080 work permits. Then the DC Circuit case was reopened, and 0:08:36.320 --> 0:08:38.520 the plaintiff strikes to say, yeah, but that was just 0:08:38.559 --> 0:08:42.000 this opt that wasn't eighty four, and they didn't consider 0:08:42.040 --> 0:08:45.920 the major questions doctrine, and they didn't consider low per Bride. 0:08:46.440 --> 0:08:49.320 And what the DC Circuit said is, look, we're shutting 0:08:49.320 --> 0:08:51.840 this all down. None of these things have anything to 0:08:51.880 --> 0:08:56.640 do with anything, because what you're saying is that there's 0:08:56.679 --> 0:08:59.680 some interpretation going on, and there isn't. There's a very 0:08:59.679 --> 0:09:04.280 clear statute that's in the Immigration and Nationality Act that 0:09:04.480 --> 0:09:08.960 literally says that the Secretary of Homeland Security has the 0:09:09.000 --> 0:09:13.520 ability by regulation to give any person who's here legally 0:09:14.040 --> 0:09:17.360 a work authorization. And so because of that, there doesn't 0:09:17.480 --> 0:09:21.120 need to be a specific statue that gives a specific 0:09:21.160 --> 0:09:25.240 group of people a work permit. That's not needed because 0:09:25.240 --> 0:09:29.400 the Congress already gave the authority very clearly nothing to 0:09:29.480 --> 0:09:32.640 interpret for a regulation to be issued to give people 0:09:32.760 --> 0:09:34.479 work authorization status. 0:09:34.679 --> 0:09:39.080 And the decision here was written by a very very 0:09:39.240 --> 0:09:42.440 conservative Trump appointee, Justin Walker. 0:09:43.440 --> 0:09:47.000 Yes, I mean, I think the point here is if 0:09:47.040 --> 0:09:49.800 you really just look at the statute and now it's interpreted, 0:09:49.880 --> 0:09:53.640 you could be very angry that Congress wrote that statute, 0:09:53.640 --> 0:09:56.440 which is I think where the plaintiffs were in this case. 0:09:56.760 --> 0:09:59.719 But you can't deny that that statue was written, and 0:09:59.760 --> 0:10:02.120 so they were trying to get some sort of limitation 0:10:02.240 --> 0:10:05.520 on it. But if you are a strict textualist, you 0:10:05.640 --> 0:10:07.800 really have to read the strict text here, and that 0:10:07.960 --> 0:10:12.160 text does permit the employment authorization to be done as 0:10:12.240 --> 0:10:14.680 long as there's a regulation which does it. And the 0:10:14.720 --> 0:10:19.000 Obama administration did do this regulation. In twenty fifteen, the. 0:10:19.160 --> 0:10:23.560 Attorney for the group Saved Jobs USA said they're going 0:10:23.600 --> 0:10:27.160 to petition the Circuit Court to rehear the case, which 0:10:27.160 --> 0:10:29.640 would be your quest for an on bank hearing. And 0:10:29.720 --> 0:10:32.720 if that fails, to appeal to the Supreme Court. Do 0:10:32.760 --> 0:10:34.880 you think the Circuit Court would take it on bank? 0:10:34.960 --> 0:10:36.079 Do you think the Supreme Court? 0:10:36.160 --> 0:10:38.840 I don't think. I think given the caliber of the 0:10:39.280 --> 0:10:42.600 judges that were on this three judge panel, there's no 0:10:42.720 --> 0:10:46.160 way that the DC Circuit will take this on bank. 0:10:46.520 --> 0:10:49.280 And I think the Supreme Court will do now, based 0:10:49.280 --> 0:10:51.520 off of what it has done in the past, just 0:10:51.559 --> 0:10:55.800 deny sirsiary because in these immigration cases where the government 0:10:55.840 --> 0:11:00.160 doesn't want circiary and you have a bipartisan panel the 0:11:00.240 --> 0:11:04.320 DC Circuit, it's very unlikely that the Supreme Court will 0:11:04.360 --> 0:11:06.640 grant sirchiar area. If they were going to do something, 0:11:06.679 --> 0:11:09.160 they would have done it in the Washtec case, which 0:11:09.320 --> 0:11:12.400 was a case where Justice Kavanaugh had when he was 0:11:12.400 --> 0:11:14.959 a DC Circuit judge, I had actually argued the case 0:11:15.240 --> 0:11:17.400 in front of us Kavanaugh back when he was in 0:11:17.440 --> 0:11:21.560 the DC Circuit. He had thought, well, maybe it's a 0:11:21.559 --> 0:11:24.920 little bit ridiculous, even though there's this statue to give 0:11:25.000 --> 0:11:28.920 work permits to students because they should leave the country 0:11:28.920 --> 0:11:32.240 once they're done being students once. They didn't take that 0:11:32.280 --> 0:11:36.040 one apart, and they let that one say. Then this 0:11:36.240 --> 0:11:38.760 other group, which is much more sympathetic, because they are 0:11:38.800 --> 0:11:42.920 literally people here in limbo until they die, and either 0:11:42.920 --> 0:11:45.439 they'll be allowed to work or not, it's going to 0:11:45.520 --> 0:11:49.199 be much more difficult to take those people's work authorizations away. 0:11:49.440 --> 0:11:52.960 Coming up next, I'll continue this conversation with Leon Fresco. 0:11:53.520 --> 0:11:57.880 A federal judge demands that Texas sanda high ranking lawyer 0:11:58.160 --> 0:12:01.920 in person to a hearing. None of that video conference stuff. 0:12:02.120 --> 0:12:05.960 This is Bloomberg. I've been talking to immigration law expert 0:12:06.040 --> 0:12:10.000 Leon Fresco of Holland and Knight about a DC Circuit 0:12:10.040 --> 0:12:14.440 Court decision that okays the rule allowing spouses of H 0:12:14.559 --> 0:12:18.199 one B visa holders to seek employment. It's a case 0:12:18.200 --> 0:12:22.120 that's been going on for nearly a decade. And Leon, 0:12:22.240 --> 0:12:25.520 how often does the H one B visa have to 0:12:25.559 --> 0:12:26.160 be renewed? 0:12:26.360 --> 0:12:28.520 It has to be renewed every three years. And if 0:12:28.520 --> 0:12:30.760 they want to change employers, they actually have to get 0:12:30.760 --> 0:12:33.560 a new employer to file a whole new petition. So 0:12:33.720 --> 0:12:36.560 a lot of people, you know, compare this program to 0:12:36.600 --> 0:12:40.240 some form of indentured servitude because these people are literally 0:12:40.280 --> 0:12:42.920 only allowed to remain in America so long as they're 0:12:43.000 --> 0:12:46.200 useful to an employer. So when these folks turn seventy 0:12:46.280 --> 0:12:48.200 or eighty, who knows what's going to happen to them? 0:12:48.440 --> 0:12:50.280 Will they be allowed to say or not? Because if 0:12:50.320 --> 0:12:52.920 they're not tied to an employer where they're currently working, 0:12:53.320 --> 0:12:55.120 it's going to be bad luck for them. And so 0:12:55.360 --> 0:12:59.440 this whole program is careening toward human tragedies, but we're 0:12:59.480 --> 0:13:01.760 not quite there yet, but we're getting there as each 0:13:01.840 --> 0:13:02.640 year progresses. 0:13:02.880 --> 0:13:06.600 Well, have these visas been caught up in the debate 0:13:06.640 --> 0:13:07.479 over immigration. 0:13:08.280 --> 0:13:11.559 Absolutely, there's a huge debate over what to do with 0:13:11.600 --> 0:13:16.319 this population because this population keeps getting older and older. 0:13:16.440 --> 0:13:19.560 One of the debate topics is, well, just get rid 0:13:19.640 --> 0:13:22.280 of the per country limit so that at least everybody 0:13:22.360 --> 0:13:24.439 has the same weight tign there isn't a two hundred 0:13:24.480 --> 0:13:27.560 year weight time for Indians and a one year weight 0:13:27.640 --> 0:13:31.079 time for everybody else. That bill has passed the House 0:13:31.200 --> 0:13:33.719 and the Senate, but never in the same year, So 0:13:34.000 --> 0:13:37.280 that's been a human disaster there, and then there's bills 0:13:37.280 --> 0:13:40.160 that try to increase the total amount of green cards 0:13:40.520 --> 0:13:44.800 per year, but those bills have never passed because at 0:13:44.800 --> 0:13:48.880 the moment there's been restrictionists, mostly in the Republican Party, 0:13:49.160 --> 0:13:51.400 who have said they don't want to increase the levels 0:13:51.400 --> 0:13:54.560 of legal immigration. But there's also been opposition in the 0:13:54.600 --> 0:13:58.400 Democratic Party saying you can't just do something unemployment based 0:13:58.400 --> 0:14:01.280 immigration if you're not going to to do something on 0:14:01.400 --> 0:14:05.600 the compassionate side of immigration. And so this is just 0:14:05.679 --> 0:14:09.440 one of these huge messas that exists in the immigration system, Leeann. 0:14:09.520 --> 0:14:13.599 I know that the Czech giants like Apple and Amazon 0:14:13.679 --> 0:14:18.040 and business groups support these visa programs, but the claim 0:14:18.360 --> 0:14:23.120 is that these visa holders take jobs away from Americans. 0:14:23.400 --> 0:14:25.520 Is that right grounded in fact? 0:14:26.240 --> 0:14:29.240 Well, I mean, it just depends because here's what happens. 0:14:29.280 --> 0:14:34.400 So oddly enough, the h one B immigrant is a 0:14:34.440 --> 0:14:37.600 person who's tied to a specific employer, but the work 0:14:37.640 --> 0:14:41.200 permit that this person's house gets is actually not tied 0:14:41.240 --> 0:14:44.280 to any employer. So they're just people who go into 0:14:44.320 --> 0:14:47.680 the labor market. And so let's say that right now 0:14:47.680 --> 0:14:50.760 there's about three hundred thousand of these people in the 0:14:50.840 --> 0:14:54.680 workforce depending on what they're doing. If they're doing mostly 0:14:54.760 --> 0:14:58.360 high skilled jobs, the job openings in the high skilled 0:14:58.600 --> 0:15:01.560 area are still much more, much higher than the unemployment 0:15:01.680 --> 0:15:04.640 in that area. If you go on the lower end, 0:15:05.160 --> 0:15:07.480 it might be an argument, but the people who are 0:15:07.480 --> 0:15:10.320 actually making this lawsuit are people who claim to be 0:15:10.400 --> 0:15:13.320 representing people on the higher end. And so that's where 0:15:13.320 --> 0:15:16.720 also this claim didn't really make sense from the perspective 0:15:16.800 --> 0:15:21.080 of the organization challenging the regulation because they were claiming 0:15:21.160 --> 0:15:23.280 that the higher end jobs were being taken away. So 0:15:23.320 --> 0:15:27.520 they were assuming couples where both spouses were doing high 0:15:27.600 --> 0:15:30.800 skilled labor. But the point is, if that were the scenario, 0:15:31.120 --> 0:15:34.120 then three hundred thousand people is a drop in the 0:15:34.160 --> 0:15:38.280 bucket compared to the several million job openings that still 0:15:38.280 --> 0:15:39.760 exist in the high tech area. 0:15:40.080 --> 0:15:43.720 So now let's switch to something that I can't believe 0:15:43.840 --> 0:15:47.360 is still going on, the battle over Texas having put 0:15:47.480 --> 0:15:51.080 those floating buoys in the Rio Grant and the US 0:15:51.160 --> 0:15:54.600 government is suing to have the barriers removed. Didn't the 0:15:54.640 --> 0:15:57.920 Supreme Court already decide this in part? Or is that 0:15:58.040 --> 0:15:59.840 another border dispute with chexas well. 0:16:00.320 --> 0:16:03.960 Was actually brought back? What happened was here's the background. 0:16:04.000 --> 0:16:07.600 So Texas began employing these things and these booies. In 0:16:07.760 --> 0:16:11.200 June of twenty twenty three, Texas spends one hundred and 0:16:11.240 --> 0:16:14.120 fifty thousand dollars on the barrier. They put one thousand 0:16:14.200 --> 0:16:17.720 feet buoys. Then in twenty twenty three, the Justice Department 0:16:17.840 --> 0:16:23.600 sues in federal court and they actually win in the case, 0:16:23.720 --> 0:16:26.240 and then the case goes up to the Fifth Circuit, 0:16:26.680 --> 0:16:30.920 and then it actually does go up to the Supreme Court, 0:16:31.560 --> 0:16:34.920 and it goes back down saying here's some things you 0:16:35.000 --> 0:16:39.520 need to consider. So there wasn't an actual final resolution there, 0:16:40.120 --> 0:16:42.920 and then it goes back down to the district court. 0:16:43.520 --> 0:16:46.640 And in the district court they issue an injunction saying 0:16:47.160 --> 0:16:50.040 that at the end of the day, this is a 0:16:50.200 --> 0:16:53.160 threat to public safety. It needed to be done by 0:16:53.200 --> 0:16:56.440 the Army Corps engineer. It wasn't approved by the Army 0:16:56.480 --> 0:17:00.920 Corps engineer, so they issued an injunction. And then the 0:17:00.960 --> 0:17:04.880 Fifth Circuit had actually also in a panel decision, had 0:17:04.880 --> 0:17:08.879 affirmed that injunction and said you can't have the barriers. 0:17:09.280 --> 0:17:13.879 But now the full unbank Fifth Circuit came back in 0:17:14.760 --> 0:17:18.040 and said, while this case is going to be decided 0:17:18.160 --> 0:17:22.159 on the merit of the federal government's claim. We don't 0:17:22.200 --> 0:17:25.680 think that when this case gets decided on the merits 0:17:26.080 --> 0:17:28.719 that it's likely that the federal government is going to 0:17:28.760 --> 0:17:31.880 win because we don't think that these booies are actually 0:17:32.000 --> 0:17:35.439 in the navigable stretch of the Rio Grand River. So 0:17:35.560 --> 0:17:38.760 that's basically their decision is. They said, had these booies 0:17:38.840 --> 0:17:42.440 been in a navigable stretch of the Rio Grand River, 0:17:43.080 --> 0:17:46.159 then yes, it might have violated federal law. But we 0:17:46.280 --> 0:17:49.119 think that when there's a trial on this, we're going 0:17:49.200 --> 0:17:51.479 to find that the federal government is not likely to 0:17:51.560 --> 0:17:54.760 prove that the barriers are placed in the navigable stretch 0:17:54.800 --> 0:17:57.560 of the Rio grand and hence there's no violation of 0:17:58.320 --> 0:18:01.120 the federal law here. Now we're going to go back 0:18:01.160 --> 0:18:03.639 to the trial and we're going to try to figure 0:18:03.680 --> 0:18:06.720 out who wins on the issue of whether these buoys 0:18:07.080 --> 0:18:10.480 are actually in navigable waters along the Rio Grande. 0:18:11.040 --> 0:18:14.400 There was a hearing and the lawyer for Texas appeared 0:18:14.400 --> 0:18:18.199 by videos, and the judge demanded that Texas send a 0:18:18.280 --> 0:18:21.160 high ranking lawyer in person to the hearing and not 0:18:21.480 --> 0:18:24.479 try to attend remotely. Quote it is clear to this 0:18:24.600 --> 0:18:28.720 court that the State of Texas misunderstands the substance of 0:18:28.760 --> 0:18:32.320 the status conference held in this matter. I mean, does 0:18:32.320 --> 0:18:35.120 it really make a difference if a lawyer appears by 0:18:35.520 --> 0:18:37.040 Zoom for hearings. 0:18:37.760 --> 0:18:39.640 I think that at the end of the day, the 0:18:39.680 --> 0:18:43.720 problem is they want this case to be dealt with 0:18:44.119 --> 0:18:48.200 in the level of seriousness that this case portends to be. 0:18:48.880 --> 0:18:52.440 And so when you're coming in on Zoom, you're essentially 0:18:52.520 --> 0:18:55.960 saying that the State of Texas isn't really willing to 0:18:56.040 --> 0:18:59.560 devote the resources to this case that are necessary, which 0:18:59.560 --> 0:19:02.359 is then well, why are you filing this lawsuit? Then? 0:19:02.800 --> 0:19:05.000 So I guess that's the perspective. I mean, at the 0:19:05.040 --> 0:19:08.000 end of the day, everybody can have a different take 0:19:08.040 --> 0:19:10.240 on this. I mean, obviously you don't want the trial 0:19:10.359 --> 0:19:13.240 to be done by Zoom, but you know, it does 0:19:13.320 --> 0:19:15.440 pose an interesting question at the end of the day 0:19:15.480 --> 0:19:19.439 about where we're going as a legal profession, and is 0:19:19.520 --> 0:19:23.359 Zoom going to just be inexorably part of this going 0:19:23.400 --> 0:19:26.919 forward or do we revert back to where we were originally, 0:19:27.000 --> 0:19:29.480 which is, hey, look, when you have court hearings, you 0:19:29.520 --> 0:19:31.760 go to court. That's the whole point of court. It 0:19:31.840 --> 0:19:33.800 is you go to court, and if you don't want 0:19:33.800 --> 0:19:36.159 to go to court, don't have a case here, And 0:19:36.240 --> 0:19:38.080 so it's an interesting question. 0:19:39.000 --> 0:19:41.040 Well, we'll see what happens. I assume that the state 0:19:41.080 --> 0:19:44.200 of Texas will send a high ranking lawyer as the 0:19:44.320 --> 0:19:47.879 judge requested. And looking at the big picture here, leon, 0:19:48.359 --> 0:19:53.560 does Kamala Harris have the same view on immigration that 0:19:53.880 --> 0:19:54.640 Biden does? 0:19:55.240 --> 0:19:58.360 Well, I do know, because I've actually been in conversations 0:19:58.400 --> 0:20:01.600 with some folks in that group that they are looking 0:20:01.720 --> 0:20:04.600 to create some policies that they are going to be 0:20:04.720 --> 0:20:08.080 rolling out during the campaign that will be sort of 0:20:08.200 --> 0:20:12.840 prospective twenty twenty five through twenty twenty eight policies. I 0:20:12.880 --> 0:20:15.760 don't know which ones of the ideas that they were 0:20:15.760 --> 0:20:19.239 soliciting they're going to actually move forward for, but I 0:20:19.320 --> 0:20:21.920 can I guess maybe break some news I don't know 0:20:22.280 --> 0:20:24.439 whatever you would call this, that they are planning a 0:20:24.560 --> 0:20:28.360 rollout of a twenty twenty five through twenty twenty eight 0:20:28.359 --> 0:20:32.280 immigration agenda that would have different policies in it, both 0:20:32.600 --> 0:20:36.119 on the enforcement side and on what they will do 0:20:36.200 --> 0:20:39.320 about people coming in the country, So both kinds of things, 0:20:39.359 --> 0:20:43.520 how they add to the enforcement platform and how they 0:20:44.040 --> 0:20:47.720 change the current platforms by which people come in here 0:20:47.920 --> 0:20:52.560 legally and receive benefits. And so from that perspective, they 0:20:52.600 --> 0:20:54.840 will be rolling that out, but I don't know when, 0:20:54.920 --> 0:20:58.159 and I don't know which policies specifically of the ones 0:20:58.560 --> 0:21:01.440 that were being discussed are they going to pick to 0:21:02.000 --> 0:21:03.800 do that. But yet they will plan that. 0:21:04.200 --> 0:21:09.320 Republicans are calling Harris the failed borders are. Do you 0:21:09.359 --> 0:21:13.119 think she got a bad rap over her handling of immigration? 0:21:13.880 --> 0:21:17.280 Well, so this is a tough question because the assignment 0:21:18.160 --> 0:21:21.920 was not clear that was given to her, and quite frankly, 0:21:22.000 --> 0:21:25.000 the assignment was a little bit strange always in my view, 0:21:25.080 --> 0:21:28.639 from the first place, which was she was supposed to 0:21:28.800 --> 0:21:33.600 solve the quote unquote root causes of why people from 0:21:33.880 --> 0:21:38.320 specifically Alsavador, Honduras, and Guatemala want to come to the 0:21:38.440 --> 0:21:41.439 United States. So that was technically her assignment. You know, 0:21:41.520 --> 0:21:45.320 there's this words borders are and these other things, and 0:21:45.400 --> 0:21:48.360 there was always a dispute about the wording. But even 0:21:48.480 --> 0:21:52.040 the assignment as it is cast in a like most 0:21:52.119 --> 0:21:55.479 favorably to her, didn't seem to make a lot of 0:21:55.520 --> 0:21:59.880 sense to me from the perspective of you know, the GDPs, 0:22:00.160 --> 0:22:04.240 those three countries are much much lower than even the 0:22:04.320 --> 0:22:08.800 GDP in Mexico, much less the GDP in the United States, 0:22:09.200 --> 0:22:12.080 And so to ever get to a point where anyone 0:22:12.119 --> 0:22:16.280 in any of those countries would view remaining there as 0:22:16.320 --> 0:22:19.280 a suitable alternative rather than coming to the US, it's 0:22:19.359 --> 0:22:22.840 just not realistic. That would have taken hundreds of billions 0:22:22.840 --> 0:22:27.320 of dollars of investment. But having said that, what can 0:22:27.359 --> 0:22:31.359 be argued, and it's not clear you know which part 0:22:31.400 --> 0:22:34.919 of who did what caused it, is that the numbers 0:22:35.000 --> 0:22:38.800 from those three countries coming across the border are now 0:22:38.960 --> 0:22:42.439 lower than they have been, so that part is good. 0:22:42.760 --> 0:22:46.639 And where the problems exist are in countries we can't 0:22:46.680 --> 0:22:52.160 deport people back to, which are Cuba, eighty, Nicaragua, Venezuela. 0:22:52.320 --> 0:22:55.160 Those are where the numbers continue to be challenging because 0:22:55.200 --> 0:22:58.160 those countries do not accept people who're trying to deport 0:22:58.240 --> 0:23:02.800 them back to. But the numbers coming in at the 0:23:02.840 --> 0:23:08.320 moment from El Salvador, Guatemala, and Honduras are indeed lower 0:23:08.320 --> 0:23:12.000 than they were when he was first appointed to address 0:23:12.080 --> 0:23:16.040 issues related to those countries, So at LEAs from that perspective, 0:23:16.760 --> 0:23:20.720 there's that one could argue the numbers are lower. You 0:23:20.880 --> 0:23:23.479 decide whether he made them lower or not. 0:23:23.960 --> 0:23:26.240 We are going to hear a lot of talk about 0:23:26.240 --> 0:23:30.239 this until November. Thanks so much, Leon, As always, it's 0:23:30.240 --> 0:23:33.000 a pleasure to have you on. That's Leon Fresco, a 0:23:33.080 --> 0:23:35.840 partner at Hollanden Knight. Coming up next on the Bloomberg 0:23:35.920 --> 0:23:38.760 Lawn Show, we'll take a look at which circuit courts 0:23:38.840 --> 0:23:42.480