1 00:00:03,160 --> 00:00:13,680 Speaker 1: This is Bloomberg Law with June Brasso from Bloomberg Radio. 2 00:00:14,240 --> 00:00:17,920 Speaker 1: After twenty three years in prison, odd Non Sayed walked 3 00:00:17,960 --> 00:00:21,840 Speaker 1: out of the courthouse in Baltimore, smiling but silent as 4 00:00:21,840 --> 00:00:25,320 Speaker 1: his supporters cheered. The forty one year old was free 5 00:00:25,360 --> 00:00:28,680 Speaker 1: for the first time since he was a teenager convicted 6 00:00:28,720 --> 00:00:34,879 Speaker 1: of the murder of his high school girlfriend from His 7 00:00:35,000 --> 00:00:38,720 Speaker 1: case captured the attention of millions in twenty fourteen on 8 00:00:38,800 --> 00:00:42,600 Speaker 1: the hit podcast Serial, which raised doubts about his guilt. 9 00:00:42,960 --> 00:00:46,920 Speaker 1: A judge ordered say Ed's release after prosecutors said a 10 00:00:47,040 --> 00:00:52,640 Speaker 1: new investigation uncovered evidence that undermines his conviction. Our reinvestigation 11 00:00:52,720 --> 00:00:56,440 Speaker 1: revealed that the original prosecutors and the subsequent prosecutors in 12 00:00:56,440 --> 00:01:01,560 Speaker 1: the Attorney General's Office failed to disclose relevant information about 13 00:01:01,960 --> 00:01:06,520 Speaker 1: alternative suspects. Wan Aful threatened to kill the victim, and 14 00:01:06,560 --> 00:01:10,240 Speaker 1: then on Tuesday, prosecutors took the final step and dropped 15 00:01:10,240 --> 00:01:14,319 Speaker 1: the charges against Sayette. His lawyer, Erica's Suitor, is my guest. 16 00:01:14,600 --> 00:01:17,560 Speaker 1: She's an assistant public defender in Maryland and director of 17 00:01:17,560 --> 00:01:21,560 Speaker 1: the University of Baltimore's Innocence Project Clinic. Erica what was 18 00:01:21,600 --> 00:01:24,680 Speaker 1: it like for him walking out of the courthouse after 19 00:01:24,760 --> 00:01:27,960 Speaker 1: spending more than half his life in prison. Well, in 20 00:01:28,040 --> 00:01:30,360 Speaker 1: the courtroom, you know, he turned to me, a non 21 00:01:30,360 --> 00:01:32,360 Speaker 1: turned to me and said that he couldn't believe it 22 00:01:32,400 --> 00:01:37,720 Speaker 1: was real. I think walking out the courtroom was probably 23 00:01:37,720 --> 00:01:40,399 Speaker 1: pretty overwhelming, and it was overwhelming to me. There were 24 00:01:40,440 --> 00:01:42,920 Speaker 1: so many, so many people and so many cameras, so, 25 00:01:43,480 --> 00:01:45,880 Speaker 1: you know, I think it was overwhelming. And he heard 26 00:01:46,080 --> 00:01:49,040 Speaker 1: a friend, somebody who had been incarcerated with him, who 27 00:01:49,040 --> 00:01:51,520 Speaker 1: had been exonerated, called his name, and that's when you 28 00:01:51,560 --> 00:01:53,840 Speaker 1: see him look up and smile and wave, which was 29 00:01:53,920 --> 00:01:55,360 Speaker 1: kind of one of the only times that he was, 30 00:01:55,440 --> 00:01:58,000 Speaker 1: you know, sort of engaged. So how did you become 31 00:01:58,080 --> 00:02:02,360 Speaker 1: his attorney? Well, I've been practicing postconviction law in Maryland 32 00:02:02,360 --> 00:02:06,920 Speaker 1: for about fifteen years, and when his case was sort 33 00:02:06,920 --> 00:02:09,680 Speaker 1: of last before the court, now I was following it 34 00:02:09,760 --> 00:02:12,560 Speaker 1: like everyone else, and you know, paying attention because of 35 00:02:12,600 --> 00:02:15,240 Speaker 1: my interests and sort of the legal and procedural posture. 36 00:02:15,760 --> 00:02:19,200 Speaker 1: And then as that process ran down and he had 37 00:02:19,200 --> 00:02:22,280 Speaker 1: reached sort of the natural conclusion of those things, you know, 38 00:02:22,320 --> 00:02:25,519 Speaker 1: it was time for him to find another attorney to 39 00:02:25,560 --> 00:02:28,799 Speaker 1: sort of pursuit whatever might remain and Robbia Chaudhry, who 40 00:02:28,800 --> 00:02:32,160 Speaker 1: has been a longtime advocate of his and a family 41 00:02:32,200 --> 00:02:34,639 Speaker 1: friend of his, you know, thought me out and approached 42 00:02:34,680 --> 00:02:37,079 Speaker 1: me about taking the case and correct me if I'm wrong, 43 00:02:37,080 --> 00:02:40,440 Speaker 1: But you were looking to overturn the case as much 44 00:02:40,480 --> 00:02:44,480 Speaker 1: as get him out under another law. So no, we 45 00:02:44,480 --> 00:02:48,040 Speaker 1: were always looking to overturn the case. We've always believed 46 00:02:48,040 --> 00:02:51,600 Speaker 1: in his innocence. He's always maintained his innocence, and so 47 00:02:51,760 --> 00:02:54,320 Speaker 1: as a post conviction lawyer, you're sort of looking at 48 00:02:54,360 --> 00:02:56,919 Speaker 1: what are all the potential tools and the tool kit 49 00:02:57,400 --> 00:02:59,520 Speaker 1: to try to achieve relief for this client. And so 50 00:03:00,480 --> 00:03:04,840 Speaker 1: one possible way to do that was to seek release 51 00:03:04,880 --> 00:03:09,880 Speaker 1: through sentencing modification um through the recently past Juvenal Restoration Act. 52 00:03:10,360 --> 00:03:13,960 Speaker 1: So this particular path that we're on now did in 53 00:03:14,000 --> 00:03:17,639 Speaker 1: fact begin with a conversation with the Sentencing Review Unit. 54 00:03:17,720 --> 00:03:19,320 Speaker 1: But we were always looking at sort of all of 55 00:03:19,320 --> 00:03:22,519 Speaker 1: our options. But yes, this particular sort of peace and 56 00:03:22,600 --> 00:03:26,000 Speaker 1: a very long journey began with with having this conversation 57 00:03:26,040 --> 00:03:29,480 Speaker 1: with an Assistant States Attorney, Bucky Seltman. So he had 58 00:03:29,560 --> 00:03:33,640 Speaker 1: several appeals and at one point and appeals court vacated 59 00:03:33,680 --> 00:03:37,880 Speaker 1: his conviction, but then it was reinstated. Yeah, so his 60 00:03:38,960 --> 00:03:43,840 Speaker 1: sort of procedural history is interesting and long. And what 61 00:03:44,040 --> 00:03:47,800 Speaker 1: happened was in terms of the post conviction is that 62 00:03:47,880 --> 00:03:50,520 Speaker 1: he had filed a post conviction so you know, after 63 00:03:50,560 --> 00:03:53,400 Speaker 1: your sentence, you have the right to go back and 64 00:03:53,880 --> 00:03:58,360 Speaker 1: alleged an effective assistance of counsel, and Maryland particular has 65 00:03:58,800 --> 00:04:01,400 Speaker 1: very clear procedure. You're guaranteed of hearing. It has to 66 00:04:01,440 --> 00:04:04,000 Speaker 1: be filed within ten years, and you're sort of attacking 67 00:04:04,000 --> 00:04:06,960 Speaker 1: the process. So he did that impost conviction and laws 68 00:04:07,280 --> 00:04:09,760 Speaker 1: and then filed what we call an application for leave 69 00:04:09,800 --> 00:04:12,240 Speaker 1: to appeal, so you don't have a direct right of appeal, 70 00:04:12,280 --> 00:04:15,280 Speaker 1: you have the right to request permission to appeal. And 71 00:04:15,560 --> 00:04:17,880 Speaker 1: it got remanded back and then he did what we 72 00:04:17,960 --> 00:04:20,599 Speaker 1: call in Maryland emotion to reopen. So he's basically in 73 00:04:20,640 --> 00:04:24,920 Speaker 1: post conviction posture again. And he won a new trial 74 00:04:25,320 --> 00:04:28,360 Speaker 1: based on this cell phone evidence that incoming calls were 75 00:04:28,360 --> 00:04:32,680 Speaker 1: not reliable for location. Because the cell phone evidence corroborated 76 00:04:32,760 --> 00:04:36,400 Speaker 1: really the only evidence against him, which was the testimony 77 00:04:36,440 --> 00:04:40,040 Speaker 1: of the cooperating co defendant, So co defendance testimony evolves 78 00:04:40,080 --> 00:04:44,560 Speaker 1: he's an incentivized witness. It contradicts, you know, in various points. 79 00:04:44,600 --> 00:04:48,359 Speaker 1: So they've got this alleged forensic evidence and in that 80 00:04:48,440 --> 00:04:53,400 Speaker 1: post conviction post conviction council demonstrated that that evidence wasn't reliable. 81 00:04:53,800 --> 00:04:56,719 Speaker 1: The state then appealed to the Court of Special Appeals, 82 00:04:56,760 --> 00:05:01,200 Speaker 1: which is our intermediate appellate court, and they reversed on 83 00:05:01,279 --> 00:05:04,240 Speaker 1: the cell phone saying that issue was waived because it 84 00:05:04,320 --> 00:05:07,760 Speaker 1: wasn't raised in the initial post conviction, and then they 85 00:05:07,800 --> 00:05:11,960 Speaker 1: granted relief on the alibi issue, saying that Christina Gutierrez 86 00:05:12,040 --> 00:05:16,040 Speaker 1: trial counsel was ineffective for failing to investigate this alibi 87 00:05:16,080 --> 00:05:19,359 Speaker 1: witness who said that she was with him at the 88 00:05:19,440 --> 00:05:23,240 Speaker 1: library in the relevant time period. So he twice won 89 00:05:23,279 --> 00:05:25,240 Speaker 1: a new trial and these two different levels of court, 90 00:05:25,320 --> 00:05:27,440 Speaker 1: and then the state appealed again to our highest court 91 00:05:28,040 --> 00:05:33,159 Speaker 1: Maryland essentially Supreme Court, and then they reversed and said 92 00:05:33,320 --> 00:05:36,880 Speaker 1: that although it was ineffective or post conviction council to 93 00:05:37,040 --> 00:05:40,719 Speaker 1: not have investigated the alibi given all of the evidence, 94 00:05:40,760 --> 00:05:42,839 Speaker 1: there was no prejudice. So there was a mistake, but 95 00:05:42,920 --> 00:05:47,719 Speaker 1: it wasn't significant enough two show, you know that the 96 00:05:47,720 --> 00:05:50,240 Speaker 1: result would have been different. And then he filed start 97 00:05:50,320 --> 00:05:53,560 Speaker 1: with the Supreme Court. Supreme Court didn't grant start, and 98 00:05:53,600 --> 00:05:57,080 Speaker 1: that's where that process ended. A real roller coaster for him, 99 00:05:57,160 --> 00:05:59,800 Speaker 1: up and down with these appears. Who are I mean, 100 00:05:59,839 --> 00:06:04,400 Speaker 1: I think it was incredibly difficult to go through actually 101 00:06:04,480 --> 00:06:07,800 Speaker 1: winning a new trial instead of having I mean, if 102 00:06:07,839 --> 00:06:11,159 Speaker 1: you're always against the odds in this procedural posture, you 103 00:06:11,279 --> 00:06:14,039 Speaker 1: necessarily lose more than you win, just because of the 104 00:06:14,080 --> 00:06:16,960 Speaker 1: emphasis fund finality and the fact that the burden is 105 00:06:17,040 --> 00:06:19,960 Speaker 1: on the moving parties is on the defendant in this case, 106 00:06:20,160 --> 00:06:21,920 Speaker 1: so you always lose that when you win, it is 107 00:06:22,160 --> 00:06:26,200 Speaker 1: It's incredible and to have that taken back was extraordinarily 108 00:06:26,240 --> 00:06:29,120 Speaker 1: difficult for him for sure. Tell us about the recent 109 00:06:29,240 --> 00:06:34,120 Speaker 1: investigation which you took part in, where prosecutors found in 110 00:06:34,160 --> 00:06:38,720 Speaker 1: the trial folder evidence documents that were never turned over 111 00:06:38,800 --> 00:06:42,440 Speaker 1: to his prior attorneys. So the investigation that happened over 112 00:06:42,440 --> 00:06:45,159 Speaker 1: the past year was really a collaborative effort between the 113 00:06:45,160 --> 00:06:48,160 Speaker 1: defense and the state and Assistant States Attorney Becky Feldman 114 00:06:48,279 --> 00:06:52,120 Speaker 1: went and looked through every trial box and copied a 115 00:06:52,160 --> 00:06:55,000 Speaker 1: whole lot of documents and handed them over to the defense, 116 00:06:55,120 --> 00:06:57,200 Speaker 1: and you know, we both reviewed them and that's where 117 00:06:57,200 --> 00:07:00,520 Speaker 1: we found this this note that had not been turned 118 00:07:00,520 --> 00:07:03,479 Speaker 1: over to trial council, that had not been turned over 119 00:07:03,640 --> 00:07:07,960 Speaker 1: to prior post conviction council, and it was pretty startling 120 00:07:08,080 --> 00:07:11,840 Speaker 1: to see it. Tell us about the note, So it 121 00:07:12,120 --> 00:07:17,560 Speaker 1: is a handwritten note that Um, because it's an ongoing investigation, 122 00:07:17,880 --> 00:07:19,880 Speaker 1: you know, I don't want to go into too much detail. 123 00:07:19,880 --> 00:07:21,920 Speaker 1: But what is part of the public record is the 124 00:07:21,960 --> 00:07:26,400 Speaker 1: fact that it contained a threat against the victim. That 125 00:07:26,480 --> 00:07:30,160 Speaker 1: the person about whom this note was talking said the 126 00:07:30,200 --> 00:07:34,480 Speaker 1: suspect that he would make her disappear, the victim, he 127 00:07:34,520 --> 00:07:37,760 Speaker 1: would kill her. And under our system of laws, under 128 00:07:37,760 --> 00:07:40,440 Speaker 1: the obligation of the state, that is information that the 129 00:07:40,480 --> 00:07:43,960 Speaker 1: defense is entitled to use to defend themselves and non 130 00:07:44,000 --> 00:07:47,280 Speaker 1: never had it for twenty years, for twenty three years, 131 00:07:47,680 --> 00:07:50,520 Speaker 1: three years, and there is saying that there are two 132 00:07:50,560 --> 00:07:56,200 Speaker 1: possible alternative suspects and they also have been alternative suspects 133 00:07:56,240 --> 00:08:01,080 Speaker 1: for twenty three years. Um. So with well, yes, I 134 00:08:01,360 --> 00:08:04,720 Speaker 1: guess that's fair to say. Um, they are people who 135 00:08:04,720 --> 00:08:07,680 Speaker 1: are involved in this case. They're not brand new people 136 00:08:07,840 --> 00:08:11,840 Speaker 1: that nobody's ever heard of. They are people who are 137 00:08:11,840 --> 00:08:14,920 Speaker 1: connected to this case in some way. Exactly how much 138 00:08:15,240 --> 00:08:18,640 Speaker 1: attention the investigators at the time or the prosecution of 139 00:08:18,680 --> 00:08:20,720 Speaker 1: the time, we're paying to them. I don't know whether 140 00:08:20,800 --> 00:08:23,880 Speaker 1: or not the prosecution believe they were viable suspects at 141 00:08:23,880 --> 00:08:26,760 Speaker 1: the time. I don't know. I certainly think this prosecution 142 00:08:27,000 --> 00:08:30,760 Speaker 1: should have looked at them closer, examined them further, you know, 143 00:08:30,920 --> 00:08:34,240 Speaker 1: at least developed them further. But they were known to 144 00:08:34,760 --> 00:08:38,040 Speaker 1: the state for sure. The prosecutors asked that his conviction 145 00:08:38,160 --> 00:08:42,880 Speaker 1: be vacated, but didn't say that your client is innocent. So, 146 00:08:43,240 --> 00:08:46,200 Speaker 1: you know, the public often looks at innocence cases and 147 00:08:46,240 --> 00:08:48,560 Speaker 1: thinks that they're sort of, you know, a straight line. 148 00:08:48,679 --> 00:08:51,080 Speaker 1: You find the thing, the smoking gun, and then your 149 00:08:51,080 --> 00:08:55,560 Speaker 1: person is exonerated. The reality is, exonerations are incredibly difficult 150 00:08:55,559 --> 00:08:58,520 Speaker 1: because they require a particular kind of evidence. So someone 151 00:08:58,600 --> 00:09:01,120 Speaker 1: may very well be innocent, but for example, if they 152 00:09:01,120 --> 00:09:03,920 Speaker 1: were convinced based on one person's word, it can be 153 00:09:04,040 --> 00:09:07,520 Speaker 1: very difficult to actually exonerate that person. You know, you're 154 00:09:07,520 --> 00:09:09,680 Speaker 1: not going to necessarily have the thing that points to 155 00:09:09,720 --> 00:09:13,520 Speaker 1: the other person. You know, this law, the ability for 156 00:09:13,559 --> 00:09:15,839 Speaker 1: the state to move to vacate is relatively new. It 157 00:09:15,880 --> 00:09:19,560 Speaker 1: got passed in two thousand and nineteen, actually with support 158 00:09:19,600 --> 00:09:23,960 Speaker 1: of the State's Attorney's office, and it was created in 159 00:09:24,080 --> 00:09:28,200 Speaker 1: part because we had in in Baltimore City, specifically the 160 00:09:28,240 --> 00:09:31,560 Speaker 1: Gun Trace Task Force, which we now know was a 161 00:09:31,640 --> 00:09:35,439 Speaker 1: group of very corrupt police officers who were planting evidence, 162 00:09:35,559 --> 00:09:40,320 Speaker 1: who were robbing people, selling drugs, all all sorts of 163 00:09:40,480 --> 00:09:44,160 Speaker 1: nefarious things. So with the Gun Traced Task Force cases, 164 00:09:44,800 --> 00:09:47,960 Speaker 1: there was such an obvious problem that convictions based on 165 00:09:48,000 --> 00:09:52,600 Speaker 1: the testimony of these extraordinarily corrupt officers ought not to stand. 166 00:09:53,160 --> 00:09:57,520 Speaker 1: And so what the statute requires is evidence or information 167 00:09:57,559 --> 00:09:59,800 Speaker 1: that is new to the state that causes them to 168 00:09:59,840 --> 00:10:03,040 Speaker 1: lose faith in the integrity of the verdict. And that's 169 00:10:03,080 --> 00:10:06,440 Speaker 1: really important that you know, the state is looking at 170 00:10:06,640 --> 00:10:10,880 Speaker 1: whether this was a fair opportunity, whether the state, you know, 171 00:10:10,960 --> 00:10:14,320 Speaker 1: played fair as they were supposed to. And in a 172 00:10:14,400 --> 00:10:18,000 Speaker 1: non's case, for sure, the evidence is overwhelming that the 173 00:10:18,000 --> 00:10:22,840 Speaker 1: state did not. There was a DNA analysis done, yes, 174 00:10:23,080 --> 00:10:27,760 Speaker 1: So we initially in March filed a joint motion or 175 00:10:27,920 --> 00:10:35,840 Speaker 1: DNA testing. Testing began and basically in consultation with the scientists, 176 00:10:35,880 --> 00:10:40,200 Speaker 1: we identified of the evidence what was most likely to 177 00:10:40,280 --> 00:10:43,280 Speaker 1: yield information that was going to give us information about 178 00:10:43,640 --> 00:10:46,160 Speaker 1: whoever the actual assailant. Right, So we looked at all 179 00:10:46,160 --> 00:10:47,840 Speaker 1: the evidence and based on the facts we know about 180 00:10:47,880 --> 00:10:51,040 Speaker 1: the case, and under the advisement of scientists, selected the 181 00:10:51,080 --> 00:10:54,120 Speaker 1: items that we thought were most likely to yield information 182 00:10:54,160 --> 00:10:58,840 Speaker 1: about a suspect. And we tested all of that and 183 00:10:59,080 --> 00:11:01,760 Speaker 1: the results were or that none of it came back 184 00:11:01,800 --> 00:11:05,800 Speaker 1: to it Non. There are a couple of more items remaining, 185 00:11:05,920 --> 00:11:08,920 Speaker 1: but we triage them, so we sort of identified these 186 00:11:08,920 --> 00:11:10,920 Speaker 1: are the most important, These are the ones that I 187 00:11:10,960 --> 00:11:13,520 Speaker 1: think would yield the most valuable information. We went through 188 00:11:13,520 --> 00:11:14,840 Speaker 1: all of that, and then there are a couple of 189 00:11:14,880 --> 00:11:17,800 Speaker 1: more items remaining that we're waiting for the results to 190 00:11:17,840 --> 00:11:20,760 Speaker 1: come back on. But in the grants scenario, of all 191 00:11:20,760 --> 00:11:23,520 Speaker 1: of the evidence we've already tested, what we thought was 192 00:11:23,559 --> 00:11:27,480 Speaker 1: sort of the most significant serial, of course became this 193 00:11:27,800 --> 00:11:32,960 Speaker 1: pop culture sensation. How did that change the equation for him? 194 00:11:33,640 --> 00:11:35,280 Speaker 1: I mean, I think that's a really interesting question that 195 00:11:35,320 --> 00:11:36,839 Speaker 1: a lot of people want to know about, and it's 196 00:11:37,000 --> 00:11:41,280 Speaker 1: very difficult to say. What I think in general in 197 00:11:41,559 --> 00:11:45,120 Speaker 1: a Non's case is that it contextualizes a person and 198 00:11:45,320 --> 00:11:49,640 Speaker 1: it brings lights to a scenario that is actually common. 199 00:11:49,840 --> 00:11:52,520 Speaker 1: For example, that prosecutors with hold evidence that they should 200 00:11:52,559 --> 00:11:55,160 Speaker 1: turn over. So it sort of contextualizes a person as 201 00:11:55,160 --> 00:11:57,160 Speaker 1: more of a full human being who is more than 202 00:11:57,200 --> 00:12:00,400 Speaker 1: their conviction, and it educates the public to the extent 203 00:12:00,520 --> 00:12:02,720 Speaker 1: that it impacts the judges. I think it's a double 204 00:12:02,760 --> 00:12:05,440 Speaker 1: edged sword. Judges are serious folks trying to do their job. 205 00:12:05,520 --> 00:12:09,359 Speaker 1: I don't think they particularly appreciate some of the distractions 206 00:12:09,400 --> 00:12:12,000 Speaker 1: that can come with the media attention. But it also 207 00:12:12,160 --> 00:12:14,480 Speaker 1: creates a level of transparency that I think can be 208 00:12:14,559 --> 00:12:17,839 Speaker 1: helpful in our judicial system because these kinds of cases, 209 00:12:17,920 --> 00:12:19,800 Speaker 1: they often die in the dark, like all the odds 210 00:12:19,840 --> 00:12:22,760 Speaker 1: are stacked against you, nobody's paying attention. The court wants 211 00:12:22,760 --> 00:12:25,040 Speaker 1: to leave the conviction intact. And now there's sort of 212 00:12:25,080 --> 00:12:28,319 Speaker 1: a degree of attention and transparency that maybe just the 213 00:12:28,360 --> 00:12:31,000 Speaker 1: needle a little bit more to a more level playing field. 214 00:12:31,559 --> 00:12:35,720 Speaker 1: I can't imagine being a post conviction lawyer because it 215 00:12:35,880 --> 00:12:38,120 Speaker 1: sounds like, you know, it's just such an uphill battle 216 00:12:38,280 --> 00:12:41,920 Speaker 1: every minute of the day. So what does this mean 217 00:12:41,960 --> 00:12:45,199 Speaker 1: to you? You know, his release. You know, the victories 218 00:12:45,240 --> 00:12:47,640 Speaker 1: are few and far between in this work, but the 219 00:12:47,720 --> 00:12:52,080 Speaker 1: victories are so incredibly sweet, and it is what sustains 220 00:12:52,120 --> 00:12:56,520 Speaker 1: you in this work because they are always long fought, battles. 221 00:12:56,840 --> 00:13:00,480 Speaker 1: So you know, on a personal level, this is a 222 00:13:00,559 --> 00:13:03,960 Speaker 1: human being who has been incarcerated since he was a child, 223 00:13:04,360 --> 00:13:07,400 Speaker 1: taken from his family for twenty three years, who spent 224 00:13:07,440 --> 00:13:11,240 Speaker 1: his entire adult life in prison, in a fell and 225 00:13:11,320 --> 00:13:15,160 Speaker 1: to see him, you know, restored to his family is 226 00:13:15,880 --> 00:13:18,360 Speaker 1: to have the privilege of playing a part in that 227 00:13:18,640 --> 00:13:20,800 Speaker 1: and being able to give somebody back to their family 228 00:13:21,080 --> 00:13:25,280 Speaker 1: is is extraordinary. In terms of post conviction, you savor 229 00:13:25,320 --> 00:13:28,240 Speaker 1: the winds because they're they're few and far between. Thanks 230 00:13:28,240 --> 00:13:31,280 Speaker 1: so much for joining us. Erica. That's Erica, suitor and 231 00:13:31,360 --> 00:13:34,760 Speaker 1: assistant public defender in Maryland and director of the University 232 00:13:34,760 --> 00:13:40,000 Speaker 1: of Baltimore's Innocence Project Clinic. I'm proud that the Obama 233 00:13:40,040 --> 00:13:43,960 Speaker 1: Biden administration stood up for Dreamers. My predecessor tried to 234 00:13:44,080 --> 00:13:47,400 Speaker 1: end DCA, but the Biden Harris administrations working to preserve 235 00:13:47,440 --> 00:13:51,760 Speaker 1: it and fortify it. I want to make clear to 236 00:13:51,920 --> 00:13:54,880 Speaker 1: the Dreamers who are here and those who are watching 237 00:13:54,920 --> 00:13:59,840 Speaker 1: from home, this is your home. This is your home, 238 00:14:01,280 --> 00:14:04,920 Speaker 1: and we see you, and you are not alone. Despite 239 00:14:04,920 --> 00:14:09,320 Speaker 1: promises from the Biden administration, the lives of Dreamers remain 240 00:14:09,360 --> 00:14:12,959 Speaker 1: in limbo, and a federal appeals court has dealt another 241 00:14:13,040 --> 00:14:17,080 Speaker 1: blow to their legal status. DACCA, or Deferred Action for 242 00:14:17,320 --> 00:14:22,240 Speaker 1: Childhood Arrivals, is an Obama error program preventing the deportation 243 00:14:22,320 --> 00:14:25,400 Speaker 1: of hundreds of thousands of immigrants brought into the United 244 00:14:25,440 --> 00:14:29,320 Speaker 1: States as children. It's had a complicated ride through federal 245 00:14:29,320 --> 00:14:32,800 Speaker 1: court challenges, and now the Fifth Circuit Court of Appeals 246 00:14:32,840 --> 00:14:37,120 Speaker 1: has ruled that the program contradicts federal immigration law and 247 00:14:37,200 --> 00:14:40,080 Speaker 1: must go back to a Texas federal judge for a 248 00:14:40,160 --> 00:14:45,320 Speaker 1: new review of the Biden administration's recent rule condifying the program. 249 00:14:45,360 --> 00:14:49,360 Speaker 1: Current dreamers will retain their status for now, but the 250 00:14:49,400 --> 00:14:54,000 Speaker 1: Fifth Circuit ruling highlights the precarious nature of Dreamer's protections, 251 00:14:54,400 --> 00:14:59,000 Speaker 1: despite historically bipartisan support for their cause. My guest is 252 00:14:59,040 --> 00:15:03,760 Speaker 1: immigration law expertly on Fresco, a partnered Honda Knight, start 253 00:15:03,920 --> 00:15:08,920 Speaker 1: by telling us about this Fifth Circuit decision. Well, the 254 00:15:09,000 --> 00:15:13,200 Speaker 1: Fifth Circuit decision is very interesting because it mails a 255 00:15:13,280 --> 00:15:17,600 Speaker 1: lot of different concepts all into one decision. But basically, 256 00:15:17,600 --> 00:15:22,120 Speaker 1: what it says is that DOCTA is illegal. But we're 257 00:15:22,160 --> 00:15:26,600 Speaker 1: not going to end the program immediately because we're going 258 00:15:26,680 --> 00:15:30,200 Speaker 1: to go back to the district courts to decide whether 259 00:15:30,400 --> 00:15:34,560 Speaker 1: a new doctor rule that was issued by the federal 260 00:15:34,640 --> 00:15:40,280 Speaker 1: government while the original doctor case was pending, changes something 261 00:15:40,880 --> 00:15:44,359 Speaker 1: so that it makes the program converted from being illegal 262 00:15:44,800 --> 00:15:48,360 Speaker 1: to legal. Tell us about the specifics of the decision. 263 00:15:49,280 --> 00:15:53,440 Speaker 1: So the specifics of the decision, there's four basic aspects 264 00:15:53,480 --> 00:15:57,840 Speaker 1: of the decision, two of which will not change, and 265 00:15:57,920 --> 00:16:00,240 Speaker 1: two of which will be examined in the district court. 266 00:16:00,400 --> 00:16:03,680 Speaker 1: So the two that will not change moving forward. Our 267 00:16:03,840 --> 00:16:07,840 Speaker 1: first that the state of Texas has standing to actually 268 00:16:08,000 --> 00:16:12,360 Speaker 1: challenge Takas. That was an interesting question with regard to 269 00:16:12,640 --> 00:16:16,120 Speaker 1: whether they could even do this, and that argument actually 270 00:16:16,160 --> 00:16:20,320 Speaker 1: had two parts. One that Texas, even though it claimed 271 00:16:20,360 --> 00:16:24,800 Speaker 1: that it suffered financial laws from having a documented people 272 00:16:24,880 --> 00:16:28,400 Speaker 1: in Texas, the government was saying, well, but that lass 273 00:16:28,680 --> 00:16:31,760 Speaker 1: is outweighed by all of the economic benefits that having 274 00:16:31,920 --> 00:16:35,560 Speaker 1: these individuals creates the Texas And the court said, no, 275 00:16:35,680 --> 00:16:39,120 Speaker 1: we don't do this cost benefit analysis. If you show 276 00:16:39,200 --> 00:16:41,480 Speaker 1: COUST that's the end. That's all you have to show 277 00:16:41,800 --> 00:16:44,520 Speaker 1: for standing. You don't have to show that the cost 278 00:16:44,640 --> 00:16:49,280 Speaker 1: outweigh the benefits. So that's one part of it. But secondly, 279 00:16:49,320 --> 00:16:51,960 Speaker 1: there had been a decision in the Supreme Court earlier 280 00:16:52,040 --> 00:16:55,720 Speaker 1: this year which said that you can't ask for injunctive 281 00:16:55,800 --> 00:17:00,760 Speaker 1: relief in an immigration case unless you are one person 282 00:17:00,920 --> 00:17:04,199 Speaker 1: in one case. You can't ask as a group or 283 00:17:04,200 --> 00:17:07,720 Speaker 1: a state or anybody else for broad injunctive relief. And 284 00:17:07,800 --> 00:17:11,320 Speaker 1: that came up in the Remain in Mexico case and 285 00:17:11,400 --> 00:17:13,680 Speaker 1: what the Fifth Circuit hells and we'll see if the 286 00:17:13,720 --> 00:17:17,880 Speaker 1: Supreme Court agrees with this, is that's not true when 287 00:17:17,880 --> 00:17:20,879 Speaker 1: all you're trying to do is vacate a memo, like 288 00:17:21,040 --> 00:17:23,399 Speaker 1: what's happening here where they were trying to vacate the 289 00:17:23,480 --> 00:17:26,879 Speaker 1: doc a memo that's not an injunction. An injunction is 290 00:17:27,200 --> 00:17:31,560 Speaker 1: don't do something here they were asking for just vacate 291 00:17:31,640 --> 00:17:34,439 Speaker 1: the memo, say that the memo is illegal, and so 292 00:17:34,680 --> 00:17:36,760 Speaker 1: the courts are going to have to desire. The Supreme 293 00:17:36,760 --> 00:17:38,359 Speaker 1: Court is gonna have to decide is that true. Is 294 00:17:38,400 --> 00:17:41,240 Speaker 1: that a distinction without a difference, or is that really 295 00:17:41,280 --> 00:17:43,520 Speaker 1: a distinction that's real, which is one thing is an 296 00:17:43,520 --> 00:17:46,360 Speaker 1: injunction that the government is not allowed to do something, 297 00:17:46,560 --> 00:17:49,399 Speaker 1: and another thing is just vacating a memo for it 298 00:17:49,520 --> 00:17:52,320 Speaker 1: being illegal. So that's the first thing they decided was 299 00:17:52,560 --> 00:17:55,040 Speaker 1: this issue of can they get the court they said, yes, 300 00:17:55,200 --> 00:17:58,000 Speaker 1: you can get the court. The second thing they decided 301 00:17:58,240 --> 00:18:02,280 Speaker 1: was was the memo it self illegal because it didn't 302 00:18:02,320 --> 00:18:06,280 Speaker 1: go through the formal rulemaking process. And they held yes, 303 00:18:06,400 --> 00:18:09,920 Speaker 1: the memo itself was illegal because they didn't go through 304 00:18:09,920 --> 00:18:13,760 Speaker 1: the formal rulemaking process. And he said, this memo actually 305 00:18:13,880 --> 00:18:17,760 Speaker 1: confers benefits on the people in terms of work permits 306 00:18:17,800 --> 00:18:19,840 Speaker 1: and in terms of the ability to say that you're 307 00:18:19,880 --> 00:18:23,040 Speaker 1: lawfully here. And so because it does that, you can't 308 00:18:23,040 --> 00:18:25,000 Speaker 1: just do that with a memo. You have to go 309 00:18:25,040 --> 00:18:30,119 Speaker 1: through the formal rulemaking process. And so there the memo 310 00:18:30,520 --> 00:18:33,560 Speaker 1: was stricken. And so those two things I think are 311 00:18:33,560 --> 00:18:35,960 Speaker 1: not going to change regardless. So those are the parts 312 00:18:35,960 --> 00:18:38,760 Speaker 1: of the decision that are over for now. Tell us 313 00:18:38,760 --> 00:18:43,200 Speaker 1: about what the federal judge is going to be reviewing. Now. 314 00:18:43,240 --> 00:18:46,679 Speaker 1: The next question is, well, the government now in the 315 00:18:46,720 --> 00:18:50,160 Speaker 1: middle of this case went through the formal rulemaking process, 316 00:18:50,280 --> 00:18:53,119 Speaker 1: and so that is now mooting out the issue of 317 00:18:53,160 --> 00:18:55,159 Speaker 1: the memo. So we're never going to get to this 318 00:18:55,240 --> 00:18:57,920 Speaker 1: memo issue ever again. And the issue is going to 319 00:18:57,960 --> 00:19:01,080 Speaker 1: be whether the formal rules that the government has now 320 00:19:01,119 --> 00:19:04,160 Speaker 1: put in place with regard to dots, which is basically 321 00:19:04,200 --> 00:19:06,480 Speaker 1: identical to the memo. It does the same thing. It 322 00:19:06,520 --> 00:19:10,960 Speaker 1: gives the same people status whether that formal rule is 323 00:19:10,960 --> 00:19:14,720 Speaker 1: going to be illegal. And here the court previewed what 324 00:19:15,000 --> 00:19:19,160 Speaker 1: they're likely going to rule in the future by saying, well, 325 00:19:19,200 --> 00:19:21,720 Speaker 1: there's two points here that we think about the memo 326 00:19:22,440 --> 00:19:24,840 Speaker 1: that we'll see if we think it about the rule. 327 00:19:25,000 --> 00:19:28,400 Speaker 1: We're not gonna say anything yet, but here are two points. 328 00:19:28,600 --> 00:19:33,440 Speaker 1: Number one, the memo itself contravenes the I and A 329 00:19:33,560 --> 00:19:39,159 Speaker 1: the Immigration Code by saying that people get scientus that 330 00:19:39,200 --> 00:19:42,520 Speaker 1: the Immigration Code doesn't say get status, and that people 331 00:19:42,560 --> 00:19:46,120 Speaker 1: get work benefits that the Immigration Code doesn't say get 332 00:19:46,119 --> 00:19:49,960 Speaker 1: work benefits. So the second you do that, you're contravening 333 00:19:50,000 --> 00:19:53,399 Speaker 1: the Immigration Code. And that's the end of it. Now, 334 00:19:53,440 --> 00:19:56,760 Speaker 1: there's always been arguments about that. The regular that the 335 00:19:57,560 --> 00:20:01,480 Speaker 1: that the the statute says that the Attorney General, which 336 00:20:01,560 --> 00:20:04,119 Speaker 1: is now the Secretary of Homeland Security because I've changed 337 00:20:04,359 --> 00:20:08,800 Speaker 1: after Night eleven, can confer work authorizations to whoever they 338 00:20:08,840 --> 00:20:13,080 Speaker 1: want to confer it to and can choose who to 339 00:20:13,359 --> 00:20:16,320 Speaker 1: deport or not to deport. But the Fifth Circuit has 340 00:20:16,359 --> 00:20:20,360 Speaker 1: said no, no, no. Once you start creating a program 341 00:20:20,560 --> 00:20:25,200 Speaker 1: of you know, a million people or whatever to specifically 342 00:20:25,320 --> 00:20:30,080 Speaker 1: exempt based on a certain criteria, and specifically give work permits. 343 00:20:30,119 --> 00:20:33,560 Speaker 1: You're contravening the statute. So that's the first thing. And 344 00:20:33,600 --> 00:20:36,240 Speaker 1: then the second thing the court said is based on 345 00:20:36,359 --> 00:20:39,680 Speaker 1: the new logic of the West Virginia versus e P 346 00:20:39,840 --> 00:20:42,760 Speaker 1: a decision which just came out also earlier this year, 347 00:20:43,359 --> 00:20:47,240 Speaker 1: which says there was a huge decision that basically shrank 348 00:20:47,359 --> 00:20:51,679 Speaker 1: the entire regulatory state dramatically because what it said was, 349 00:20:52,280 --> 00:20:56,680 Speaker 1: if you're gonna do something of significant economic importance, then 350 00:20:57,160 --> 00:21:01,480 Speaker 1: the thing you're doing regulatorially had to be something that's 351 00:21:01,680 --> 00:21:04,480 Speaker 1: very clear in the statute. It has to be you 352 00:21:04,480 --> 00:21:07,720 Speaker 1: can't just say here's a provision and it's not inconsistent 353 00:21:07,760 --> 00:21:10,359 Speaker 1: with this. It's kind of Congress has to kind of 354 00:21:10,359 --> 00:21:13,640 Speaker 1: be making a very clear signal that they want to 355 00:21:13,640 --> 00:21:16,000 Speaker 1: to do this. And so they're saying, because of that 356 00:21:16,119 --> 00:21:20,119 Speaker 1: new West Virginia versus e PA decision, dot is also 357 00:21:20,200 --> 00:21:24,439 Speaker 1: illegal because there's nothing that Congress said which puts us 358 00:21:24,480 --> 00:21:28,439 Speaker 1: anywhere near saying create a program like DOTA. And so 359 00:21:28,520 --> 00:21:31,440 Speaker 1: those are the four prongs of the decision. And so 360 00:21:31,520 --> 00:21:33,520 Speaker 1: now what the court said is, but we're not gonna 361 00:21:33,880 --> 00:21:37,479 Speaker 1: end doctor today, go back District Court and tell us 362 00:21:37,520 --> 00:21:40,600 Speaker 1: whether we're right about the new rule. Does the new 363 00:21:40,680 --> 00:21:43,159 Speaker 1: rule do anything different? Or does it fail for the 364 00:21:43,240 --> 00:21:47,200 Speaker 1: same two reasons, which are that it contravenes the statute 365 00:21:47,480 --> 00:21:49,560 Speaker 1: and that it regulates in a place where there's that 366 00:21:49,720 --> 00:21:53,480 Speaker 1: clear regulatory authority. And if it does, will strike it 367 00:21:53,560 --> 00:21:56,080 Speaker 1: then and then it'll be up to the Supreme Court 368 00:21:56,119 --> 00:21:59,040 Speaker 1: to determine what happens. Would you say this is not 369 00:21:59,119 --> 00:22:02,679 Speaker 1: a good development for the dreamers because it sounds like 370 00:22:02,720 --> 00:22:05,760 Speaker 1: it's a legal question. The Fifth Circuit is sending to 371 00:22:05,800 --> 00:22:09,040 Speaker 1: the lower court judge, and this judge already rule once 372 00:22:09,080 --> 00:22:13,720 Speaker 1: that data was unconstitutional. Correct. What this means is that 373 00:22:13,880 --> 00:22:18,119 Speaker 1: they're sending back basically the same legal questions they just 374 00:22:18,400 --> 00:22:22,840 Speaker 1: answered in the memo case and basically asking the District 375 00:22:22,880 --> 00:22:27,080 Speaker 1: court does this new regulations the rule do anything different 376 00:22:27,080 --> 00:22:29,960 Speaker 1: than the memos And if it does something different than 377 00:22:30,000 --> 00:22:34,080 Speaker 1: the memo, tell us that maybe then the docta recipients win. 378 00:22:34,560 --> 00:22:37,879 Speaker 1: But if it doesn't, then the doctor recipients blew. And 379 00:22:37,920 --> 00:22:40,080 Speaker 1: the truth of the matter is, the whole point of 380 00:22:40,119 --> 00:22:43,920 Speaker 1: the regulation was just to eliminate the notice and common argument. 381 00:22:44,000 --> 00:22:47,359 Speaker 1: It wasn't to change anything else. And so I would 382 00:22:47,359 --> 00:22:52,640 Speaker 1: say with thirty that the District Court and the Fifth 383 00:22:52,640 --> 00:22:55,280 Speaker 1: Circuit are going to invalidate the rule, and then what 384 00:22:55,359 --> 00:22:58,840 Speaker 1: happens It goes to the Supreme Right, then the case 385 00:22:58,880 --> 00:23:01,280 Speaker 1: will go to the Supreme Courts that the Supreme Court 386 00:23:01,320 --> 00:23:05,120 Speaker 1: will finally have to decide whether the DOCTA program under 387 00:23:05,200 --> 00:23:09,680 Speaker 1: the new rule violates the Immigration and Nationality Act, either 388 00:23:09,840 --> 00:23:13,800 Speaker 1: on its face because you know, you can't give work 389 00:23:13,840 --> 00:23:18,119 Speaker 1: authorizations to categories of people that the statute doesn't provide, 390 00:23:18,920 --> 00:23:23,080 Speaker 1: or whether it violates this new West Virginia versus e 391 00:23:23,160 --> 00:23:28,399 Speaker 1: Pa doctrine, which says that even is the code basically 392 00:23:28,480 --> 00:23:32,040 Speaker 1: doesn't this allow it, it doesn't for a question of 393 00:23:32,119 --> 00:23:36,800 Speaker 1: this major important prompt regulation in this matter, so that 394 00:23:36,880 --> 00:23:40,040 Speaker 1: you can't actually regulate in this matter because it's a 395 00:23:40,119 --> 00:23:43,840 Speaker 1: question of such economic importance that Congress would have had 396 00:23:43,880 --> 00:23:47,400 Speaker 1: to have given some indication that it wanted the agency 397 00:23:47,520 --> 00:23:51,840 Speaker 1: to regulate in this area. Leon or any other circuit 398 00:23:51,880 --> 00:23:57,240 Speaker 1: courts considering DOCTA questions. No, right now, there's nothing else 399 00:23:57,280 --> 00:24:00,840 Speaker 1: going on. This is the only show in town. Because 400 00:24:00,880 --> 00:24:04,680 Speaker 1: the original case that was the doctor case that went 401 00:24:04,840 --> 00:24:09,600 Speaker 1: up to the Supreme Court was the issue of the 402 00:24:09,720 --> 00:24:15,720 Speaker 1: Ninth Circuits saying that the Trump DOCTA revocation memos was illegal. Now, 403 00:24:15,720 --> 00:24:18,600 Speaker 1: there are these challenges in the Second Circuit in New 404 00:24:18,680 --> 00:24:22,879 Speaker 1: York called Bataiah Vadal, But in the Battaiah Nadal case, 405 00:24:23,440 --> 00:24:26,000 Speaker 1: the courts have now said, look, we're not going to 406 00:24:26,240 --> 00:24:30,840 Speaker 1: invalidate the Fifth Circuit decisions. That's what the litigants wanted 407 00:24:30,960 --> 00:24:36,120 Speaker 1: there is they wanted basically dueling decisions that would invalidate 408 00:24:36,200 --> 00:24:40,840 Speaker 1: the Fifth Circuit decision and basically forced the Supreme Court's hand, 409 00:24:41,320 --> 00:24:43,359 Speaker 1: and the courts in New York did not want to 410 00:24:43,359 --> 00:24:47,199 Speaker 1: do that. Basically, the DOCTA program is going to be 411 00:24:47,920 --> 00:24:52,560 Speaker 1: legal until either the Fifth Circuits says, okay, we're listing 412 00:24:52,600 --> 00:24:56,720 Speaker 1: to say that currently exists right now for existing DOTA 413 00:24:56,760 --> 00:24:59,880 Speaker 1: holders to have DOTA, which they haven't done yet all 414 00:25:00,080 --> 00:25:03,520 Speaker 1: or that the Free Court said, well, we've now looked 415 00:25:03,520 --> 00:25:06,640 Speaker 1: at this and we've decided for the whole country that 416 00:25:06,840 --> 00:25:10,600 Speaker 1: DOCCA is illegal. And so now everyone who had doctor 417 00:25:10,680 --> 00:25:14,440 Speaker 1: status loses that status as of this decision. So Democratic 418 00:25:14,480 --> 00:25:18,280 Speaker 1: Senator Dick Durbin, who said before the ruling came out, 419 00:25:18,680 --> 00:25:23,480 Speaker 1: this could change everything, was wrong. Well, it could change everything, 420 00:25:23,520 --> 00:25:26,560 Speaker 1: but maybe not at that second, the question is when 421 00:25:26,640 --> 00:25:31,240 Speaker 1: it will change everything. So if DOCCA is ultimately ruled 422 00:25:31,280 --> 00:25:35,200 Speaker 1: to be illegal in one of two forms, either inform 423 00:25:35,320 --> 00:25:38,399 Speaker 1: one by the Fifth Circuit coming back and ruling it 424 00:25:38,600 --> 00:25:42,600 Speaker 1: illegal and lifting the stay, which is there's currently a 425 00:25:42,800 --> 00:25:46,960 Speaker 1: stay from invalidating the DOCTA program nationally, if the Fifth 426 00:25:46,960 --> 00:25:52,840 Speaker 1: Circuit lifts the say, or if the Supreme Court, even 427 00:25:52,920 --> 00:25:55,720 Speaker 1: though there was a say, now says, well that we've 428 00:25:55,760 --> 00:25:57,720 Speaker 1: decided the issues and now there's a lesue of a 429 00:25:57,840 --> 00:26:01,280 Speaker 1: stay anymore, and we've decided the issue, and upon deciding 430 00:26:01,320 --> 00:26:04,760 Speaker 1: the issue, DOCTA is illegal, then yes, that changes everything. 431 00:26:04,840 --> 00:26:08,399 Speaker 1: That that ends the doctor program and at that point 432 00:26:08,560 --> 00:26:11,280 Speaker 1: all of the people who had doctor, the seven thousand 433 00:26:11,400 --> 00:26:17,240 Speaker 1: individuals lose any protections or work authorizations that they had. 434 00:26:17,720 --> 00:26:20,600 Speaker 1: And at that point we're back in square one, where 435 00:26:20,600 --> 00:26:25,040 Speaker 1: where nobody was previously undocumented has any status. So let's 436 00:26:25,040 --> 00:26:29,120 Speaker 1: just say the Supreme Court declares DOCTA is invalid. Isn't 437 00:26:29,160 --> 00:26:31,480 Speaker 1: it up to the administration of the time in the 438 00:26:31,520 --> 00:26:34,480 Speaker 1: Department of Homeland Security to decide whether or not to 439 00:26:34,560 --> 00:26:38,880 Speaker 1: deport Dreamers? Well, correct, then that will then that will 440 00:26:38,920 --> 00:26:41,719 Speaker 1: actually link up with another case that's in the Supreme 441 00:26:41,720 --> 00:26:44,280 Speaker 1: Court right now, which is which is going to be 442 00:26:44,359 --> 00:26:48,000 Speaker 1: argued in December, And that's the case about prosecutorial description. 443 00:26:48,640 --> 00:26:51,879 Speaker 1: And there there actually is an injunction currently in place 444 00:26:52,400 --> 00:26:56,359 Speaker 1: where the State of Texas has successfully limited the ability 445 00:26:56,480 --> 00:26:59,240 Speaker 1: of the Immigration and Customs Enforcement Office to have a 446 00:26:59,280 --> 00:27:03,040 Speaker 1: memo that has prosecutorial discretion. Now, this will be very 447 00:27:03,119 --> 00:27:06,639 Speaker 1: interesting whether the court actually keeps that. I believe that 448 00:27:06,760 --> 00:27:09,720 Speaker 1: this will end up like Romaine in Mexico, where once 449 00:27:09,760 --> 00:27:12,360 Speaker 1: the court actually examined this, they will say, well, wait 450 00:27:12,400 --> 00:27:16,040 Speaker 1: a second, why are we getting involved in isis prosecutorial 451 00:27:16,160 --> 00:27:19,960 Speaker 1: discretion memo writing? You know, aren't we getting a little 452 00:27:20,000 --> 00:27:23,720 Speaker 1: too detailed into what the agency is and isn't doing. 453 00:27:24,240 --> 00:27:28,959 Speaker 1: But if they also say that the agency can't have 454 00:27:29,160 --> 00:27:33,679 Speaker 1: a prosecutorial discretion memo either, then it will actually be 455 00:27:33,800 --> 00:27:37,920 Speaker 1: tougher because then at that point, individual ICE officers will 456 00:27:38,040 --> 00:27:41,439 Speaker 1: have the discretion to remove whoever they want, and that 457 00:27:41,520 --> 00:27:45,560 Speaker 1: could include DOCTA recipients. At that point. DOC is this 458 00:27:45,640 --> 00:27:50,440 Speaker 1: issue that supposedly cuts across party lines, but Republicans are 459 00:27:50,520 --> 00:27:54,520 Speaker 1: holding up any kind of DOCTOR legislation because they want 460 00:27:54,520 --> 00:27:58,760 Speaker 1: to barter for border security. John Cornyn said, until we 461 00:27:58,800 --> 00:28:01,639 Speaker 1: get the border under content role, it's not possible to 462 00:28:01,680 --> 00:28:04,159 Speaker 1: deal with some of these other issues where there is 463 00:28:04,240 --> 00:28:09,800 Speaker 1: bipartisan consensus. So that's just sort of chit for Chad. 464 00:28:09,920 --> 00:28:12,760 Speaker 1: You give us this and we'll give you that. Well, 465 00:28:12,800 --> 00:28:15,359 Speaker 1: this has been the complication of the issue of the 466 00:28:15,440 --> 00:28:20,440 Speaker 1: Dreamers for a long time, and that is that when 467 00:28:20,480 --> 00:28:24,399 Speaker 1: people talk about legalizing the status of the dreamers, the 468 00:28:24,800 --> 00:28:27,640 Speaker 1: alternative argument is, well, how do we know that ten 469 00:28:27,720 --> 00:28:30,800 Speaker 1: years from now there won't be another million Dreamers? And 470 00:28:30,920 --> 00:28:34,560 Speaker 1: that's an interesting question. It's a certainly powerful rhetorical statement. 471 00:28:35,040 --> 00:28:38,640 Speaker 1: And so when people say, okay, well, in exchange for 472 00:28:39,040 --> 00:28:43,440 Speaker 1: legalizing the Dreamers, we have to basically make all of 473 00:28:43,480 --> 00:28:47,640 Speaker 1: the enforcement changes in the immigration code that Democrats have 474 00:28:47,760 --> 00:28:53,320 Speaker 1: traditionally insisted could only be made in exchange for legalizing everybody. 475 00:28:53,440 --> 00:28:57,200 Speaker 1: That's why you never get a deal here, because the 476 00:28:57,240 --> 00:29:01,920 Speaker 1: proportions of the deal never think in meaning the Democrats 477 00:29:02,000 --> 00:29:06,320 Speaker 1: want to legalize the Dreamers for some more limited enforcements, 478 00:29:06,760 --> 00:29:10,760 Speaker 1: knowing that the entire bucket of enforcement should be traded 479 00:29:10,840 --> 00:29:15,800 Speaker 1: for the legalization of everybody. But it's the Republicans say, 480 00:29:15,880 --> 00:29:18,480 Speaker 1: but if you don't do the entire bucket of enforcement, 481 00:29:18,880 --> 00:29:21,520 Speaker 1: there will even be a million more dreamers, So you 482 00:29:21,560 --> 00:29:24,480 Speaker 1: don't even solve the dreamer problems. This is why you 483 00:29:24,560 --> 00:29:28,640 Speaker 1: never get a deal just on the dreamers. What do 484 00:29:28,680 --> 00:29:31,200 Speaker 1: you mean, you'll be a million more dreamers. Meaning, here's 485 00:29:31,200 --> 00:29:34,440 Speaker 1: the problem. There are certain things everybody agrees upon that 486 00:29:34,480 --> 00:29:38,920 Speaker 1: if you do them, they will end undocumented immigration pretty much. 487 00:29:41,080 --> 00:29:43,040 Speaker 1: So the first thing you would do is you would 488 00:29:43,040 --> 00:29:46,960 Speaker 1: make employers when they hired somebody. Now instead of using 489 00:29:46,960 --> 00:29:50,320 Speaker 1: the current nine system, which is very easy to gain, 490 00:29:50,360 --> 00:29:51,960 Speaker 1: which is that somebody all they have to do is 491 00:29:52,000 --> 00:29:56,200 Speaker 1: show you a Social Security card and an identification now 492 00:29:56,360 --> 00:29:58,840 Speaker 1: you would be able to You would be required, for instance, 493 00:29:58,840 --> 00:30:01,560 Speaker 1: to take their picture, and then you take the picture 494 00:30:01,560 --> 00:30:03,760 Speaker 1: of the individual and that picture gets run through all 495 00:30:03,760 --> 00:30:07,560 Speaker 1: the facial recognition system that the government now has, as 496 00:30:07,600 --> 00:30:10,120 Speaker 1: the government can now tell you whether that employee is 497 00:30:10,240 --> 00:30:15,240 Speaker 1: legal or not. That new kind of employment verification coupled 498 00:30:15,320 --> 00:30:18,720 Speaker 1: with what would be known as asylum reform, which would 499 00:30:18,760 --> 00:30:22,719 Speaker 1: basically say that anybody who's seeking asylum through the southern 500 00:30:22,720 --> 00:30:25,560 Speaker 1: border would have to either wait outside the United States 501 00:30:26,120 --> 00:30:29,240 Speaker 1: or in some facility or something, but pecifically couldn't wait 502 00:30:29,640 --> 00:30:32,240 Speaker 1: in the interior of the United States while their case 503 00:30:32,320 --> 00:30:35,520 Speaker 1: was spending. If you were to put those two things together, 504 00:30:35,960 --> 00:30:39,720 Speaker 1: you would basically have a dramatic, if not complete, end 505 00:30:40,160 --> 00:30:44,120 Speaker 1: to undocumented immigration the United States. But the point is 506 00:30:44,200 --> 00:30:47,120 Speaker 1: if you did that and you traded it just for 507 00:30:47,480 --> 00:30:51,280 Speaker 1: the legalization of the Dreamers, many Democrats say, well, then 508 00:30:51,320 --> 00:30:53,640 Speaker 1: there will be nothing that ends up getting the other 509 00:30:53,720 --> 00:30:57,000 Speaker 1: ten million people who are here without statistics, those people 510 00:30:57,280 --> 00:30:59,840 Speaker 1: will now end up having to be deported or leave 511 00:31:00,240 --> 00:31:04,480 Speaker 1: because now you put in the whole enforcement framework without legalizing. 512 00:31:04,520 --> 00:31:07,800 Speaker 1: Then so what they say is, well, let's do you know, 513 00:31:07,960 --> 00:31:12,000 Speaker 1: some lesser measures, either on asylum or on something else 514 00:31:12,600 --> 00:31:18,680 Speaker 1: that don't completely take out the problem, because that trade 515 00:31:18,720 --> 00:31:21,440 Speaker 1: needs to be made for all eleven million. And so 516 00:31:21,560 --> 00:31:24,960 Speaker 1: that's why you don't get this agreement is because neither 517 00:31:25,080 --> 00:31:31,680 Speaker 1: side can agree upon what is the proper trade for 518 00:31:32,240 --> 00:31:35,400 Speaker 1: legalizing the dreamers. And so that's the problem, because what 519 00:31:35,440 --> 00:31:40,800 Speaker 1: the Republicans say is if you don't completely eliminate unlawful 520 00:31:40,880 --> 00:31:44,680 Speaker 1: work in the United States and this asylum issue where 521 00:31:44,680 --> 00:31:47,000 Speaker 1: people can come to the border as for asylum and 522 00:31:47,000 --> 00:31:49,560 Speaker 1: and stay in the country, then you will continue to 523 00:31:49,600 --> 00:31:54,040 Speaker 1: have ways of undocumented immigration, which will create new dreamers, 524 00:31:54,360 --> 00:31:56,960 Speaker 1: and so you don't even solve the dreamer problem by 525 00:31:57,000 --> 00:31:59,640 Speaker 1: passing the Dream Act. You just create a new wave 526 00:31:59,680 --> 00:32:02,560 Speaker 1: of merger, but you'll have to address ten years from now. 527 00:32:02,920 --> 00:32:06,960 Speaker 1: Thanks so much. Lean. That's immigration law expertly on Fresco, 528 00:32:07,080 --> 00:32:09,640 Speaker 1: a partnered Hollanden Night. And that's it for this edition 529 00:32:09,640 --> 00:32:12,360 Speaker 1: of The Bloomberg Law Show. Remember you can always get 530 00:32:12,360 --> 00:32:15,480 Speaker 1: the latest legal news on our Bloomberg Law Podcast. You 531 00:32:15,520 --> 00:32:19,600 Speaker 1: can find them on Apple Podcasts, Spotify and at www 532 00:32:19,760 --> 00:32:24,040 Speaker 1: dot bloomberg dot com slash podcast slash Law, And remember 533 00:32:24,080 --> 00:32:26,760 Speaker 1: to tune into The Bloomberg Law Show every week night 534 00:32:26,840 --> 00:32:30,320 Speaker 1: at ten pm Wall Street Time. I'm June Grosso and 535 00:32:30,360 --> 00:32:31,840 Speaker 1: you're listening to Bloomberg