1
00:00:03,160 --> 00:00:07,960
Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.

2
00:00:10,360 --> 00:00:14,120
Speaker 2: Both applause and anger erupted in a Manhattan courtroom this

3
00:00:14,200 --> 00:00:17,680
Speaker 2: week when a jury announced its verdict of not guilty

4
00:00:17,720 --> 00:00:20,920
Speaker 2: in the trial of Daniel Penny for the chocold death

5
00:00:20,960 --> 00:00:24,720
Speaker 2: of Jordan Neely on a Manhattan subway in twenty twenty three.

6
00:00:24,840 --> 00:00:27,440
Speaker 2: It was a reflection of how the case divided New

7
00:00:27,520 --> 00:00:32,000
Speaker 2: Yorkers over issues of race, homelessness, and mental illness in

8
00:00:32,040 --> 00:00:35,760
Speaker 2: a city where millions ride the subway every day. During

9
00:00:35,760 --> 00:00:39,320
Speaker 2: the month long trial, prosecutors said the former marine went

10
00:00:39,440 --> 00:00:43,440
Speaker 2: too far after Neelie had an outburst that frightened writers,

11
00:00:43,800 --> 00:00:46,879
Speaker 2: but Penny's lawyers argued that he put his own safety

12
00:00:46,960 --> 00:00:50,560
Speaker 2: on the line to protect other passengers from a threatening man.

13
00:00:51,000 --> 00:00:54,279
Speaker 2: The trial may be over, but the legal ramifications are

14
00:00:54,360 --> 00:00:57,880
Speaker 2: not joining me, is Dave Ahrenberg, Palm Beach County State

15
00:00:57,920 --> 00:01:02,640
Speaker 2: Attorney Dave. Over the four days of deliberations, the jury

16
00:01:02,720 --> 00:01:07,600
Speaker 2: asked to rewatch the bystander videos of Penny restraining Neely,

17
00:01:08,160 --> 00:01:13,200
Speaker 2: the officer's bodycam videos, and video of Penny's interview with

18
00:01:13,319 --> 00:01:17,680
Speaker 2: police detectives. They also wanted to rehear the medical examiner's

19
00:01:17,760 --> 00:01:23,720
Speaker 2: testimony about issuing a death certificate before Neale's full toxicology

20
00:01:23,800 --> 00:01:27,840
Speaker 2: reports came in, and they asked the judge to read

21
00:01:27,920 --> 00:01:32,600
Speaker 2: back the definitions of criminal negligence and recklessness. Can you

22
00:01:32,640 --> 00:01:36,800
Speaker 2: tell from those requests what they were likely hung up on.

23
00:01:37,400 --> 00:01:40,399
Speaker 3: It's really the overall narrative, and it was never a

24
00:01:40,480 --> 00:01:45,200
Speaker 3: question whether Penny sought out to kill the victim in

25
00:01:45,240 --> 00:01:49,559
Speaker 3: this case, Jordan Neely. It was whether he acted recklessly,

26
00:01:49,640 --> 00:01:52,520
Speaker 3: whether he went too far, And even with the lesser

27
00:01:52,640 --> 00:01:56,360
Speaker 3: charge of negligent homicide, you only need to act carelessly.

28
00:01:56,560 --> 00:02:00,640
Speaker 3: So they really wanted to know if this guy just

29
00:02:00,680 --> 00:02:05,440
Speaker 3: went too far, and they wanted to hear from bystanders

30
00:02:05,440 --> 00:02:08,960
Speaker 3: and want to see video. And by all appearances, it

31
00:02:09,000 --> 00:02:12,560
Speaker 3: looked like Daniel Penny was a good samaritan, would step

32
00:02:12,639 --> 00:02:16,480
Speaker 3: up to try to help people, and he was there

33
00:02:16,600 --> 00:02:20,440
Speaker 3: to hold Jordan Neely down in that choke hold. It

34
00:02:20,480 --> 00:02:25,119
Speaker 3: depends how you define it. Until the threat abated, and

35
00:02:25,560 --> 00:02:28,320
Speaker 3: was it too long? That was the question for the jury,

36
00:02:28,320 --> 00:02:31,120
Speaker 3: and the jury ultimately said, if it's too long or not,

37
00:02:31,760 --> 00:02:35,800
Speaker 3: we can't make a clear delineation beyond a reasonable doubt,

38
00:02:36,320 --> 00:02:38,320
Speaker 3: And so therefore not guilty.

39
00:02:38,639 --> 00:02:41,600
Speaker 2: On Friday, the jury came back twice and told the

40
00:02:41,720 --> 00:02:45,240
Speaker 2: judge they were deadlocked on the manslaughter charge, which is

41
00:02:45,240 --> 00:02:48,120
Speaker 2: the top charge, and then the prosecutors made a motion

42
00:02:48,440 --> 00:02:52,000
Speaker 2: to drop the manslaughter charge, and the judge allowed that

43
00:02:52,280 --> 00:02:54,320
Speaker 2: and told the jurors that they were going to go

44
00:02:54,400 --> 00:02:59,440
Speaker 2: back and deliberate the lesser charge of criminally negligent homicide.

45
00:03:00,040 --> 00:03:03,040
Speaker 2: Vents had asked for a mistrial. The defense attorney said

46
00:03:03,240 --> 00:03:07,480
Speaker 2: doing this could unfairly sway the jury and potentially encourage

47
00:03:07,760 --> 00:03:11,520
Speaker 2: a compromise verdict. Shouldn't the judge have declared a mistrial

48
00:03:11,600 --> 00:03:13,679
Speaker 2: after the jury said they were deadlocked.

49
00:03:14,480 --> 00:03:18,280
Speaker 3: No, because it is the prerogative of prosecutors to seek

50
00:03:18,480 --> 00:03:21,960
Speaker 3: a verdict on the lesser counts, And just because you

51
00:03:22,040 --> 00:03:24,919
Speaker 3: can't come up with a verdict on the biggest count

52
00:03:25,040 --> 00:03:28,320
Speaker 3: manslaughter in this case, doesn't mean that you can't look

53
00:03:28,360 --> 00:03:33,239
Speaker 3: to door B. Because prosecutors wanted any type of conviction

54
00:03:33,360 --> 00:03:36,200
Speaker 3: in this case, and quite frankly, I think this case

55
00:03:36,240 --> 00:03:39,040
Speaker 3: probably should not have been brought because I think going

56
00:03:39,080 --> 00:03:42,520
Speaker 3: into it, prosecutors had to know it was very unlikely

57
00:03:42,760 --> 00:03:44,920
Speaker 3: that they would get a conviction beyond a reasonable doubt.

58
00:03:45,000 --> 00:03:48,160
Speaker 3: After all, jurors take the subway too, and all of

59
00:03:48,240 --> 00:03:52,280
Speaker 3: us have had experiences with someone with untreated mental illness

60
00:03:52,440 --> 00:03:55,160
Speaker 3: scaring people on the subway. So I thought this was

61
00:03:55,200 --> 00:03:58,000
Speaker 3: an uphill battle. But I do say that the prosecutors

62
00:03:58,240 --> 00:04:01,000
Speaker 3: should have been able to seek a verdict on the

63
00:04:01,080 --> 00:04:02,880
Speaker 3: lesser charge, and they were.

64
00:04:03,360 --> 00:04:08,080
Speaker 2: So the prosecution makes a strategic decision about what charges

65
00:04:08,240 --> 00:04:11,880
Speaker 2: to bring, so here they also brought the lesser included charge.

66
00:04:12,160 --> 00:04:15,320
Speaker 2: So when their strategy backfires and the jury can't come

67
00:04:15,360 --> 00:04:18,040
Speaker 2: to a decision on the top charge, why should the

68
00:04:18,080 --> 00:04:21,160
Speaker 2: prosecution be allowed to say, Okay, forget the top charge,

69
00:04:21,440 --> 00:04:22,920
Speaker 2: we're just going to go with the lower charge.

70
00:04:22,960 --> 00:04:26,640
Speaker 3: Now, Well, the defense has all the advantages. For example,

71
00:04:26,960 --> 00:04:29,799
Speaker 3: if they wanted to take an appeal, they can after

72
00:04:29,800 --> 00:04:32,840
Speaker 3: the verdict is done. The prosecutors cannot appeal. Now, once

73
00:04:32,960 --> 00:04:35,960
Speaker 3: the person's acquitted, that's it for the prosecutors. So the

74
00:04:36,000 --> 00:04:38,640
Speaker 3: prosecutors have the entire burden of proof. They've got to

75
00:04:38,680 --> 00:04:40,919
Speaker 3: prove everything beyond a reasonable doubt. The defense doesn't have

76
00:04:40,960 --> 00:04:43,440
Speaker 3: to prove anything, and if it goes the wrong way

77
00:04:43,760 --> 00:04:46,800
Speaker 3: for prosecutors, they're out of luck. Whereas the defense can

78
00:04:46,839 --> 00:04:50,520
Speaker 3: appeal and appeal and appeal, so the system actually favors defendants.

79
00:04:50,680 --> 00:04:54,200
Speaker 3: One of the few advantages that a prosecutor has is

80
00:04:54,240 --> 00:04:57,640
Speaker 3: that they decide on the charges and they can decide

81
00:04:57,680 --> 00:05:00,760
Speaker 3: whether to ask for a lesser and clue charges. And

82
00:05:00,800 --> 00:05:01,560
Speaker 3: that's what they did here.

83
00:05:02,000 --> 00:05:04,719
Speaker 2: So here's one of the many things that surprised me.

84
00:05:05,160 --> 00:05:09,240
Speaker 2: The jury deliberates for four days on the manslaughter charge,

85
00:05:09,279 --> 00:05:12,039
Speaker 2: the top charge, and there's one or more holdouts, they

86
00:05:12,080 --> 00:05:15,040
Speaker 2: can't reach a decision. They go back to deliberate on

87
00:05:15,160 --> 00:05:18,880
Speaker 2: the lesser charge of criminally negligent homicide, and in an

88
00:05:18,880 --> 00:05:21,640
Speaker 2: hour they come back with a verdict of not guilty.

89
00:05:22,080 --> 00:05:24,440
Speaker 2: So they were stuck on the top charge, but they're

90
00:05:24,480 --> 00:05:28,159
Speaker 2: not stuck on the lower charge. It sort of doesn't

91
00:05:28,240 --> 00:05:29,120
Speaker 2: compute to.

92
00:05:29,040 --> 00:05:32,400
Speaker 3: Me, June, you hit the nail on the head. This

93
00:05:32,640 --> 00:05:35,960
Speaker 3: was the biggest head scratcher because they took a while

94
00:05:36,640 --> 00:05:39,520
Speaker 3: hand ringing over the largest charge, the most difficult charge,

95
00:05:39,600 --> 00:05:43,760
Speaker 3: the manslaughter charge, and after there were holdouts and they

96
00:05:43,760 --> 00:05:46,680
Speaker 3: couldn't come to a verdict, you would think that they

97
00:05:46,720 --> 00:05:51,480
Speaker 3: would then deliberate justice extensively with just as many holdouts

98
00:05:51,520 --> 00:05:53,720
Speaker 3: on the lesser charge. I mean, lesser charge is much

99
00:05:53,760 --> 00:05:57,120
Speaker 3: easier to convict Penny on. But yet they quitted him

100
00:05:57,120 --> 00:05:59,520
Speaker 3: on that one very quickly, And I think the reason

101
00:05:59,640 --> 00:06:04,159
Speaker 3: is durre fatigue during fatigue is a real thing. They

102
00:06:04,200 --> 00:06:06,679
Speaker 3: have the weekend to think about it. They came back

103
00:06:06,839 --> 00:06:10,719
Speaker 3: and they hold out the ones who could not equit.

104
00:06:11,040 --> 00:06:14,880
Speaker 3: Daniel Penny on the biggest charge, manslaughter, decided it wasn't

105
00:06:14,920 --> 00:06:18,080
Speaker 3: worth a fight anymore and let's just let him go.

106
00:06:18,680 --> 00:06:20,960
Speaker 2: I understand that one of the jurors, when the judge

107
00:06:20,960 --> 00:06:22,640
Speaker 2: said you're going to go home for the weekend and

108
00:06:22,680 --> 00:06:26,320
Speaker 2: come back on Monday and consider the lesser charge, was

109
00:06:26,360 --> 00:06:29,200
Speaker 2: shaking his head back and forth. I mean, what chery

110
00:06:29,279 --> 00:06:31,560
Speaker 2: wants to come back after a weekend. That's why you

111
00:06:31,600 --> 00:06:33,960
Speaker 2: have so many Friday verdicts. What do you think was

112
00:06:34,000 --> 00:06:37,840
Speaker 2: the strongest part of the defense. They argued that the

113
00:06:37,880 --> 00:06:42,000
Speaker 2: medical examiner's report was wrong, that the choke hold didn't

114
00:06:42,040 --> 00:06:46,120
Speaker 2: cause Neely's death. Do you think it was those arguments

115
00:06:46,520 --> 00:06:49,960
Speaker 2: or was it the fact that you have this guy

116
00:06:50,000 --> 00:06:54,080
Speaker 2: who started out with good intentions. Even the prosecutor admitted that,

117
00:06:54,760 --> 00:06:57,080
Speaker 2: and right things got away from him.

118
00:06:57,520 --> 00:07:01,320
Speaker 3: Even the prosecution said that Daniel Penny acted with the

119
00:07:01,400 --> 00:07:04,159
Speaker 3: right mindset. He was acting in self defense. This was

120
00:07:04,200 --> 00:07:06,320
Speaker 3: not a murder case. This is a case at some

121
00:07:06,440 --> 00:07:10,800
Speaker 3: point when perhaps Jordan Neely stopped breathing, although that was

122
00:07:10,880 --> 00:07:13,840
Speaker 3: a big bone of contention when that happened, or perhaps

123
00:07:13,840 --> 00:07:17,760
Speaker 3: when the subway cars opened at the station, that Daniel

124
00:07:17,760 --> 00:07:21,400
Speaker 3: Penny had an obligation to release the choke hold and

125
00:07:21,480 --> 00:07:23,680
Speaker 3: that's where he crossed the line. But see, that's like

126
00:07:24,320 --> 00:07:27,920
Speaker 3: a very difficult question for jurors, is to make that

127
00:07:28,000 --> 00:07:34,480
Speaker 3: distinction between heroism and being a killer. And so it's

128
00:07:34,560 --> 00:07:38,920
Speaker 3: tough for jurors beyond a reasonable doubt to find that delineation.

129
00:07:39,360 --> 00:07:41,480
Speaker 3: And I think that's why this case was always going

130
00:07:41,520 --> 00:07:44,440
Speaker 3: to be an uphill battle for prosecutors, because no one

131
00:07:44,480 --> 00:07:47,920
Speaker 3: doubt that Journey was threatening people on the train, scared people,

132
00:07:48,000 --> 00:07:51,440
Speaker 3: even the witnesses for the prosecution that, yeah, we were

133
00:07:51,480 --> 00:07:54,840
Speaker 3: scared by him. The question is at what point do

134
00:07:54,920 --> 00:07:57,120
Speaker 3: you cross the line and go too far? And to

135
00:07:57,240 --> 00:08:01,280
Speaker 3: ask a jury to find beyond a easonable doubt that

136
00:08:01,400 --> 00:08:05,600
Speaker 3: someone went too far, it's so hard when they probably

137
00:08:05,640 --> 00:08:08,240
Speaker 3: have taken the subways, when they have been scared themselves,

138
00:08:08,360 --> 00:08:10,240
Speaker 3: and when they probably wish at some point in their

139
00:08:10,240 --> 00:08:14,040
Speaker 3: life that a Daniel Penny had stood up to protect them.

140
00:08:14,240 --> 00:08:18,320
Speaker 2: The police interviewed Penny and let him go, and there

141
00:08:18,400 --> 00:08:21,880
Speaker 2: was a lot of pressure on the DA from community

142
00:08:21,920 --> 00:08:26,680
Speaker 2: members and from even some lawmakers to charge him. You

143
00:08:26,720 --> 00:08:28,840
Speaker 2: think this is a case that shouldn't have been brought.

144
00:08:29,040 --> 00:08:31,520
Speaker 2: So do you think the DA just gave in to

145
00:08:31,640 --> 00:08:32,160
Speaker 2: the pressure.

146
00:08:32,360 --> 00:08:34,240
Speaker 3: Well, he still had to take it to the grand jury.

147
00:08:34,400 --> 00:08:37,200
Speaker 3: So although it is the DA's decision to pursue it,

148
00:08:37,320 --> 00:08:40,080
Speaker 3: you still could go through a grand jury. And yes

149
00:08:40,120 --> 00:08:43,120
Speaker 3: there was community pressure, But I do think that the

150
00:08:43,200 --> 00:08:47,280
Speaker 3: DA did have a legitimate case. I mean, the subway

151
00:08:47,320 --> 00:08:51,600
Speaker 3: doors opened, Jordan Neely didn't appear to be breathing, the

152
00:08:51,679 --> 00:08:56,040
Speaker 3: threat had subsided. With that said, as a prosecutor, I'm

153
00:08:56,040 --> 00:08:58,560
Speaker 3: not sure I would have brought this case because you

154
00:08:58,679 --> 00:09:00,800
Speaker 3: have to have a good faith believe that you can

155
00:09:00,840 --> 00:09:04,079
Speaker 3: get a conviction beyond a reasonable doubt. And as I said,

156
00:09:04,280 --> 00:09:07,280
Speaker 3: if those jurors had taken the subway like all or

157
00:09:07,320 --> 00:09:09,480
Speaker 3: most of them probably have, there's no way you were

158
00:09:09,480 --> 00:09:11,880
Speaker 3: going to get a conviction beyond a reasonable doubt for manslaughter.

159
00:09:12,080 --> 00:09:13,880
Speaker 3: Maybe for the lesser crime, but then is it worth

160
00:09:14,080 --> 00:09:17,240
Speaker 3: crosskinging the case for criminally negligent homicide, even that would

161
00:09:17,240 --> 00:09:19,800
Speaker 3: be an uphill climb. So these are the calculations the

162
00:09:19,840 --> 00:09:22,120
Speaker 3: prosecutor has to make. So was there enough evidence to

163
00:09:22,160 --> 00:09:25,680
Speaker 3: convict Daniel Penny? Sure, but it was never going to

164
00:09:25,720 --> 00:09:29,360
Speaker 3: happen on manslaughter and unlikely on the lesser charge. So

165
00:09:29,440 --> 00:09:32,560
Speaker 3: because of that, as a prosecutor, you probably shouldn't bring

166
00:09:32,559 --> 00:09:32,920
Speaker 3: the case.

167
00:09:33,120 --> 00:09:37,200
Speaker 2: There have been demonstrations throughout the trial on both sides.

168
00:09:37,640 --> 00:09:39,880
Speaker 2: Some people are looking at this and saying race was

169
00:09:39,880 --> 00:09:44,880
Speaker 2: a factor. Others are saying frustration with the failure to

170
00:09:44,920 --> 00:09:48,679
Speaker 2: address homelessness and mental illness. Do you think any of

171
00:09:48,679 --> 00:09:51,079
Speaker 2: that played in or was the jury just looking at

172
00:09:51,080 --> 00:09:51,840
Speaker 2: what happened?

173
00:09:52,280 --> 00:09:52,439
Speaker 1: Oh?

174
00:09:52,480 --> 00:09:54,200
Speaker 3: No, the jury is just looking at the evidence in

175
00:09:54,280 --> 00:09:57,040
Speaker 3: front of them, and the larger issues are not supposed

176
00:09:57,080 --> 00:09:58,839
Speaker 3: to come into play. But you know, you can't take

177
00:09:58,840 --> 00:10:01,600
Speaker 3: away from each jurors own lived experience. And this whole

178
00:10:01,600 --> 00:10:04,720
Speaker 3: thing was a tragedy all around the fact that Jordan

179
00:10:04,720 --> 00:10:08,280
Speaker 3: Neely had a lifetime of mental illness and it was

180
00:10:08,520 --> 00:10:11,400
Speaker 3: largely untreated, even though there were opportunities for him to

181
00:10:11,559 --> 00:10:15,280
Speaker 3: get treatment, and sometimes he did, and you know, his

182
00:10:15,400 --> 00:10:19,360
Speaker 3: family expressed frustration, but his father apparently was not in

183
00:10:19,360 --> 00:10:21,440
Speaker 3: his life, and it just is a tragedy all around.

184
00:10:21,760 --> 00:10:24,560
Speaker 3: No one wants to someone's end this way. At the

185
00:10:24,559 --> 00:10:27,360
Speaker 3: same time, you know, when you take the subway, there's

186
00:10:27,400 --> 00:10:30,480
Speaker 3: just not enough law enforcement on the cars, and so

187
00:10:30,600 --> 00:10:33,360
Speaker 3: you have people with untreated mental illness causing a stir

188
00:10:33,559 --> 00:10:37,760
Speaker 3: and threatening people and making people scared. And then what happens, Well,

189
00:10:37,800 --> 00:10:40,160
Speaker 3: if you have a good samaritan who steps up and

190
00:10:40,320 --> 00:10:44,320
Speaker 3: does something about it, that person should normally be heralded

191
00:10:44,400 --> 00:10:46,680
Speaker 3: as a hero. But in this case, it looks like

192
00:10:46,720 --> 00:10:49,200
Speaker 3: he did go too far. He kept that hole too far.

193
00:10:49,679 --> 00:10:53,040
Speaker 3: But could a jury make that delineation? At what point

194
00:10:53,080 --> 00:10:55,200
Speaker 3: did he go too far? Can you prove beyond a

195
00:10:55,240 --> 00:10:58,440
Speaker 3: reasonable doubt? Then instead of being a hero, he turned

196
00:10:58,440 --> 00:11:01,640
Speaker 3: into a criminal. That's why this case was always an

197
00:11:01,720 --> 00:11:04,520
Speaker 3: uphill battle for prosecutors. That's why I think it probably

198
00:11:04,520 --> 00:11:05,400
Speaker 3: should not have been brought.

199
00:11:05,880 --> 00:11:10,680
Speaker 2: Neelie's father filed a civil lawsuit against Penny, alledging that

200
00:11:10,840 --> 00:11:15,439
Speaker 2: Penny committed assault and battery against Neelie and accusing him

201
00:11:15,559 --> 00:11:20,040
Speaker 2: of causing his son's death through negligence, carelessness, and recklessness.

202
00:11:20,360 --> 00:11:23,280
Speaker 2: I mean, the standard in a civil trial is much lower.

203
00:11:23,480 --> 00:11:26,160
Speaker 3: Well, it's a much easier case than civil court because

204
00:11:26,200 --> 00:11:28,600
Speaker 3: the civil standard is not beyond a reasonable doubt, it's

205
00:11:28,679 --> 00:11:31,240
Speaker 3: by a preponderance of the evidence. Is it more likely

206
00:11:31,360 --> 00:11:34,800
Speaker 3: than not that this occurred? And so yes, it is

207
00:11:34,920 --> 00:11:39,040
Speaker 3: a much better case against Daniel Penny civilly than criminally.

208
00:11:39,080 --> 00:11:40,800
Speaker 3: I'm not surprised that it has brought. It is one

209
00:11:40,840 --> 00:11:44,160
Speaker 3: way for the family of Jordan Neely to obtain a

210
00:11:44,200 --> 00:11:47,000
Speaker 3: measure of justice in their eyes. I don't know which

211
00:11:47,040 --> 00:11:49,160
Speaker 3: way it will go, but definitely is a better chance. Now,

212
00:11:49,200 --> 00:11:52,960
Speaker 3: if Daniel Penny had been convicted, then that lawsuit would

213
00:11:52,960 --> 00:11:56,520
Speaker 3: have been much much easier, because once you've been proven

214
00:11:56,640 --> 00:12:00,360
Speaker 3: beyond a reasonable doubt of acting carelessly or rec lessly,

215
00:12:00,760 --> 00:12:03,439
Speaker 3: then that comes into play in the civil court and

216
00:12:03,760 --> 00:12:06,280
Speaker 3: you're almost certain of winning a civil judgment.

217
00:12:06,480 --> 00:12:09,319
Speaker 2: I don't want to seem insensitive, but there's always the

218
00:12:09,440 --> 00:12:14,160
Speaker 2: question of damages in a civil trial because Neely was homeless,

219
00:12:14,240 --> 00:12:17,679
Speaker 2: so it doesn't seem like there are any economic damages.

220
00:12:18,080 --> 00:12:20,880
Speaker 2: And if his father wasn't in his life, will it

221
00:12:20,920 --> 00:12:23,640
Speaker 2: be difficult to prove non economic damages.

222
00:12:24,320 --> 00:12:27,400
Speaker 3: It is not being callous, You're being realistic because you

223
00:12:27,480 --> 00:12:32,160
Speaker 3: have to prove damages and if you're not in someone's life,

224
00:12:32,480 --> 00:12:35,560
Speaker 3: and if someone was homeless, that is going to be

225
00:12:35,559 --> 00:12:38,800
Speaker 3: a consideration if you do win the civil case. So

226
00:12:38,840 --> 00:12:41,560
Speaker 3: the question of damages would come after the question of

227
00:12:41,600 --> 00:12:46,680
Speaker 3: whether Daniel Penny acted negligently, whether he violated civil rules

228
00:12:46,760 --> 00:12:49,520
Speaker 3: of court rules, But then you'd go to the question

229
00:12:49,559 --> 00:12:51,840
Speaker 3: of what are the damages, And that's why I think

230
00:12:51,920 --> 00:12:54,480
Speaker 3: that they may not be able to recover much, if

231
00:12:54,520 --> 00:12:55,240
Speaker 3: anything at all.

232
00:12:55,840 --> 00:13:00,520
Speaker 2: The defense says that they're considering a malicious prosecution lawsuit

233
00:13:00,600 --> 00:13:04,640
Speaker 2: against the DA and others behind the charges, saying the

234
00:13:04,640 --> 00:13:08,360
Speaker 2: medical examiner colluded with the DA's office. They said the

235
00:13:08,400 --> 00:13:11,960
Speaker 2: district attorney needed the medical examiner to act quickly, and

236
00:13:12,000 --> 00:13:14,760
Speaker 2: he did just that. It was like they wanted to

237
00:13:14,800 --> 00:13:18,160
Speaker 2: try and get him on something. How difficult are malicious

238
00:13:18,200 --> 00:13:19,400
Speaker 2: prosecution cases?

239
00:13:19,720 --> 00:13:21,120
Speaker 1: Oh? Those are very hard.

240
00:13:21,160 --> 00:13:23,000
Speaker 3: I mean you really have to prove some bad faith

241
00:13:23,400 --> 00:13:27,040
Speaker 3: and that hardly ever works in this case. If the

242
00:13:27,160 --> 00:13:30,720
Speaker 3: DA was motivated by political pressure, that's still not malicious prosecution.

243
00:13:30,800 --> 00:13:32,640
Speaker 3: As long as you have the evidence. And as I said,

244
00:13:33,200 --> 00:13:35,880
Speaker 3: there was enough evidence here at least to file the charge,

245
00:13:35,880 --> 00:13:38,280
Speaker 3: at least to seek an indictment. And yes, you could

246
00:13:38,280 --> 00:13:40,240
Speaker 3: have been convicted of one of these charges, maybe just

247
00:13:40,280 --> 00:13:42,839
Speaker 3: a lesser charge based on the evidence, But because of

248
00:13:42,840 --> 00:13:45,560
Speaker 3: the lived experiences of the jurors, I thought that that

249
00:13:45,559 --> 00:13:48,720
Speaker 3: would never happen. And so, you know, both sides can

250
00:13:48,720 --> 00:13:50,560
Speaker 3: be right about this. The defense can be right that

251
00:13:50,640 --> 00:13:52,680
Speaker 3: this case should never have been brought. At the same time,

252
00:13:52,720 --> 00:13:55,480
Speaker 3: the prosecution can be right that there was enough evidence

253
00:13:55,480 --> 00:13:57,760
Speaker 3: to bring the case. Both sides can be true on

254
00:13:57,800 --> 00:14:00,000
Speaker 3: this one. Now, this was a sign of the time.

255
00:14:00,720 --> 00:14:04,520
Speaker 3: This case reflected a larger split amongst the public about

256
00:14:04,720 --> 00:14:07,680
Speaker 3: issues of crime and race, and homelessness and mental illness.

257
00:14:08,000 --> 00:14:10,520
Speaker 3: And in the end, because there was such a split,

258
00:14:10,600 --> 00:14:12,840
Speaker 3: because there was such a controversy, you were never going

259
00:14:12,880 --> 00:14:15,880
Speaker 3: to get a unanimous jury, a twelve percent jury to

260
00:14:15,960 --> 00:14:21,040
Speaker 3: decide beyond a reasonable doubt that Daniel Penny committed manslaughter.

261
00:14:21,280 --> 00:14:24,800
Speaker 3: Maybe a lesser crime, possibly, but even that was too

262
00:14:24,880 --> 00:14:26,480
Speaker 3: high of a burden for this jury.

263
00:14:26,920 --> 00:14:28,640
Speaker 2: Dave, I want to ask you a few questions about

264
00:14:28,680 --> 00:14:32,880
Speaker 2: this case that has been in the headlines. Luiji Mangioni

265
00:14:33,040 --> 00:14:36,960
Speaker 2: has been arrested for the fatal shooting of a healthcare

266
00:14:37,000 --> 00:14:41,160
Speaker 2: executive in New York City. He was arrested in Pennsylvania

267
00:14:41,240 --> 00:14:45,280
Speaker 2: and he's fighting extradition. Why is he fighting extradition to

268
00:14:45,640 --> 00:14:48,160
Speaker 2: New York. It's going to happen, isn't it.

269
00:14:48,160 --> 00:14:51,920
Speaker 3: It's inevitable. They're just forestalling the obvious. And there have

270
00:14:51,960 --> 00:14:54,160
Speaker 3: been a lot of theories out there. Maybe one reason

271
00:14:54,240 --> 00:14:57,080
Speaker 3: is he wants to avoid Riker's prison as long as possible,

272
00:14:57,240 --> 00:14:59,680
Speaker 3: but he's going to get there. Or perhaps they want

273
00:14:59,720 --> 00:15:02,360
Speaker 3: to worse prosecutors to give up extra evidence that they

274
00:15:02,400 --> 00:15:05,160
Speaker 3: wouldn't be entitled to otherwise at a hearing in Pennsylvania.

275
00:15:05,200 --> 00:15:08,160
Speaker 3: But really, extradition hearings are so easy. The only main

276
00:15:08,240 --> 00:15:12,000
Speaker 3: argument is is this the guy who is described? And

277
00:15:12,000 --> 00:15:13,760
Speaker 3: the problem cause after David, do you have the right

278
00:15:13,800 --> 00:15:16,280
Speaker 3: person is? Or is it mistaken identity? Well it's clearly

279
00:15:16,280 --> 00:15:18,960
Speaker 3: not mistaken identity. So this is going to happen. He's

280
00:15:18,960 --> 00:15:21,440
Speaker 3: going to be extradited. They're just delaying the inevitable.

281
00:15:21,800 --> 00:15:25,240
Speaker 2: There seems to be a lot of evidence against him already.

282
00:15:25,720 --> 00:15:29,520
Speaker 2: They reportedly have ballistics from the gun he was carrying,

283
00:15:29,840 --> 00:15:34,080
Speaker 2: that Matt shellcasing's found at the scene. They have his manifesto,

284
00:15:34,320 --> 00:15:38,160
Speaker 2: which speaks to his motive. It's early, but do you

285
00:15:38,200 --> 00:15:39,560
Speaker 2: see any defenses here?

286
00:15:40,000 --> 00:15:43,160
Speaker 3: I think the only real defense would be that Mangioni

287
00:15:43,600 --> 00:15:47,920
Speaker 3: acted with such in a severe emotional disturbance that he

288
00:15:48,080 --> 00:15:51,160
Speaker 3: was so upset about the way the insurance companies treated

289
00:15:51,240 --> 00:15:54,240
Speaker 3: him and his family that this could be a manslaughter

290
00:15:54,520 --> 00:15:56,440
Speaker 3: case and not a murder case. Now I would disagree

291
00:15:56,480 --> 00:15:58,480
Speaker 3: with that. I think this is clear murder. I think

292
00:15:58,520 --> 00:16:01,840
Speaker 3: it should be premeditated. But that, to me, will be

293
00:16:01,880 --> 00:16:05,080
Speaker 3: the best offense to try to get a conviction on

294
00:16:05,240 --> 00:16:07,440
Speaker 3: a lesser count that will allow them to get out

295
00:16:07,440 --> 00:16:10,640
Speaker 3: of prison one day. Now, as far as another potential defense,

296
00:16:10,640 --> 00:16:14,240
Speaker 3: there's what you call jury nullification. Jury nullification is when

297
00:16:14,280 --> 00:16:16,960
Speaker 3: the jurors drew the evidence and see the law and

298
00:16:17,080 --> 00:16:20,200
Speaker 3: disregard it. Instead of doing what they're told by the

299
00:16:20,240 --> 00:16:23,080
Speaker 3: prosecution and the judge, they go their own way because

300
00:16:23,080 --> 00:16:25,520
Speaker 3: they have sympathy for the defendant. They're not supposed to

301
00:16:25,520 --> 00:16:29,080
Speaker 3: do it, but it happens. It's a prosecutor's worst nightmare.

302
00:16:29,320 --> 00:16:32,240
Speaker 3: That is a possibility in a case like this, where

303
00:16:32,240 --> 00:16:35,480
Speaker 3: there's so many emotions about it and so many hard

304
00:16:35,480 --> 00:16:38,160
Speaker 3: feelings and frustrations towards the insurance industry.

305
00:16:38,560 --> 00:16:41,600
Speaker 2: If the jury is anything like the Internet, it seems

306
00:16:41,600 --> 00:16:45,200
Speaker 2: like jury nullification is a possibility. Because there has been

307
00:16:45,240 --> 00:16:48,120
Speaker 2: support from Angioni on social media.

308
00:16:48,320 --> 00:16:50,480
Speaker 3: And as a prosecutor, it's disappointing, and it shows you

309
00:16:50,560 --> 00:16:52,520
Speaker 3: this is an age we're living it in the age

310
00:16:52,520 --> 00:16:55,080
Speaker 3: of impunity, where you can say what you want, you

311
00:16:55,120 --> 00:16:57,560
Speaker 3: can do what you want, and nothing sticks to you.

312
00:16:57,560 --> 00:16:59,720
Speaker 3: You can get elected to what you want no matter

313
00:16:59,800 --> 00:17:02,680
Speaker 3: what path. You can be appointed to what you want,

314
00:17:02,920 --> 00:17:05,960
Speaker 3: no matter what you've done. And you know, it's a

315
00:17:06,000 --> 00:17:09,840
Speaker 3: reflection or where we are, where people are treating this

316
00:17:09,920 --> 00:17:14,119
Speaker 3: guy as a hero when it's not a very courageous

317
00:17:14,119 --> 00:17:17,359
Speaker 3: thing to put on a mask, lie in wait for

318
00:17:17,640 --> 00:17:20,920
Speaker 3: an unarmed man and then shoot him in the back

319
00:17:21,240 --> 00:17:24,040
Speaker 3: and then run away. And then when he's caught, he

320
00:17:24,160 --> 00:17:28,159
Speaker 3: is quiet and then starts shaking. Not exactly captain courage.

321
00:17:28,240 --> 00:17:31,240
Speaker 3: So he's not someone who should be raised up and lionized.

322
00:17:31,720 --> 00:17:34,119
Speaker 3: He's someone who is a murderer and should spend the

323
00:17:34,160 --> 00:17:35,160
Speaker 3: rest of his life in prison.

324
00:17:35,600 --> 00:17:38,879
Speaker 2: So he's great to get the prosecutor's perspective, Dave, thanks

325
00:17:38,880 --> 00:17:42,879
Speaker 2: so much. That's pom Beach County State Attorney Dave Arenberg.

326
00:17:43,119 --> 00:17:45,400
Speaker 4: I'll put you each in a room and I'll ask

327
00:17:45,440 --> 00:17:47,919
Speaker 4: you every little question. They're a real couple would know

328
00:17:47,960 --> 00:17:51,640
Speaker 4: about each other. Step two. I dig deeper. I look

329
00:17:51,640 --> 00:17:53,919
Speaker 4: at your phone records. I talk to your neighbors, I

330
00:17:54,000 --> 00:17:57,199
Speaker 4: interview your coworkers. If your answers don't match up at

331
00:17:57,200 --> 00:18:01,280
Speaker 4: every point, you will be deported indefinitely, and you, young man,

332
00:18:01,480 --> 00:18:04,760
Speaker 4: will have committed a felony punishable by a fine of

333
00:18:04,800 --> 00:18:07,399
Speaker 4: two hundred and fifty thousand dollars in a stay of

334
00:18:07,520 --> 00:18:10,920
Speaker 4: five years in federal president.

335
00:18:11,400 --> 00:18:15,200
Speaker 2: The Proposal is just one of many rom coms where

336
00:18:15,280 --> 00:18:19,240
Speaker 2: someone threatened with deportation enters into a sham marriage for

337
00:18:19,359 --> 00:18:23,399
Speaker 2: the US citizen. The movies usually have happy endings, but

338
00:18:23,480 --> 00:18:26,840
Speaker 2: a real life case before the Supreme Court doesn't seem

339
00:18:26,840 --> 00:18:29,879
Speaker 2: to be headed in that direction. The Justice is ruled

340
00:18:29,960 --> 00:18:34,680
Speaker 2: unanimously that federal courts can't second guess the government revoking

341
00:18:34,720 --> 00:18:37,800
Speaker 2: a visa due to a sham marriage. That's left to

342
00:18:37,880 --> 00:18:41,479
Speaker 2: the discretion of the Department of Homeland Security. Joining me

343
00:18:41,560 --> 00:18:43,879
Speaker 2: is an expert in immigration law, and in this movie

344
00:18:43,920 --> 00:18:47,520
Speaker 2: The Proposal, Leon Fresco a partner at Holland and Knight.

345
00:18:47,880 --> 00:18:49,640
Speaker 2: So Leon tell us about the couple in this.

346
00:18:49,640 --> 00:18:53,879
Speaker 1: Case, so the situation is actually pretty straightforward. There was

347
00:18:53,920 --> 00:18:57,760
Speaker 1: a US citizen the US citizen applied for a visa

348
00:18:57,880 --> 00:19:00,760
Speaker 1: for the spouse to be able to get law permanent

349
00:19:00,800 --> 00:19:04,600
Speaker 1: residents in the United States. The first part of the process,

350
00:19:04,800 --> 00:19:07,719
Speaker 1: because there's two parts, one is is the marriage valid?

351
00:19:07,760 --> 00:19:10,240
Speaker 1: And then the second is is everything fine in the

352
00:19:10,280 --> 00:19:13,880
Speaker 1: background check? The first part is the marriage valid, that's

353
00:19:13,920 --> 00:19:17,520
Speaker 1: what's called the visa petition that was approved. And so

354
00:19:17,600 --> 00:19:19,520
Speaker 1: they thought, okay, we're all said, now we're on to

355
00:19:19,640 --> 00:19:22,520
Speaker 1: the second part, the background check. Everything's going to be good.

356
00:19:23,000 --> 00:19:25,679
Speaker 1: And then during the background check process, they said, you

357
00:19:25,720 --> 00:19:29,640
Speaker 1: know what, We're going to revoke the initial approval because

358
00:19:29,680 --> 00:19:33,240
Speaker 1: we didn't realize at the time that the foreign husband

359
00:19:33,320 --> 00:19:35,080
Speaker 1: who they were trying to get the green card for

360
00:19:35,560 --> 00:19:39,720
Speaker 1: had actually been involved in a sham marriage where supposedly

361
00:19:39,920 --> 00:19:42,639
Speaker 1: the person in that marriage said that this guy had

362
00:19:42,680 --> 00:19:45,680
Speaker 1: paid five thousand dollars to try to get a green card.

363
00:19:46,280 --> 00:19:49,280
Speaker 1: And I don't know why USCIS didn't know it initially,

364
00:19:49,359 --> 00:19:51,879
Speaker 1: but they figured it out the second time around, and

365
00:19:51,880 --> 00:19:56,520
Speaker 1: so they revoked the petition. They then took an administrative appeal.

366
00:19:57,320 --> 00:19:59,960
Speaker 1: They lost in the administrative appeal, so they tried to

367
00:20:00,040 --> 00:20:03,800
Speaker 1: file a federal court case, and the issue in the

368
00:20:03,800 --> 00:20:08,480
Speaker 1: federal court case was, is this decision to revoke the

369
00:20:08,520 --> 00:20:11,919
Speaker 1: initial approval something that you can actually review in the

370
00:20:11,960 --> 00:20:12,680
Speaker 1: federal court.

371
00:20:13,080 --> 00:20:19,400
Speaker 2: So there are mandatory and discretionary decisions, and discretionary decisions

372
00:20:19,960 --> 00:20:21,879
Speaker 2: can't be reviewed by a court.

373
00:20:22,280 --> 00:20:25,560
Speaker 1: Right, So the way the Immigration Code works, there's a

374
00:20:25,600 --> 00:20:29,679
Speaker 1: lot of things that the government is very concerned that

375
00:20:29,760 --> 00:20:33,639
Speaker 1: if you start giving judicial review for there will be thousands,

376
00:20:33,680 --> 00:20:37,080
Speaker 1: if not hundreds of thousands of federal court cases. So

377
00:20:37,160 --> 00:20:40,280
Speaker 1: what they do is the Congress writes laws that say,

378
00:20:40,920 --> 00:20:43,520
Speaker 1: here's what we're going to do. We are gonna say

379
00:20:43,600 --> 00:20:48,120
Speaker 1: that in certain situations, the agencies that deal with immigrants

380
00:20:48,480 --> 00:20:52,879
Speaker 1: will get the final word, meaning sometimes they can be nice,

381
00:20:53,040 --> 00:20:55,919
Speaker 1: sometimes they can be mean, but whatever they decide, they

382
00:20:55,920 --> 00:20:58,639
Speaker 1: will get the final word because there's no way we

383
00:20:58,760 --> 00:21:02,879
Speaker 1: can possibly allow thousands of not hundreds of thousands of

384
00:21:02,960 --> 00:21:06,640
Speaker 1: cases to challenge these agencies and what they're saying. There's

385
00:21:06,680 --> 00:21:11,119
Speaker 1: other times that the statute say, if you make a decision,

386
00:21:11,400 --> 00:21:14,480
Speaker 1: you can get review. And so the question is does

387
00:21:14,640 --> 00:21:18,760
Speaker 1: a particular statute in any given instance give the final

388
00:21:18,880 --> 00:21:22,320
Speaker 1: discretionary word to the agency so that you can't review it,

389
00:21:22,600 --> 00:21:24,960
Speaker 1: or if the decision is one that has to be

390
00:21:25,040 --> 00:21:28,399
Speaker 1: made yes or no, and there's no discretion. You can't.

391
00:21:28,560 --> 00:21:31,880
Speaker 1: You either have to decide, for instance, is the person

392
00:21:32,119 --> 00:21:36,920
Speaker 1: qualified under the visa to do the it work, And

393
00:21:36,960 --> 00:21:38,840
Speaker 1: so that's either a yes or no. And if you

394
00:21:38,880 --> 00:21:41,280
Speaker 1: say yes, that's fineman. You say no, you can get

395
00:21:41,320 --> 00:21:43,800
Speaker 1: review of that. I am qualified. I know they said

396
00:21:43,800 --> 00:21:46,679
Speaker 1: that I'm not, but I am. That's the kind of

397
00:21:46,720 --> 00:21:51,119
Speaker 1: thing where review is available. But if the Congress says no,

398
00:21:51,359 --> 00:21:54,000
Speaker 1: this is a discretionary decision, we want it to be

399
00:21:54,560 --> 00:21:57,280
Speaker 1: decided by the agency, and they can either be nice

400
00:21:57,359 --> 00:21:59,639
Speaker 1: or mean, but it's up to them. Then they're the

401
00:21:59,720 --> 00:22:02,200
Speaker 1: last You cannot go to federal court. So the question

402
00:22:02,400 --> 00:22:08,040
Speaker 1: is what is this statute Where the statute says that

403
00:22:08,520 --> 00:22:14,240
Speaker 1: if you have a reason by sham marriage, that they

404
00:22:14,280 --> 00:22:18,600
Speaker 1: can revoke the approval for good and sufficient cause, so

405
00:22:18,640 --> 00:22:20,960
Speaker 1: it doesn't say that they have to. Then that's the key.

406
00:22:21,400 --> 00:22:24,480
Speaker 1: The statue says, if you come across a sham marriage

407
00:22:24,520 --> 00:22:27,159
Speaker 1: in any part of this process, you can revoke it

408
00:22:27,320 --> 00:22:30,679
Speaker 1: for good and sufficient cause. But because it says you

409
00:22:30,720 --> 00:22:33,680
Speaker 1: can revoke and it doesn't say you have to revoke,

410
00:22:34,320 --> 00:22:39,200
Speaker 1: then the Supreme Court said, hey, that's again a discretionary

411
00:22:39,320 --> 00:22:43,280
Speaker 1: decision that either the agency can decide to let it

412
00:22:43,400 --> 00:22:46,520
Speaker 1: slide even if there was a sham marriage, or they

413
00:22:46,520 --> 00:22:50,480
Speaker 1: can decide to revoke the petition. But in either case

414
00:22:50,840 --> 00:22:55,880
Speaker 1: that's a discretionary decision because it doesn't say you shall revoke.

415
00:22:56,359 --> 00:23:00,800
Speaker 1: It says you can revoke if you see that there

416
00:23:00,840 --> 00:23:04,280
Speaker 1: was a sham marriage involved. And so because of that,

417
00:23:04,560 --> 00:23:07,240
Speaker 1: they say that that's then not a decision that the

418
00:23:07,280 --> 00:23:11,160
Speaker 1: federal courts can review. And that was a nothing, rare,

419
00:23:11,359 --> 00:23:13,960
Speaker 1: nine nothing Supreme Court decision that was actually written by

420
00:23:14,119 --> 00:23:18,000
Speaker 1: Justice Jackson, who's considered probably to be the most of

421
00:23:18,080 --> 00:23:22,159
Speaker 1: the compassionate judges toward immigrants on the court. Even she

422
00:23:22,400 --> 00:23:25,439
Speaker 1: said that this is the kind of discretionary decision that

423
00:23:25,560 --> 00:23:28,520
Speaker 1: is not reviewable in this situation.

424
00:23:29,560 --> 00:23:34,800
Speaker 2: I thought that sham marriages barred people from remaining in

425
00:23:34,800 --> 00:23:37,159
Speaker 2: the country legally, that if they found a sham marriage,

426
00:23:37,200 --> 00:23:37,680
Speaker 2: you were out.

427
00:23:37,760 --> 00:23:41,960
Speaker 1: So interestingly, here's how that worked. If you apply on

428
00:23:42,160 --> 00:23:44,840
Speaker 1: step one, so you say I'm a US citizen, I

429
00:23:44,880 --> 00:23:47,520
Speaker 1: want to marry a foreign nationalist, you're in step one

430
00:23:47,560 --> 00:23:53,720
Speaker 1: of the process. If USCIS encounters there that there was

431
00:23:53,760 --> 00:23:56,840
Speaker 1: a sham marriage in any part of this process, either

432
00:23:57,080 --> 00:23:59,399
Speaker 1: the US citizen had been in a sham marriage in

433
00:23:59,440 --> 00:24:01,879
Speaker 1: the past, or the foreign national had been in a

434
00:24:01,960 --> 00:24:05,840
Speaker 1: shen marriage in the past, they must deny that petition,

435
00:24:06,359 --> 00:24:10,520
Speaker 1: and that petition therefore can be reviewed in federal courts.

436
00:24:11,040 --> 00:24:14,679
Speaker 1: But this is not how that happened. This was after

437
00:24:14,800 --> 00:24:18,240
Speaker 1: the fact USCIS find out that there was an error,

438
00:24:18,840 --> 00:24:22,320
Speaker 1: do you have to revoke it? And what they said

439
00:24:22,560 --> 00:24:26,399
Speaker 1: was nobody says in this statute that you have to

440
00:24:26,480 --> 00:24:29,720
Speaker 1: revoke it. You could just let it slide. Now there's

441
00:24:29,800 --> 00:24:32,679
Speaker 1: evidence in this case, and Justice Jackson cites to it

442
00:24:33,000 --> 00:24:37,359
Speaker 1: that says, well, USCIS never lets it slide. They never

443
00:24:37,440 --> 00:24:40,480
Speaker 1: are nice to people in this situation. They always revoke

444
00:24:40,880 --> 00:24:43,480
Speaker 1: every single case where they see that there was a

445
00:24:43,520 --> 00:24:48,119
Speaker 1: sham marriage involved. But what Justice Jackson says is who cares.

446
00:24:48,160 --> 00:24:51,400
Speaker 1: That doesn't matter what they actually do. What matters is

447
00:24:51,440 --> 00:24:55,760
Speaker 1: whether the legislature gives them the discretion to overlook it

448
00:24:55,920 --> 00:24:58,960
Speaker 1: or not. And because it does, the language of the

449
00:24:59,000 --> 00:25:03,240
Speaker 1: statutes give the discretion to the immigration agency to overlook

450
00:25:03,240 --> 00:25:06,200
Speaker 1: a sham marriage if it is found after the fact

451
00:25:06,400 --> 00:25:09,800
Speaker 1: after an approval, not beforehand. But if it is found

452
00:25:09,880 --> 00:25:14,439
Speaker 1: after the fact, then that's considered a discretionary decision, and

453
00:25:14,480 --> 00:25:18,640
Speaker 1: so the decision to revoke, which is discretionary, then cannot

454
00:25:18,680 --> 00:25:23,320
Speaker 1: be reviewed. But this does lead to sort of perverse situations.

455
00:25:23,440 --> 00:25:27,880
Speaker 1: One would be what if the government was not comfortable

456
00:25:28,520 --> 00:25:33,360
Speaker 1: with the decision to deny upfront, because maybe the marriage

457
00:25:33,400 --> 00:25:37,080
Speaker 1: was a little bit shammy but not super shammy, So

458
00:25:37,480 --> 00:25:39,880
Speaker 1: they would be worried that if they denied it upfront

459
00:25:39,960 --> 00:25:44,400
Speaker 1: there would be federal court reviews. They could just revoke

460
00:25:44,520 --> 00:25:48,560
Speaker 1: it after approval and then it wouldn't be reviewable and

461
00:25:48,640 --> 00:25:51,360
Speaker 1: that would be the end of it. The reason they

462
00:25:51,359 --> 00:25:54,400
Speaker 1: don't end up caring in this context. Now, there will

463
00:25:54,440 --> 00:25:58,119
Speaker 1: be other contexts where this ends up mattering, but the

464
00:25:58,160 --> 00:26:01,520
Speaker 1: court basically said, well, be a of those on another case.

465
00:26:01,960 --> 00:26:06,000
Speaker 1: In this marriage context, this doesn't bother us because you

466
00:26:06,000 --> 00:26:09,760
Speaker 1: can always just apply again, and if they deny you,

467
00:26:09,880 --> 00:26:12,000
Speaker 1: now that they know about this Shen marriage, you can

468
00:26:12,040 --> 00:26:15,199
Speaker 1: get the federal court review you were worried about. And

469
00:26:15,320 --> 00:26:17,679
Speaker 1: in fact, the plaintiff in this case is literally in

470
00:26:17,720 --> 00:26:20,720
Speaker 1: the middle of this, So it just seemed like a

471
00:26:20,840 --> 00:26:23,880
Speaker 1: why are you complaining case at the end of the day,

472
00:26:24,359 --> 00:26:27,159
Speaker 1: since you actually can get the federal court review that

473
00:26:27,240 --> 00:26:30,400
Speaker 1: you want by simply putting in a brand new application,

474
00:26:31,000 --> 00:26:33,639
Speaker 1: and there's no bar in this instance to putting in

475
00:26:33,680 --> 00:26:36,520
Speaker 1: a brand new application. So that's why I think you

476
00:26:36,600 --> 00:26:40,359
Speaker 1: end up getting the nine zero decision is because in

477
00:26:40,440 --> 00:26:44,040
Speaker 1: the end, yes, this will close out a way that

478
00:26:44,119 --> 00:26:47,639
Speaker 1: theoretically could have been available for a revocation of a

479
00:26:47,680 --> 00:26:51,399
Speaker 1: marriage case. But in the end, what it makes clear

480
00:26:51,600 --> 00:26:54,480
Speaker 1: is that if you are in this exact situation where

481
00:26:54,480 --> 00:26:58,760
Speaker 1: your marriage was approved for immigration green card purposes, but

482
00:26:58,920 --> 00:27:02,040
Speaker 1: now it's been revoked on step two when you're going

483
00:27:02,040 --> 00:27:05,359
Speaker 1: through the background check process, that all you have to

484
00:27:05,359 --> 00:27:08,359
Speaker 1: do is file step one again and they'll have to

485
00:27:08,400 --> 00:27:11,800
Speaker 1: deny it because now they know about the sham marriage,

486
00:27:12,200 --> 00:27:14,480
Speaker 1: and since they have to deny it, that's what you'll

487
00:27:14,520 --> 00:27:17,000
Speaker 1: be able to get the review of that denial.

488
00:27:17,640 --> 00:27:22,600
Speaker 2: Practically, it seems ridiculous just adding steps to the process.

489
00:27:23,119 --> 00:27:26,000
Speaker 2: So if you step back and look at what's going

490
00:27:26,080 --> 00:27:30,280
Speaker 2: to happen, did the couple actually win the case? Because

491
00:27:30,320 --> 00:27:34,880
Speaker 2: now the woman can start the application over, it will

492
00:27:34,920 --> 00:27:38,399
Speaker 2: be denied because it's a sham marriage, but then she'll

493
00:27:38,440 --> 00:27:42,399
Speaker 2: be able to appeal to a federal court to review

494
00:27:42,480 --> 00:27:43,120
Speaker 2: that denial.

495
00:27:43,520 --> 00:27:45,720
Speaker 1: So at least the court did make clear that she

496
00:27:45,800 --> 00:27:48,080
Speaker 1: can do all of that, but she didn't win the

497
00:27:48,119 --> 00:27:51,600
Speaker 1: case from the standpoint of the relief she actually wanted,

498
00:27:51,960 --> 00:27:55,600
Speaker 1: which was to immediately be able to get a decision

499
00:27:55,720 --> 00:27:58,879
Speaker 1: right now as to whether that was really a sham marriage.

500
00:27:59,080 --> 00:28:02,679
Speaker 1: So she can't get and she has to restart the process,

501
00:28:02,720 --> 00:28:08,000
Speaker 1: like you've said, and so it's a non ultimate loss,

502
00:28:08,040 --> 00:28:11,280
Speaker 1: but it's a loss in this forum, in these proceedings.

503
00:28:11,280 --> 00:28:12,240
Speaker 1: For what she wanted.

504
00:28:12,720 --> 00:28:16,920
Speaker 2: Is that what Justice Jackson meant when she said Congress

505
00:28:16,960 --> 00:28:20,919
Speaker 2: created room for mercy in the process.

506
00:28:20,520 --> 00:28:24,280
Speaker 1: Well, she met mercy in two ways here. The mercy

507
00:28:24,359 --> 00:28:28,160
Speaker 1: that she really meant was that the agency, if they

508
00:28:28,280 --> 00:28:31,600
Speaker 1: wanted to overlook the sham marriage, they theoretically could have

509
00:28:31,680 --> 00:28:35,879
Speaker 1: overlooked the sham marriage. So that's the real mercy that

510
00:28:35,920 --> 00:28:38,320
Speaker 1: she meant, and that's why she said it was discretionary

511
00:28:38,800 --> 00:28:41,680
Speaker 1: and why it wasn't in the end a reviewable decision,

512
00:28:42,200 --> 00:28:45,520
Speaker 1: because in the end, the agency has the discretion to

513
00:28:45,600 --> 00:28:48,920
Speaker 1: grant mercy. But she also meant that there is this

514
00:28:49,120 --> 00:28:53,200
Speaker 1: second out year in this particular fact pattern, which is

515
00:28:53,240 --> 00:28:56,320
Speaker 1: why the case is limited to this particular fact pattern

516
00:28:56,400 --> 00:29:00,479
Speaker 1: for now, which is the marriage issue. Where in marriage

517
00:29:00,480 --> 00:29:03,840
Speaker 1: issue you can go in and you can actually restart

518
00:29:04,000 --> 00:29:06,360
Speaker 1: and do a new application and then get the federal

519
00:29:06,400 --> 00:29:07,640
Speaker 1: court review that you want.

520
00:29:08,040 --> 00:29:11,120
Speaker 2: Leon. I mean, when the federal court reviews it, they're

521
00:29:11,120 --> 00:29:13,800
Speaker 2: going to see there was a sham marriage, correct, So

522
00:29:13,840 --> 00:29:16,080
Speaker 2: the judge will rule against the couple. So what's the

523
00:29:16,120 --> 00:29:18,959
Speaker 2: point here? Is it just to delay the inevitable?

524
00:29:19,240 --> 00:29:23,800
Speaker 1: So sometimes the hope is this that occasionally what will

525
00:29:23,840 --> 00:29:27,960
Speaker 1: happen is so you'll have the uscis the Immigration Service,

526
00:29:28,000 --> 00:29:30,480
Speaker 1: We'll say that there was a sham marriage, and then

527
00:29:30,480 --> 00:29:34,680
Speaker 1: you'll have an administrative appeal, but it goes to people

528
00:29:34,720 --> 00:29:39,440
Speaker 1: who are generally inclined to be deferential to the agency,

529
00:29:40,080 --> 00:29:42,400
Speaker 1: and so they'll say it was a sham marriage. But

530
00:29:42,440 --> 00:29:45,960
Speaker 1: you hope you can get a federal court judge who

531
00:29:46,000 --> 00:29:48,960
Speaker 1: maybe looks a little bit more askance at the government

532
00:29:49,000 --> 00:29:51,840
Speaker 1: that says, you know, what, why are you viewing things

533
00:29:52,040 --> 00:29:55,720
Speaker 1: in such a skeptical, cynical light. You know, I know

534
00:29:55,800 --> 00:29:58,440
Speaker 1: there was five thousand dollars exchange, but that was for

535
00:29:58,560 --> 00:30:02,320
Speaker 1: love or something, you know, who knows. And so you

536
00:30:02,400 --> 00:30:05,880
Speaker 1: get one of these judges who baby doesn't really trust

537
00:30:05,920 --> 00:30:07,920
Speaker 1: the government so much, and maybe you could get a

538
00:30:07,960 --> 00:30:10,880
Speaker 1: decision that's better than you could have ever hoped for,

539
00:30:10,960 --> 00:30:13,160
Speaker 1: and so that's what they're looking for, is that kind

540
00:30:13,200 --> 00:30:16,120
Speaker 1: of hail mayor is here in this situation.

541
00:30:16,080 --> 00:30:21,480
Speaker 2: Since Homeland Securities decision is the final word in this area, Now,

542
00:30:21,520 --> 00:30:25,080
Speaker 2: does that strengthen executive power over immigration?

543
00:30:26,280 --> 00:30:30,840
Speaker 1: Well, in this instance, they didn't say in this case that,

544
00:30:31,000 --> 00:30:35,560
Speaker 1: for instance, if unemployment green card petition is granted, that

545
00:30:35,640 --> 00:30:39,680
Speaker 1: there's not any federal court review over a revocation because

546
00:30:39,760 --> 00:30:43,360
Speaker 1: they're what what happened is you couldn't just refile an

547
00:30:43,360 --> 00:30:47,640
Speaker 1: application because if there's a revocation, what usually happens is

548
00:30:47,680 --> 00:30:51,800
Speaker 1: you're now in illegal status and in an employment green

549
00:30:51,880 --> 00:30:55,440
Speaker 1: card if application, you have to be in legal status

550
00:30:55,440 --> 00:30:58,360
Speaker 1: the whole time or you can't get a green card.

551
00:30:58,480 --> 00:31:01,160
Speaker 1: So there it would be a huge problem. But in

552
00:31:01,200 --> 00:31:05,160
Speaker 1: the marriage context, you can fall into illegal status, it's

553
00:31:05,200 --> 00:31:09,240
Speaker 1: not a problem. The marriage fixes it. So that's why

554
00:31:09,280 --> 00:31:12,479
Speaker 1: it's not a problem in this marriage context. But in

555
00:31:12,520 --> 00:31:17,320
Speaker 1: the employment green card context, the government could totally harm

556
00:31:17,320 --> 00:31:21,800
Speaker 1: someone's life permanently if they were to do the cynical

557
00:31:21,960 --> 00:31:26,160
Speaker 1: acts of approving unemployment green card and then revoking it.

558
00:31:26,680 --> 00:31:29,720
Speaker 1: And so that would be a very interesting case to

559
00:31:29,800 --> 00:31:33,520
Speaker 1: see what happens there because there there isn't a solution

560
00:31:33,640 --> 00:31:37,040
Speaker 1: of refiling available because when you filed, you were in

561
00:31:37,120 --> 00:31:42,240
Speaker 1: legal status. But what always happens is then later after

562
00:31:42,280 --> 00:31:46,120
Speaker 1: you file, whatever status you were in always expires. And

563
00:31:46,200 --> 00:31:48,360
Speaker 1: what you're doing is you're waiting for the green card

564
00:31:48,440 --> 00:31:51,920
Speaker 1: to be approved, and that's what preserves your status. But

565
00:31:51,960 --> 00:31:55,200
Speaker 1: if it's refused, you don't have a status anymore at

566
00:31:55,200 --> 00:31:58,040
Speaker 1: that point. And so those are the cases that are

567
00:31:58,040 --> 00:32:01,320
Speaker 1: going to be very interesting to watch. It's inevitable that

568
00:32:01,320 --> 00:32:03,720
Speaker 1: that case is going to come to the court now

569
00:32:03,760 --> 00:32:04,400
Speaker 1: at some point.

570
00:32:04,680 --> 00:32:08,120
Speaker 2: I'm curious because there are lots of movies about, you know,

571
00:32:08,200 --> 00:32:11,760
Speaker 2: sham marriages for Green Corp purposes? Are there actually a

572
00:32:11,800 --> 00:32:12,960
Speaker 2: lot of sham marriages?

573
00:32:13,720 --> 00:32:18,240
Speaker 1: So here's what's very interesting is what is a marriage?

574
00:32:18,280 --> 00:32:21,360
Speaker 1: And the famous judge Posner has a decision that really

575
00:32:21,400 --> 00:32:24,320
Speaker 1: goes into this, which is, you know, talk about movies.

576
00:32:24,360 --> 00:32:26,920
Speaker 1: One of my favorite ones of this variety is the

577
00:32:26,920 --> 00:32:29,320
Speaker 1: one with Ryan Reynolds and Sandra Bullock.

578
00:32:29,200 --> 00:32:30,360
Speaker 2: Uh huh yes, called the.

579
00:32:30,360 --> 00:32:33,520
Speaker 1: Proposal Yes, where he says at the end, I want

580
00:32:33,560 --> 00:32:36,120
Speaker 1: to marry you so that I can date you. And

581
00:32:36,600 --> 00:32:40,240
Speaker 1: the question is would that be a legitimate purpose for

582
00:32:40,400 --> 00:32:44,360
Speaker 1: an immigration marriage? Because in the end, you are still

583
00:32:44,560 --> 00:32:47,880
Speaker 1: professing some sort of love there. And so what Judge

584
00:32:47,880 --> 00:32:51,360
Speaker 1: Poster said is, here's what I'm concerned about. This is

585
00:32:51,360 --> 00:32:54,120
Speaker 1: not exactly the law, but I find the very persuasive,

586
00:32:54,480 --> 00:32:57,720
Speaker 1: and I keep trying to convince the agencies that this

587
00:32:57,920 --> 00:33:01,120
Speaker 1: is the real issue, and they're almost there, is this

588
00:33:01,720 --> 00:33:06,040
Speaker 1: did money change hands? Because if money changed hands, that's

589
00:33:06,040 --> 00:33:10,200
Speaker 1: a sham marriage. But any other kind of marriage, you know,

590
00:33:10,800 --> 00:33:13,320
Speaker 1: I go to Harvard and my wife goes to Stanford.

591
00:33:13,400 --> 00:33:15,800
Speaker 1: We love each other, but we don't live together. Non

592
00:33:15,840 --> 00:33:19,360
Speaker 1: immigration marriages that are just like that, and so that's

593
00:33:19,400 --> 00:33:23,000
Speaker 1: where it gets super complicated. And so the issue is,

594
00:33:23,720 --> 00:33:26,440
Speaker 1: I think did money change hands? And that really is

595
00:33:26,520 --> 00:33:29,080
Speaker 1: the main thing they look for, But they also do

596
00:33:29,200 --> 00:33:32,480
Speaker 1: look are you living together? And if not, why are

597
00:33:32,520 --> 00:33:38,080
Speaker 1: you not living together? And you know, is their constant communication,

598
00:33:38,280 --> 00:33:42,520
Speaker 1: is their joint assets, all of these things and those

599
00:33:42,920 --> 00:33:46,520
Speaker 1: areas sometimes are not conventional in certain marriages, but they

600
00:33:46,560 --> 00:33:50,480
Speaker 1: still want to try to enforce those conventions on these

601
00:33:50,560 --> 00:33:51,800
Speaker 1: immigration marriages.

602
00:33:52,080 --> 00:33:55,840
Speaker 2: Let's turn out to a judge in North Dakota ruling

603
00:33:55,920 --> 00:33:59,400
Speaker 2: that nineteen Republican led states don't have to provide health

604
00:33:59,440 --> 00:34:02,280
Speaker 2: insurance coverage to DONCA recipients.

605
00:34:02,640 --> 00:34:06,520
Speaker 1: Nineteen states sued the federal government saying that we did

606
00:34:06,520 --> 00:34:11,560
Speaker 1: not like a rule that was promulgated in May of

607
00:34:11,680 --> 00:34:15,200
Speaker 1: twenty twenty four which said for the first time that

608
00:34:15,280 --> 00:34:18,759
Speaker 1: people who had DACA and DACA remember was done in

609
00:34:18,840 --> 00:34:21,359
Speaker 1: twenty twelve, so this was a rule that didn't happen

610
00:34:21,440 --> 00:34:25,080
Speaker 1: for twelve years, were now to be considered lawfully present

611
00:34:25,200 --> 00:34:28,560
Speaker 1: in the United States for the purposes of deciding whether

612
00:34:28,600 --> 00:34:33,200
Speaker 1: they could access the Obamacare healthcare system. And so for

613
00:34:33,280 --> 00:34:36,440
Speaker 1: the first twelve years of DACA, the people on DACA

614
00:34:36,480 --> 00:34:40,120
Speaker 1: were not considered lawfully present. But now there was a

615
00:34:40,200 --> 00:34:43,359
Speaker 1: rule saying they have to be considered lawfully present, and

616
00:34:43,480 --> 00:34:47,400
Speaker 1: the states were saying, well, we don't want these DACA

617
00:34:47,480 --> 00:34:49,920
Speaker 1: people to be added to our exchanges because now this

618
00:34:50,040 --> 00:34:54,080
Speaker 1: is going to cost administration costs and fees and everything else.

619
00:34:54,320 --> 00:34:57,400
Speaker 1: What's fascinating is that North Dakota, which is where the

620
00:34:57,480 --> 00:35:00,279
Speaker 1: venue of the court is. North Dakota ended up having

621
00:35:00,280 --> 00:35:04,040
Speaker 1: a very flimsy standing argument, which is the court for

622
00:35:04,080 --> 00:35:08,200
Speaker 1: whatever reason, accepted I don't necessarily agree with it, which

623
00:35:08,280 --> 00:35:13,000
Speaker 1: is that people will remain in America if they have

624
00:35:13,160 --> 00:35:16,800
Speaker 1: access to this healthcare that they wouldn't otherwise have remained,

625
00:35:16,800 --> 00:35:20,040
Speaker 1: and hence they'll remain in North Dakota, and North Dakota

626
00:35:20,040 --> 00:35:23,439
Speaker 1: shouldn't have to tolerate that. And the point is, I don't

627
00:35:23,520 --> 00:35:27,320
Speaker 1: know of anyone on DHAKA who's not staying or staying

628
00:35:27,400 --> 00:35:30,040
Speaker 1: based on the healthcare issue. What really matters to them

629
00:35:30,480 --> 00:35:33,360
Speaker 1: is the status and the work permit. The healthcare is

630
00:35:33,360 --> 00:35:36,560
Speaker 1: an extra thing which they're very happy to have, but

631
00:35:36,920 --> 00:35:40,120
Speaker 1: it isn't the reason they're saying or not saying. And

632
00:35:40,160 --> 00:35:43,040
Speaker 1: so I do wonder when that case ultimately gets to

633
00:35:43,719 --> 00:35:47,640
Speaker 1: further review in the circuit court, if that standing decision

634
00:35:47,719 --> 00:35:50,880
Speaker 1: is actually going to prevail there. But then once the

635
00:35:50,920 --> 00:35:54,759
Speaker 1: court found standing, the court then held that because for

636
00:35:54,800 --> 00:35:57,600
Speaker 1: the first twelve years, nobody thought that these folks were

637
00:35:58,200 --> 00:36:02,240
Speaker 1: lawfully present in the United States, and Congress never wrote

638
00:36:02,280 --> 00:36:06,480
Speaker 1: the words DACA as a status, you couldn't use DACA

639
00:36:06,640 --> 00:36:09,440
Speaker 1: as a status to call them lawfully present in the

640
00:36:09,520 --> 00:36:13,160
Speaker 1: United States. So that part of the decision was more straightforward.

641
00:36:13,520 --> 00:36:18,759
Speaker 2: Do you think that an administration can reclassify people as

642
00:36:18,920 --> 00:36:20,600
Speaker 2: legally present in the US.

643
00:36:21,040 --> 00:36:25,080
Speaker 1: So here's this interesting. The Obamacare language left it blank.

644
00:36:25,200 --> 00:36:29,520
Speaker 1: So there's other public benefits that define which immigrants can

645
00:36:29,560 --> 00:36:32,920
Speaker 1: get which status is so, for instance, food stamps and

646
00:36:33,040 --> 00:36:36,560
Speaker 1: housing benefits and other things actually have a list. And

647
00:36:37,000 --> 00:36:40,799
Speaker 1: the court actually says, which I think cuts both ways, Well,

648
00:36:40,840 --> 00:36:43,279
Speaker 1: doca's not on any of these lists, so how can

649
00:36:43,320 --> 00:36:47,280
Speaker 1: we have it for the Obamacare list? But what's interesting is, well,

650
00:36:47,280 --> 00:36:49,680
Speaker 1: why didn't Obamacare have a list? Maybe they did want

651
00:36:49,680 --> 00:36:53,840
Speaker 1: to give that discretion to the agencies in order to

652
00:36:53,920 --> 00:36:57,000
Speaker 1: decide what were the statuses? So fair enough, you know,

653
00:36:57,320 --> 00:36:59,600
Speaker 1: I think that argument could cut either way. The fact

654
00:36:59,640 --> 00:37:03,920
Speaker 1: that Care didn't actually have a list of statuses could

655
00:37:04,200 --> 00:37:06,600
Speaker 1: I think fifty to fifty goal to the federal government

656
00:37:06,680 --> 00:37:09,359
Speaker 1: argument or to what the states are saying. But I

657
00:37:09,400 --> 00:37:12,480
Speaker 1: do think where the problem is is if Congress is

658
00:37:12,480 --> 00:37:16,520
Speaker 1: saying you have to be lawfully present, and Congress never

659
00:37:16,640 --> 00:37:19,319
Speaker 1: wrote anywhere in any statute ever in the history of

660
00:37:19,360 --> 00:37:22,840
Speaker 1: mankind that there's a status called DOCA, Well what do

661
00:37:22,880 --> 00:37:25,640
Speaker 1: you do with that? Do you allow an agency to

662
00:37:25,680 --> 00:37:29,040
Speaker 1: be able to invent a status in order to be

663
00:37:29,120 --> 00:37:32,040
Speaker 1: able to give healthcare to people? And that I do

664
00:37:32,080 --> 00:37:34,600
Speaker 1: think becomes a tougher argument. Now, having said all of this,

665
00:37:34,960 --> 00:37:37,600
Speaker 1: I think the Trump administration would easily have written a

666
00:37:37,680 --> 00:37:40,879
Speaker 1: regulation soon enough rescinding this, so it wouldn't have been

667
00:37:40,880 --> 00:37:43,719
Speaker 1: necessary to have this decision. But as long as this

668
00:37:43,800 --> 00:37:47,040
Speaker 1: injunction is in place, they won't have to write that decision.

669
00:37:47,160 --> 00:37:51,200
Speaker 1: And then, sort of much later down the roads, we're

670
00:37:51,200 --> 00:37:55,120
Speaker 1: talking June twenty twenty six, most likely we'll probably see

671
00:37:55,120 --> 00:37:58,680
Speaker 1: a decision by the Supreme Court revoking the entire DACA

672
00:37:59,239 --> 00:38:03,279
Speaker 1: exercise as unlawful. And then at that point this would

673
00:38:03,320 --> 00:38:05,800
Speaker 1: obviously go away as well, because there wouldn't even be

674
00:38:05,960 --> 00:38:09,399
Speaker 1: DOCA at all, And then we'd have a congressional fight.

675
00:38:09,520 --> 00:38:12,240
Speaker 1: What gets done as the fate for these people who've

676
00:38:12,239 --> 00:38:13,480
Speaker 1: had DOCA previously.

677
00:38:13,880 --> 00:38:16,680
Speaker 2: Do you think the Supreme Court would actually, because doca's

678
00:38:16,719 --> 00:38:19,880
Speaker 2: been before the Supreme Court before, you think that the

679
00:38:19,920 --> 00:38:23,640
Speaker 2: Supreme Court will say DOCA is unconstitutional?

680
00:38:23,840 --> 00:38:24,680
Speaker 3: So two parts.

681
00:38:24,760 --> 00:38:28,840
Speaker 1: First, the Court has never actually answered the question is

682
00:38:28,920 --> 00:38:32,400
Speaker 1: DACA legal or not, which is fascinating. All the courts

683
00:38:32,400 --> 00:38:35,680
Speaker 1: have done so far as to say whether the revocation

684
00:38:35,880 --> 00:38:42,120
Speaker 1: of DOCA actually followed the Administrative Procedure Act, to which

685
00:38:42,280 --> 00:38:46,560
Speaker 1: Justice Roberts said no. But also, here's the very interesting part.

686
00:38:47,080 --> 00:38:48,720
Speaker 3: The votes are.

687
00:38:48,680 --> 00:38:52,560
Speaker 1: Now different, so that even if you lost Justice Roberts.

688
00:38:52,920 --> 00:38:56,160
Speaker 1: You could still get a fight for decision revoking DOCA

689
00:38:56,480 --> 00:39:01,600
Speaker 1: that would have Gorsicch and Cony, Barrett and and Thomas

690
00:39:01,600 --> 00:39:05,960
Speaker 1: and Alito. And so there is a much larger chance

691
00:39:06,000 --> 00:39:09,160
Speaker 1: than in that previous decision that you could actually get

692
00:39:09,200 --> 00:39:11,120
Speaker 1: a ruling that says DACA is illegal.

693
00:39:11,560 --> 00:39:15,080
Speaker 2: I believe that Trump said he was willing to work

694
00:39:15,360 --> 00:39:17,520
Speaker 2: with Democrats to help DACA people.

695
00:39:17,920 --> 00:39:20,439
Speaker 1: Right, It's very likely that the way this would get

696
00:39:20,440 --> 00:39:23,839
Speaker 1: teed up is as follows. You would have maybe one

697
00:39:24,000 --> 00:39:27,360
Speaker 1: year all of twenty twenty five and half of twenty

698
00:39:27,400 --> 00:39:32,160
Speaker 1: twenty six, where you've shown significant enforcements, to which then

699
00:39:32,520 --> 00:39:35,879
Speaker 1: the president could feel like he's gotten enough of a credibility,

700
00:39:35,920 --> 00:39:40,920
Speaker 1: that he's created enough enforcement that when this decision inevitably

701
00:39:40,960 --> 00:39:43,560
Speaker 1: comes out in June of twenty twenty six saying that

702
00:39:43,719 --> 00:39:47,359
Speaker 1: DACA is not legal, then he could say, Okay, well,

703
00:39:47,400 --> 00:39:50,880
Speaker 1: now we can actually have a negotiation as to the

704
00:39:50,960 --> 00:39:53,640
Speaker 1: parts of our immigration system that need to be fixed,

705
00:39:54,000 --> 00:39:57,920
Speaker 1: because the public now has confidence that we have our

706
00:39:57,960 --> 00:40:00,960
Speaker 1: border under control and that if you come here unlawfully,

707
00:40:01,040 --> 00:40:03,440
Speaker 1: you'll be deported. But we'll have to see how that

708
00:40:03,480 --> 00:40:05,560
Speaker 1: all plays out. I don't know, and that may even

709
00:40:05,600 --> 00:40:09,720
Speaker 1: be an optimistic view, but that's the only way anything

710
00:40:09,760 --> 00:40:12,640
Speaker 1: like this would happen. Then that the Congress rarely acts

711
00:40:12,680 --> 00:40:15,839
Speaker 1: unless there's an emergency, So the emergency would have to

712
00:40:15,840 --> 00:40:18,680
Speaker 1: be created, and what is that emergency. The emergency would

713
00:40:18,680 --> 00:40:21,920
Speaker 1: be the Supreme Court resfinding Zaka program.

714
00:40:22,160 --> 00:40:24,279
Speaker 2: Thanks so much for being on the show. Leon, that's

715
00:40:24,360 --> 00:40:27,239
Speaker 2: Leon Fresco of Holland and Knight. And that's it for

716
00:40:27,239 --> 00:40:30,279
Speaker 2: this edition of the Bloomberg Law Podcast. Remember you can

717
00:40:30,320 --> 00:40:33,240
Speaker 2: always get the latest legal news by subscribing and listening

718
00:40:33,280 --> 00:40:37,000
Speaker 2: to the show on Apple Podcasts, Spotify, and at Bloomberg

719
00:40:37,040 --> 00:40:41,160
Speaker 2: dot com, slash podcast, Slash Law. I'm June Grosso and

720
00:40:41,200 --> 00:40:42,480
Speaker 2: this is Bloomberg