Speaker 1: This is Bloomberg Law with June Grosso from Bloomberg Radio.
Speaker 2: It's not a green card, but a gold card that
Speaker 2: gets you a green card, and the price is five
Speaker 2: million dollars. We're going to be selling a gold card.
Speaker 1: You have a green card, this is a gold card.
Speaker 2: We're going to be putting a price on that card
Speaker 2: of about five million dollars and that's going to give
Speaker 2: you Green card privileges.
Speaker 3: Plus it's going to be a rap to citizenship.
Speaker 2: It's a hefty price tag and replaces a current program
Speaker 2: that offers US visas to investors who spend about one
Speaker 2: million dollars on a company that employs at least ten people.
Speaker 2: The US wouldn't be the first country to offer so
Speaker 2: called golden visas. Joining me is immigration law expertly on Fresco,
Speaker 2: a partner at Holland and Knight. Leon tell us about
Speaker 2: the program that's in place now.
Speaker 1: There's a program called the EB five program that allows
Speaker 1: people to basically use their wealth to obtain lawful permanent residency.
Speaker 1: And it does it in one of two ways. Either
Speaker 1: you can invest in your own company that creates ten
Speaker 1: American jobs, and you can invest one point eight million
Speaker 1: dollars into that company, and that will allow you to
Speaker 1: get a green card, although that process takes about five
Speaker 1: years to do that. Or you can invest in what's
Speaker 1: called a regional center, which is a previously approved project.
Speaker 1: These projects get permission from the Immigration Service to actually
Speaker 1: market themselves as pre approved projects, and there are things
Speaker 1: that have been used in the past, like Hudson Yards
Speaker 1: in the West End of New York or the Comcast
Speaker 1: Center in Philadelphia. And what happens is if you invest
Speaker 1: right now used to be five hundred thousand, now it's
Speaker 1: eight hundred thousand dollars in those projects, then you get
Speaker 1: a share of the project and a share of the
Speaker 1: job creation of that which is the ten jobs again
Speaker 1: that are needed to create it, and you can obtain
Speaker 1: a green card. And so what President Trump is talking
Speaker 1: about is, although unclear, either some sort of enhancement or
Speaker 1: improvement or change to the program.
Speaker 2: We don't know much about the specifics, like how he
Speaker 2: intends to do this.
Speaker 1: So this is what's a bit unclear, and so there's
Speaker 1: a lot of permutations and possibilities here. The first is
Speaker 1: that the EB five program is always, for whatever reason,
Speaker 1: a program that expires and continues to need to be reauthorized.
Speaker 1: So one simple message that President Trump may end up
Speaker 1: delivering is, look, when this program expires again in twenty
Speaker 1: twenty seven, don't expect me to reauthorize it. I want
Speaker 1: to replace it with a new program. And the new
Speaker 1: program will be rather than having this job creating investment
Speaker 1: which doesn't actually accrue to the federal budget, I want
Speaker 1: the money to accrue to the federal budget. So I
Speaker 1: want you just to pay need five million dollars and
Speaker 1: you don't get that money back. It's not an investment,
Speaker 1: and we use it to pay down some sort of
Speaker 1: the federal deficit. So that's one option, and it's not
Speaker 1: clear if that would just be a legislative replacement, and
Speaker 1: obviously if that's attempted, that's going to be something with
Speaker 1: quite a lot of political pushback because there's a lot
Speaker 1: of people who have a lot of money in these
Speaker 1: projects now. So that's one option. The second option may
Speaker 1: be that he will decide to use the parole authority
Speaker 1: to say I have the ability to parole anyone I want.
Speaker 1: I'm going to parole people into the country who do
Speaker 1: these five million dollar investments and then allow them to
Speaker 1: get access to the EB five program. For instance, the
Speaker 1: Obama administration did this and the Biden administration did this
Speaker 1: for something that was called an International Entrepreneur parole. So
Speaker 1: they can create a new parole program that allows people
Speaker 1: to come in and who do whatever they want. So
Speaker 1: in the Bison and in the Obama administration, it was
Speaker 1: start a new company with a certain amount of venture
Speaker 1: capital investment. Those people could come in on a parole.
Speaker 1: And so President Trump can say, if you would do
Speaker 1: this five million dollar investment, I'm going to bring you
Speaker 1: in on a parole. And what he can also do
Speaker 1: conceivably is say, anybody who comes in with this parole
Speaker 1: meets the requirements of the existing ED five statutes such
Speaker 1: that they can then adjust their status to lawful permanent residence.
Speaker 1: Now that will be subject to a law suit, the
Speaker 1: huge one.
Speaker 3: But he could try that.
Speaker 1: But what he can't do is create new green cards
Speaker 1: out of whole cloth. That he cannot do. He would
Speaker 1: have to try to sneak them in under the existing category.
Speaker 2: How many wealthy individuals are there around the world will
Speaker 2: pay five million dollars to get the pathway to citizenship.
Speaker 1: Well, here's what's very interesting about this. So the five
Speaker 1: million dollar mark is very very high. I don't know
Speaker 1: how high the demand will be for that at all.
Speaker 1: The annual cap at the moment is ten thousand green
Speaker 1: cards per year, and that cap is actually met and
Speaker 1: is oversubscribed because what happens is it's only one investment
Speaker 1: that's needed, so it's one eight hundred thousand dollars investment
Speaker 1: that's needed, and then you can bring your spouse and
Speaker 1: your children, and each person counts toward the ten thousand cap,
Speaker 1: so they fill the cap quite quickly. But at five million,
Speaker 1: I actually don't think that this number is realistic from
Speaker 1: the standpoint of how many people you would get to invest.
Speaker 1: I think it would end up being a very small number.
Speaker 1: And then here's the second thing, and this is sort
Speaker 1: of a tough conversation to have on immigration, but I
Speaker 1: think a truthful one, unfortunately, is when the President says, well,
Speaker 1: companies can use this money as an award to give
Speaker 1: people green cards to are employees. That's unfortunately not the
Speaker 1: history of the use of immigration employment visas it We're
Speaker 1: being honest. Typically, the companies want the visas in order
Speaker 1: to be able to control the employee and not allow
Speaker 1: them to have free agency. Which is what happens when
Speaker 1: they get a green card. So the idea that a
Speaker 1: company will pay five million dollars to allow employees to
Speaker 1: have free agency that they can lead whenever they want
Speaker 1: and work for a different company or start their own
Speaker 1: competitor company, it's not going to be realistic with what
Speaker 1: we've seen in the immigration laws. Typically, a lot of companies,
Speaker 1: even to this day, they say, oh, we need more
Speaker 1: H to one V visas. They don't say we need
Speaker 1: more green cards, because green cards means that that helps
Speaker 1: the worker and the worker gets to go wherever they want.
Speaker 1: And what the companies want, to believe it or not,
Speaker 1: are the visas that actually tether them to the companies.
Speaker 1: And so if we're being realistic about it, I do
Speaker 1: not see this five million dollar program ending up being
Speaker 1: a high demand program.
Speaker 2: Congress extended the EB five program until twenty twenty seven.
Speaker 2: So would no wealthy foreigner prefer to invest under that
Speaker 2: program rather than pay under the new golden visa?
Speaker 1: Well, why would anyone pay five million when they can
Speaker 1: currently pay eight hundred thousand. And that's where he will
Speaker 1: have to figure out, Okay, what am I going to
Speaker 1: do to disincentivize the eight hundred thousand part of this program.
Speaker 3: Am I going to wait till.
Speaker 1: Twenty twenty seven and just when it expires not reauthorize it,
Speaker 1: meaning you will have to use my five million dollar programs?
Speaker 1: Or is he going to use the Tribal band Statute
Speaker 1: which allows him to ban any non citizens, so even
Speaker 1: the green card or whatever. He can ban anything from
Speaker 1: coming into the United States, And so he may say,
Speaker 1: if you're outside the United States and you're trying to
Speaker 1: do this application process from abroad, I'm not going to
Speaker 1: let you do it now. That ban won't work for
Speaker 1: people who are already here, but the ban would work
Speaker 1: for people waiting for abroad. I mean, there will be
Speaker 1: litigation over that.
Speaker 3: So he's either going to have to get.
Speaker 1: Congress to change it when the program expires in twenty
Speaker 1: twenty seven, or try to force Congress's hand to change
Speaker 1: it now by using the ban authority in order to
Speaker 1: do that.
Speaker 2: There are golden visa programs in other countries, and some
Speaker 2: countries have discontinued them, like Spain, because having these programs
Speaker 2: drove up home prices.
Speaker 3: Is that possibility, Well, here's the thing, So the answer
Speaker 3: to that question is yes, Ridge Foreign investors can increase.
Speaker 1: The cost of housing. But the truth is that's already
Speaker 1: happened in the United States, meaning that ship has already sailed.
Speaker 1: If you go to Miami, that's happened with a large
Speaker 1: amount of foreign investors from Latin America. And if you
Speaker 1: go on the West Coast, you've seen that with a
Speaker 1: large number of foreign investors from Asia. And so from
Speaker 1: that standpoint, that's not something that's not happening. That's already happened,
Speaker 1: and so I don't think this program would be likely
Speaker 1: to increase that any further. If you are a wealthy
Speaker 1: person from abroad, you already have many options to live
Speaker 1: in the United States. You can do the EB five visa.
Speaker 1: You can do it's called an E too investment visa,
Speaker 1: which is where you come and you start a company
Speaker 1: and you invest in the United States and a company.
Speaker 1: Now that's not a green card, but it allows you
Speaker 1: to live here in the United States. You can actually
Speaker 1: transfer yourself from a company you have abroad to a
Speaker 1: new company you're going to start here in America, or
Speaker 1: a company that's already here. There actually are a lot
Speaker 1: of options already, and so from that standpoint, any person
Speaker 1: with money who wants to live in the United States
Speaker 1: can do that already, and so I don't think this
Speaker 1: fills a market need from that standpoint. But more importantly
Speaker 1: to your question, I don't think it adds a single
Speaker 1: person who's buying a house who wasn't already buying a
Speaker 1: house in the United States.
Speaker 2: As we've discussed many times, Trump promised this historic mass
Speaker 2: deportation of millions of immigrants and we haven't seen that.
Speaker 3: Well.
Speaker 1: I think you have to look at from a global
Speaker 1: assessment of what was possible, the pipeline of people who
Speaker 1: were eligible to be deported was very low in terms
Speaker 1: of what the Biden administration had left over by the
Speaker 1: time that President Trump was inaugurated.
Speaker 3: So from picking up from that.
Speaker 1: Low pipeline, they are increasing the pipeline of people that
Speaker 1: are being placed into removal proceedings. Now. In terms of
Speaker 1: actual removals outside the United States, that's going to be
Speaker 1: difficult because the only people they can remove right now
Speaker 1: are people either with final orders of removal who already
Speaker 1: had these final orders pending, or people who are such
Speaker 1: criminals that you can get them into court quickly, and
Speaker 1: there isn't a way for them to actually be eligible
Speaker 1: to be saved so that you can remove them very quickly.
Speaker 1: So what we've seen is a significant number of sort
Speaker 1: of media related viewings of people being picked up and
Speaker 1: moved abroad. But those numbers are not at the moment
Speaker 1: appreciably bigger than anything that was in for sure the
Speaker 1: Obama administration, but even sometimes during the Bide administration. Is
Speaker 1: it a higher focus, yes, higher intensity yes, And will
Speaker 1: it eventually yield more numbers, yes, But the problem is
Speaker 1: really to yield more numbers, you're going to have to
Speaker 1: take people through the immigration court system unless some of
Speaker 1: these other changes we're talking about are allowed to happen.
Speaker 1: But trying to take them through the immigration court system
Speaker 1: becomes very, very complicated because you have millions of cases
Speaker 1: in the backlog, you have cases being scheduled right now
Speaker 1: to twenty twenty nine, twenty thirty, and as you remove
Speaker 1: some of these legal statuses that people have, their next
Speaker 1: move is going to be to apply for asylum, which
Speaker 1: is only going to add to the number of cases
Speaker 1: in that system.
Speaker 2: Coming up next, can AOC be prosecuted for hosting on
Speaker 2: Know Your Rights seminar on immigration? This is bloomberg. We
Speaker 2: haven't seen the mass deportations of millions of immigrants that
Speaker 2: President Donald Trump campaigned on. So the Trump administration is
Speaker 2: now going to try fast track deportations of hundreds of
Speaker 2: thousands of migrants. I've been talking to immigration law expertly
Speaker 2: on Fresco, a partner at Holland and Knight, Leon tell
Speaker 2: Us about expedited removal.
Speaker 1: So here's what happened. So expedited removal has a bunch
Speaker 1: of different applications in a bunch of different contexts. So
Speaker 1: what it normally is for is you show up at
Speaker 1: the border with no status of any kind, or you
Speaker 1: show up at the airport somehow you've manage to sneak
Speaker 1: on a plane with no status of any kind. And
Speaker 1: so what we can do under the Expedited Removal Statute,
Speaker 1: which was passed in nineteen ninety six, is to say
Speaker 1: we don't need to take you through a fancy immigration
Speaker 1: court process. We can literally send you back immediately unless
Speaker 1: you claim that you're eligible for asylum, in which case
Speaker 1: we have to determine if you have a credible fear
Speaker 1: and if you do that, and we have to put
Speaker 1: you in that asylum process. So then that clows it down.
Speaker 1: So here's the thing. That's how we've always applied it.
Speaker 1: But the statue theoretically allows it to be applied for
Speaker 1: people who've been here less than two years. Now what
Speaker 1: gets icy is if you do it for people who
Speaker 1: snuck across the border, you start getting into this debate
Speaker 1: about how long they were here, and that becomes messy.
Speaker 1: But it isn't the case for the people that the
Speaker 1: Biden administration paroled into the United States. So, if you
Speaker 1: may recall, the Biden administration did this think called the
Speaker 1: CCH and Z Parole, the Cuban, Haitian, Nicaragua and Venezuelan Parole,
Speaker 1: where it was letting in during the last two years
Speaker 1: of the Biden administration thirty thousand people per month from
Speaker 1: these countries under the idea that if we let people
Speaker 1: in legally, then they won't come illegally through the border,
Speaker 1: they'll just wait and come legally. Well, we know the
Speaker 1: exact date those people entered the United States, and so.
Speaker 3: The idea would be anybody who.
Speaker 1: Entered with one of those paroles will be unparoled, because
Speaker 1: parole is actually a status that can be revoked at
Speaker 1: any second and give in an expedited removal order. So
Speaker 1: that's going to be the idea that the Trump administration
Speaker 1: says it's going to pursue. So I will try to
Speaker 1: take all of these people, so the thirty thousand times twelve,
Speaker 1: which is four hundred and twenty thousand, and then maybe
Speaker 1: you know, maybe a little more than that, and revoke
Speaker 1: their paroles and try to get them out. Now, what
Speaker 1: will actually happen in practice, Well, for the Cubans, it's
Speaker 1: going to be very difficult to get them out because
Speaker 1: there's this thing called the Cuban Adjustment Act, which says
Speaker 1: once they've been here for a year, they're eligible for
Speaker 1: a green card. And so if they've been here longer
Speaker 1: than a year, you're not going to be able to
Speaker 1: solve that problem. And even if they've been here less
Speaker 1: than a year, then you're still going to have to
Speaker 1: try to figure out where you send those people to.
Speaker 1: And if nobody accepts them and Cuba doesn't accept them,
Speaker 1: and they get to stay here for a year, then
Speaker 1: once they hit that year number, they're eligible for the
Speaker 1: green card again. So that doesn't solve that problem. For
Speaker 1: the Nicaraguans and the Venezuelans, probably a large number of
Speaker 1: them will apply for asylum and so then they will
Speaker 1: be stuck in that large millions of cases backlog that's
Speaker 1: an immigration cord. And for the Haitians, even though they
Speaker 1: may not be eligible for asylum in many cases, they
Speaker 1: still probably apply. And I don't know how many you'll
Speaker 1: be able to get out in expedited removal. So really
Speaker 1: what ends up happening is, yes, you'll be able to
Speaker 1: get some number out who aren't sophisticated enough to then
Speaker 1: take this next step that I talked to you about.
Speaker 1: But for the people who are sophisticated enough to take
Speaker 1: the next step, what you really end up doing is
Speaker 1: you end up transferring them from a status where they
Speaker 1: were here on a parole now to a status where
Speaker 1: they're trying to seek asylum in the immigration cord. And
Speaker 1: now they're just adding two hundreds of thousands of more
Speaker 1: cases to millions of backlog cord. And so that puts
Speaker 1: strain on any new people you're going to try to
Speaker 1: put into the removal process.
Speaker 2: If Cubans can get a green card if they're here
Speaker 2: for a year, then that Binden program allowing a certain
Speaker 2: number of Cubans in legally basically meant that he was
Speaker 2: giving them a green card.
Speaker 1: Yes, there was this thing called the wet foot dry
Speaker 1: foot policy in the past that got taken away. But
Speaker 1: the point of that policy was as long as you
Speaker 1: were parolled or admitted into the United States under the
Speaker 1: Cuban Adjustment active, you then one year from that date
Speaker 1: that you were parolled or admitted you could actually get
Speaker 1: a green card. So because these Cubans didn't sneak in,
Speaker 1: but were actually parolled into the United States, they were
Speaker 1: allowed to then start that one year clock. So a
Speaker 1: large number of these Cubans will have reached the one
Speaker 1: year clock at some point and that will allow them
Speaker 1: to apply for a green card. And there's nothing that
Speaker 1: Trump administration would be able to do about that because.
Speaker 3: If they try to put them in deportation.
Speaker 1: Proceedings, they would obtain the green card in the deportation
Speaker 1: proceedings unless they're somehow not eligible, which only happens if
Speaker 1: you are a criminal or if you are known communists.
Speaker 2: So now the Haitians and the Venezuelans just filed a lawsuit.
Speaker 2: They're suing the choice.
Speaker 1: They'll end up just applying for asylum. Correct. They have
Speaker 1: no other choice because their temporary protective status has been removed,
Speaker 1: and litigation that's just been filed on that front trying
Speaker 1: to challenge the removal of the temporary protected status, saying, look,
Speaker 1: when under the statue you give it for eighteen months,
Speaker 1: you can't revoke it at that point. And I think
Speaker 1: that's going to be a very powerful argument. I will
Speaker 1: have to see what the courts say, but I do
Speaker 1: think it's a very powerful argument to say the eighteen
Speaker 1: months has to be honored at that point and you
Speaker 1: can't remove it. And then they make the same arguments
Speaker 1: that were made during the first Trump administration, which was,
Speaker 1: in addition, there's an equal protection violation because there was
Speaker 1: racial animates that played a role in removing the temporary
Speaker 1: protective status, and that one will have to wait and see.
Speaker 1: The Ninth Circuit agreed with that argument in the first
Speaker 1: Trump administration, so we'll have to see in the second
Speaker 1: Trump administration what the courts will say about.
Speaker 2: That work and how many years? Again is the backlog
Speaker 2: for asylum cases?
Speaker 1: Wow, I mean there's cases right now. If you get
Speaker 1: your case right now in a lot of the immigration
Speaker 1: courts in America and you're not in detention, you will
Speaker 1: have your asylum hearing in twenty thirty, twenty thirty one
Speaker 1: right now. And the big problem is, by the way,
Speaker 1: on that yeah, I mean, I mean, I have a
Speaker 1: client that just came to me the other day. They
Speaker 1: filed their asylum case in twenty ten, and now it's
Speaker 1: twenty twenty five. The whole world is completely different.
Speaker 2: Now. Another thing that Trump administration is trying is requiring
Speaker 2: all immigrants to register. Tell us about that.
Speaker 1: Well, So the registration requirement is as follows. It's the
Speaker 1: law that actually was created in the nineteen forties during
Speaker 1: the World War Two, and it said we wanted people
Speaker 1: to be able to register with the federal government so
Speaker 1: that we know who was who, we were able to
Speaker 1: keep track of people. But that law has sort of
Speaker 1: faded into oblivion and hasn't been used because it's been
Speaker 1: difficult to administer there. But the idea is, if you
Speaker 1: didn't originally check in with a visa and fingerprints and
Speaker 1: everything else, meaning you unlawfully cross the border. Now the
Speaker 1: idea is you're going to have to register so that
Speaker 1: we can get some understanding of who's here legally or not.
Speaker 1: And then if you fail to register, you can actually
Speaker 1: be subject to criminal prosecution for failure to register or
Speaker 1: if you don't have your documents with you, you can
Speaker 1: be subject to criminal prosecution for failure to have your
Speaker 1: documents with you. And so the idea of behind that
Speaker 1: is twofold number one. If you can arrest people for
Speaker 1: doing that, that certainly creates a bigger sort of deterrence
Speaker 1: factor which tells people, look, you don't want to be
Speaker 1: here if you're here unlawfully, because you're subject to arrest
Speaker 1: at any time. So that adds tension. But secondly, and
Speaker 1: more importantly, what it does is it creates a rhetoric
Speaker 1: where you know, many times people are having this debate,
Speaker 1: are you here elite? Does that mean you're a criminal
Speaker 1: or not? Well, if you actually create this registration requirement
Speaker 1: and people failed to register, then you can rhetorically call
Speaker 1: people criminals and you're not in the wrong anymore because
Speaker 1: you're allowed to say every one of these people who
Speaker 1: didn't register is a criminal.
Speaker 2: Let's talk about borders. Are Tom Homan and New York
Speaker 2: Democratic Representative Alexandria Ocasio Cortes. So Holman has been making
Speaker 2: veiled threats, I'd say because aoc held Unno Your Rights
Speaker 2: seminar for Immigrants is there anything wrong with her doing that.
Speaker 1: So here's the complication. You may recall we spoke a
Speaker 1: year ago about a Supreme Court case that actually dealt
Speaker 1: with this inducing statue where there was this lawyer who
Speaker 1: had this kakameni scheme to defraud people in order to
Speaker 1: get them to stay into the United States. He said, look,
Speaker 1: if you painting this money, I can file this crazy
Speaker 1: application and you can stay. And he got prosecuted under
Speaker 1: the statue which says it's illegal to induce people who
Speaker 1: are here without status to either remain or to enter
Speaker 1: the United States. And the Ninth Circuit I actually declared
Speaker 1: that statute unconstitutional as vague, and the Supreme Court was
Speaker 1: actually having arguments about this, saying, what if you just
Speaker 1: ask your grandmother, Hey, grandma, please don't leave the country.
Speaker 3: I love you.
Speaker 1: Stay. You know you're a US citizen because you were
Speaker 1: born here, but you have this undocumented grandma, and you
Speaker 1: say that, could this be a prosecution? And the DOJ
Speaker 1: at that time under the Biden administration said well, we
Speaker 1: would never prosecute anyone under this. Don't invalidate the whole
Speaker 1: statute for that. Because this case of the lawyer who
Speaker 1: has this Kakamane scheme doesn't fit what you're talking about,
Speaker 1: so we'll wait till that case later. So now this
Speaker 1: Tom Home and AOC situation, we're right back here again,
Speaker 1: which is what does it mean to induce someone without
Speaker 1: status to remain in the United States? And if you're
Speaker 1: doing and know your Rights presentation, knowing that the people
Speaker 1: are undocumented, are you still inducing them to stay in
Speaker 1: the United States with your advice? And so you would say, well,
Speaker 1: I have First Amendment rights to tell people what their
Speaker 1: rights are, and there's certainly some truth to that, but
Speaker 1: this statute, if somebody actually gets prosecuted under this statute,
Speaker 1: it's going to need some scrutiny from the courts to
Speaker 1: decide what is permitted or not because the broad language
Speaker 1: of the statue, as just the sort of Mayor was
Speaker 1: saying during the oral argument, certainly allows this, which is,
Speaker 1: you know you're a US citizen, you have to undocument
Speaker 1: the grandma, you say stay, please stay. That's enough to
Speaker 1: apparently induce someone to stay illegally knowing that they're illegal.
Speaker 1: And so if you're giving a know your Rights presentation
Speaker 1: to people who you know are undocumented, you would be
Speaker 1: doing potentially the same thing. And so that's where this
Speaker 1: gets dangerous. I'm not saying people shouldn't do this, but
Speaker 1: the statute is so broad, both with regard to inducement
Speaker 1: and also with regard to harboring, which just says any
Speaker 1: act that you take that allows a person to be
Speaker 1: evaded from detection from the immigration authorities knowing that the
Speaker 1: person is undocumented, is considered harboring. And so the question
Speaker 1: is what do you do with these two statutes because
Speaker 1: they're so broad that if they're not actually prosecuted for
Speaker 1: the people that this was meant to prosecute, meeting the
Speaker 1: people who do the safe houses, the traffickers, the smugglers,
Speaker 1: that kind of thing, and you start applying it to
Speaker 1: these broader contexts, that's where the courts are going to
Speaker 1: start getting involved in having to decide if this statute
Speaker 1: is unconstitutionally vague.
Speaker 2: So, I mean, she's speaking as an elected official, so
Speaker 2: it's also within the speech and debate clause, right.
Speaker 1: Correct, There's all of these different defenses that one can
Speaker 1: put speech in debate clause, legislative immunity. In addition to that,
Speaker 1: the statute is vague to First Amendment, so she would
Speaker 1: obviously be the hardest target to try to prosecute, as
Speaker 1: opposed to someone who is, you know, again a lawyer
Speaker 1: with a kakamane scheme that's the easiest target, or someone
Speaker 1: with a safe house or a trafficker. But in terms
Speaker 1: of the broadest language of the statute, one could say
Speaker 1: that the elements of the criminal offense of inducement are harboring,
Speaker 1: could even be violated by someone who's doing to know
Speaker 1: your Rights presentation to people that they know are undocumented
Speaker 1: and they're telling them how to toward an ICE investigation.
Speaker 1: And so this is where this gets very challenging for
Speaker 1: people in the legal community, for people outside the legal community,
Speaker 1: where it's even more challenging because at least as a lawyer,
Speaker 1: you're trying to give legal advice, But what if you're
Speaker 1: just someone who works at a nonprofit that helps immigrants.
Speaker 1: And so we'll have to see if the Trump administration
Speaker 1: tries to use this statute in a broad way moving forward.
Speaker 2: So do you think Holman is making these He's made
Speaker 2: these remarks several times. You think he's doing it just
Speaker 2: to sort of scare people into not taking any action
Speaker 2: to help immigrants.
Speaker 1: I think the problem is that ICE has very limited
Speaker 1: enforcement authorities that rely predominantly on administrative warrants, not judicial wars,
Speaker 1: because judicial wars are very time consuming and very hard
Speaker 1: to get and trying to get them in millions of
Speaker 1: cases is impossible. So they have to use administrative warrants.
Speaker 1: And the problem with administrative warrants is they're rarely enforceable,
Speaker 1: so they require volunteers to let you into their houses
Speaker 1: or to let you into their schools or wherever. And
Speaker 1: so if everybody's given to Know your Rights presentation that
Speaker 1: says there's an administrative warrant, don't honor it, then that
Speaker 1: does forward ninety percent of what ICE is trying to accomplish.
Speaker 1: And so this is what gets frustrating to someone in
Speaker 1: Tom Holman's position.
Speaker 2: So many interesting lawsuits on the horizon. Thanks so much,
Speaker 2: leon Asa. That's Leon Fresco of Honda Night. Coming up
Speaker 2: next on The Bloomberg Law Show. The Netflix show Running
Speaker 2: Point had to go through some legal hoops before it
Speaker 2: started streaming. I'm June Grosso and you're listening to Bloomberg.
Speaker 1: This is Bloomberg Law with June Grosso from Bloomberg Radio.
Speaker 2: Work in a family business, The greatest basketball franchise in
Speaker 2: the history of the game, The Los Angeles Waves, the
Speaker 2: new Netflix show Running Point, had to go through some
Speaker 2: legal hoops before it started streaming. Pepper Down University sued
Speaker 2: to stop the show from airing over trademark infringement claims,
Speaker 2: alleging that the fictional Los Angeles Waves professional basketball team
Speaker 2: in the show uses the university's orange and blue colors
Speaker 2: as well as its school's nickname, but a judge denied
Speaker 2: the motion for a temporary restraining order, saying the university's
Speaker 2: request fell short. Joining me is intellectual property attorney Jonathan Hyman,
Speaker 2: a partner Bob Martin's, tell us what Pepperdine was complaining about.
Speaker 4: Yeah, the case is a pretty interesting one. So it
Speaker 4: revolves around Netflix's new show called Running Point, in which
Speaker 4: there's a fictional team name called the Los Angeles Waves
Speaker 4: that's the professional team. The show is actually based loosely
Speaker 4: on one of the producers, Genie Buss's life and her
Speaker 4: experience in running to La Lakers, and Pepperdine's main complaint
Speaker 4: is that the team name is Waves and that Pepperdine's
Speaker 4: thoughts are that everyone would associate the team name Waves
Speaker 4: with Pepperdine and that anyone seeing the show would think
Speaker 4: it's about Pepperdine, and the show is an adult show
Speaker 4: and it has some content that Pepperdine didn't want to
Speaker 4: be associated with. They kept referencing it as being a
Speaker 4: raunchy comedy that's ante ethical to its two Pepperdine Christian values,
Speaker 4: and even in oral argument in the case, Pepperdine had
Speaker 4: raised that it has an anti drug policy and anti
Speaker 4: alcohol policy and they just didn't want to be associated
Speaker 4: with that show. And those are real concerns for brands.
Speaker 4: You know, brands want to be able to control how
Speaker 4: people perceive their brand and not be associated with anything
Speaker 4: that's on savory. But the issue is whether anyone would
Speaker 4: really associate the Waves with Peppernine. And before you could
Speaker 4: even get to that issue, the courts in these types
Speaker 4: of issues of using a trademark and expressive work will
Speaker 4: apply to Rogers tests and that's kind of where the
Speaker 4: decision and Pepperdine's arguments kind of got sidetracked.
Speaker 2: It's more than just the name, right, it's also the
Speaker 2: orange and blue collars and other things.
Speaker 4: Correct. Yes, the case Pepperdine complain was not just about
Speaker 4: the name the team named the Waves. They were also
Speaker 4: complaining about the use of the orange and blue uniforms,
Speaker 4: the fact that the logos looked similar, that the mascot
Speaker 4: for Pepperdine is a blue Wave or humanized version of
Speaker 4: a blue Wave. And the other issue was that in
Speaker 4: some of the backgrounds of the scenes, there are jerseys
Speaker 4: in the fictional NBA team's offices, and one of the
Speaker 4: jersey numbers was number thirty seven, and that's the jersey
Speaker 4: that the mascot for Pepperdine wears. So Pepperdine has obviously
Speaker 4: a heightened sensitivity to what is being shown in the show,
Speaker 4: and it seems to be Pepperdine's argument is very nefarious
Speaker 4: and was intentionally done to trade and associate with Pepperdine.
Speaker 4: But Netflix had testimony from its executives and Warner Brothers
Speaker 4: executives that any similarity was unintentional and that the team
Speaker 4: colors orange and blue were chosen because orange is the
Speaker 4: color of basketball and blue is the color of Waves,
Speaker 4: and the team name The Waves was associated with They
Speaker 4: wanted something to associate the fictional NBA team with Los Angeles,
Speaker 4: and they were right by the ocean and so it
Speaker 4: was natural for what Warner Brothers argued was as natural
Speaker 4: of choose the team name Waves.
Speaker 2: In a trademark infringement case, does it matter what the
Speaker 2: intention of Netflix was. Suppose it was accidental.
Speaker 4: Right under the Rogers test, it has to have some
Speaker 4: artistic relevance to There's two factors in the Rogers test,
Speaker 4: and the first factor is that it has to have
Speaker 4: some artistic relevance to the work, And the second factor
Speaker 4: is that the use is not explicitly misleading as the
Speaker 4: source or the content of the work. And normally in
Speaker 4: some of these cases you're dealing with taking the brand
Speaker 4: itself and putting it in or using as a reference
Speaker 4: in the movie itself to the plane of s brand. Here,
Speaker 4: the mark that issue was a fictional team name within
Speaker 4: the show. But Netflix and Warner Brothers argue that that's
Speaker 4: artistically relevant to the show because they were trying to
Speaker 4: make it a NBA team based in Los Angeles that
Speaker 4: had to associate with Team names are always usually associated
Speaker 4: with the locations where they're located, and so like the
Speaker 4: Miami Heat for example. And so the argument again is
Speaker 4: that from Pepperdize perspective, is that it called to mind
Speaker 4: their teammate. But under the Rogers test, if it has
Speaker 4: artistic relevance, well then you get to the whether it's
Speaker 4: explicitly misleading. And basically what Netflix is arguing was that
Speaker 4: it's an arbitrary use of waste and I'm mixing trademark metaphors.
Speaker 4: But it had nothing to do with Pepperdine. And even
Speaker 4: if it did have something to do with Pepperdine, if
Speaker 4: the show was about Pepperdine, well then there'd be no
Speaker 4: issue either. So the first gateway for Netflix was to
Speaker 4: put this case into Rogers And even if the court
Speaker 4: decided that Rogers didn't apply, then you would then go
Speaker 4: into the likely confusion factors, which is under the Ninth
Speaker 4: Circuit flee Craft factors, and that would even be tough
Speaker 4: for Pepperdine to show that it prevails under that construct.
Speaker 2: This was for a tro a temporary restraining order, So
Speaker 2: did the judge consider both factors of the Rogers test.
Speaker 4: The judge found that that Pepperdine was unlikely to succeed
Speaker 4: on the merits of its claim under the Rogers test.
Speaker 4: The judge found that the waves mark had artistic relevance
Speaker 4: to the work and it was not explicitly misleading as well.
Speaker 4: The court denied the TRO because of this kind of
Speaker 4: use squarely fits within the Rogers test.
Speaker 2: So this was for a TRO. The standard is high
Speaker 2: for a TRO, and Pepperdine says they're going to continue
Speaker 2: the lawsuit. What are their chances going forward?
Speaker 4: Standard for a TRO. It's an extraordinary remedy, especially in
Speaker 4: this context where the suit was filed days and then
Speaker 4: the judge's decision was within hours of when the show
Speaker 4: was supposed to air. And the problem for Pepperdine is
Speaker 4: that the standard for preliminary injunction is the same as
Speaker 4: the TRO in the Ninth Circuit, and even the judge
Speaker 4: noted that, and she ended her order saying Pepperdine may
Speaker 4: file It's a regularly noticed motion for preliminary junction if
Speaker 4: it has evidence to do so. And so I think
Speaker 4: Judgment of Venezuela was tipping her hand and saying Pepperdine
Speaker 4: needs to come in with something more than what it
Speaker 4: had to TRO, some kind of evidence. But that still
Speaker 4: is also problematic for Pepperdine because the Rogers test would
Speaker 4: still apply. And so even if you get to an
Speaker 4: evidentiary standpoint where Pepperdine is coming in with maybe a survey.
Speaker 4: It still has to show that the Rogers test doesn't apply,
Speaker 4: and then would need to show that under the LIKELHO
Speaker 4: too confusion factors that it can prevail on the trade
Speaker 4: more infringement plane, and there could be some discovery and
Speaker 4: maybe this case would change. It seems unlikely, but maybe
Speaker 4: there would be some discovery and there could be documents
Speaker 4: from Netflix that show an intention to trade on Pepperdine.
Speaker 4: I'm saying it seems unlikely because of the testimony so
Speaker 4: far was that Waves was almost an arbitrary use and
Speaker 4: it was selected because of what the association with Los
Speaker 4: Angeles as opposed to the association with Pepperdine.
Speaker 2: If they don't get the preliminary injunction, what about suing
Speaker 2: Netflix for damages.
Speaker 4: Right, and that would be that would then still have
Speaker 4: to They would still have to get through the Rogers
Speaker 4: deaths and show that this wasn't an expressive work or
Speaker 4: that they explicitly misled viewers to thinking there was a
Speaker 4: connection there and or association. And if they it still
Speaker 4: seems that this case won't get out of what we'll
Speaker 4: say Rogers lands that they're still squarely within Rogers. But
Speaker 4: then even if they can survive that and get to
Speaker 4: a likely confusion analysis, I think they've still got problems
Speaker 4: with their case. One of the issues is while Pepperdine
Speaker 4: has federal registrations and they're given a presumption that they're
Speaker 4: valid and protectable, the question is how strong is the
Speaker 4: Pepperdine wave mark and whether consumers really associate wave would
Speaker 4: just Pepperdine. There are a number of Netflix and Warner Bros.
Speaker 4: That show, there's a number of teams in California, and
Speaker 4: there's also teams nationwide like Tulane Green Waves that use
Speaker 4: waves and any third party use or other school A
Speaker 4: team names they use waves couldn't limit the ability for
Speaker 4: Pepperdine to succeed on a likely confusion analysis.
Speaker 2: Thanks for being on the show. That's Jonathan Hymen of
Speaker 2: Knob Martin's and that's it for this edition of The
Speaker 2: Bloomberg Law Show. Remember you can always get the latest
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