Speaker 1: This is Bloomberg Law with June Grasso from Bloomberg Radio.
Speaker 1: Immigration disputes dominated the Supreme Court's docket this term. On
Speaker 1: Monday alone, the Justice has heard arguments in two separate
Speaker 1: cases on the subject, and on Tuesday, the Court handed
Speaker 1: down an opinion that bolstered the power of states to
Speaker 1: prosecute undocumented immigrants. Joining me is Leon Fresco, a partner
Speaker 1: at Hollandon Knight. Isn't immigration the domain of the federal government? Well, yes, June,
Speaker 1: And this is actually a significant rollback of the Supreme
Speaker 1: Court sort of epic decision in Arizona versus United States,
Speaker 1: where it sort of gave this broad proclamation that the
Speaker 1: employment of undocumented immigrants and the prosecution by states of
Speaker 1: unlawful employment of undocumented immigrants would be something that just
Speaker 1: couldn't be in the province of the state. States couldn't
Speaker 1: take matters into their own hands. And what happened here
Speaker 1: in Kansas versus guard Sea is that the Supreme Court
Speaker 1: created a gigantic loophole in that decision in two ways. First,
Speaker 1: it said because the prosecution was not actually based on
Speaker 1: lying on the immigration form itself the nine but rather
Speaker 1: on tax forms that the state was permitted to make
Speaker 1: this prosecution, but also because Congress hadn't expressly pre ended
Speaker 1: this prosecution in a statute, that was enough for the
Speaker 1: Supreme Court to say, well, it's some of our business.
Speaker 1: The states can do what they want here. This vote
Speaker 1: was five to four long ideological lines. What was the descent, Well,
Speaker 1: the descent was saying that there was a package of
Speaker 1: information that an employee gives in order to substantiate that
Speaker 1: they can legally work in the United States, and that
Speaker 1: always has a tax form and an immigration form, but
Speaker 1: that the motivation for lying on both forms is because
Speaker 1: of immigration, and so be immigration is the reason that
Speaker 1: the form contains this inaccurate information that should all be
Speaker 1: viewed as prosecution for lying about your immigration status, which
Speaker 1: they believe was preempted under federal law, and that that
Speaker 1: was already covered under the Supreme Court's decision on Arizona
Speaker 1: versus United States, which is that states cannot take matters
Speaker 1: in their own hands and start prosecuting undocumented immigrants for
Speaker 1: working illegally. But in the end of the day, the
Speaker 1: five justices and the majority disagreed because they said they
Speaker 1: were not being prosecuted for lying on their E nine form.
Speaker 1: They're being prosecuted for lying on their tax forms. And
Speaker 1: that difference was enough, even though very small distinction, to
Speaker 1: carry the day. Here, how many states are actually aggressively
Speaker 1: prosecuting undocumented immigrants. Well, because of the Arizona versus United
Speaker 1: States case, this was not a very common thing that
Speaker 1: was occurring an it in Kansas. This was not very common.
Speaker 1: But now this will open the door because every state
Speaker 1: can prosecute identity theft. Every state has identity theft statutes
Speaker 1: that if you right the wrong identity or you provide
Speaker 1: a false Social Security number, you can prosecute that person.
Speaker 1: And so the only question was can you do that
Speaker 1: when someone's applying for a job, because that's usually done
Speaker 1: for immigration purposes. Why people provide this false information? And
Speaker 1: so now that this loophole has been opened for state prosecutions,
Speaker 1: I think you will see many states start to take
Speaker 1: matters into their own hands and make similar prosecutions, not
Speaker 1: on the basis of the anine form, but on the
Speaker 1: basis of identity theft on any other form that was
Speaker 1: given to the employer as part of the application package.
Speaker 1: So then what happens if they're convicted are they then
Speaker 1: you know, hand it over to the FEDS and deported. Well,
Speaker 1: that's another way that this can happen. If you draw
Speaker 1: this out of the logical conclusion of a person is
Speaker 1: prosecuted for providing a false identity, then if the jurisdiction
Speaker 1: is very active at referring people who have been prosecuted
Speaker 1: to ICE, they will be turned over to ICE, and
Speaker 1: then ICE has a basis to remove them, both on
Speaker 1: account of the fact that they may not have been
Speaker 1: here legally in the first place, which is its own
Speaker 1: basis to remove somebody, but secondly because they've been convicted
Speaker 1: of an inciense involving moral turpitude in this case, which
Speaker 1: is identity theft. And so it creates a serious problem
Speaker 1: because it's a way to attract many more people into
Speaker 1: the machinery of the immigration enforcement and removal system that
Speaker 1: otherwise existed prior to a couple of days ago. So
Speaker 1: they'll be sort of safe states and not safe states
Speaker 1: like sanctuary states and correct. This is part of a
Speaker 1: larger evolution that I think even the Congress may identify
Speaker 1: one day about this concept of why not let states
Speaker 1: or to take matters into their own hands. Here with
Speaker 1: regard to immigration, and the states that I want to
Speaker 1: have these very high rigid enforcement barriers can have them.
Speaker 1: And the states that don't want to have these high
Speaker 1: rigid enforcement barriers can have them too, And so it
Speaker 1: will be interesting. And what will be interesting is whether
Speaker 1: the Supreme Court will take this view of states rights
Speaker 1: when the states are doing positive things toward immigrants. And
Speaker 1: we're gonna see some cases come out of the Ninth
Speaker 1: Circuits soon on the issues of sanctuary jurisdictions and whether
Speaker 1: funding can be denied for grant funding on the basis
Speaker 1: of being a sanctuary jurisdiction. And so we'll see whether
Speaker 1: the Supreme Court is going to be consistent or whether
Speaker 1: they're going to only take the side of enforcement on
Speaker 1: both kinds of cases. I've been talking to Leon Fresco,
Speaker 1: a partnered Hollandon Night about the immigration disputes that dominated
Speaker 1: the Supreme Court's docket this term. On Monday, the Justices
Speaker 1: heard arguments in two separate cases on immigration, one on
Speaker 1: whether to allow quick deportation of documented immigrants apprehended close
Speaker 1: to the border. Is this a new policy of quick deportation? Well,
Speaker 1: what happened was Congress created this process called the expedited
Speaker 1: removal process, which says that if someone shows up either
Speaker 1: at our border or at a port of entry, and
Speaker 1: what a port of entry is would be like JFK
Speaker 1: Airport or Dallas Airport in in in Washington. If somebody
Speaker 1: shows up there and they don't have any reason to
Speaker 1: be there, we don't owe them a whole trial and
Speaker 1: an appeal in the Court of Appeals and a Supreme
Speaker 1: Court decision. We don't know them, owe them any of that.
Speaker 1: We can just put them into what's called expedited removal
Speaker 1: and literally put them on the next plane back to
Speaker 1: the country that they came from, or if they're coming
Speaker 1: down the southern border, just literally arrest them and take
Speaker 1: their body to Mexico. And so that's what's called expedited removal.
Speaker 1: And the question is there's these concepts where expedited removal
Speaker 1: is not to be applied in cases where someone is
Speaker 1: saying that they're a refugee and in that case you
Speaker 1: have to give somebody the ability to apply for asylum.
Speaker 1: And so the complication there becomes in that case, can
Speaker 1: the individual take a habeas corpus decision if the government
Speaker 1: is not taking their asylum claim seriously, and so that's
Speaker 1: what the court was debating. Here, tell us a little
Speaker 1: bit about the plaintiff. He was a Sri Lankan, right,
Speaker 1: So the plaintiff was a member of the ethnic minority
Speaker 1: Tamil population in Sri Lanka who had been apprehended just
Speaker 1: inside the U. S. Border, and he was seeking asylum.
Speaker 1: He was saying, I have a fear that if I
Speaker 1: am removed to Sri Lanka, I will be persecuted on
Speaker 1: the basis of my minority status. And what happened was
Speaker 1: the adjudicator who was there at the border said that
Speaker 1: this person is unlikely to qualify for asylum. And so
Speaker 1: what happens when that happens is the X added removal
Speaker 1: order can be executed. And so this person said, but
Speaker 1: wait a second, what if this person is wrong, shouldn't
Speaker 1: I be able to appeal this to a court under
Speaker 1: the habeas corpus provision. And what happened is all of
Speaker 1: these cases in the past have failed, but the Ninth
Speaker 1: Circuit for the first time said, you're probably right. You
Speaker 1: should be able to appeal this to a federal court
Speaker 1: judge and say that the adjudicator got the law wrong.
Speaker 1: If that was in fact true. And so that's what
Speaker 1: was the purpose of this case. Is does a person
Speaker 1: actually have that right to go to federal court and
Speaker 1: get that adjudicator's decision reverse or is that adjudicator's decision
Speaker 1: the last word. The justices seemed divided over the point
Speaker 1: of habeas. Yes, and so there was a complication there,
Speaker 1: first in what habeas means, because usually habeas means the
Speaker 1: right to be released from the tension, and here the
Speaker 1: person wasn't seeking a right to be released from detention.
Speaker 1: They were seeking a right to get review from a
Speaker 1: deportation order. So that's the first case. Now, Now, for
Speaker 1: a hundred years, courts have said you can use habeas
Speaker 1: to seek review of a deportation order. So it would
Speaker 1: be a major change of the court says no, no, no, no,
Speaker 1: that's not habeas. Habeas is just to be released from
Speaker 1: the tension. So that would be a huge change. But
Speaker 1: that might be something that this court considers. But more
Speaker 1: importantly than that, the larger issue in this case that
Speaker 1: seems to be the more conventional issue is whether this
Speaker 1: review is permitted by law. When the Congress wrote specifically
Speaker 1: that there is a clause in the law that says,
Speaker 1: if somebody is denied their credible fear adjudication, then they
Speaker 1: don't get any habeas corpus reviews. So the Congress wrote
Speaker 1: that that was their intention. And so what the Supreme
Speaker 1: Court is grappling with is is that constitutional to deny
Speaker 1: that review? Could Congress actually have done that or did
Speaker 1: Congress act unconstitutionally? From the oral arguments, does it appear
Speaker 1: that justices are divided over this right? I mean, we
Speaker 1: know that there are four justices that are absolutely not
Speaker 1: comfortable with a scheme that has no mechanism for courts
Speaker 1: to correct even the most egregious of mistakes. So even
Speaker 1: if they say they lie, or they get the wrong
Speaker 1: human being involved, or anything else, there's no ability to
Speaker 1: correct that. That's what the Department of Justice is saying.
Speaker 1: And then we know that Justice is a leader and
Speaker 1: Kavana have very strong concerns about that this is not
Speaker 1: a real habeas petition. Habeas petitions are only to release
Speaker 1: people from the tension, and so the keys are Justices
Speaker 1: Gorcis and Justices Roberts and Justice Roberts on this concept
Speaker 1: of whether they the person will prevail and have habeas
Speaker 1: rights or not. I'm not optimistic because the only court
Speaker 1: that ever recognized this right was the Ninth Circuit. Every
Speaker 1: their court had rejected this claim, and so I'm not
Speaker 1: optimistic that the court will allow this, but we will
Speaker 1: do this. This is yet to be seen. Lee on
Speaker 1: the second case the Court heard arguments in was over
Speaker 1: whether courts can review administrative findings involving claims of torture
Speaker 1: when non citizens are deported, and Justice Samuel Alito said,
Speaker 1: all this is very complicated. Explain it to us. So
Speaker 1: there's a third case that happened this week that had
Speaker 1: to do with a person who was a criminal person
Speaker 1: who has had no right to be in the United States,
Speaker 1: but said that they could not be deported because they
Speaker 1: were going to be tortured in their home country. And
Speaker 1: so what happens is in those cases where someone is
Speaker 1: saying that they're going to be tortured in their home country,
Speaker 1: they are actually given what's called the removal order, meaning
Speaker 1: they can be removed to any other country in the world.
Speaker 1: But the question is can they be removed to the
Speaker 1: country that they're claiming that they're going to be tortured in?
Speaker 1: And so that this case only involved the issue of
Speaker 1: if someone is a criminal and the immigration court says
Speaker 1: you're not going to be tortured, do the federal courts
Speaker 1: get to review this? Because Congress had said that the
Speaker 1: federal courts cannot review any case involving certain very hardened criminals,
Speaker 1: no matter what. But then Congress had also written in
Speaker 1: another law that it has the ability to review all
Speaker 1: claims under the Convention against Torture. So the question is
Speaker 1: which of these two laws governs. Is it the one
Speaker 1: that bars all claims made by people who have committed
Speaker 1: certain crimes, or is it the one that says yes.
Speaker 1: But if what you're seeking is review of your claim
Speaker 1: that you're going to be tortured, and you're saying that
Speaker 1: the judge applied the wrong law, that case should be
Speaker 1: allowed to be reviewed, what was the questioning like, Well,
Speaker 1: the questioning was very again contentious, with Justice Soto Mayor
Speaker 1: being very concerned that even the plaintiffs were or the
Speaker 1: person who was representing the the immigrants in this case,
Speaker 1: were conceding too many points that you wanted to make
Speaker 1: it a strong, very robust review that the courts have
Speaker 1: in this in this doctrine, and that they can review
Speaker 1: every aspect of the Convention against Torture claim and other
Speaker 1: justices were uncomfortable with this concept, like Justice Kavanaugh who
Speaker 1: tried to say, hey, look, there's laws that say that
Speaker 1: these claims can't be reviewed. And Justice Alito was there too,
Speaker 1: trying to really push these arguments that the Congress foreclosed
Speaker 1: this review. So again we are going to be looking
Speaker 1: at Justice Roberts and Justice Course this year as to
Speaker 1: what the ultimate outcome is going to be. And very unusual,
Speaker 1: Justice Roberts did not ask any questions in this case,
Speaker 1: and in the last case that we were talking about,
Speaker 1: Justice Course, it didn't ask any questions. Now, I always
Speaker 1: wonder if that's because they don't want to telegraph the
Speaker 1: way they're thinking. I mean, I think that's part of
Speaker 1: the reason they don't ask questions. They also may not
Speaker 1: want to interrupt the flow of what someone is trying
Speaker 1: to get accomplished, just as Roberts has said that on
Speaker 1: numerous occasions where he thinks his colleagues asked too many
Speaker 1: questions and the lawyer never even gets to make an argument.
Speaker 1: And so I know Justice Roberts is uh position on
Speaker 1: that is that he wants people to at least be
Speaker 1: able to make some kind of logical argument and not
Speaker 1: get peppered by questions all the time. But if he
Speaker 1: has a legitimate question, he would ask it. And I
Speaker 1: think Justice Gorsege probably didn't have a question on these grounds.
Speaker 1: I think his questions were asked by all of the
Speaker 1: other justices, and I think it will be very interesting
Speaker 1: to see what he has to say on these two cases.
Speaker 1: At one point he told the assistant US listener General,
Speaker 1: sounds pretty metaphysical, counsel, It's like the Holy Trinity. What
Speaker 1: was he referring to. Well, I think that the issue
Speaker 1: here is the fact that there is this concept that
Speaker 1: the government is trying to make, which is they're trying
Speaker 1: to say that the review is not permitted of the
Speaker 1: Convention Against Torture claim because it is the same thing
Speaker 1: as reviewing the Order of removal, and so that's all
Speaker 1: one thing, just like the Holy Trinity is supposed to
Speaker 1: be one thing, the Father, the Son, and the Holy Spirit.
Speaker 1: That this is all one thing, the Order of removal
Speaker 1: and the CAT decision, the Convention Against Torture decision, And
Speaker 1: what the plate that was saying is no, those are
Speaker 1: separate things. We are understandably conceding that the person can
Speaker 1: be removed at this point to any country where they
Speaker 1: won't be tortured. So the removal order is valid. But
Speaker 1: the question is can the removal be effectuated to a
Speaker 1: specific country where they're going to be tortured and can
Speaker 1: that case be reviewed? And so they're saying that's separate,
Speaker 1: that's not the same thing, and so Gorsage seems to
Speaker 1: be said, yeah, that is not the same thing, and
Speaker 1: claiming that those are the same thing found metaphysical. Thanks
Speaker 1: for being on Bloomberg Law. Leon. That's Leon Fresco, a
Speaker 1: partner to Hollandon Knight. And that's it for this edition
Speaker 1: of Bloomberg Law. Remember you can listen to all the
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Speaker 1: I'm June Glosso, thanks so much for listening, and remember
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