WEBVTT - High Court Backs State Prosecution of Immigrants 0:00:00.560 --> 0:00:05.320 This is Bloomberg Law with June Grasso from Bloomberg Radio. 0:00:05.559 --> 0:00:09.760 Immigration disputes dominated the Supreme Court's docket this term. On 0:00:09.880 --> 0:00:13.240 Monday alone, the Justice has heard arguments in two separate 0:00:13.280 --> 0:00:16.400 cases on the subject, and on Tuesday, the Court handed 0:00:16.400 --> 0:00:19.040 down an opinion that bolstered the power of states to 0:00:19.160 --> 0:00:23.400 prosecute undocumented immigrants. Joining me is Leon Fresco, a partner 0:00:23.440 --> 0:00:29.280 at Hollandon Knight. Isn't immigration the domain of the federal government? Well, yes, June, 0:00:29.320 --> 0:00:34.000 And this is actually a significant rollback of the Supreme 0:00:34.040 --> 0:00:38.080 Court sort of epic decision in Arizona versus United States, 0:00:38.600 --> 0:00:42.760 where it sort of gave this broad proclamation that the 0:00:42.880 --> 0:00:48.040 employment of undocumented immigrants and the prosecution by states of 0:00:48.159 --> 0:00:52.559 unlawful employment of undocumented immigrants would be something that just 0:00:52.600 --> 0:00:55.240 couldn't be in the province of the state. States couldn't 0:00:55.280 --> 0:00:58.760 take matters into their own hands. And what happened here 0:00:58.760 --> 0:01:02.160 in Kansas versus guard Sea is that the Supreme Court 0:01:02.640 --> 0:01:07.800 created a gigantic loophole in that decision in two ways. First, 0:01:07.880 --> 0:01:11.640 it said because the prosecution was not actually based on 0:01:11.800 --> 0:01:15.720 lying on the immigration form itself the nine but rather 0:01:15.840 --> 0:01:19.399 on tax forms that the state was permitted to make 0:01:19.440 --> 0:01:24.800 this prosecution, but also because Congress hadn't expressly pre ended 0:01:25.319 --> 0:01:28.679 this prosecution in a statute, that was enough for the 0:01:28.720 --> 0:01:30.920 Supreme Court to say, well, it's some of our business. 0:01:31.000 --> 0:01:33.600 The states can do what they want here. This vote 0:01:33.720 --> 0:01:38.800 was five to four long ideological lines. What was the descent, Well, 0:01:38.840 --> 0:01:42.679 the descent was saying that there was a package of 0:01:42.800 --> 0:01:48.040 information that an employee gives in order to substantiate that 0:01:48.080 --> 0:01:50.880 they can legally work in the United States, and that 0:01:51.000 --> 0:01:54.280 always has a tax form and an immigration form, but 0:01:54.440 --> 0:01:57.760 that the motivation for lying on both forms is because 0:01:57.760 --> 0:02:03.040 of immigration, and so be immigration is the reason that 0:02:03.200 --> 0:02:07.960 the form contains this inaccurate information that should all be 0:02:08.040 --> 0:02:13.519 viewed as prosecution for lying about your immigration status, which 0:02:13.560 --> 0:02:17.560 they believe was preempted under federal law, and that that 0:02:17.639 --> 0:02:20.680 was already covered under the Supreme Court's decision on Arizona 0:02:20.760 --> 0:02:24.320 versus United States, which is that states cannot take matters 0:02:24.320 --> 0:02:28.760 in their own hands and start prosecuting undocumented immigrants for 0:02:28.880 --> 0:02:32.560 working illegally. But in the end of the day, the 0:02:32.680 --> 0:02:36.240 five justices and the majority disagreed because they said they 0:02:36.280 --> 0:02:39.120 were not being prosecuted for lying on their E nine form. 0:02:39.480 --> 0:02:42.200 They're being prosecuted for lying on their tax forms. And 0:02:42.320 --> 0:02:46.120 that difference was enough, even though very small distinction, to 0:02:46.240 --> 0:02:49.960 carry the day. Here, how many states are actually aggressively 0:02:50.080 --> 0:02:55.640 prosecuting undocumented immigrants. Well, because of the Arizona versus United 0:02:55.680 --> 0:02:59.080 States case, this was not a very common thing that 0:02:59.160 --> 0:03:02.120 was occurring an it in Kansas. This was not very common. 0:03:02.520 --> 0:03:06.120 But now this will open the door because every state 0:03:06.160 --> 0:03:10.839 can prosecute identity theft. Every state has identity theft statutes 0:03:11.240 --> 0:03:14.200 that if you right the wrong identity or you provide 0:03:14.240 --> 0:03:18.200 a false Social Security number, you can prosecute that person. 0:03:18.760 --> 0:03:22.000 And so the only question was can you do that 0:03:22.280 --> 0:03:25.880 when someone's applying for a job, because that's usually done 0:03:25.880 --> 0:03:30.120 for immigration purposes. Why people provide this false information? And 0:03:30.160 --> 0:03:33.919 so now that this loophole has been opened for state prosecutions, 0:03:34.280 --> 0:03:36.440 I think you will see many states start to take 0:03:36.480 --> 0:03:40.560 matters into their own hands and make similar prosecutions, not 0:03:40.680 --> 0:03:43.080 on the basis of the anine form, but on the 0:03:43.120 --> 0:03:46.800 basis of identity theft on any other form that was 0:03:46.840 --> 0:03:50.160 given to the employer as part of the application package. 0:03:50.520 --> 0:03:53.800 So then what happens if they're convicted are they then 0:03:54.360 --> 0:03:57.200 you know, hand it over to the FEDS and deported. Well, 0:03:57.240 --> 0:03:59.480 that's another way that this can happen. If you draw 0:03:59.520 --> 0:04:02.800 this out of the logical conclusion of a person is 0:04:02.840 --> 0:04:07.280 prosecuted for providing a false identity, then if the jurisdiction 0:04:07.400 --> 0:04:11.000 is very active at referring people who have been prosecuted 0:04:11.040 --> 0:04:13.880 to ICE, they will be turned over to ICE, and 0:04:13.920 --> 0:04:16.960 then ICE has a basis to remove them, both on 0:04:17.000 --> 0:04:18.640 account of the fact that they may not have been 0:04:18.680 --> 0:04:21.159 here legally in the first place, which is its own 0:04:21.200 --> 0:04:25.039 basis to remove somebody, but secondly because they've been convicted 0:04:25.040 --> 0:04:28.480 of an inciense involving moral turpitude in this case, which 0:04:28.520 --> 0:04:32.320 is identity theft. And so it creates a serious problem 0:04:32.360 --> 0:04:36.080 because it's a way to attract many more people into 0:04:36.120 --> 0:04:40.280 the machinery of the immigration enforcement and removal system that 0:04:40.440 --> 0:04:43.719 otherwise existed prior to a couple of days ago. So 0:04:43.839 --> 0:04:47.479 they'll be sort of safe states and not safe states 0:04:47.520 --> 0:04:51.000 like sanctuary states and correct. This is part of a 0:04:51.080 --> 0:04:55.200 larger evolution that I think even the Congress may identify 0:04:55.360 --> 0:04:59.840 one day about this concept of why not let states 0:05:00.040 --> 0:05:02.240 or to take matters into their own hands. Here with 0:05:02.279 --> 0:05:05.359 regard to immigration, and the states that I want to 0:05:05.360 --> 0:05:09.560 have these very high rigid enforcement barriers can have them. 0:05:09.880 --> 0:05:11.839 And the states that don't want to have these high 0:05:11.920 --> 0:05:15.200 rigid enforcement barriers can have them too, And so it 0:05:15.200 --> 0:05:17.599 will be interesting. And what will be interesting is whether 0:05:17.640 --> 0:05:21.760 the Supreme Court will take this view of states rights 0:05:21.800 --> 0:05:24.640 when the states are doing positive things toward immigrants. And 0:05:24.640 --> 0:05:26.839 we're gonna see some cases come out of the Ninth 0:05:26.839 --> 0:05:30.599 Circuits soon on the issues of sanctuary jurisdictions and whether 0:05:30.720 --> 0:05:34.000 funding can be denied for grant funding on the basis 0:05:34.000 --> 0:05:37.200 of being a sanctuary jurisdiction. And so we'll see whether 0:05:37.240 --> 0:05:39.799 the Supreme Court is going to be consistent or whether 0:05:39.839 --> 0:05:42.159 they're going to only take the side of enforcement on 0:05:42.279 --> 0:05:45.400 both kinds of cases. I've been talking to Leon Fresco, 0:05:45.480 --> 0:05:49.400 a partnered Hollandon Night about the immigration disputes that dominated 0:05:49.400 --> 0:05:53.200 the Supreme Court's docket this term. On Monday, the Justices 0:05:53.279 --> 0:05:57.440 heard arguments in two separate cases on immigration, one on 0:05:57.520 --> 0:06:02.400 whether to allow quick deportation of documented immigrants apprehended close 0:06:02.440 --> 0:06:07.479 to the border. Is this a new policy of quick deportation? Well, 0:06:07.480 --> 0:06:12.240 what happened was Congress created this process called the expedited 0:06:12.279 --> 0:06:15.839 removal process, which says that if someone shows up either 0:06:16.200 --> 0:06:19.120 at our border or at a port of entry, and 0:06:19.160 --> 0:06:21.240 what a port of entry is would be like JFK 0:06:21.360 --> 0:06:25.839 Airport or Dallas Airport in in in Washington. If somebody 0:06:25.880 --> 0:06:28.839 shows up there and they don't have any reason to 0:06:28.880 --> 0:06:32.120 be there, we don't owe them a whole trial and 0:06:32.279 --> 0:06:34.800 an appeal in the Court of Appeals and a Supreme 0:06:34.800 --> 0:06:38.000 Court decision. We don't know them, owe them any of that. 0:06:38.360 --> 0:06:41.400 We can just put them into what's called expedited removal 0:06:41.839 --> 0:06:44.320 and literally put them on the next plane back to 0:06:44.480 --> 0:06:47.200 the country that they came from, or if they're coming 0:06:47.240 --> 0:06:51.080 down the southern border, just literally arrest them and take 0:06:51.200 --> 0:06:55.719 their body to Mexico. And so that's what's called expedited removal. 0:06:56.279 --> 0:07:01.040 And the question is there's these concepts where expedited removal 0:07:01.279 --> 0:07:04.159 is not to be applied in cases where someone is 0:07:04.160 --> 0:07:07.560 saying that they're a refugee and in that case you 0:07:07.640 --> 0:07:11.200 have to give somebody the ability to apply for asylum. 0:07:11.280 --> 0:07:16.760 And so the complication there becomes in that case, can 0:07:16.840 --> 0:07:22.160 the individual take a habeas corpus decision if the government 0:07:22.240 --> 0:07:25.560 is not taking their asylum claim seriously, and so that's 0:07:25.560 --> 0:07:28.040 what the court was debating. Here, tell us a little 0:07:28.080 --> 0:07:31.840 bit about the plaintiff. He was a Sri Lankan, right, 0:07:31.880 --> 0:07:34.440 So the plaintiff was a member of the ethnic minority 0:07:34.600 --> 0:07:38.240 Tamil population in Sri Lanka who had been apprehended just 0:07:38.360 --> 0:07:41.320 inside the U. S. Border, and he was seeking asylum. 0:07:41.360 --> 0:07:43.400 He was saying, I have a fear that if I 0:07:43.440 --> 0:07:46.760 am removed to Sri Lanka, I will be persecuted on 0:07:46.840 --> 0:07:50.240 the basis of my minority status. And what happened was 0:07:50.400 --> 0:07:53.600 the adjudicator who was there at the border said that 0:07:53.680 --> 0:07:57.760 this person is unlikely to qualify for asylum. And so 0:07:58.040 --> 0:08:00.840 what happens when that happens is the X added removal 0:08:00.960 --> 0:08:04.560 order can be executed. And so this person said, but 0:08:04.600 --> 0:08:07.280 wait a second, what if this person is wrong, shouldn't 0:08:07.320 --> 0:08:09.760 I be able to appeal this to a court under 0:08:09.840 --> 0:08:14.280 the habeas corpus provision. And what happened is all of 0:08:14.320 --> 0:08:16.720 these cases in the past have failed, but the Ninth 0:08:16.720 --> 0:08:19.840 Circuit for the first time said, you're probably right. You 0:08:19.840 --> 0:08:22.880 should be able to appeal this to a federal court 0:08:23.000 --> 0:08:26.560 judge and say that the adjudicator got the law wrong. 0:08:26.680 --> 0:08:30.080 If that was in fact true. And so that's what 0:08:30.120 --> 0:08:32.960 was the purpose of this case. Is does a person 0:08:33.000 --> 0:08:35.560 actually have that right to go to federal court and 0:08:35.640 --> 0:08:40.080 get that adjudicator's decision reverse or is that adjudicator's decision 0:08:40.120 --> 0:08:45.040 the last word. The justices seemed divided over the point 0:08:45.120 --> 0:08:49.840 of habeas. Yes, and so there was a complication there, 0:08:49.960 --> 0:08:54.720 first in what habeas means, because usually habeas means the 0:08:54.800 --> 0:08:58.400 right to be released from the tension, and here the 0:08:58.440 --> 0:09:01.439 person wasn't seeking a right to be released from detention. 0:09:01.800 --> 0:09:04.280 They were seeking a right to get review from a 0:09:04.280 --> 0:09:07.800 deportation order. So that's the first case. Now, Now, for 0:09:07.840 --> 0:09:11.760 a hundred years, courts have said you can use habeas 0:09:11.800 --> 0:09:15.760 to seek review of a deportation order. So it would 0:09:15.800 --> 0:09:18.160 be a major change of the court says no, no, no, no, 0:09:18.200 --> 0:09:21.520 that's not habeas. Habeas is just to be released from 0:09:21.559 --> 0:09:23.880 the tension. So that would be a huge change. But 0:09:24.000 --> 0:09:27.880 that might be something that this court considers. But more 0:09:27.960 --> 0:09:30.720 importantly than that, the larger issue in this case that 0:09:30.760 --> 0:09:34.760 seems to be the more conventional issue is whether this 0:09:34.880 --> 0:09:40.120 review is permitted by law. When the Congress wrote specifically 0:09:40.720 --> 0:09:44.680 that there is a clause in the law that says, 0:09:44.720 --> 0:09:51.160 if somebody is denied their credible fear adjudication, then they 0:09:51.160 --> 0:09:54.120 don't get any habeas corpus reviews. So the Congress wrote 0:09:54.120 --> 0:09:56.880 that that was their intention. And so what the Supreme 0:09:56.920 --> 0:10:00.520 Court is grappling with is is that constitutional to deny 0:10:00.559 --> 0:10:03.840 that review? Could Congress actually have done that or did 0:10:03.880 --> 0:10:08.120 Congress act unconstitutionally? From the oral arguments, does it appear 0:10:08.200 --> 0:10:11.960 that justices are divided over this right? I mean, we 0:10:12.080 --> 0:10:15.040 know that there are four justices that are absolutely not 0:10:15.200 --> 0:10:18.680 comfortable with a scheme that has no mechanism for courts 0:10:18.720 --> 0:10:21.839 to correct even the most egregious of mistakes. So even 0:10:21.880 --> 0:10:24.200 if they say they lie, or they get the wrong 0:10:24.280 --> 0:10:28.680 human being involved, or anything else, there's no ability to 0:10:28.720 --> 0:10:31.080 correct that. That's what the Department of Justice is saying. 0:10:31.559 --> 0:10:33.640 And then we know that Justice is a leader and 0:10:33.720 --> 0:10:37.680 Kavana have very strong concerns about that this is not 0:10:37.840 --> 0:10:40.880 a real habeas petition. Habeas petitions are only to release 0:10:40.920 --> 0:10:44.520 people from the tension, and so the keys are Justices 0:10:44.600 --> 0:10:49.800 Gorcis and Justices Roberts and Justice Roberts on this concept 0:10:49.880 --> 0:10:53.040 of whether they the person will prevail and have habeas 0:10:53.120 --> 0:10:56.760 rights or not. I'm not optimistic because the only court 0:10:56.800 --> 0:10:59.839 that ever recognized this right was the Ninth Circuit. Every 0:11:00.000 --> 0:11:02.840 their court had rejected this claim, and so I'm not 0:11:02.960 --> 0:11:06.680 optimistic that the court will allow this, but we will 0:11:06.720 --> 0:11:09.360 do this. This is yet to be seen. Lee on 0:11:09.400 --> 0:11:12.480 the second case the Court heard arguments in was over 0:11:12.520 --> 0:11:17.280 whether courts can review administrative findings involving claims of torture 0:11:17.760 --> 0:11:22.560 when non citizens are deported, and Justice Samuel Alito said, 0:11:22.880 --> 0:11:26.920 all this is very complicated. Explain it to us. So 0:11:27.240 --> 0:11:29.600 there's a third case that happened this week that had 0:11:29.640 --> 0:11:33.760 to do with a person who was a criminal person 0:11:33.800 --> 0:11:36.000 who has had no right to be in the United States, 0:11:36.360 --> 0:11:38.679 but said that they could not be deported because they 0:11:38.679 --> 0:11:42.000 were going to be tortured in their home country. And 0:11:42.080 --> 0:11:44.800 so what happens is in those cases where someone is 0:11:44.800 --> 0:11:47.840 saying that they're going to be tortured in their home country, 0:11:47.920 --> 0:11:51.199 they are actually given what's called the removal order, meaning 0:11:51.240 --> 0:11:54.040 they can be removed to any other country in the world. 0:11:54.320 --> 0:11:56.240 But the question is can they be removed to the 0:11:56.280 --> 0:11:59.520 country that they're claiming that they're going to be tortured in? 0:12:00.200 --> 0:12:03.440 And so that this case only involved the issue of 0:12:03.720 --> 0:12:07.360 if someone is a criminal and the immigration court says 0:12:07.440 --> 0:12:10.680 you're not going to be tortured, do the federal courts 0:12:10.720 --> 0:12:14.080 get to review this? Because Congress had said that the 0:12:14.080 --> 0:12:19.880 federal courts cannot review any case involving certain very hardened criminals, 0:12:20.200 --> 0:12:23.240 no matter what. But then Congress had also written in 0:12:23.240 --> 0:12:26.240 another law that it has the ability to review all 0:12:26.360 --> 0:12:30.400 claims under the Convention against Torture. So the question is 0:12:30.720 --> 0:12:33.640 which of these two laws governs. Is it the one 0:12:33.720 --> 0:12:37.679 that bars all claims made by people who have committed 0:12:37.720 --> 0:12:40.680 certain crimes, or is it the one that says yes. 0:12:40.720 --> 0:12:43.480 But if what you're seeking is review of your claim 0:12:43.520 --> 0:12:45.520 that you're going to be tortured, and you're saying that 0:12:45.600 --> 0:12:49.400 the judge applied the wrong law, that case should be 0:12:49.440 --> 0:12:53.520 allowed to be reviewed, what was the questioning like, Well, 0:12:53.559 --> 0:12:59.439 the questioning was very again contentious, with Justice Soto Mayor 0:13:00.120 --> 0:13:03.760 being very concerned that even the plaintiffs were or the 0:13:03.880 --> 0:13:07.160 person who was representing the the immigrants in this case, 0:13:07.200 --> 0:13:09.439 were conceding too many points that you wanted to make 0:13:09.480 --> 0:13:13.960 it a strong, very robust review that the courts have 0:13:14.800 --> 0:13:17.440 in this in this doctrine, and that they can review 0:13:17.480 --> 0:13:21.920 every aspect of the Convention against Torture claim and other 0:13:22.080 --> 0:13:26.920 justices were uncomfortable with this concept, like Justice Kavanaugh who 0:13:27.000 --> 0:13:30.160 tried to say, hey, look, there's laws that say that 0:13:30.280 --> 0:13:34.560 these claims can't be reviewed. And Justice Alito was there too, 0:13:34.600 --> 0:13:38.920 trying to really push these arguments that the Congress foreclosed 0:13:38.920 --> 0:13:41.840 this review. So again we are going to be looking 0:13:41.880 --> 0:13:45.400 at Justice Roberts and Justice Course this year as to 0:13:45.520 --> 0:13:49.880 what the ultimate outcome is going to be. And very unusual, 0:13:50.120 --> 0:13:53.760 Justice Roberts did not ask any questions in this case, 0:13:54.240 --> 0:13:56.320 and in the last case that we were talking about, 0:13:56.640 --> 0:14:00.760 Justice Course, it didn't ask any questions. Now, I always 0:14:00.800 --> 0:14:03.440 wonder if that's because they don't want to telegraph the 0:14:03.480 --> 0:14:06.560 way they're thinking. I mean, I think that's part of 0:14:06.559 --> 0:14:08.920 the reason they don't ask questions. They also may not 0:14:09.040 --> 0:14:12.040 want to interrupt the flow of what someone is trying 0:14:12.080 --> 0:14:14.640 to get accomplished, just as Roberts has said that on 0:14:14.760 --> 0:14:17.640 numerous occasions where he thinks his colleagues asked too many 0:14:17.720 --> 0:14:20.840 questions and the lawyer never even gets to make an argument. 0:14:21.320 --> 0:14:25.120 And so I know Justice Roberts is uh position on 0:14:25.240 --> 0:14:26.960 that is that he wants people to at least be 0:14:27.040 --> 0:14:29.520 able to make some kind of logical argument and not 0:14:29.600 --> 0:14:32.200 get peppered by questions all the time. But if he 0:14:32.280 --> 0:14:35.000 has a legitimate question, he would ask it. And I 0:14:35.000 --> 0:14:40.080 think Justice Gorsege probably didn't have a question on these grounds. 0:14:40.120 --> 0:14:42.560 I think his questions were asked by all of the 0:14:42.600 --> 0:14:45.560 other justices, and I think it will be very interesting 0:14:45.600 --> 0:14:48.360 to see what he has to say on these two cases. 0:14:48.600 --> 0:14:51.080 At one point he told the assistant US listener General, 0:14:51.200 --> 0:14:55.240 sounds pretty metaphysical, counsel, It's like the Holy Trinity. What 0:14:55.320 --> 0:14:58.960 was he referring to. Well, I think that the issue 0:14:59.080 --> 0:15:03.680 here is the fact that there is this concept that 0:15:03.800 --> 0:15:07.600 the government is trying to make, which is they're trying 0:15:07.680 --> 0:15:12.680 to say that the review is not permitted of the 0:15:12.720 --> 0:15:16.880 Convention Against Torture claim because it is the same thing 0:15:17.520 --> 0:15:22.440 as reviewing the Order of removal, and so that's all 0:15:22.520 --> 0:15:24.600 one thing, just like the Holy Trinity is supposed to 0:15:24.640 --> 0:15:27.040 be one thing, the Father, the Son, and the Holy Spirit. 0:15:27.320 --> 0:15:29.960 That this is all one thing, the Order of removal 0:15:30.240 --> 0:15:33.520 and the CAT decision, the Convention Against Torture decision, And 0:15:33.560 --> 0:15:35.760 what the plate that was saying is no, those are 0:15:35.800 --> 0:15:39.680 separate things. We are understandably conceding that the person can 0:15:39.680 --> 0:15:42.600 be removed at this point to any country where they 0:15:42.640 --> 0:15:45.480 won't be tortured. So the removal order is valid. But 0:15:45.560 --> 0:15:48.800 the question is can the removal be effectuated to a 0:15:48.880 --> 0:15:52.080 specific country where they're going to be tortured and can 0:15:52.160 --> 0:15:56.520 that case be reviewed? And so they're saying that's separate, 0:15:56.560 --> 0:15:59.600 that's not the same thing, and so Gorsage seems to 0:15:59.640 --> 0:16:02.280 be said, yeah, that is not the same thing, and 0:16:02.400 --> 0:16:06.440 claiming that those are the same thing found metaphysical. Thanks 0:16:06.440 --> 0:16:09.280 for being on Bloomberg Law. Leon. That's Leon Fresco, a 0:16:09.360 --> 0:16:11.840 partner to Hollandon Knight. And that's it for this edition 0:16:11.840 --> 0:16:14.200 of Bloomberg Law. Remember you can listen to all the 0:16:14.280 --> 0:16:16.760 latest legal topics in the news anytime on our Bloomberg 0:16:16.840 --> 0:16:19.560 Law podcast. You could subscribe to the podcast or just 0:16:19.600 --> 0:16:23.680 go to iTunes or Bloomberg dot com slash podcast Slash Law. 0:16:23.920 --> 0:16:26.840 I'm June Glosso, thanks so much for listening, and remember 0:16:26.840 --> 0:16:29.240 to tune into the Bloomberg Law Show weeknights at ten 0:16:29.320 --> 0:16:33.160 pm right here on Bloomberg Radio. Thank you.