Speaker 1: This is Bloomberg Law with June Brasso from Bloomberg Radio.
Speaker 1: After twenty three years in prison, odd Non Sayed walked
Speaker 1: out of the courthouse in Baltimore, smiling but silent as
Speaker 1: his supporters cheered. The forty one year old was free
Speaker 1: for the first time since he was a teenager convicted
Speaker 1: of the murder of his high school girlfriend from His
Speaker 1: case captured the attention of millions in twenty fourteen on
Speaker 1: the hit podcast Serial, which raised doubts about his guilt.
Speaker 1: A judge ordered say Ed's release after prosecutors said a
Speaker 1: new investigation uncovered evidence that undermines his conviction. Our reinvestigation
Speaker 1: revealed that the original prosecutors and the subsequent prosecutors in
Speaker 1: the Attorney General's Office failed to disclose relevant information about
Speaker 1: alternative suspects. Wan Aful threatened to kill the victim, and
Speaker 1: then on Tuesday, prosecutors took the final step and dropped
Speaker 1: the charges against Sayette. His lawyer, Erica's Suitor, is my guest.
Speaker 1: She's an assistant public defender in Maryland and director of
Speaker 1: the University of Baltimore's Innocence Project Clinic. Erica what was
Speaker 1: it like for him walking out of the courthouse after
Speaker 1: spending more than half his life in prison. Well, in
Speaker 1: the courtroom, you know, he turned to me, a non
Speaker 1: turned to me and said that he couldn't believe it
Speaker 1: was real. I think walking out the courtroom was probably
Speaker 1: pretty overwhelming, and it was overwhelming to me. There were
Speaker 1: so many, so many people and so many cameras, so,
Speaker 1: you know, I think it was overwhelming. And he heard
Speaker 1: a friend, somebody who had been incarcerated with him, who
Speaker 1: had been exonerated, called his name, and that's when you
Speaker 1: see him look up and smile and wave, which was
Speaker 1: kind of one of the only times that he was,
Speaker 1: you know, sort of engaged. So how did you become
Speaker 1: his attorney? Well, I've been practicing postconviction law in Maryland
Speaker 1: for about fifteen years, and when his case was sort
Speaker 1: of last before the court, now I was following it
Speaker 1: like everyone else, and you know, paying attention because of
Speaker 1: my interests and sort of the legal and procedural posture.
Speaker 1: And then as that process ran down and he had
Speaker 1: reached sort of the natural conclusion of those things, you know,
Speaker 1: it was time for him to find another attorney to
Speaker 1: sort of pursuit whatever might remain and Robbia Chaudhry, who
Speaker 1: has been a longtime advocate of his and a family
Speaker 1: friend of his, you know, thought me out and approached
Speaker 1: me about taking the case and correct me if I'm wrong,
Speaker 1: But you were looking to overturn the case as much
Speaker 1: as get him out under another law. So no, we
Speaker 1: were always looking to overturn the case. We've always believed
Speaker 1: in his innocence. He's always maintained his innocence, and so
Speaker 1: as a post conviction lawyer, you're sort of looking at
Speaker 1: what are all the potential tools and the tool kit
Speaker 1: to try to achieve relief for this client. And so
Speaker 1: one possible way to do that was to seek release
Speaker 1: through sentencing modification um through the recently past Juvenal Restoration Act.
Speaker 1: So this particular path that we're on now did in
Speaker 1: fact begin with a conversation with the Sentencing Review Unit.
Speaker 1: But we were always looking at sort of all of
Speaker 1: our options. But yes, this particular sort of peace and
Speaker 1: a very long journey began with with having this conversation
Speaker 1: with an Assistant States Attorney, Bucky Seltman. So he had
Speaker 1: several appeals and at one point and appeals court vacated
Speaker 1: his conviction, but then it was reinstated. Yeah, so his
Speaker 1: sort of procedural history is interesting and long. And what
Speaker 1: happened was in terms of the post conviction is that
Speaker 1: he had filed a post conviction so you know, after
Speaker 1: your sentence, you have the right to go back and
Speaker 1: alleged an effective assistance of counsel, and Maryland particular has
Speaker 1: very clear procedure. You're guaranteed of hearing. It has to
Speaker 1: be filed within ten years, and you're sort of attacking
Speaker 1: the process. So he did that impost conviction and laws
Speaker 1: and then filed what we call an application for leave
Speaker 1: to appeal, so you don't have a direct right of appeal,
Speaker 1: you have the right to request permission to appeal. And
Speaker 1: it got remanded back and then he did what we
Speaker 1: call in Maryland emotion to reopen. So he's basically in
Speaker 1: post conviction posture again. And he won a new trial
Speaker 1: based on this cell phone evidence that incoming calls were
Speaker 1: not reliable for location. Because the cell phone evidence corroborated
Speaker 1: really the only evidence against him, which was the testimony
Speaker 1: of the cooperating co defendant, So co defendance testimony evolves
Speaker 1: he's an incentivized witness. It contradicts, you know, in various points.
Speaker 1: So they've got this alleged forensic evidence and in that
Speaker 1: post conviction post conviction council demonstrated that that evidence wasn't reliable.
Speaker 1: The state then appealed to the Court of Special Appeals,
Speaker 1: which is our intermediate appellate court, and they reversed on
Speaker 1: the cell phone saying that issue was waived because it
Speaker 1: wasn't raised in the initial post conviction, and then they
Speaker 1: granted relief on the alibi issue, saying that Christina Gutierrez
Speaker 1: trial counsel was ineffective for failing to investigate this alibi
Speaker 1: witness who said that she was with him at the
Speaker 1: library in the relevant time period. So he twice won
Speaker 1: a new trial and these two different levels of court,
Speaker 1: and then the state appealed again to our highest court
Speaker 1: Maryland essentially Supreme Court, and then they reversed and said
Speaker 1: that although it was ineffective or post conviction council to
Speaker 1: not have investigated the alibi given all of the evidence,
Speaker 1: there was no prejudice. So there was a mistake, but
Speaker 1: it wasn't significant enough two show, you know that the
Speaker 1: result would have been different. And then he filed start
Speaker 1: with the Supreme Court. Supreme Court didn't grant start, and
Speaker 1: that's where that process ended. A real roller coaster for him,
Speaker 1: up and down with these appears. Who are I mean,
Speaker 1: I think it was incredibly difficult to go through actually
Speaker 1: winning a new trial instead of having I mean, if
Speaker 1: you're always against the odds in this procedural posture, you
Speaker 1: necessarily lose more than you win, just because of the
Speaker 1: emphasis fund finality and the fact that the burden is
Speaker 1: on the moving parties is on the defendant in this case,
Speaker 1: so you always lose that when you win, it is
Speaker 1: It's incredible and to have that taken back was extraordinarily
Speaker 1: difficult for him for sure. Tell us about the recent
Speaker 1: investigation which you took part in, where prosecutors found in
Speaker 1: the trial folder evidence documents that were never turned over
Speaker 1: to his prior attorneys. So the investigation that happened over
Speaker 1: the past year was really a collaborative effort between the
Speaker 1: defense and the state and Assistant States Attorney Becky Feldman
Speaker 1: went and looked through every trial box and copied a
Speaker 1: whole lot of documents and handed them over to the defense,
Speaker 1: and you know, we both reviewed them and that's where
Speaker 1: we found this this note that had not been turned
Speaker 1: over to trial council, that had not been turned over
Speaker 1: to prior post conviction council, and it was pretty startling
Speaker 1: to see it. Tell us about the note, So it
Speaker 1: is a handwritten note that Um, because it's an ongoing investigation,
Speaker 1: you know, I don't want to go into too much detail.
Speaker 1: But what is part of the public record is the
Speaker 1: fact that it contained a threat against the victim. That
Speaker 1: the person about whom this note was talking said the
Speaker 1: suspect that he would make her disappear, the victim, he
Speaker 1: would kill her. And under our system of laws, under
Speaker 1: the obligation of the state, that is information that the
Speaker 1: defense is entitled to use to defend themselves and non
Speaker 1: never had it for twenty years, for twenty three years,
Speaker 1: three years, and there is saying that there are two
Speaker 1: possible alternative suspects and they also have been alternative suspects
Speaker 1: for twenty three years. Um. So with well, yes, I
Speaker 1: guess that's fair to say. Um, they are people who
Speaker 1: are involved in this case. They're not brand new people
Speaker 1: that nobody's ever heard of. They are people who are
Speaker 1: connected to this case in some way. Exactly how much
Speaker 1: attention the investigators at the time or the prosecution of
Speaker 1: the time, we're paying to them. I don't know whether
Speaker 1: or not the prosecution believe they were viable suspects at
Speaker 1: the time. I don't know. I certainly think this prosecution
Speaker 1: should have looked at them closer, examined them further, you know,
Speaker 1: at least developed them further. But they were known to
Speaker 1: the state for sure. The prosecutors asked that his conviction
Speaker 1: be vacated, but didn't say that your client is innocent. So,
Speaker 1: you know, the public often looks at innocence cases and
Speaker 1: thinks that they're sort of, you know, a straight line.
Speaker 1: You find the thing, the smoking gun, and then your
Speaker 1: person is exonerated. The reality is, exonerations are incredibly difficult
Speaker 1: because they require a particular kind of evidence. So someone
Speaker 1: may very well be innocent, but for example, if they
Speaker 1: were convinced based on one person's word, it can be
Speaker 1: very difficult to actually exonerate that person. You know, you're
Speaker 1: not going to necessarily have the thing that points to
Speaker 1: the other person. You know, this law, the ability for
Speaker 1: the state to move to vacate is relatively new. It
Speaker 1: got passed in two thousand and nineteen, actually with support
Speaker 1: of the State's Attorney's office, and it was created in
Speaker 1: part because we had in in Baltimore City, specifically the
Speaker 1: Gun Trace Task Force, which we now know was a
Speaker 1: group of very corrupt police officers who were planting evidence,
Speaker 1: who were robbing people, selling drugs, all all sorts of
Speaker 1: nefarious things. So with the Gun Traced Task Force cases,
Speaker 1: there was such an obvious problem that convictions based on
Speaker 1: the testimony of these extraordinarily corrupt officers ought not to stand.
Speaker 1: And so what the statute requires is evidence or information
Speaker 1: that is new to the state that causes them to
Speaker 1: lose faith in the integrity of the verdict. And that's
Speaker 1: really important that you know, the state is looking at
Speaker 1: whether this was a fair opportunity, whether the state, you know,
Speaker 1: played fair as they were supposed to. And in a
Speaker 1: non's case, for sure, the evidence is overwhelming that the
Speaker 1: state did not. There was a DNA analysis done, yes,
Speaker 1: So we initially in March filed a joint motion or
Speaker 1: DNA testing. Testing began and basically in consultation with the scientists,
Speaker 1: we identified of the evidence what was most likely to
Speaker 1: yield information that was going to give us information about
Speaker 1: whoever the actual assailant. Right, So we looked at all
Speaker 1: the evidence and based on the facts we know about
Speaker 1: the case, and under the advisement of scientists, selected the
Speaker 1: items that we thought were most likely to yield information
Speaker 1: about a suspect. And we tested all of that and
Speaker 1: the results were or that none of it came back
Speaker 1: to it Non. There are a couple of more items remaining,
Speaker 1: but we triage them, so we sort of identified these
Speaker 1: are the most important, These are the ones that I
Speaker 1: think would yield the most valuable information. We went through
Speaker 1: all of that, and then there are a couple of
Speaker 1: more items remaining that we're waiting for the results to
Speaker 1: come back on. But in the grants scenario, of all
Speaker 1: of the evidence we've already tested, what we thought was
Speaker 1: sort of the most significant serial, of course became this
Speaker 1: pop culture sensation. How did that change the equation for him?
Speaker 1: I mean, I think that's a really interesting question that
Speaker 1: a lot of people want to know about, and it's
Speaker 1: very difficult to say. What I think in general in
Speaker 1: a Non's case is that it contextualizes a person and
Speaker 1: it brings lights to a scenario that is actually common.
Speaker 1: For example, that prosecutors with hold evidence that they should
Speaker 1: turn over. So it sort of contextualizes a person as
Speaker 1: more of a full human being who is more than
Speaker 1: their conviction, and it educates the public to the extent
Speaker 1: that it impacts the judges. I think it's a double
Speaker 1: edged sword. Judges are serious folks trying to do their job.
Speaker 1: I don't think they particularly appreciate some of the distractions
Speaker 1: that can come with the media attention. But it also
Speaker 1: creates a level of transparency that I think can be
Speaker 1: helpful in our judicial system because these kinds of cases,
Speaker 1: they often die in the dark, like all the odds
Speaker 1: are stacked against you, nobody's paying attention. The court wants
Speaker 1: to leave the conviction intact. And now there's sort of
Speaker 1: a degree of attention and transparency that maybe just the
Speaker 1: needle a little bit more to a more level playing field.
Speaker 1: I can't imagine being a post conviction lawyer because it
Speaker 1: sounds like, you know, it's just such an uphill battle
Speaker 1: every minute of the day. So what does this mean
Speaker 1: to you? You know, his release. You know, the victories
Speaker 1: are few and far between in this work, but the
Speaker 1: victories are so incredibly sweet, and it is what sustains
Speaker 1: you in this work because they are always long fought, battles.
Speaker 1: So you know, on a personal level, this is a
Speaker 1: human being who has been incarcerated since he was a child,
Speaker 1: taken from his family for twenty three years, who spent
Speaker 1: his entire adult life in prison, in a fell and
Speaker 1: to see him, you know, restored to his family is
Speaker 1: to have the privilege of playing a part in that
Speaker 1: and being able to give somebody back to their family
Speaker 1: is is extraordinary. In terms of post conviction, you savor
Speaker 1: the winds because they're they're few and far between. Thanks
Speaker 1: so much for joining us. Erica. That's Erica, suitor and
Speaker 1: assistant public defender in Maryland and director of the University
Speaker 1: of Baltimore's Innocence Project Clinic. I'm proud that the Obama
Speaker 1: Biden administration stood up for Dreamers. My predecessor tried to
Speaker 1: end DCA, but the Biden Harris administrations working to preserve
Speaker 1: it and fortify it. I want to make clear to
Speaker 1: the Dreamers who are here and those who are watching
Speaker 1: from home, this is your home. This is your home,
Speaker 1: and we see you, and you are not alone. Despite
Speaker 1: promises from the Biden administration, the lives of Dreamers remain
Speaker 1: in limbo, and a federal appeals court has dealt another
Speaker 1: blow to their legal status. DACCA, or Deferred Action for
Speaker 1: Childhood Arrivals, is an Obama error program preventing the deportation
Speaker 1: of hundreds of thousands of immigrants brought into the United
Speaker 1: States as children. It's had a complicated ride through federal
Speaker 1: court challenges, and now the Fifth Circuit Court of Appeals
Speaker 1: has ruled that the program contradicts federal immigration law and
Speaker 1: must go back to a Texas federal judge for a
Speaker 1: new review of the Biden administration's recent rule condifying the program.
Speaker 1: Current dreamers will retain their status for now, but the
Speaker 1: Fifth Circuit ruling highlights the precarious nature of Dreamer's protections,
Speaker 1: despite historically bipartisan support for their cause. My guest is
Speaker 1: immigration law expertly on Fresco, a partnered Honda Knight, start
Speaker 1: by telling us about this Fifth Circuit decision. Well, the
Speaker 1: Fifth Circuit decision is very interesting because it mails a
Speaker 1: lot of different concepts all into one decision. But basically,
Speaker 1: what it says is that DOCTA is illegal. But we're
Speaker 1: not going to end the program immediately because we're going
Speaker 1: to go back to the district courts to decide whether
Speaker 1: a new doctor rule that was issued by the federal
Speaker 1: government while the original doctor case was pending, changes something
Speaker 1: so that it makes the program converted from being illegal
Speaker 1: to legal. Tell us about the specifics of the decision.
Speaker 1: So the specifics of the decision, there's four basic aspects
Speaker 1: of the decision, two of which will not change, and
Speaker 1: two of which will be examined in the district court.
Speaker 1: So the two that will not change moving forward. Our
Speaker 1: first that the state of Texas has standing to actually
Speaker 1: challenge Takas. That was an interesting question with regard to
Speaker 1: whether they could even do this, and that argument actually
Speaker 1: had two parts. One that Texas, even though it claimed
Speaker 1: that it suffered financial laws from having a documented people
Speaker 1: in Texas, the government was saying, well, but that lass
Speaker 1: is outweighed by all of the economic benefits that having
Speaker 1: these individuals creates the Texas And the court said, no,
Speaker 1: we don't do this cost benefit analysis. If you show
Speaker 1: COUST that's the end. That's all you have to show
Speaker 1: for standing. You don't have to show that the cost
Speaker 1: outweigh the benefits. So that's one part of it. But secondly,
Speaker 1: there had been a decision in the Supreme Court earlier
Speaker 1: this year which said that you can't ask for injunctive
Speaker 1: relief in an immigration case unless you are one person
Speaker 1: in one case. You can't ask as a group or
Speaker 1: a state or anybody else for broad injunctive relief. And
Speaker 1: that came up in the Remain in Mexico case and
Speaker 1: what the Fifth Circuit hells and we'll see if the
Speaker 1: Supreme Court agrees with this, is that's not true when
Speaker 1: all you're trying to do is vacate a memo, like
Speaker 1: what's happening here where they were trying to vacate the
Speaker 1: doc a memo that's not an injunction. An injunction is
Speaker 1: don't do something here they were asking for just vacate
Speaker 1: the memo, say that the memo is illegal, and so
Speaker 1: the courts are going to have to desire. The Supreme
Speaker 1: Court is gonna have to decide is that true. Is
Speaker 1: that a distinction without a difference, or is that really
Speaker 1: a distinction that's real, which is one thing is an
Speaker 1: injunction that the government is not allowed to do something,
Speaker 1: and another thing is just vacating a memo for it
Speaker 1: being illegal. So that's the first thing they decided was
Speaker 1: this issue of can they get the court they said, yes,
Speaker 1: you can get the court. The second thing they decided
Speaker 1: was was the memo it self illegal because it didn't
Speaker 1: go through the formal rulemaking process. And they held yes,
Speaker 1: the memo itself was illegal because they didn't go through
Speaker 1: the formal rulemaking process. And he said, this memo actually
Speaker 1: confers benefits on the people in terms of work permits
Speaker 1: and in terms of the ability to say that you're
Speaker 1: lawfully here. And so because it does that, you can't
Speaker 1: just do that with a memo. You have to go
Speaker 1: through the formal rulemaking process. And so there the memo
Speaker 1: was stricken. And so those two things I think are
Speaker 1: not going to change regardless. So those are the parts
Speaker 1: of the decision that are over for now. Tell us
Speaker 1: about what the federal judge is going to be reviewing. Now.
Speaker 1: The next question is, well, the government now in the
Speaker 1: middle of this case went through the formal rulemaking process,
Speaker 1: and so that is now mooting out the issue of
Speaker 1: the memo. So we're never going to get to this
Speaker 1: memo issue ever again. And the issue is going to
Speaker 1: be whether the formal rules that the government has now
Speaker 1: put in place with regard to dots, which is basically
Speaker 1: identical to the memo. It does the same thing. It
Speaker 1: gives the same people status whether that formal rule is
Speaker 1: going to be illegal. And here the court previewed what
Speaker 1: they're likely going to rule in the future by saying, well,
Speaker 1: there's two points here that we think about the memo
Speaker 1: that we'll see if we think it about the rule.
Speaker 1: We're not gonna say anything yet, but here are two points.
Speaker 1: Number one, the memo itself contravenes the I and A
Speaker 1: the Immigration Code by saying that people get scientus that
Speaker 1: the Immigration Code doesn't say get status, and that people
Speaker 1: get work benefits that the Immigration Code doesn't say get
Speaker 1: work benefits. So the second you do that, you're contravening
Speaker 1: the Immigration Code. And that's the end of it. Now,
Speaker 1: there's always been arguments about that. The regular that the
Speaker 1: that the the statute says that the Attorney General, which
Speaker 1: is now the Secretary of Homeland Security because I've changed
Speaker 1: after Night eleven, can confer work authorizations to whoever they
Speaker 1: want to confer it to and can choose who to
Speaker 1: deport or not to deport. But the Fifth Circuit has
Speaker 1: said no, no, no. Once you start creating a program
Speaker 1: of you know, a million people or whatever to specifically
Speaker 1: exempt based on a certain criteria, and specifically give work permits.
Speaker 1: You're contravening the statute. So that's the first thing. And
Speaker 1: then the second thing the court said is based on
Speaker 1: the new logic of the West Virginia versus e P
Speaker 1: a decision which just came out also earlier this year,
Speaker 1: which says there was a huge decision that basically shrank
Speaker 1: the entire regulatory state dramatically because what it said was,
Speaker 1: if you're gonna do something of significant economic importance, then
Speaker 1: the thing you're doing regulatorially had to be something that's
Speaker 1: very clear in the statute. It has to be you
Speaker 1: can't just say here's a provision and it's not inconsistent
Speaker 1: with this. It's kind of Congress has to kind of
Speaker 1: be making a very clear signal that they want to
Speaker 1: to do this. And so they're saying, because of that
Speaker 1: new West Virginia versus e PA decision, dot is also
Speaker 1: illegal because there's nothing that Congress said which puts us
Speaker 1: anywhere near saying create a program like DOTA. And so
Speaker 1: those are the four prongs of the decision. And so
Speaker 1: now what the court said is, but we're not gonna
Speaker 1: end doctor today, go back District Court and tell us
Speaker 1: whether we're right about the new rule. Does the new
Speaker 1: rule do anything different? Or does it fail for the
Speaker 1: same two reasons, which are that it contravenes the statute
Speaker 1: and that it regulates in a place where there's that
Speaker 1: clear regulatory authority. And if it does, will strike it
Speaker 1: then and then it'll be up to the Supreme Court
Speaker 1: to determine what happens. Would you say this is not
Speaker 1: a good development for the dreamers because it sounds like
Speaker 1: it's a legal question. The Fifth Circuit is sending to
Speaker 1: the lower court judge, and this judge already rule once
Speaker 1: that data was unconstitutional. Correct. What this means is that
Speaker 1: they're sending back basically the same legal questions they just
Speaker 1: answered in the memo case and basically asking the District
Speaker 1: court does this new regulations the rule do anything different
Speaker 1: than the memos And if it does something different than
Speaker 1: the memo, tell us that maybe then the docta recipients win.
Speaker 1: But if it doesn't, then the doctor recipients blew. And
Speaker 1: the truth of the matter is, the whole point of
Speaker 1: the regulation was just to eliminate the notice and common argument.
Speaker 1: It wasn't to change anything else. And so I would
Speaker 1: say with thirty that the District Court and the Fifth
Speaker 1: Circuit are going to invalidate the rule, and then what
Speaker 1: happens It goes to the Supreme Right, then the case
Speaker 1: will go to the Supreme Courts that the Supreme Court
Speaker 1: will finally have to decide whether the DOCTA program under
Speaker 1: the new rule violates the Immigration and Nationality Act, either
Speaker 1: on its face because you know, you can't give work
Speaker 1: authorizations to categories of people that the statute doesn't provide,
Speaker 1: or whether it violates this new West Virginia versus e
Speaker 1: Pa doctrine, which says that even is the code basically
Speaker 1: doesn't this allow it, it doesn't for a question of
Speaker 1: this major important prompt regulation in this matter, so that
Speaker 1: you can't actually regulate in this matter because it's a
Speaker 1: question of such economic importance that Congress would have had
Speaker 1: to have given some indication that it wanted the agency
Speaker 1: to regulate in this area. Leon or any other circuit
Speaker 1: courts considering DOCTA questions. No, right now, there's nothing else
Speaker 1: going on. This is the only show in town. Because
Speaker 1: the original case that was the doctor case that went
Speaker 1: up to the Supreme Court was the issue of the
Speaker 1: Ninth Circuits saying that the Trump DOCTA revocation memos was illegal. Now,
Speaker 1: there are these challenges in the Second Circuit in New
Speaker 1: York called Bataiah Vadal, But in the Battaiah Nadal case,
Speaker 1: the courts have now said, look, we're not going to
Speaker 1: invalidate the Fifth Circuit decisions. That's what the litigants wanted
Speaker 1: there is they wanted basically dueling decisions that would invalidate
Speaker 1: the Fifth Circuit decision and basically forced the Supreme Court's hand,
Speaker 1: and the courts in New York did not want to
Speaker 1: do that. Basically, the DOCTA program is going to be
Speaker 1: legal until either the Fifth Circuits says, okay, we're listing
Speaker 1: to say that currently exists right now for existing DOTA
Speaker 1: holders to have DOTA, which they haven't done yet all
Speaker 1: or that the Free Court said, well, we've now looked
Speaker 1: at this and we've decided for the whole country that
Speaker 1: DOCCA is illegal. And so now everyone who had doctor
Speaker 1: status loses that status as of this decision. So Democratic
Speaker 1: Senator Dick Durbin, who said before the ruling came out,
Speaker 1: this could change everything, was wrong. Well, it could change everything,
Speaker 1: but maybe not at that second, the question is when
Speaker 1: it will change everything. So if DOCCA is ultimately ruled
Speaker 1: to be illegal in one of two forms, either inform
Speaker 1: one by the Fifth Circuit coming back and ruling it
Speaker 1: illegal and lifting the stay, which is there's currently a
Speaker 1: stay from invalidating the DOCTA program nationally, if the Fifth
Speaker 1: Circuit lifts the say, or if the Supreme Court, even
Speaker 1: though there was a say, now says, well that we've
Speaker 1: decided the issues and now there's a lesue of a
Speaker 1: stay anymore, and we've decided the issue, and upon deciding
Speaker 1: the issue, DOCTA is illegal, then yes, that changes everything.
Speaker 1: That that ends the doctor program and at that point
Speaker 1: all of the people who had doctor, the seven thousand
Speaker 1: individuals lose any protections or work authorizations that they had.
Speaker 1: And at that point we're back in square one, where
Speaker 1: where nobody was previously undocumented has any status. So let's
Speaker 1: just say the Supreme Court declares DOCTA is invalid. Isn't
Speaker 1: it up to the administration of the time in the
Speaker 1: Department of Homeland Security to decide whether or not to
Speaker 1: deport Dreamers? Well, correct, then that will then that will
Speaker 1: actually link up with another case that's in the Supreme
Speaker 1: Court right now, which is which is going to be
Speaker 1: argued in December, And that's the case about prosecutorial description.
Speaker 1: And there there actually is an injunction currently in place
Speaker 1: where the State of Texas has successfully limited the ability
Speaker 1: of the Immigration and Customs Enforcement Office to have a
Speaker 1: memo that has prosecutorial discretion. Now, this will be very
Speaker 1: interesting whether the court actually keeps that. I believe that
Speaker 1: this will end up like Romaine in Mexico, where once
Speaker 1: the court actually examined this, they will say, well, wait
Speaker 1: a second, why are we getting involved in isis prosecutorial
Speaker 1: discretion memo writing? You know, aren't we getting a little
Speaker 1: too detailed into what the agency is and isn't doing.
Speaker 1: But if they also say that the agency can't have
Speaker 1: a prosecutorial discretion memo either, then it will actually be
Speaker 1: tougher because then at that point, individual ICE officers will
Speaker 1: have the discretion to remove whoever they want, and that
Speaker 1: could include DOCTA recipients. At that point. DOC is this
Speaker 1: issue that supposedly cuts across party lines, but Republicans are
Speaker 1: holding up any kind of DOCTOR legislation because they want
Speaker 1: to barter for border security. John Cornyn said, until we
Speaker 1: get the border under content role, it's not possible to
Speaker 1: deal with some of these other issues where there is
Speaker 1: bipartisan consensus. So that's just sort of chit for Chad.
Speaker 1: You give us this and we'll give you that. Well,
Speaker 1: this has been the complication of the issue of the
Speaker 1: Dreamers for a long time, and that is that when
Speaker 1: people talk about legalizing the status of the dreamers, the
Speaker 1: alternative argument is, well, how do we know that ten
Speaker 1: years from now there won't be another million Dreamers? And
Speaker 1: that's an interesting question. It's a certainly powerful rhetorical statement.
Speaker 1: And so when people say, okay, well, in exchange for
Speaker 1: legalizing the Dreamers, we have to basically make all of
Speaker 1: the enforcement changes in the immigration code that Democrats have
Speaker 1: traditionally insisted could only be made in exchange for legalizing everybody.
Speaker 1: That's why you never get a deal here, because the
Speaker 1: proportions of the deal never think in meaning the Democrats
Speaker 1: want to legalize the Dreamers for some more limited enforcements,
Speaker 1: knowing that the entire bucket of enforcement should be traded
Speaker 1: for the legalization of everybody. But it's the Republicans say,
Speaker 1: but if you don't do the entire bucket of enforcement,
Speaker 1: there will even be a million more dreamers, So you
Speaker 1: don't even solve the dreamer problems. This is why you
Speaker 1: never get a deal just on the dreamers. What do
Speaker 1: you mean, you'll be a million more dreamers. Meaning, here's
Speaker 1: the problem. There are certain things everybody agrees upon that
Speaker 1: if you do them, they will end undocumented immigration pretty much.
Speaker 1: So the first thing you would do is you would
Speaker 1: make employers when they hired somebody. Now instead of using
Speaker 1: the current nine system, which is very easy to gain,
Speaker 1: which is that somebody all they have to do is
Speaker 1: show you a Social Security card and an identification now
Speaker 1: you would be able to You would be required, for instance,
Speaker 1: to take their picture, and then you take the picture
Speaker 1: of the individual and that picture gets run through all
Speaker 1: the facial recognition system that the government now has, as
Speaker 1: the government can now tell you whether that employee is
Speaker 1: legal or not. That new kind of employment verification coupled
Speaker 1: with what would be known as asylum reform, which would
Speaker 1: basically say that anybody who's seeking asylum through the southern
Speaker 1: border would have to either wait outside the United States
Speaker 1: or in some facility or something, but pecifically couldn't wait
Speaker 1: in the interior of the United States while their case
Speaker 1: was spending. If you were to put those two things together,
Speaker 1: you would basically have a dramatic, if not complete, end
Speaker 1: to undocumented immigration the United States. But the point is
Speaker 1: if you did that and you traded it just for
Speaker 1: the legalization of the Dreamers, many Democrats say, well, then
Speaker 1: there will be nothing that ends up getting the other
Speaker 1: ten million people who are here without statistics, those people
Speaker 1: will now end up having to be deported or leave
Speaker 1: because now you put in the whole enforcement framework without legalizing.
Speaker 1: Then so what they say is, well, let's do you know,
Speaker 1: some lesser measures, either on asylum or on something else
Speaker 1: that don't completely take out the problem, because that trade
Speaker 1: needs to be made for all eleven million. And so
Speaker 1: that's why you don't get this agreement is because neither
Speaker 1: side can agree upon what is the proper trade for
Speaker 1: legalizing the dreamers. And so that's the problem, because what
Speaker 1: the Republicans say is if you don't completely eliminate unlawful
Speaker 1: work in the United States and this asylum issue where
Speaker 1: people can come to the border as for asylum and
Speaker 1: and stay in the country, then you will continue to
Speaker 1: have ways of undocumented immigration, which will create new dreamers,
Speaker 1: and so you don't even solve the dreamer problem by
Speaker 1: passing the Dream Act. You just create a new wave
Speaker 1: of merger, but you'll have to address ten years from now.
Speaker 1: Thanks so much. Lean. That's immigration law expertly on Fresco,
Speaker 1: a partnered Hollanden Night. And that's it for this edition
Speaker 1: of The Bloomberg Law Show. Remember you can always get
Speaker 1: the latest legal news on our Bloomberg Law Podcast. You
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Speaker 1: to tune into The Bloomberg Law Show every week night
Speaker 1: at ten pm Wall Street Time. I'm June Grosso and
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