Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
Speaker 2: The answer is, I always abide by the courts, always
Speaker 2: abide by it, and will appeal. I never did deify
Speaker 2: a court owner. Well, I always abide by the courts,
Speaker 2: and then I'll have to appeal it.
Speaker 3: President Trump has said several times that he always obeys
Speaker 3: court orders. But there's evidence that his administration has not
Speaker 3: been obeying the courts, even the Supreme Court, and it
Speaker 3: appears that justices have had enough. Thus, the Court issued
Speaker 3: an emergency order with incredible speed in extraordinary circumstances on
Speaker 3: Saturday at one in the morning, within just eight hours
Speaker 3: of getting an application, before the government could even file
Speaker 3: its response, before the Fifth Circuit could issue its decision,
Speaker 3: and before Justice Samuel Alito could write his dissent, the
Speaker 3: justices directed the government not to remove a group of
Speaker 3: Venezuelan detainees from the United States until further order of
Speaker 3: the Court. Only the two most conservative justices dissented. Joining
Speaker 3: me is constitutional law expert Michael Dorf, a professor at
Speaker 3: Cornell Law School, Mike disorder in the middle of the night,
Speaker 3: without waiting for the government's response, without waiting for the
Speaker 3: Fifth Circuit's decision and without waiting for Justice Alito to
Speaker 3: write his dissent. Does this show that the Justices don't
Speaker 3: trust the Trump administration to obey their orders?
Speaker 1: Absolutely. The Court had in an earlier case said that
Speaker 1: the government should not remove any of the Venezuelans without
Speaker 1: first giving them notice and an opportunity to file a
Speaker 1: habeas corpus petition. Here, the Venezuelans who are being held
Speaker 1: in Texas received notices in English, which most of them
Speaker 1: don't speak or read, saying that they would be removed imminitely.
Speaker 1: There was no mention of the right to file a
Speaker 1: havieas petition, and so when somebody got in touch with
Speaker 1: the ACLU, the lawyers moved as quickly as they could.
Speaker 1: When the Federal District Judd didn't act within just over
Speaker 1: two hours, they realized that the government might move the
Speaker 1: case by taking these people out of the country sending
Speaker 1: them Tel Salvador, and so they went to the Supreme
Speaker 1: Court seeking emergency relief. And the fact that the Justices
Speaker 1: acted when they did in the middle of the night
Speaker 1: so quickly without the response, as you say, I think
Speaker 1: clearly indicates at least said injustice is felt the same
Speaker 1: way as the lawyers did for these.
Speaker 4: Venezuelans, namely, the government couldn't.
Speaker 1: Be trusted to abide by the justice's previous command.
Speaker 3: Would you think things were happening behind the scenes that
Speaker 3: they didn't wait for Alito's dissent to be written, which
Speaker 3: they usually do.
Speaker 5: But behind the scenes, if you mean, were the justices
Speaker 5: consulting with one another about whether to release the order
Speaker 5: and then have a descent published the next day. I'm
Speaker 5: sure there was discussion of that. I don't think that's
Speaker 5: in any way, you know, suspicious.
Speaker 1: Or not that unusual. If you have something in a
Speaker 1: cruly emergency posture and someone who is going to descend
Speaker 1: from the Court's disposition needs time to write, then you say, okay,
Speaker 1: well write later. There have been occasions when the Court
Speaker 1: as a whole has acted and then the opinion for
Speaker 1: the majority comes out a few hours or a few
Speaker 1: days later, because they recognized the need to act quickly.
Speaker 3: It was a short order, eleven lines, no explanation, but
Speaker 3: Justice Alito's scathing descent was five pages. He objected to
Speaker 3: granting unprecedented and legally questionable relief because we had no
Speaker 3: good reason to think that under the circumstances, issue in
Speaker 3: order at midnight was necessary or appropriate. Does this mean
Speaker 3: he still believes that the Trump administration is listening to
Speaker 3: orders of courts.
Speaker 1: Well, it either means that he believes that or he
Speaker 1: doesn't care, right, I mean, he might think that whether
Speaker 1: or not the administration is going to comply, we meaning
Speaker 1: the court, have to abide by our prescedural rules, and
Speaker 1: got every eye across every t In fact, what he
Speaker 1: said at the end of his opinion was his descent,
Speaker 1: was you know, the executive branch needs to apply to
Speaker 1: the law, but so do we. What he didn't say,
Speaker 1: of course, was well, what happens if the executive branch
Speaker 1: isn't complying with judicial orders? Does that mean, as the
Speaker 1: majority clearly thought, that you take extraordinary measures.
Speaker 3: For quite some time now, courts have been listening to
Speaker 3: DOJ lawyers either not give them answers or just blatantly
Speaker 3: lie about what's happening. The DOJ lawyers multiple courts that
Speaker 3: they didn't intend to deport the migrants on Friday or Saturday.
Speaker 1: And what is this?
Speaker 3: Due to the credibility of the DOJ in federal courts, I.
Speaker 1: Think it's a serious blow to that credibility that was
Speaker 1: already quite weak. You know, there's some evidence that the
Speaker 1: lawyers who are appearing in court are not fully informed
Speaker 1: about what the decision makers and the Trump administration plan
Speaker 1: to do or have done already. So you know, it's
Speaker 1: possible to have some sympathy for some of those lawyers, although,
Speaker 1: of course, when one of the lawyers frankly admitted that
Speaker 1: he was soon thereafter removed by Attorney General Bondi. So
Speaker 1: it's clear that at the highest level of the Justice
Speaker 1: Department there is no disagreement with what President Trump and
Speaker 1: other actors in the administration are doing. So you know,
Speaker 1: as I say, you configured perhaps some of the statements
Speaker 1: that turn out to be false by Department lawyers to
Speaker 1: their ignorance, but you know, not all of it.
Speaker 3: President Trump and the administration continue to say that they'll
Speaker 3: follow court orders. They're obeying court orders, although Trump did
Speaker 3: complain Monday on being stymied at every turn by the
Speaker 3: courts and argue that the administration can't hold trial for
Speaker 3: migrants it plans to deport because it would hold them
Speaker 3: up too much. I mean, so there's still this facade
Speaker 3: of we're listening to court orders.
Speaker 1: Yeah, so there's a lot there. First, I think it's
Speaker 1: inarguable that they are not fully complying with orders of
Speaker 1: the lower courts, and there is pretty good evidence that
Speaker 1: they are not complying in good faith with the Supreme Court. So,
Speaker 1: in addition to not giving the Venezuelans the notice to
Speaker 1: which they are entitled, the administration in the Abrago Garcia
Speaker 1: case has flatly refused us to comply with its obligation
Speaker 1: said by the Supreme Court to facilitate his return. With
Speaker 1: respect to the President's claim that, you know, giving these
Speaker 1: migrants due process would be a too onerous burden that
Speaker 1: assumes that what they're entitled to is a kind of
Speaker 1: full dress criminal trial. But that's not true. There are
Speaker 1: statutory guidelines that allow for very much expedited hearings, but
Speaker 1: they do require some kind of a hearing. You can't just,
Speaker 1: you know, have people in unmarked than scooping people up
Speaker 1: off the street and then shipping them off to a
Speaker 1: foreign country that's not even their home country, when there are,
Speaker 1: as an Abregio Garcia's case, court orders forbidding that, or,
Speaker 1: as in some of these other cases, no real evidence
Speaker 1: that they are subject to deportation at this point, right,
Speaker 1: it's simply not true that you have to have a
Speaker 1: full dress trial before you can room with somebody. Now,
Speaker 1: having said that, President Trump is right that if he
Speaker 1: were to attempt the kind of massive deportation of everybody
Speaker 1: in the United States who entered undocumented, that it would
Speaker 1: be difficult to do that in a timely manner because
Speaker 1: there are procedures that have to be followed. But he
Speaker 1: also doesn't have the manpower, he doesn't have the budget
Speaker 1: do anything like that anyway.
Speaker 3: With the Brigo Garcia, Trump and other administration officials seem
Speaker 3: to be making it clear that they have no plans
Speaker 3: to return him to the United States, and they're instead
Speaker 3: playing this game of blaming it on the l Salvador President.
Speaker 1: Yeah, I mean, I think that is a game. I
Speaker 1: think that is in pretty clear defiance of at least
Speaker 1: the federal district judges order. Now, you can say that
Speaker 1: in the earlier case that all the Supreme Court did
Speaker 1: was to ask the federal district judge to clarify what
Speaker 1: she meant by facilitate. But you know, the court pretty
Speaker 1: clearly approved of the obligation for facilitation, and you know,
Speaker 1: there was a remarkable decision by a unanimous re judge
Speaker 1: panel of the Fourth Circuit last week in which Judge J.
Speaker 1: Harvey Wilkinson, the third who's a very conservative appointee of
Speaker 1: Ronald Reagan, really called the administration to task for doing
Speaker 1: literally nothing to facilitate a Brego Garcia's return and warned
Speaker 1: in pretty ominous terms of the potential death of the
Speaker 1: law here. So you know, in the face of that,
Speaker 1: the Trump administration is continuing nonetheless to you know, simply
Speaker 1: not do anything for Abrego Garcia. And what's so remarkable
Speaker 1: about this is that, you know, they could say, well,
Speaker 1: we're going to comply, and then ask the president of Ilseal,
Speaker 1: hey can we have Abregiol Garcia back, and he might
Speaker 1: then say, well, no, I'd really rather keep him because
Speaker 1: after all, he is at El Salvador in national Now.
Speaker 1: It's true we sent him back there by a mistake,
Speaker 1: and there was a judicial order forbidding that, but that
Speaker 1: order doesn't bind the government of El Salvador. But the
Speaker 1: coup administration isn't even willing to ask, and they could
Speaker 1: they could ask. This wouldn't be good faith compliance, but
Speaker 1: they could ask while winking and then they could go
Speaker 1: back to the judge and said, well, we asked and
Speaker 1: he said no. But they're not even willing to do
Speaker 1: that because they see this as a matter of power politics.
Speaker 3: I mean, until now, the Conservatives have been giving Trump
Speaker 3: narrow procedural wins that have allowed him to, for the
Speaker 3: most part, run his agenda. Does this mark a turning
Speaker 3: point in the majority's approach to the administration, I hope so.
Speaker 1: I have been highly critical of the Roberts Court for
Speaker 1: some time now for treating Donald Trump as an visual
Speaker 1: and his administration in their official capacity, as normal, right,
Speaker 1: treating them the way you would treat any president who
Speaker 1: you know, occasionally pushes the edge of the envelope of
Speaker 1: their authority, but then when subject to a ruling, complies,
Speaker 1: which has been proof of every Democratic and Republican president,
Speaker 1: you know, for as long as we can remember, accepting
Speaker 1: you know, extraordinary circumstances like Lincoln during the Civil War,
Speaker 1: something like that. But you see this the sort of
Speaker 1: treating him as normal and thinking about you know, presidents
Speaker 1: in general in a lot of circumstances. The one that
Speaker 1: was sort of most disturbing to me was the immunity ruling.
Speaker 4: Last year, which.
Speaker 1: The Course said, well, you know, we don't want to
Speaker 1: hamstring the president because in the future there might be
Speaker 1: you know, sort of tit for tab retaliation against former
Speaker 1: presidents back to lead to all sorts of trouble, sort
Speaker 1: of thinking about the long term and ignoring what is
Speaker 1: essentially an emergency right in front of them. And I
Speaker 1: was a little concerned that that was what was going
Speaker 1: on in the last few months, as this second job
Speaker 1: administration proved to be much more radical than the first.
Speaker 1: But it looks like and I'm hopeful that you know,
Speaker 1: the Court is beginning to realize that they're not dealing with.
Speaker 6: A normal, law abiding president and administration, but a you know,
Speaker 6: a person who's seriously threatening constitutional democracy, and that they
Speaker 6: need to stand up to him.
Speaker 3: Last Thursday, the Court announced a special session on May
Speaker 3: fifteenth to hear arguments on Trump's executive order upending birthright citizenship.
Speaker 3: Why would the Court agree to hear a case like
Speaker 3: that when Trump's executive order seems to obviously violate the Constitution.
Speaker 5: Well, you know, the Court.
Speaker 1: Did not take the case to decide the substantive issue,
Speaker 1: but the Solicitor General didn't even ask the Court to
Speaker 1: decide a substantive issue. All of the court is deciding
Speaker 1: is the authority of a federal district judge to give
Speaker 1: a so called nationwide injunction. That has been a long
Speaker 1: running source of controversy actually in both Democratic and Republican administrations.
Speaker 1: It's been frustrating to presidents of either party when a
Speaker 1: single federal district judge, often selected by the plaintiffs because
Speaker 1: they know their ideological leanings. You can do a little
Speaker 1: bit of forum shopping or even judge shopping by deciding
Speaker 1: where to file. But a single district judge sort of
Speaker 1: sets nationwide policy, at least for the short run, and
Speaker 1: so some of the justices have for a long time
Speaker 1: been concerned about this phenomenon. I think that it's extremely
Speaker 1: unlikely that the Court will in this case rule on
Speaker 1: the birthright citizenship issue as a substantive matter. Now, that
Speaker 1: doesn't stop the media or actually even President Pump from
Speaker 1: portraying this as something else entirely. You know, as soon
Speaker 1: as the Court announced that it was going to hear argument,
Speaker 1: Trump said something like, well, you know, this is very misunderstood.
Speaker 1: That's about slavery. He said by that he was referring
Speaker 1: to the birthright citizenship clause of the fourteenth Amendment. So
Speaker 1: he seems to think, or at least he's saying that
Speaker 1: this case is about the substance, but it really isn't.
Speaker 3: This goes along with the Trump administration's misinterpretation of even
Speaker 3: the Supreme Court ruling on a Brigo Garcia. I mean,
Speaker 3: you heard the Attorney General misinterpret the ruling and another
Speaker 3: Trump deputy, Stephen Miller, say that they won that case.
Speaker 1: So misinterpret is a very generous way to describe it.
Speaker 5: I would say, lie about I.
Speaker 1: Do think that, you know, in the case of Trump himself,
Speaker 1: it is sometimes misinterpretation. He's not a lawyer, you know,
Speaker 1: he never admits that he's wrong about anything, and so
Speaker 1: in his case there's a kind of combination of ignorance
Speaker 1: and willfulness. I think some of these other people clearly
Speaker 1: know better, but they're counting on the you know, social
Speaker 1: media and echo chambers and sort of Trump friendly media
Speaker 1: to amplify their points without pointing out the way in
Speaker 1: which they're you know, just simple lying.
Speaker 3: So he's great to get your insights, Mike, thanks so much.
Speaker 3: That's Professor Michael Dorff of Cornell Law School. Coming up next,
Speaker 3: Foreign students are fighting back in court as the Trump
Speaker 3: administration revokes Visa's I'm June Gross when you're listening to Bloomberg.
Speaker 3: President Donald Trump and his administration are resisting a court
Speaker 3: order to bring Kilmore Albrego Garcia, who was wrongly deported
Speaker 3: to l Salvador, back to the US, claiming he's a
Speaker 3: member of the MS thirteen gang.
Speaker 2: They want this man to be brought back into our
Speaker 2: country where he can be free, and to say as
Speaker 2: a happily Maryland you know, happily they call him the
Speaker 2: Maryland demand. He's a Maryland father. Now here's a violent person.
Speaker 3: And Trump's borders are Tom Homan stands by the deportation
Speaker 3: of hundreds of venezuel And in salvadornment to the maximum
Speaker 3: security prison there.
Speaker 4: I believe removing public safety tress and terras designated terrass
Speaker 4: to that prison al Salvador.
Speaker 3: My guest is immigration law expert Leon Fresco, a partner
Speaker 3: at Holland and Knight. We've seen pictures of him with
Speaker 3: a US senator. Supposedly he's been moved to a different prison.
Speaker 3: What's happening in his case is the government making any
Speaker 3: move to bring him back.
Speaker 4: Well, the government is saying that they will never bring
Speaker 4: him back. And what becomes complicated about that is what
Speaker 4: if one day there actually is a court order that
Speaker 4: orders him to come back. And the way that would
Speaker 4: materialize would be as followed.
Speaker 1: You have.
Speaker 4: The District Court is engaging in discovery to find out what, when, where,
Speaker 4: or how who would regard the compliance to the Supreme
Speaker 4: Court's order to facilitate the reimportation of mister Abrago Garcia
Speaker 4: back into the United States. The District Court doesn't think
Speaker 4: at the moment that the government has done anything visa
Speaker 4: VI that and the government is saying that it's not
Speaker 4: doing anything visa VI trying to reimport mister Abrago Garcia
Speaker 4: back into the United States. So they actually appeal this
Speaker 4: determination to the Fourth Circuit. The Fourth Circuit in a
Speaker 4: very strongly worded decision by Judge Harvey Wilkinson, the conservative judge,
Speaker 4: said that he was not going to micromanage the District
Speaker 4: Court and that it was very important that the government
Speaker 4: actually follow the rule of law here and not try
Speaker 4: to circumvent the rule of law. Is what is happening,
Speaker 4: and so now the government hasn't taken that opinion and
Speaker 4: tried to appeal it again to the Supreme Court because
Speaker 4: I think they understand that it would be feudal until
Speaker 4: there's some sort of feeing up as to what facilitates means.
Speaker 4: The government is currently trying to argue that facilitation means
Speaker 4: that if a brago Garcia actually can arrive at a
Speaker 4: port of entry, that he'd be readmitted in knowing that
Speaker 4: he's not going to be released from a detention facility
Speaker 4: in Elsavador, so that that would not be possible.
Speaker 3: And Leon, what's the main legal question going to be
Speaker 3: in the case.
Speaker 4: Here's the crux of it is the district court, then
Speaker 4: followed by the appellate court, followed by the Supreme Court
Speaker 4: going to rule that a brago Garcia is in the
Speaker 4: constructive custody of the United States, meaning that but for
Speaker 4: the United States paying for a Brego Garcia to be
Speaker 4: in custody and having this arrangement with Alsavador to keep
Speaker 4: a brago Garcia in custody, that he wouldn't be in custody.
Speaker 4: And so that's going to be the question. And if
Speaker 4: the court rules that a brago Garcia is in the
Speaker 4: constructive custody of the United States, then they will say
Speaker 4: that he needs to be released from that custody, and
Speaker 4: by not doing that, the people who do not release
Speaker 4: him from that custody will be held in contempt of court.
Speaker 4: And that's where if the Trump administration doesn't comply with
Speaker 4: that order, you get to your quote unquote potential constitutional crisis.
Speaker 4: We're not there yet, and I think jud Cenis in
Speaker 4: the District Court in Maryland is doing a very careful
Speaker 4: job to try to develop the most fulsome record possible
Speaker 4: of who, what, when, where, so that that determination when
Speaker 4: it gets to the Supreme Court, everybody can know every
Speaker 4: detail about how this arrangement was made with Elsavador, who's
Speaker 4: paying for it, who's making the decisions, et cetera. But
Speaker 4: if those facts are ultimately not shared, then it contempt
Speaker 4: may happen from not sharing those facts. But that's what
Speaker 4: this is really going to come down to. Is Abrego
Speaker 4: Garcia in the constructive custody of the United States. If
Speaker 4: he's not, then I I think it's going to be
Speaker 4: very hard because the court is going to say, look,
Speaker 4: if El Salvador has its own reason for detaining Abrego Garcia,
Speaker 4: and that's the end of it. It's going to be
Speaker 4: very hard for a court to do anything about that.
Speaker 4: But if the court determines that he's in the constructive
Speaker 4: custody of the United States, then they may hold the
Speaker 4: people who refuse to release him from that custody in
Speaker 4: contempt of court.
Speaker 3: So this is sort of besides the point. But I
Speaker 3: wanted to get your opinion on this. Do you think
Speaker 3: that that picture of him sitting there in you know,
Speaker 3: everyday close with a senator, you know, in a restaurant
Speaker 3: of some kind, do you think that did more harm
Speaker 3: than good to his cause?
Speaker 1: Well?
Speaker 4: I think the problem is regardless of what you think
Speaker 4: about the picture, the truth remains the same, which is
Speaker 4: he's in detention. And so the question is how long
Speaker 4: is he supposed to be in detention for and what
Speaker 4: is the reason for his detention. Even if he was
Speaker 4: deported to al Savador, if he was walking around Elsavador,
Speaker 4: presumably that would still be less compelling than the fact
Speaker 4: that he's actually in detention for the foreseeable future. It's
Speaker 4: not clear what he's in detention for and how long
Speaker 4: he's supposed to be in there, and so those are
Speaker 4: the determinations the courts are going to have to ultimately
Speaker 4: make because one of the interesting facts here is it's
Speaker 4: fair enough for the Trump administration to say, look, even
Speaker 4: if you send him back, we're going to just send
Speaker 4: him back again, which would be true because the reason
Speaker 4: he was given deportation relief in the first place was
Speaker 4: because he feared gang violence in al Savador. That actually,
Speaker 4: Alsavador has done a very good job of reducing to
Speaker 4: a very high extent, and they certainly have shown that
Speaker 4: they're no longer unwilling or unable or incapable of preventing
Speaker 4: gang violence in Alsavador. So that reason the government will
Speaker 4: likely be able to show in a court is no
Speaker 4: longer valid. But now if they have a new reason,
Speaker 4: which is that he's going to be viewed as a terrorist,
Speaker 4: which is what the president of al Savador said, he said,
Speaker 4: why would I release a terrorist from my facility, then
Speaker 4: that will be its own reason for relief from deportation,
Speaker 4: which would have to then lead the administration to then
Speaker 4: either send them to a non Alsavador country or withhold
Speaker 4: his deportation again. So this is the problem that is
Speaker 4: being faced by this case. It's presenting all sorts of
Speaker 4: new challenges literally on a daily basis. So yes, the
Speaker 4: picture is not helpful as a political matter, but the
Speaker 4: courts are going to be looking at this prospectively and
Speaker 4: asking what is his future in Al Savador if we
Speaker 4: don't act, and then they will make determinations based off
Speaker 4: of that.
Speaker 3: So let's turn out to student visas, because over fifteen
Speaker 3: hundred students foreign students have had their visas revoked, according
Speaker 3: to Inside Higher Ed. Why are these visas being revoked.
Speaker 4: Visas are being revoked for several reasons. The main and
Speaker 4: initial reason that was in the news was because the
Speaker 4: students had participated in violent protests on campus, whether it
Speaker 4: was pro Hamas or other violent protests on campus, and
Speaker 4: so the idea was that those students would have their
Speaker 4: visas revoked. And when you revoke a visa, all that
Speaker 4: means in principle is the person is in a limbo
Speaker 4: where they are actually allowed to stay in the United States,
Speaker 4: but if they leave, they can't come back. They have
Speaker 4: to ask for new permission to re enter, which they
Speaker 4: won't get, and so they're stuck. And that's normally what
Speaker 4: happens when a visa's revoked. But what the administration is
Speaker 4: trying to do now is it's actually trying to say
Speaker 4: in addition to revoking your visa for some segment of
Speaker 4: these students, and by the way, not all of them
Speaker 4: are protesters. Some of them will be people who've had
Speaker 4: arrests for things that college kids get arrested for all
Speaker 4: the time. So they'll go to a bar and they'll
Speaker 4: have a drunken disorderly This is a big one that
Speaker 4: I'm seeing from many people reaching out to my law
Speaker 4: practice to actually talk to me. You'll see things like that,
Speaker 4: like drunk and disorderly conduct. You know, rowdy college students
Speaker 4: being college students is not unique to just Americans that
Speaker 4: you know, foreign nationals will do this too. But if
Speaker 4: you have any interaction with law enforcement, then they're evoking
Speaker 4: your visa and sometimes terminating your status in the student
Speaker 4: Visa database. And that's where the litigation is coming from
Speaker 4: because if your student Visa database status is terminated, it
Speaker 4: creates two problems. One from the student's perspective, the student
Speaker 4: is worry now that they're any legal status, and unlike
Speaker 4: other populations of people in this country that may or
Speaker 4: may not have concern about illegal status because what they're
Speaker 4: trying to do is earn enough money in the US
Speaker 4: to just survive and stay alive. This student visa population
Speaker 4: that doesn't have that concern of trying to survive and
Speaker 4: stay alive. They're trying to be here legally and study.
Speaker 4: So having a concern that they're here illegally is quite
Speaker 4: grave for them, and they don't want to be here illegally,
Speaker 4: and so many of them are suing in the court.
Speaker 4: But it also as a concern for the school. The
Speaker 4: schools are often asking me, well, should I allow this
Speaker 4: student to keep studying now that the government has terminated
Speaker 4: the status, because will I be considered as someone who's
Speaker 4: harboring a fugitive or inducing a person here without status
Speaker 4: to remain in the United States. And the last thing
Speaker 4: I want to do is be prosecuted for this. So
Speaker 4: it's creating all of those problems, and students are now
Speaker 4: suing on us, many of them in all different courts
Speaker 4: across the United States, saying that the government can revoke
Speaker 4: my visa, that's fine, But even when they do that,
Speaker 4: I'm allowed to stay. They can't revoke my existence in
Speaker 4: the student database. All the government can do is put
Speaker 4: me in deportation proceeedings, which from the government's persone is
Speaker 4: very onerous. This is the whole point of everything they're
Speaker 4: trying to do. They're not trying to increase the number
Speaker 4: of people in deportation proceedings. They're trying to decrease it
Speaker 4: because there's millions of people in the backlog. So what
Speaker 4: they're trying to do is terminate these students existence in
Speaker 4: the database so that the students leave. But if the
Speaker 4: students are successful, which they've currently been in a lot
Speaker 4: of district courts in saying that the government doesn't have
Speaker 4: that authority, the only authority they have is to play
Speaker 4: students in removal proceedings and let them defend themselves, then
Speaker 4: the students are going to be allowed to stay because
Speaker 4: the government probably isn't going to want to place thousands
Speaker 4: of students and deportation proceedings to add to the already
Speaker 4: large number of people in deportation proceedings.
Speaker 3: Leon do these student visas have expiration dates, so they
Speaker 3: would expire without the government doing anything.
Speaker 4: Well, what happens is the visa is actually a stamp
Speaker 4: that is placed in your passport that says how many
Speaker 4: days do you have to enter the United States? So
Speaker 4: if I get a student visa place in my passport
Speaker 4: that expires on May first of twenty twenty seven. The
Speaker 4: only significance of that date May first, twenty twenty seven
Speaker 4: is that's the last date I'm allowed to fly into
Speaker 4: the United States and enter as a student.
Speaker 1: That's it.
Speaker 4: Once I've entered as a student. The way the system
Speaker 4: works is you are admitted as a student for however
Speaker 4: long it takes to finish your degree. It has nothing
Speaker 4: to do with the stamp. And so you just have
Speaker 4: to show that you're working in due diligence towards your
Speaker 4: degree and as long as you show that you can
Speaker 4: exceed that May first, twenty twenty seven deadline. And so
Speaker 4: from that perspective, if the visa is revoked, the only
Speaker 4: thing that is revoked is the stamp, the ability to
Speaker 4: re enter the country. The status of the student isn't
Speaker 4: revoked unless the student is placed in removal proceedings. Now,
Speaker 4: what the government is trying to do is it trying
Speaker 4: to get students to leave by saying we're not going
Speaker 4: to put you in deportation proceedings. We're going to try
Speaker 4: this novel move, which is to say that we are
Speaker 4: terminating you from the student visa database, which means that
Speaker 4: the school can't allow you to enroll because the school
Speaker 4: is only by regulation allowed to enroll people who are
Speaker 4: in the student visa database. And so that's what students
Speaker 4: are suing about, saying, there's nothing in the regulations that
Speaker 4: mentions this, that allows this, that permits this. If you
Speaker 4: don't want me in the country, this isn't the way
Speaker 4: to do it. You have to place me in removal
Speaker 4: proceeedings in order to do it. You can't just terminate
Speaker 4: me from the student visa database. But again, the reason
Speaker 4: they're doing this is to one create the apprehension in
Speaker 4: the student so that the student leaves voluntarily, but number two,
Speaker 4: to create the apprehension in the school because the school
Speaker 4: knows very clearly in the regulations it shouldn't be allowing
Speaker 4: foreign students to study there if they're not actively on
Speaker 4: the student visa database. And so the schools are very
Speaker 4: concerned about the ramifications for them visa the harboring or
Speaker 4: inducement of undocumented foreign nationals if they allow those students
Speaker 4: to remain studying in the school.
Speaker 3: So let's say you have a student visa and it
Speaker 3: takes you fifteen years to get through school. That's okay.
Speaker 4: You're allowed to do that. Within this perspective. You have
Speaker 4: to take a certain amount of courses per year. And
Speaker 4: so if you fall under that number of courses you're
Speaker 4: taking per year, then you're not needing your student visa
Speaker 4: status and you can be terminated. But for instance, I'll
Speaker 4: give you an example of where fifteen years would make sense.
Speaker 4: There are some students who come in here to study it,
Speaker 4: let's say and over Exeter fancy high schools, if you
Speaker 4: know what I mean. They have these fancy private high schools.
Speaker 4: So you come on a student visa to study on
Speaker 4: that student visa expires, let's say May first of twenty
Speaker 4: twenty seven. Let's say you never leave. So you finish
Speaker 4: high school, you get accepted into Harvard, you go to Harvard,
Speaker 4: you get accepted into Yale Law School, you go to
Speaker 4: Yale Law School, and then maybe you want to get
Speaker 4: a PhD in economics. You could have done all of
Speaker 4: that without getting a new visa. You could have just
Speaker 4: stayed in America the fifteen years and done that.
Speaker 3: Coming up next on the Bloomberg Law Show, I'll continue
Speaker 3: this conversation with immigration law expert Leon Fresco of Honda Knight.
Speaker 3: The Trump administration is moving to fast track asylum cases.
Speaker 3: I'm June Grosso and you're listening to Bloomberg. Let's turn
Speaker 3: to asylum now and the Trump Administration's efforts to fast
Speaker 3: track asylum cases. The Executive Office for Immigration Review had
Speaker 3: more than four million pending cases in the last quarter
Speaker 3: of twenty twenty four, including one point five million pending
Speaker 3: asylum cases. How is the Trump administration trying to fast track?
Speaker 4: What is happening is the following. Normally, when you apply
Speaker 4: for asylum, the way an asylum case gets decided is
Speaker 4: you go to the court, you testify, You say why
Speaker 4: you're afraid to be in the country. The government cross
Speaker 4: examined you, the judge might ask a few questions, the
Speaker 4: attorneys will have an argument, and the judge will make
Speaker 4: a decision. And those cases can take anywhere from four
Speaker 4: hours to two three days, depending on how much intensity
Speaker 4: there is to the case, how contentious it is, how
Speaker 4: many witnesses there are, if a translator is needed, because
Speaker 4: the translator obviously doubles the length of the preceding because
Speaker 4: everything needs to be said twice, and so those are
Speaker 4: very intensive. In terms of time, and so you have,
Speaker 4: like you said, four million cases, how do you do
Speaker 4: all of those cases? Impossible. There's only three hundred and
Speaker 4: sixty five days in the year, so a judge could
Speaker 4: only conceivably do one judge three hundred and sixty five
Speaker 4: asylum cases, say at most for years. They don't even
Speaker 4: get close to that. But I'm just saying as a
Speaker 4: theoretical that's if you were the most committed judge who
Speaker 4: never wanted to go home and keep the immigration for
Speaker 4: it open all day, you could do three hundred and
Speaker 4: sixty five cases a year. And so obviously we're never
Speaker 4: going to bring down the dent of the four million.
Speaker 4: So what the Trump administration wants to do is basically
Speaker 4: introduce the concept of summary judgment or emotion to dismiss
Speaker 4: whatever you would call it in civil court, which is
Speaker 4: that if a person is presenting an asylum claim that
Speaker 4: even if everything they are saying is true, you still
Speaker 4: wouldn't legally add up to an asylum clane. Then they
Speaker 4: want the judges to dismiss those, to look for those
Speaker 4: and dismiss those so that you don't have the need
Speaker 4: of doing what I just described testimony, cross examination, argument, questions,
Speaker 4: et cetera. The problem is with this concept that many
Speaker 4: people who don't have lawyers don't know how to phrase
Speaker 4: their asylum cling. So what happens is you get to
Speaker 4: the court, you start asking questions, and you may determine
Speaker 4: that a person indeed as a valid asylum claim because
Speaker 4: you're asking them the question, they're answering them. They're not
Speaker 4: tailoring their experience to the laws, so they don't know
Speaker 4: what they need to do to qualify to get asylum.
Speaker 4: They can only tell you why they're afraid and what
Speaker 4: happened to them. And so the fear is that if
Speaker 4: you allow this summary judgment flash motion to this misconcept
Speaker 4: to enter into immigration court, you may get denials in
Speaker 4: cases like that.
Speaker 3: So let's be frank about asylum. People just automatically file
Speaker 3: for asylum to prevent being deported. For example, the Trump
Speaker 3: administration is removing temporary protected status for Venezuelan, Haitians, Cubans,
Speaker 3: and Nicer Roguin's. The vast majority are going to automatically
Speaker 3: file for asylum. I mean, that's why you have so
Speaker 3: many asylum claims.
Speaker 4: That's the protective final feature, that is the one thing
Speaker 4: that can delay your deportation for as long as possible
Speaker 4: is asylum. Now, the problem is it will depend what
Speaker 4: country you're coming from. If you're from Venezuela, then to
Speaker 4: make a claim that you fear the dictator, et cetera,
Speaker 4: becomes a much more complicated case because there is a
Speaker 4: dictator and you can say you fear the dictator, Whereas
Speaker 4: if you're from a country that is just economically depressed,
Speaker 4: then it's perhaps more difficult because then what are you
Speaker 4: saying is your fear there? And people try to make
Speaker 4: claims of various natures, but those are always denied, you know,
Speaker 4: eight eighty five percent, ninety percent denial rates for all
Speaker 4: of those kinds of asylum cases, and so really it's
Speaker 4: just going to depend. Many times. You'll see you if
Speaker 4: you go on a website called track drac, they actually
Speaker 4: will list the judges and their grant rates on asylum claims,
Speaker 4: and you will see that even within courts, because you
Speaker 4: could say, well, in one court it's different than another
Speaker 4: because different populations present themselves in different courts. But if
Speaker 4: you're within the same court, then the judges will see
Speaker 4: the same types of cases. You'll see that there are
Speaker 4: courts where there are judges that deny ninety percent of cases,
Speaker 4: and there are judges that grant ninety percent of cases,
Speaker 4: and so from that perspective, it really is sort of
Speaker 4: a look of the draw that decides whether you get
Speaker 4: asylum or not.
Speaker 3: So, putting aside the problem that some migrants may not
Speaker 3: have attorneys, if the facts are clear, as you said,
Speaker 3: can an immigration court judge make a decision quickly?
Speaker 4: Oh, absolutely, no doubt about it. And I think they could,
Speaker 4: And I think there's a scenario where a motion to
Speaker 4: dismiss or summary judgment type of scenario is appropriate if
Speaker 4: you can show that even if everything the person said
Speaker 4: is true, they don't meet the asylum claim. So, for instance,
Speaker 4: I'll give you an absurd example, but just to put
Speaker 4: it out there, let's say somebody said that they were
Speaker 4: coming from Norway and they are going to be killed
Speaker 4: in Norway, and it could be one hundred percent true,
Speaker 4: but the person who's going to kill them is their
Speaker 4: bookie for gambling debts. Then you have a one hundred
Speaker 4: percent true plane that you will be killed in Norway.
Speaker 4: I have no doubt. But that is not a claim
Speaker 4: that's protected by asylum law, because we don't protect people
Speaker 4: from their bookie for gambling debts, and so that's one
Speaker 4: that you could dismiss, and if you saw that written somewhere,
Speaker 4: you could dismiss it, no doubt about it. But the
Speaker 4: question is if you're going to set up a situation
Speaker 4: where that can be abused. And this is always what
Speaker 4: people worry about. Either through the person didn't have counsel,
Speaker 4: so they couldn't really write the claim with any kind
Speaker 4: of sophistication, and you need to actually ask them about it.
Speaker 4: So that's one concern. But secondly, if the denials are
Speaker 4: just denied just because that's what they're going to do,
Speaker 4: is they're going to just deny them on mass and
Speaker 4: force people to take appeals and force people to go
Speaker 4: to the courts of appeals just because they want to
Speaker 4: engender as many orders of removal as possible. That's sort
Speaker 4: of the larger fear. Now, will that happen, will that
Speaker 4: not happen? Unclear? You know, we always want to presume
Speaker 4: that the rule of law will be followed and they
Speaker 4: won't just start denying cases for no reason. But the
Speaker 4: fear from I think some in the immigration bar would
Speaker 4: be that this would be used for that reason that
Speaker 4: you would just get a one line order. Your asylum
Speaker 4: case is denied, and you weren't given any indication of
Speaker 4: why that was so.
Speaker 3: During Trump's first administration, didn't immigration officials issue directives limiting
Speaker 3: asylum approvals and impose quotas for judges?
Speaker 4: Well, they imposed quotas for case management, and they certainly
Speaker 4: made a lot of judicial decisions from the Attorney General's
Speaker 4: Office that talked about things like how you establish a
Speaker 4: social group based asylum claim. That definitely tightened up who
Speaker 4: could qualify for asylum. That is true, but there was
Speaker 4: not then and there currently isn't for to summarily deny
Speaker 4: hundreds of thousands of asylum planes. Let's say, if that's
Speaker 4: what ends up happening, unclear, that will happen and just
Speaker 4: give them all one line in orders. We will see
Speaker 4: if that happens. If that happens, that will certainly be
Speaker 4: something that goes through a lot of scrutiny. Unclear if
Speaker 4: that's what this is going to lead to. But that's
Speaker 4: the question that some have on their mind. You know,
Speaker 4: one would presume that the rule of law will be followed,
Speaker 4: that that's not what's going to happen. If it happens,
Speaker 4: people will have to take appeals from that and we
Speaker 4: will have to wait and see.
Speaker 3: Well, I appreciate your taking the time to talk to me, Lean,
Speaker 3: I know you're very busy now.
Speaker 4: It was very funny. I saw some podcasts from Alan
Speaker 4: Dershowitz where he said, if I was a young lawyer
Speaker 4: right now, I'd be doing immigration law because that's where
Speaker 4: all the accent is. And like, you know, what's weird
Speaker 4: is people always sort of clown on me. Why did
Speaker 4: you have all things go into immigration law? And now
Speaker 4: look at that. It's springtime for lea. So there you go.
Speaker 3: I'll let you get back to it. Thanks so much, Leon.
Speaker 3: That's Leon Fresco, a partner at Hollanden Knight. And that's
Speaker 3: it for this edition of the Bloomberg Law Show. Remember
Speaker 3: you can always get the latest legal news on our
Speaker 3: Bloomberg Law podcasts. You can find them on Apple Podcasts, Spotify,
Speaker 3: and at www dot Bloomberg dot com, slash podcast Slash Law,
Speaker 3: and remember to tune into The Bloomberg Law Show every
Speaker 3: weeknight at ten pm Wall Street Time. I'm June Grosso
Speaker 3: and you're listening to Bloomberg