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

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Speaker 2: Can the Trump administration turn away asylum seekers at the

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Speaker 2: US Mexico border. Federal law says that any non citizen

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Speaker 2: who quote arrives in the United States can apply for asylum.

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Speaker 2: So the answer turns on what it means to arrive

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Speaker 2: in the United States, and most of the oral arguments

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Speaker 2: at the Supreme Court today revolved around the interpretation of

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Speaker 2: those words. The government's attorney, the Vek Suri, said, a

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Speaker 2: person has to have crossed the border in order to

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Speaker 2: arrive in the United States.

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Speaker 3: You can't arrive in the United States while you're still

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Speaker 3: standing in Mexico.

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Speaker 4: That should be the end of this case.

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Speaker 2: But liberal Justice Katanji Brown Jackson challenged that interpretation.

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Speaker 5: Imagine a person who has a placard on their body

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Speaker 5: as they approach the border that says, you know, I

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Speaker 5: would like intrigue. I'm being persecuted in Mexico. Your suggestion

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Speaker 5: that the United States would say, unless you can figure

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Speaker 5: out a way to illegally cross, we're not going to

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Speaker 5: entertain that claim seems very peculiar.

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Speaker 2: And the attorney arguing on behalf of asylum seekers Kelsey

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Speaker 2: Cochrane said, arriving in the United States simply meant making

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Speaker 2: it to a port of entry until a change in

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Speaker 2: policy ten years ago.

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Speaker 6: From nineteen seventeen to twenty sixteen, ninety nine years there

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Speaker 6: was not a single example of a turnback. So what

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Speaker 6: was happening is people would come through the port at

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Speaker 6: that point. When they were in the port, they would

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Speaker 6: be inspected and processing. What happened, So it's an unusual

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Speaker 6: scenario we have here where we have the officers standing

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Speaker 6: there and turning people back.

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Speaker 2: The justices pressed her with questions about whether an asylum

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Speaker 2: seeker had arrived in the United States if they reached

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Speaker 2: the border wall or made it almost halfway through the

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Speaker 2: Rio grand or cross the Rio Grande, or we're first

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Speaker 2: in the line waiting to enter a port of entry

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Speaker 2: or second in the line. Here are justice is Amy

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Speaker 2: Cony Barrett and Neil Gorsuch.

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Speaker 7: How do you know under your theory when the person

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Speaker 7: is close enough that we could say they have arrived

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Speaker 7: in or arrived in the destination. I mean, what if

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Speaker 7: there's a queue and they're far back, or what if

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Speaker 7: they arrive not at a port of entry. How close

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Speaker 7: do you have to be to the border. Could you

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Speaker 7: say that someone arrives in the United States if they're

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Speaker 7: at a portion of the border that does not have

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Speaker 7: a port of entry, Like, what is it if it's

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Speaker 7: not crossing the physical border? What is the magic thing

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Speaker 7: or the dispositive thing that we're looking for where we say, ah,

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Speaker 7: Now that person we can say arrives in the United States.

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Speaker 3: Now, how come somebody who's in the line isn't in.

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Speaker 3: I mean, if the whole point is to make sure

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Speaker 3: that people are attempting to get into the country have

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Speaker 3: the opportunity to file asylum claims, and they've made it

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Speaker 3: all the way, why doesn't matter he's second in line.

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Speaker 2: The High Court's answers could reshape the government's asylum policy.

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Speaker 2: Joining me is an expert immigration law. Leon Fresco, a

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Speaker 2: partner at Honden Knight Leon tell us about the issue

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Speaker 2: in this case about asylum.

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Speaker 1: So, in this case, which is called known versus alot Lado,

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Speaker 1: the issue is whether a non citizen who has stopped

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Speaker 1: on the Mexican side of the US Mexican border are

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Speaker 1: they considered someone under the statute who arrived in the

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Speaker 1: United States for the purposes of being allowed to get

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Speaker 1: asylum processing under the immigration laws. So here's how this works.

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Speaker 1: So there's two kinds of people who tried to apply

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Speaker 1: for asylum. There's the people who tried to sneak across

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Speaker 1: the border, and so for those people, traditionally, for the

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Speaker 1: last thirty forty years or so, there was this understanding

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Speaker 1: that yes, once you got across the border, you could

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Speaker 1: make a claim for asylum. Now there's a separate case

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Speaker 1: and a separate issue involved with President Trump basically using

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Speaker 1: the travel ban authority to say no, if you cross

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Speaker 1: the border, you can't get asylum.

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Speaker 4: But that's not an issue in this case.

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Speaker 1: This case is about whenever you ask people what you're

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Speaker 1: supposed to do when you really want asylum, the issue

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Speaker 1: is they say, well, go to a port of entry

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Speaker 1: and present yourself as a proper person.

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Speaker 4: Don't create chaos and all kinds.

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Speaker 1: Of confusion by running across the border. Go to a

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Speaker 1: port of entry. So what happens is you go to

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Speaker 1: a port of entry, if the government refuses to ever

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Speaker 1: see you, it just keeps you on the Mexican side,

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Speaker 1: which is what's currently happening. Then you never get to

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Speaker 1: apply for asylum either. So the question that this case

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Speaker 1: tries to deal with is what happens to those individuals

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Speaker 1: who clearly presented themselves and said I want asylum, but

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Speaker 1: their human body is on the Mexican side of the

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Speaker 1: b order. Does the US government have an obligation to

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Speaker 1: still process these individuals for asylum?

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Speaker 4: That's the question.

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Speaker 1: And the Trump administration says no, if your body's on

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Speaker 1: the Mexican side of the border, you don't get to

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Speaker 1: apply for asylum. And the litigants who were from this

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Speaker 1: organization called Al Ultra Lado said no, that's not correct,

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Speaker 1: and the Ninth Circuit said the same thing, that once

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Speaker 1: you've presented yourself for asylum, you've done what's needed. It's

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Speaker 1: not really mattering if your body is a few feet

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Speaker 1: away from the US territorial border.

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Speaker 2: Explain the questions over the interpretation of the phrase arrives

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Speaker 2: in the United States.

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Speaker 1: So the asylum statute uses the quote arrives in or

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Speaker 1: is quote physically present in the United States. So if

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Speaker 1: you were just to do again an artificial intelligence or

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Speaker 1: a dictionary or something like that, then that would be

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Speaker 1: the end of this, because then that would mean if

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Speaker 1: you arrived in, your body would have to be inside

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Speaker 1: the United States, or if you were physically president of

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Speaker 1: the United States, that would mean your body would have

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Speaker 1: to be inside the United States. But then there's a

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Speaker 1: separate concept in the immigration law called an arriving alien.

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Speaker 1: And the idea is, if you are an arriving alien

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Speaker 1: and you're apprehended or somehow in the custody of the

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Speaker 1: government or even the situational awareness of the government that

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Speaker 1: you are an arriving alien, you're someone who can apply

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Speaker 1: for asylum. Yes, you're kept in detention during this time,

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Speaker 1: but you can apply for asylum. The law actually uses

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Speaker 1: this word arriving alien. So the question is, why would

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Speaker 1: the law use the term arriving alien if that didn't

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Speaker 1: mean anything, if the sort of process of arriving didn't

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Speaker 1: shield you in some way from being able to get asylum,

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Speaker 1: if the government knew about you and apprehended you in

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Speaker 1: some way, whether the apprehension was inside the United States

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Speaker 1: or to prevent you from coming inside of the United States.

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Speaker 1: And so that's the sort of debate or dispute here

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Speaker 1: is once the government knows about you and is doing

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Speaker 1: something to stop you, then that should be the end

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Speaker 1: of it in terms of what the plaintiffs, the immigrants

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Speaker 1: rights groups think they think, hey, that's the answer here.

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Speaker 1: You are an arriving alien, you've been apprehended, you should

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Speaker 1: now get to apply for asylum. And the government says, yeah,

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Speaker 1: but that's not how that works. The arriving alien is

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Speaker 1: sort of for the apprehension of the person and then

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Speaker 1: the deportation of the person and the detention. But the

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Speaker 1: actual act of applying for asylum requires an actual arrival

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Speaker 1: and requires physical presence in the United States. And so

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Speaker 1: I do think that because much of this court is textualists.

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Speaker 1: So you have three very strong textualists on the court,

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Speaker 1: but then you also have people who are asking practical

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Speaker 1: questions amongst the conservative justices that I think out of

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Speaker 1: the six conservative justices, you're probably likely to find at

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Speaker 1: least five votes probably for the government's argument that in

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Speaker 1: order to be eligible for asylum, your human body actually

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Speaker 1: has to be inside the United States.

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Speaker 4: Now, they may say.

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Speaker 1: Look, this is very cruel that the administration can just

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Speaker 1: keep people out from the ports of entry when they're saying,

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Speaker 1: go to the ports of entry.

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Speaker 4: This has to be your solution. But they may say that's.

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Speaker 1: Something for the Congress to have to adjudicate in terms

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Speaker 1: of passing a bill that lets a certain amount of

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Speaker 1: people get screened each day, or does something else, but

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Speaker 1: it's not an issue for the courts to decide. I

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Speaker 1: think that's where this is likely going, but we'll have

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Speaker 1: to wait and see.

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Speaker 2: The Justice has posed all these hypotheticals to determine what

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Speaker 2: point an asylum seeker had to have reached in order

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Speaker 2: to be considered to have arrived in the United States.

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Speaker 2: So was it enough if they reached the border wall

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Speaker 2: or made it almost halfway through the Rio Grande, or

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Speaker 2: cross the Rio grand or suppose they were first in

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Speaker 2: line waiting to enter a port of entry, or suppose

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Speaker 2: they were last in line. So is the court going

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Speaker 2: to come down with a decision that says, Okay, here's

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Speaker 2: the point where you arrive and can ask for asylum.

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Speaker 4: That's correct. I mean.

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Speaker 1: The problem is it's very hard to draw a bright

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Speaker 1: line rule. The easiest bright line rule to draw, which

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Speaker 1: is why I think this is going to be appealing

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Speaker 1: to the conservative justices, is that your body is inside

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Speaker 1: the United States. Once you draw the line at something else,

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Speaker 1: then the question is where do you draw that line?

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Speaker 1: And this is why they talked a lot about the

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Speaker 1: Haitian interdiction cases where Haitians were interdicted at sea, and

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Speaker 1: the question was did those cases require asylum and they

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Speaker 1: did not. Those were considered extra territorial case and that

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Speaker 1: the asylum laws didn't apply to the Haitians that were

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Speaker 1: intredicted at sea. And so the idea is, where do

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Speaker 1: you draw this line if it's hard to sort of

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Speaker 1: say if the government is aware of you, because the

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Speaker 1: government can be aware of you in many different ways

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Speaker 1: through satellite, through drones, through some other thing. If you're

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Speaker 1: in Mexico and you're being stopped from coming in, that

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Speaker 1: doesn't mean you're in custody. You're free to leave. You

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Speaker 1: could go anywhere else. And so I don't know how

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Speaker 1: you would draw this line. But what's going to be

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Speaker 1: interesting is I do think, assuming that the immigrants' rights

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Speaker 1: groups lose here on that basis, that it's sort of

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Speaker 1: hard to draw a line. And so we might as

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Speaker 1: well read the statute the way it says, which is

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Speaker 1: arrives and that your body has to be in the US.

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Speaker 1: There's still going to be a second case that comes

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Speaker 1: to the Supreme Court. Well, when you do arrive and

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Speaker 1: you do apply for asylum, can the Trump administration still

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Speaker 1: ban you anyway? And I think it's going to be

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Speaker 1: hard for the court if they rule against the immigrants here,

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Speaker 1: to rule against them yet again a second time and

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Speaker 1: say there's just literally no way to apply for asylum

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Speaker 1: ever in America.

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Speaker 4: So we'll see.

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Speaker 1: But I do think the difficulty they're having with this

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Speaker 1: case for shadows a potential triumph for the immigrants rights

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Speaker 1: groups in this second case about what happens when people

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Speaker 1: do actually arise.

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Speaker 4: But again, we'll just have to wait and see.

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Speaker 2: What's happening now. Because during the oral arguments, they said

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Speaker 2: that the administration wasn't using this policy of the call

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Speaker 2: it metering, wasn't using this policy right now, correct.

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Speaker 1: They're banning everybody from asylum. So that's what they're doing

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Speaker 1: right now, is they're saying you're just completely banned from

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Speaker 1: seeking asylum at the southern border of the United States.

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Speaker 1: But the point is that that argument rests on the

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Speaker 1: fact that the reason you're banned is because you're crossing illegally.

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Speaker 1: So if you're crossing illegally, that's what triggers the ban.

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Speaker 4: So the idea is go to a.

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Speaker 1: Port of entry. But when you go to a port

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Speaker 1: of entry, you're not being allowed into the United States.

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Speaker 1: So that's the problem. There's no place to currently apply.

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Speaker 1: And so what this case would remedy is they would

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Speaker 1: remedy this issue that you couldn't go to.

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Speaker 4: A port of entry to apply for asylum.

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Speaker 1: Now, again, I don't think it's actually going to remedy anything,

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Speaker 1: because I don't think the Supreme Court is going to

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Speaker 1: rule that there's a way to define this statute that

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Speaker 1: makes any sense other than that your body has to

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Speaker 1: be in the US in order to have a right

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Speaker 1: for asylum, because where do we draw the line on

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Speaker 1: where your body could be outside the US. But what

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Speaker 1: I do think is when they then get to the

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Speaker 1: second case about well what about when your body is

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Speaker 1: in the United States, can the president still UNILA early

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Speaker 1: ban you, then they're going to have to look at

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Speaker 1: that within the context of what they decided here and

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Speaker 1: see that this really would mean that a president could

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Speaker 1: ignore all of these statutes that talk about asylum and

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Speaker 1: its pages and pages and pages of statutes and regulation,

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Speaker 1: could just ignore all of them and say this whole

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Speaker 1: thing doesn't exist anymore.

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Speaker 4: And I do think that.

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Speaker 1: Will probably give the court some pause, although who knows,

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Speaker 1: because I do think it's also natural to say, under

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Speaker 1: the previous scenario, we had a million people crossing the

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Speaker 1: border each year. Now we don't have any So one

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Speaker 1: certainly produces a more manageable result than the other. And

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Speaker 1: the Supreme Court by changing the way that the band works,

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Speaker 1: could potentially spark another million people at the border, which

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Speaker 1: they probably wouldn't want to do. The question is do

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Speaker 1: they also want to just allow a one hundred percent

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Speaker 1: ban on asylum cases.

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Speaker 4: So we'll have to wait and see.

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Speaker 2: Stay with me, Leon, coming up next. Mark Wayne Mullen

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Speaker 2: was sworn in today as a new Secretary of Homeland Security.

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Speaker 2: Our change is ahead. This is Bloomberg. Wayne Mullen was

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Speaker 2: sworn in today at the White House as the new

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Speaker 2: Secretary of Homeland Security. President Trump said he has a

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Speaker 2: lot of confidence in his new DHS secretary.

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Speaker 8: With Secretary Mullin at DHS, we will continue our record

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Speaker 8: setting efforts to deport these illegal alien criminals from our country,

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Speaker 8: and we are doing at record levels despite a very

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Speaker 8: unfair court system.

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Speaker 2: I've been talking to Leon Fresco, a partner at Holland

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Speaker 2: and Knight. He was the former head of the Office

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Speaker 2: of Immigration Litigation in the Obama administration, Leanne. I've been

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Speaker 2: wondering whether it would be helpful if the person who

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Speaker 2: leads the Department of Homeland Security actually has some background

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Speaker 2: or experience in immigration.

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Speaker 1: Well that's complicated because actually the first Homeland Security Secretary

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Speaker 1: was Tom Ridge, who was the governor of Pennsylvania. And

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Speaker 1: then the second one was Michael Turnoff, who had been

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Speaker 1: a judge. Yes, he'd had some law enforcement background. You

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Speaker 1: had Janet Apolitano who was the governor of Arizona. You

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Speaker 1: had Jay Johnson who was an attorney at the Defense Department.

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Speaker 1: The only one who worked in the immigration was quite frankly,

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Speaker 1: Ali Majorcus. And you know that, depending on who you

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Speaker 1: talk to, was either good or terrible. So I don't

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Speaker 1: know necessarily that experience is the issue. But what really

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Speaker 1: matters is the judgment, the intellectual curiosity, the getting of

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Speaker 1: good people to advise you. And I do think in

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Speaker 1: terms of this, there's a couple of things that you

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Speaker 1: can look toward that you know might be helpful. I

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Speaker 1: don't think the policies are substantively going to change, I'm

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Speaker 1: almost certain of that, but I do think to the

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Speaker 1: extent that there's an ability to exercise the policies without

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Speaker 1: being gratuitously inflammatory. I do think that will be helpful.

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Speaker 1: And we'll see if a Secretary Mullen does that. I mean,

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Speaker 1: he claimed that he would be doing that, but we'll

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Speaker 1: have to see, you know, and to the extent that

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Speaker 1: that can happen on an agent and see why. Basis

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Speaker 1: that the social media be dialed down a little bit,

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Speaker 1: that the rhetoric be dialed down a little bit, All

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Speaker 1: of that helps in terms of not creating these sort

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Speaker 1: of markers of inflammation that you see around the country.

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Speaker 1: So that will be one. The other thing he said

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Speaker 1: that was interesting is he would require judicial warrants to

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Speaker 1: enter homes or businesses, which was something that the previous

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Speaker 1: secretary didn't want to say that he would work with

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Speaker 1: the Congress when they were concerns about specific cases. So

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Speaker 1: we'll see if that ends up happening, and you know,

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Speaker 1: he may end up getting involved in this DHS shut

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Speaker 1: down negotiation to try to see if there's a way forward,

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Speaker 1: to try to see if this can finally be ended

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Speaker 1: so that you know, TSA and everything else can come back.

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Speaker 1: So we'll see, this will be his first test. If

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Speaker 1: he's able to come up with an interesting response to

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Speaker 1: the DHS shutdown and he's part of the negotiations, then

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Speaker 1: I think you could expect some interesting, helpful changes. But

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Speaker 1: if he's sort of divorced from this round of negotiations

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Speaker 1: and he doesn't take a role in solving it, then

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Speaker 1: I do think you'll pretty much then end up seeing

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Speaker 1: more of the same as we move forward, Because.

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Speaker 2: The policy itself comes from the administration, right, and in

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Speaker 2: this case, Stephen Miller.

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Speaker 1: Correct, most of the immigration policy comes from Stephen Miller

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Speaker 1: and comes from the White House and people who work

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Speaker 1: for Stephen Miller. And so the idea was that there

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Speaker 1: would be sort of an operational person implementing this, but

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Speaker 1: they wouldn't be the ones formulating the policy. But look,

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Speaker 1: at the end of the day, once you're the Secretary

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Speaker 1: of Homeland Security, you get a lot of say in

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Speaker 1: what gets implemented and how it can't be done without you.

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Speaker 1: So the only thing they can do is fire you,

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Speaker 1: which is quite inconvenient to have to keep firing secretaries

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Speaker 1: of Homeland Security. So Secretary Mullen will have the ability

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Speaker 1: to implement policies that he wants and to not implement

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Speaker 1: policies that he doesn't want. But the question is will

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Speaker 1: he be willing to take on some of those battles.

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Speaker 1: Does he have the acumen to end up doing that

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Speaker 1: in a way that doesn't get him fired.

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Speaker 4: Those are all very.

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Speaker 1: Important questions, and I think there's nothing to do but watch,

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Speaker 1: because no one can really know how that's going to

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Speaker 1: play out. But one thing he can do for sure

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Speaker 1: is to insist that everything that comes out of the

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Speaker 1: department take more of a tone that's not designed in

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Speaker 1: its purpose to be inflammatory. And I do think that

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Speaker 1: would be a tremendous already benefit as opposed to trying

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Speaker 1: you know, you have social media posts that talk in

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Speaker 1: a way that's very aggressive, or you have rhetoric that

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Speaker 1: talks in a way that's very aggressive. None of those

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Speaker 1: words or none of that rhetoric changes the actual number

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Speaker 1: of people you remove, and in fact, they could actually

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Speaker 1: shrink the number of people you remove. And so why

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Speaker 1: say it if it doesn't actually help the operational mission?

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Speaker 2: Have they actually stopped with the very aggressive tactics that

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Speaker 2: we saw, you know, in Minneapolis and Chicago, and have

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Speaker 2: they sort of dial that back as the borders are

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Speaker 2: said they would.

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Speaker 1: At the moment, they're focused on the cities where they

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Speaker 1: have cooperation for the rest of twenty twenty six because

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Speaker 1: they don't sort of want this to insert itself as

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Speaker 1: an election issue. They're trying to just focus on creating

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Speaker 1: their numbers of removals through these jurisdictions where they have

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Speaker 1: cooperation and trying to develop cooperation in more serious cases.

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Speaker 1: They're trying to do that in New York and in

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Speaker 1: Los Angeles and in Minnesota, where they say, look, would

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Speaker 1: some of these very serious criminals, would you please cooperate

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Speaker 1: with us and helping them to get removed by notifying

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Speaker 1: us where they are and helping us apprehend them. And

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Speaker 1: I do think they're making inroads there. And the question

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Speaker 1: is do they just want to stay with that for

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Speaker 1: the rest of the year or not. But I do

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Speaker 1: think their plan is twenty seven rolls around, or even

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Speaker 1: late twenty twenty six after the midterm election, to come

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Speaker 1: back and sort of ramp this up again. And that's

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Speaker 1: where we're gonna have to see where Secretary Mullin goes,

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Speaker 1: if he actually will allow that or will he just

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Speaker 1: keep what will have been going on for nine months

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Speaker 1: previous to that by then will he say, Look, this

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Speaker 1: is working, We're getting pretty good numbers, We're not inflaming people.

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Speaker 4: Why not just keep doing this.

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Speaker 2: ICE agents have been deployed to fourteen airports today to

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Speaker 2: help during the shutdown, as lines to get through security

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Speaker 2: have been growing and growing, hours long waits at some airports.

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Speaker 2: Minority Leader Chuck Schumer came out against it during a

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Speaker 2: speech on the Senate floor today.

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Speaker 9: ICE needs to leave the airports now. Trump needs to

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Speaker 9: pay TSA workers now and push Republicans to reach a deal.

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Speaker 9: No intimidates, no one timidation forces at are airports, no

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Speaker 9: more chaos at checkpoints.

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Speaker 4: Enough is enough.

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Speaker 2: What's your take on using ICE at the airports during

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Speaker 2: the shutdown?

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Speaker 1: Well, there's a lot to say about this ICE at

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Speaker 1: the airport's thing, and so let's just go through step

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Speaker 1: by step. So first the question is will they be

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Speaker 1: performing ICE functions or TSA functions.

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Speaker 4: So if you start with.

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Speaker 1: That question, let's say they're actually performing ICE functions, which

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Speaker 1: is if they're there to actually apprehend and then lead

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Speaker 1: to the eventual removal of people without immigration status at

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Speaker 1: the airport. Well, theoretically that is consistent with the real

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Speaker 1: ID requirement. You're not supposed to be able to fly

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Speaker 1: if you don't have a real ID, and so if

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Speaker 1: you are there without a real IDA and you're trying

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Speaker 1: to fly, then theoretically you are exposing yourself to removal.

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Speaker 1: So in that area that would just be a debate

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Speaker 1: about whether you should have ICE doing that or not.

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Speaker 1: But that seems to be not an operationally incon system thing.

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Speaker 1: People may not like that ICE is there, but as

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Speaker 1: long as they're not in masks or creating all kinds

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Speaker 1: of havoc, it would be theoretically consistent. Like I said,

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Speaker 1: with the real IDEAC, there's a different question if ICE

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Speaker 1: is scanning your luggage and checking your pockets and your

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Speaker 1: keys and all of this.

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Speaker 4: The issue there is one.

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Speaker 1: There's a TSA training issue, which is you'd have to

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Speaker 1: get that training to know how to use that machine

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Speaker 1: and what to say to people, what to do with

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Speaker 1: disabled people, what to do with elderly people, et cetera.

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Speaker 1: So I don't know that you could just implement that

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Speaker 1: in a day or two, but I don't think they're

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Speaker 1: doing that anyway.

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Speaker 4: But the third point is.

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Speaker 1: Yes, it's true the TSA agents aren't getting paid, but

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Speaker 1: even when the TSA agents were getting paid. That was

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Speaker 1: considered one of the lowest morale jobs in the government.

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Speaker 1: If you pay any attention when you go through the

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Speaker 1: TSA screening process, many times the TSA are talking about

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Speaker 1: out the concept of when is my next break?

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Speaker 4: Is it in five minutes? Is it in eight minutes?

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Speaker 1: You know, they're they're very attuned to not being there

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Speaker 1: at that's because the job is just you know, it's

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Speaker 1: this job of just repetition and stress and repetition, and

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Speaker 1: so the job is a low morale job. So the

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Speaker 1: point is, if you're trying to ramp up ICE numbers

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Speaker 1: and you're moving them into a job that is a

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Speaker 1: low morale job, I don't know how that's consistent with

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Speaker 1: your desire to increase ICE numbers. So I don't think

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Speaker 1: that would be in a long term thing. If ICE

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Speaker 1: was actually going to do TSA work, they would end

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Speaker 1: up with a lot of dissatisfied, low morale ICE employees.

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Speaker 1: So we'll just have to see how that plays out.

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Speaker 2: Let's talk for a minute about immigration judges, because the

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Speaker 2: Trump administration fired nearly one hundred immigration judges last year,

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Speaker 2: and over the weekend, the Merits Systems Protection Board which

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Speaker 2: is composed of all Republicans, endorsed the Trump administration's argument

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Speaker 2: that Article two permits the president to remove these immigration judges,

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Speaker 2: and the judges are appealing. This sounds like, you know,

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Speaker 2: some of the arguments that we've heard before, right.

441
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Speaker 1: This is the whole doctrine of inferior officers, which has

442
00:24:22,720 --> 00:24:27,320
Speaker 1: been used in many different contexts in the administration where

443
00:24:27,320 --> 00:24:30,240
Speaker 1: President Trump has tried to use his authority under the

444
00:24:30,280 --> 00:24:34,119
Speaker 1: Constitution under Article two to fire inferior officers. And the

445
00:24:34,200 --> 00:24:37,680
Speaker 1: question is just whether an immigration judge who is an employee.

446
00:24:37,840 --> 00:24:39,960
Speaker 1: Here's just to lay this out for your audience. The

447
00:24:40,000 --> 00:24:43,520
Speaker 1: immigration judge is not a normal judge. They're not picked

448
00:24:43,520 --> 00:24:46,280
Speaker 1: by the president and confirmed by the Senate. An immigration

449
00:24:46,480 --> 00:24:50,160
Speaker 1: judge I answers an online ad and they put their

450
00:24:50,160 --> 00:24:53,440
Speaker 1: resume in the online ad system, and they go through

451
00:24:53,480 --> 00:24:56,560
Speaker 1: a hiring process and a six week training and then

452
00:24:56,560 --> 00:24:58,919
Speaker 1: they're an immigration judge. And so the question is is

453
00:24:58,960 --> 00:25:05,280
Speaker 1: that person considered an inferior officer who exercises significant authority

454
00:25:06,080 --> 00:25:11,119
Speaker 1: and can actually set some precedents an immigration law, or

455
00:25:11,160 --> 00:25:15,320
Speaker 1: are they considered someone who's so inferior that they are

456
00:25:15,560 --> 00:25:20,600
Speaker 1: that they actually have civil services protections, and the meritistem

457
00:25:20,640 --> 00:25:24,359
Speaker 1: Protection Board says, no, these people do exercise significant authority

458
00:25:24,720 --> 00:25:28,679
Speaker 1: under federal law, so they can be removed by the president.

459
00:25:29,280 --> 00:25:31,800
Speaker 1: And I do think it's interesting because there's two kinds

460
00:25:31,800 --> 00:25:36,280
Speaker 1: of immigration judges. There's ones that are called normal immigration

461
00:25:36,440 --> 00:25:39,600
Speaker 1: judges and there's a second one called appellate immigration judges.

462
00:25:40,080 --> 00:25:42,119
Speaker 1: And so I think this argument is much stronger for

463
00:25:42,160 --> 00:25:47,000
Speaker 1: the appellate immigration judges because they do set precedents that

464
00:25:47,080 --> 00:25:50,119
Speaker 1: then have to be followed by the lower immigration judges.

465
00:25:50,160 --> 00:25:53,040
Speaker 1: So I do think in their situation, it's probably much

466
00:25:53,080 --> 00:25:57,720
Speaker 1: easier to argue that they exercise significant authority under federal law.

467
00:25:58,119 --> 00:26:01,480
Speaker 1: But under the normal immigration judge, where they're constantly in

468
00:26:01,560 --> 00:26:03,359
Speaker 1: the court, you know, you go to immigration court, they say,

469
00:26:03,400 --> 00:26:05,800
Speaker 1: I don't authority to do anything. I have to just

470
00:26:05,840 --> 00:26:08,760
Speaker 1: follow what I'm being told. And now they have a

471
00:26:08,760 --> 00:26:11,159
Speaker 1: lot of AI that's sort of guiding them through what

472
00:26:11,200 --> 00:26:13,800
Speaker 1: they're supposed to do in a hearing because a lot

473
00:26:13,800 --> 00:26:15,240
Speaker 1: of them are new and a lot of them don't

474
00:26:15,280 --> 00:26:18,720
Speaker 1: even have experience in immigration law. The question is, if

475
00:26:18,720 --> 00:26:21,840
Speaker 1: you're basically almost an AI judge at this point, what

476
00:26:22,040 --> 00:26:25,760
Speaker 1: do you do vis a the are you really someone

477
00:26:25,840 --> 00:26:29,240
Speaker 1: exercising any kind of significant authorities. So I think there

478
00:26:29,760 --> 00:26:31,600
Speaker 1: that's going to be a harder one, and I think

479
00:26:31,880 --> 00:26:35,359
Speaker 1: the federal circuit may be more amenable to saying those

480
00:26:35,400 --> 00:26:38,560
Speaker 1: people do have NRIT systems protection, board protection.

481
00:26:39,280 --> 00:26:44,760
Speaker 2: Finally, leon this week, Gregory Bavino is retiring. I'm sure

482
00:26:44,840 --> 00:26:48,760
Speaker 2: to applause from advocates for migrants. He was the face

483
00:26:49,119 --> 00:26:54,919
Speaker 2: of the administration's harsh crackdown on immigration that led to

484
00:26:55,000 --> 00:26:59,439
Speaker 2: the deaths of two US citizens by federal agents. Do

485
00:26:59,480 --> 00:27:02,320
Speaker 2: you think he would forced out forced to retire.

486
00:27:02,720 --> 00:27:05,280
Speaker 1: Well, what happens is when you reach a certain age,

487
00:27:05,280 --> 00:27:07,920
Speaker 1: you can retire and have all of your benefits. And

488
00:27:08,000 --> 00:27:11,159
Speaker 1: so the role he wanted to play was essentially the

489
00:27:11,200 --> 00:27:15,160
Speaker 1: Tom Homan role, where you know Tom Homan had been

490
00:27:15,200 --> 00:27:18,320
Speaker 1: the Borders are and then he sort of was a

491
00:27:18,359 --> 00:27:22,280
Speaker 1: little bit downgraded both by Secretary Noman by circumstances in the.

492
00:27:22,280 --> 00:27:24,000
Speaker 4: News related to him.

493
00:27:24,359 --> 00:27:28,879
Speaker 1: But then when these things happen in Minnesota, people brought

494
00:27:28,960 --> 00:27:32,600
Speaker 1: back Tom Homan, and even Secretary Mullin has said he

495
00:27:32,640 --> 00:27:35,200
Speaker 1: wants to bring back Tom Holman and work with him.

496
00:27:35,560 --> 00:27:38,439
Speaker 1: And so Tom Homan's thing has always been looks the

497
00:27:38,520 --> 00:27:42,720
Speaker 1: vision of I should be go and find people who

498
00:27:43,000 --> 00:27:46,080
Speaker 1: we know are undocumented and deport that. Don't just start

499
00:27:46,480 --> 00:27:50,240
Speaker 1: sweeping the streets, grabbing everybody you can and asking whether

500
00:27:50,280 --> 00:27:51,399
Speaker 1: they're here legally or not.

501
00:27:51,480 --> 00:27:53,560
Speaker 4: He's always been uncomfortable with that. Tom.

502
00:27:53,600 --> 00:27:56,120
Speaker 1: That doesn't mean he doesn't want the ultimate same outcome

503
00:27:56,480 --> 00:27:58,919
Speaker 1: of every undocumented person being deported.

504
00:27:59,240 --> 00:28:00,280
Speaker 4: He does, but he.

505
00:28:00,280 --> 00:28:02,840
Speaker 1: Wants to do that within the context that you go

506
00:28:03,040 --> 00:28:06,359
Speaker 1: after people at their home or at their address or

507
00:28:06,400 --> 00:28:10,200
Speaker 1: wherever that you know already are undocumented, and so you're

508
00:28:10,200 --> 00:28:11,760
Speaker 1: fulfilling that mission.

509
00:28:12,080 --> 00:28:13,479
Speaker 4: And so Bavino didn't want that.

510
00:28:13,560 --> 00:28:17,280
Speaker 1: He wanted to just get more efficient, so to speak,

511
00:28:17,320 --> 00:28:21,040
Speaker 1: and just grab people wherever they were, and that would,

512
00:28:21,080 --> 00:28:25,159
Speaker 1: in his view, lead to much quicker either both removals

513
00:28:25,280 --> 00:28:28,200
Speaker 1: or self removals, because people wouldn't want to be living

514
00:28:28,240 --> 00:28:31,480
Speaker 1: in an environment where they could be apprehended at any minute.

515
00:28:31,560 --> 00:28:32,160
Speaker 4: So when that.

516
00:28:32,119 --> 00:28:35,320
Speaker 1: Policy was taken away, and his leadership of that policy

517
00:28:35,440 --> 00:28:38,880
Speaker 1: was taken away, then it was no longer in his view,

518
00:28:39,440 --> 00:28:43,600
Speaker 1: sort of desirable to keep working in the administration, and

519
00:28:43,640 --> 00:28:45,040
Speaker 1: so that happened to a lot of people.

520
00:28:45,120 --> 00:28:46,560
Speaker 4: They retire in that situation.

521
00:28:46,720 --> 00:28:49,920
Speaker 2: Leon, Thank you for tour Deforce. Tonight we covered so

522
00:28:50,040 --> 00:28:55,120
Speaker 2: many immigration topics. I really appreciate your insights. That's Leon

523
00:28:55,200 --> 00:28:58,959
Speaker 2: Fresco of Honden Night. Coming up next. A New Jersey

524
00:28:59,000 --> 00:29:01,640
Speaker 2: court reaches a d deal with the Department of Justice

525
00:29:02,040 --> 00:29:06,400
Speaker 2: on New Jersey's next US attorney. This is Bloomberg. A

526
00:29:06,400 --> 00:29:09,520
Speaker 2: federal trial court has come to terms with the Justice

527
00:29:09,560 --> 00:29:15,000
Speaker 2: Department on appointing a career prosecutor as New Jersey's US attorney,

528
00:29:15,600 --> 00:29:20,880
Speaker 2: substituting him for the Trump administration's three person leadership structure

529
00:29:21,280 --> 00:29:25,680
Speaker 2: that's been ruled illegal. Robert Fraser, a senior trial council

530
00:29:25,760 --> 00:29:29,600
Speaker 2: working organized crime cases out of Newark, has been picked

531
00:29:29,640 --> 00:29:33,920
Speaker 2: as the office's new US attorney, and unlike in prior

532
00:29:34,000 --> 00:29:39,520
Speaker 2: recent instances when judicially appointed US attorneys were rapidly fired

533
00:29:39,560 --> 00:29:43,800
Speaker 2: by the White House, Fraser's selection was approved by DOJ.

534
00:29:44,920 --> 00:29:49,720
Speaker 2: Joining me is David Voriakis. Bloomberg Legal reporter David remind

535
00:29:49,840 --> 00:29:53,719
Speaker 2: us about the saga that started with the appointment of

536
00:29:54,320 --> 00:29:59,600
Speaker 2: Alina Haba, President Trump's former personal attorney as US Attorney

537
00:29:59,720 --> 00:30:01,320
Speaker 2: for New Jersey.

538
00:30:02,480 --> 00:30:06,960
Speaker 10: Haba was appointed on a one hundred and twenty day basis,

539
00:30:07,200 --> 00:30:12,520
Speaker 10: and some criminal defendants in New Jersey challenged the legal

540
00:30:12,560 --> 00:30:16,360
Speaker 10: authority of her to prosecute them. After that one hundred

541
00:30:16,400 --> 00:30:21,600
Speaker 10: and twenty days expired, a judge came in from Pennsylvania

542
00:30:21,680 --> 00:30:26,959
Speaker 10: and sitting by special designation, decided that she was illegally appointed,

543
00:30:27,600 --> 00:30:31,560
Speaker 10: and he put that on hold until an appeals panel ruled.

544
00:30:32,040 --> 00:30:36,959
Speaker 10: Then an appeals panel in December agreed that her appointment

545
00:30:37,120 --> 00:30:39,840
Speaker 10: was illegal and she stepped down.

546
00:30:40,760 --> 00:30:45,040
Speaker 2: So then in December, Attorney General Pam Bondi decides to

547
00:30:45,160 --> 00:30:48,920
Speaker 2: delegate the duties of running the US Attorney's office to

548
00:30:49,040 --> 00:30:52,000
Speaker 2: three lawyers. I mean, I've never heard of that before,

549
00:30:52,360 --> 00:30:56,440
Speaker 2: So tell us what the federal judge Matthew Brann ruled

550
00:30:56,480 --> 00:30:56,840
Speaker 2: about that.

551
00:30:57,720 --> 00:31:02,560
Speaker 10: Judge brand who also handled the earlier Hobba case, ruled

552
00:31:02,600 --> 00:31:07,600
Speaker 10: that this was a similarly flawed appointment and that their

553
00:31:08,200 --> 00:31:13,719
Speaker 10: appointment was also illegal, and he also put that ruling

554
00:31:13,840 --> 00:31:18,040
Speaker 10: on hold. Since then, there's been a lot of controversy

555
00:31:18,080 --> 00:31:22,600
Speaker 10: and confusion over who was running the US Attorney's office

556
00:31:22,640 --> 00:31:27,120
Speaker 10: in New Jersey. So there was a routine sentencing in

557
00:31:27,200 --> 00:31:32,480
Speaker 10: a child pornography case in which the defense lawyers challenged

558
00:31:32,520 --> 00:31:37,720
Speaker 10: the legal authority of the arrangement in New Jersey and

559
00:31:38,240 --> 00:31:44,880
Speaker 10: the judge expressed a great deal of impatience and sharply

560
00:31:44,960 --> 00:31:49,640
Speaker 10: criticized the line prosecutor who appeared in court and wanted

561
00:31:49,680 --> 00:31:53,400
Speaker 10: an explanation on what were the plans for running the

562
00:31:53,480 --> 00:31:57,160
Speaker 10: US Attorney's office, because there had been no real explanation

563
00:31:57,360 --> 00:32:00,680
Speaker 10: out of the office about who was going to lead

564
00:32:00,720 --> 00:32:04,880
Speaker 10: the office going forward. After Judge Brand ruled that the

565
00:32:05,000 --> 00:32:06,280
Speaker 10: arrangement was illegal.

566
00:32:06,840 --> 00:32:10,880
Speaker 2: Before we get into what happened here, explain why federal

567
00:32:10,960 --> 00:32:14,600
Speaker 2: judges are making decisions about US attorneys.

568
00:32:15,200 --> 00:32:19,200
Speaker 10: There's a federal law that if there's a vacancy in

569
00:32:19,280 --> 00:32:23,920
Speaker 10: a US Attorney's office, that the judges in a district

570
00:32:24,880 --> 00:32:28,760
Speaker 10: in this case, the state of New Jersey, would get

571
00:32:28,760 --> 00:32:34,200
Speaker 10: together and appoint someone to run the office as the

572
00:32:34,280 --> 00:32:40,880
Speaker 10: US attorney until the Senate confirms a presidential nominee. It's

573
00:32:40,960 --> 00:32:44,160
Speaker 10: happened a number of times in US history around the country,

574
00:32:44,920 --> 00:32:49,240
Speaker 10: and they did that in New Jersey to replace Alena Haba,

575
00:32:49,960 --> 00:32:53,360
Speaker 10: and the choice by the judges, Desiree Grace, who had

576
00:32:53,400 --> 00:32:56,760
Speaker 10: been the number two in the office, was immediately fired

577
00:32:56,880 --> 00:32:59,600
Speaker 10: by Attorney General Pam Bondi.

578
00:33:00,280 --> 00:33:04,760
Speaker 2: So did the federal judges then negotiate with the Justice

579
00:33:04,760 --> 00:33:06,720
Speaker 2: Department to come to an agreement.

580
00:33:07,000 --> 00:33:10,640
Speaker 10: This time, it appears that the judges must have reached

581
00:33:10,640 --> 00:33:14,920
Speaker 10: an agreement with the Justice Department on the latest pick,

582
00:33:15,600 --> 00:33:20,800
Speaker 10: because the Justice Department and Alina Habba, who now works

583
00:33:21,320 --> 00:33:25,560
Speaker 10: as a special assistant, if you will, for Pam Bondi,

584
00:33:26,240 --> 00:33:31,080
Speaker 10: embraced the pick and that pick, Robert Fraser was not

585
00:33:31,160 --> 00:33:36,640
Speaker 10: immediately fired as Desiree Grace had been, and as two

586
00:33:36,840 --> 00:33:43,080
Speaker 10: other judicially appointed US attorneys in other districts also experienced.

587
00:33:43,320 --> 00:33:47,200
Speaker 2: The Justice Department said, the Department of Justice thanks the

588
00:33:47,240 --> 00:33:50,680
Speaker 2: District Court for working with the Department to appoint Robert

589
00:33:50,720 --> 00:33:54,200
Speaker 2: Fraser to serve as US attorney so that once again,

590
00:33:54,360 --> 00:33:59,239
Speaker 2: criminal prosecutions can resume without needless challenge or delay. On

591
00:33:59,320 --> 00:34:02,200
Speaker 2: behalf of the peaceeople of New Jersey, So tell us

592
00:34:02,240 --> 00:34:04,240
Speaker 2: a little about Robert Fraser.

593
00:34:05,000 --> 00:34:11,000
Speaker 10: Robert Fraser is a thirty five year veteran of prosecutor's office.

594
00:34:11,040 --> 00:34:14,359
Speaker 10: He worked in a local prosecutor's office as well as

595
00:34:14,400 --> 00:34:18,799
Speaker 10: the US Attorney's office. He has a lot of experience

596
00:34:19,040 --> 00:34:23,879
Speaker 10: in gang cases and in organized crime cases. He has

597
00:34:23,920 --> 00:34:29,719
Speaker 10: a reputation as being very well regarded by his peers

598
00:34:29,760 --> 00:34:34,960
Speaker 10: and by the judges that he's quite meticulous in his preparation,

599
00:34:35,920 --> 00:34:41,320
Speaker 10: his investigations, and his trial work, and that he's someone

600
00:34:41,400 --> 00:34:47,360
Speaker 10: who's expected to unite the office and return them to

601
00:34:47,560 --> 00:34:51,280
Speaker 10: the days when it was a high functioning place.

602
00:34:52,320 --> 00:34:57,040
Speaker 2: Now, court selected US attorneys in eastern Virginia and northern

603
00:34:57,080 --> 00:34:59,840
Speaker 2: New York were terminated by the White House on this

604
00:35:00,040 --> 00:35:03,400
Speaker 2: same day that they'd been chosen. So is the White

605
00:35:03,440 --> 00:35:06,400
Speaker 2: House sort of saying we want to be consulted on

606
00:35:06,440 --> 00:35:07,520
Speaker 2: the US attorneys.

607
00:35:08,400 --> 00:35:11,760
Speaker 10: It would appear that the White House has made peace

608
00:35:11,880 --> 00:35:15,120
Speaker 10: with the judges in New Jersey on this choice. In

609
00:35:15,239 --> 00:35:20,200
Speaker 10: the previous instances in which the judges ruled against Elena

610
00:35:20,280 --> 00:35:26,040
Speaker 10: Habba and in which the judges districtwide chose Desiree Grace,

611
00:35:26,640 --> 00:35:32,640
Speaker 10: the Justice Department sharply criticized those judges as activists who

612
00:35:32,680 --> 00:35:36,360
Speaker 10: were working against the Trump agenda. That did not happen

613
00:35:36,920 --> 00:35:40,280
Speaker 10: with the selection of Robert Fraser. So one can infer

614
00:35:40,400 --> 00:35:44,000
Speaker 10: that the White House and Pam Bondi are comfortable with

615
00:35:44,000 --> 00:35:44,560
Speaker 10: this pick.

616
00:35:44,840 --> 00:35:49,200
Speaker 2: Well, we'll see if this kind of negotiation works in

617
00:35:49,239 --> 00:35:52,360
Speaker 2: the case of other US attorneys. Thanks so much, David.

618
00:35:52,800 --> 00:35:56,520
Speaker 2: That's Bloomberg Legal reporter David Voriakis, And that's it. For

619
00:35:56,560 --> 00:35:59,160
Speaker 2: this edition of The Bloomberg Law Show. Remember you can

620
00:35:59,200 --> 00:36:02,480
Speaker 2: always get the latest legal news on our Bloomberg Law podcasts.

621
00:36:02,719 --> 00:36:05,759
Speaker 2: You can find them on Apple Podcasts, Spotify, and at

622
00:36:05,920 --> 00:36:10,960
Speaker 2: www dot bloomberg dot com slash podcast Slash Law, And

623
00:36:11,040 --> 00:36:14,080
Speaker 2: remember to tune into The Bloomberg Law Show every weeknight

624
00:36:14,160 --> 00:36:17,640
Speaker 2: at ten pm Wall Street Time. I'm June Grosso and

625
00:36:17,680 --> 00:36:19,160
Speaker 2: you're listening to Bloomberg