Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every
Speaker 1: day we bring you insight and analysis into the most
Speaker 1: important legal news of the day. You can find more
Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud
Speaker 1: and on Bloomberg dot com slash podcasts. Did the Trump
Speaker 1: administration craft it's new policy for expedited removal of undocumented
Speaker 1: miners using AWGI board? That's what a DC federal judge
Speaker 1: asked government lawyers during a hearing over whether she should
Speaker 1: block the new measure joining us as Rick, Suprofessor of
Speaker 1: Law at the University of North Carolina School of Law.
Speaker 1: So Rick, these new procedures were announced without notice or
Speaker 1: public comment back in July, but they haven't been enforced yet.
Speaker 1: What are the basics? So essentially, what it does is
Speaker 1: expand something called expedited removal and expedity removal of the
Speaker 1: process by which a immigrant can be removed from the
Speaker 1: country essentially without ever seeing an immigration judge. It makes
Speaker 1: the process very fast. A low level immigration officer can
Speaker 1: make the determination all themselves and actually can expodite the removal.
Speaker 1: It can happen within a day, so it greatly speeds
Speaker 1: up the process and raises the risk for error. You
Speaker 1: have a mid level immigration officer making the decision, you
Speaker 1: have no hearing. Are their due process concerns? Is that
Speaker 1: what the immigration advocates were complaining about. Yeah, there's two
Speaker 1: concerns at play. One is due process, which is sort
Speaker 1: of important in this particular case because actually the particular
Speaker 1: provision that the Trump administration wants to do, which is,
Speaker 1: anyone in the country that can't show that they've been
Speaker 1: in the country for two years and anywhere in the
Speaker 1: country would be subject to this. And this raises constitution
Speaker 1: concerns because constitution applies to everyone that's within the United States.
Speaker 1: But the second concern, which is what you raise in
Speaker 1: the lead, has to do with how this particular regulation
Speaker 1: was put into place and essentially without notice and comment
Speaker 1: and without a lot of good explanation for why the
Speaker 1: administration needs it. The judge seemed to be concerned that
Speaker 1: this just may violate how an agency on or the
Speaker 1: president puts out policies and procedures. Did the judge give
Speaker 1: anything away about her ruling when she told the government
Speaker 1: lawyers that, however, the government had arrived at the rule
Speaker 1: even if by dart board or Wigi board. It wasn't
Speaker 1: allowed to implement the policy without warning. Yeah, so there
Speaker 1: seems to be two things at play, especially the comments
Speaker 1: about the wigi board and the dart board. This echoes
Speaker 1: some of the other litigation which regards executive orders have
Speaker 1: been put out really fast. Judges have expressed concerns that
Speaker 1: they haven't been exactly thought out. There hasn't been a
Speaker 1: good explanations given. And although there's a lot of discretion
Speaker 1: in the president, that discretion has to be within the
Speaker 1: context of serving the particular task as opposed to just
Speaker 1: sort of reckless or sort of willful, you know, sort
Speaker 1: of decision that they're making on the fly. So this
Speaker 1: seems to be echoing some of that here, and it
Speaker 1: could be that is how how the judge is going
Speaker 1: to decide the other aspects with regard to giving notice.
Speaker 1: This really applies to a lot of policy has been
Speaker 1: put into place and being kind of hidden. The separation
Speaker 1: of children have been going on for months before the
Speaker 1: administration even knowledge that I was happy, and there seems
Speaker 1: to be concerned that administration might try that again. What
Speaker 1: was the basic argument from the Justice Department lawyers about
Speaker 1: this rule and why they felt it was valid. Yeah,
Speaker 1: so they certainly defended on the merits by saying that
Speaker 1: the attorney General in this case, the secretary to helmelet security,
Speaker 1: has a discretion to sort of just implement these rules
Speaker 1: without notice and comment. But there was also the strange
Speaker 1: argument that we're making that they can't really challenge the
Speaker 1: regulation until they start enforcing it, but wouldn't tell the
Speaker 1: judge when they would start enforcing it, which I think
Speaker 1: really raise the suspicion of the judge not to mention
Speaker 1: when expedity removal actually happens. Because it happened so fast,
Speaker 1: it may be that when it does happen, those people
Speaker 1: won't be able to challenge it. So there's a lot
Speaker 1: of concerns about exactly how they're trying to implement this.
Speaker 1: Let's talk about how this would play out on on
Speaker 1: the ground, so to speak, because they have to immediately
Speaker 1: show that they've been here for two years, and if
Speaker 1: someone is even a US citizen but is not being
Speaker 1: paid a wage weekly and perhaps he's living with someone else,
Speaker 1: that might be difficult to prove. Yeah, this is really
Speaker 1: this is a big concern, especially the United States in
Speaker 1: which most of us actually don't have the documents to
Speaker 1: prove that we're legally here or that we've been here
Speaker 1: for a certain number of years, certainly not documents we
Speaker 1: carry with us in our wallet. And essentially what this
Speaker 1: does is puts the burden on whoever an immigration official
Speaker 1: confronts to show to the satisfication of this officer that
Speaker 1: they've been in the United States for two years, or
Speaker 1: they could be put into this sort of limbo zone
Speaker 1: in which they don't have a lot of du process
Speaker 1: and a determination about their missibility or the removals made immediately.
Speaker 1: So I think it does raise a lot of concerns
Speaker 1: about false positives, and it's just we don't have these
Speaker 1: documents on us all the time, and there's no way
Speaker 1: to review what these individual officers are going to decide.
Speaker 1: In fact, they're saying that they are completely nonreviewable once
Speaker 1: the decision is made. It's hard to keep track of
Speaker 1: all the immigration lawsuits, and last week they are actually
Speaker 1: two advocacy groups filed a federal lawsuit challenging legitimacy of
Speaker 1: the acting US Citizenship and Immigration Services Director Ken Cucinelli
Speaker 1: to issue a set of asylum directives at the agency
Speaker 1: tell us what this is about. Yeah, so there's there
Speaker 1: are two parts of that. One has to do with
Speaker 1: Ken Katinelli himself and whether he has an authority to
Speaker 1: do so, but more importantly has to do with the
Speaker 1: substance of that asylum directive. And again it's part of
Speaker 1: the broader sort of effort by the Trump administration to
Speaker 1: foreclosed opportunities for individuals to claim essentially they're legal right
Speaker 1: under the law, but by using the process and speeding
Speaker 1: it up and putting up different criterias and conditions like
Speaker 1: this one saying that they wouldn't be able to apply
Speaker 1: if they've gone through any other countries and didn't apply
Speaker 1: for asylum there, that they wouldn't be applied at all. Essentially,
Speaker 1: they seemed to be going towards a procedural way of
Speaker 1: blocking these claims as it's supposed to just adjudicating the
Speaker 1: claims or getting Congress to change the laws. Rick. There
Speaker 1: have been a lot of attempts by the Trump administration
Speaker 1: to speed up deportations. Are they working, Actually, it's hard
Speaker 1: to tell. I mean, in some ways, even before the
Speaker 1: speeding up, the numbers have actually already been going down,
Speaker 1: certainly since the Obama administration. So it's hard to know
Speaker 1: what the natural baseline is and whether these policies have
Speaker 1: put even lower than what it would have been had
Speaker 1: they not been put into place. But the speeding up
Speaker 1: is actually happening on two sides as well. Not only
Speaker 1: are trying to speed at the process, we're seeing a
Speaker 1: lot of the chaos in the courts because they're speeding
Speaker 1: up the way they're implementing them. A lot of these
Speaker 1: things usually go through years of development, notice and comment,
Speaker 1: a lot of sort of explanation, but they're doing it
Speaker 1: so quickly in some ways, trying to get it on
Speaker 1: the ground before even goes through a proper review. And
Speaker 1: I think that's also what's annoying a lot of the courts.
Speaker 1: They want to have an opportunity to actually review these things.
Speaker 1: And I take it that most of these cases are
Speaker 1: going to end up certainly at the federal Palate Court level,
Speaker 1: if not the Supreme Court. Yeah, definitely, And in some ways,
Speaker 1: some of the fight going on right now is the
Speaker 1: power of the district court to issue these injunctions before
Speaker 1: they make it up to the Palate Court or the
Speaker 1: Supreme Court. Certainly, the administration wants it to go all
Speaker 1: the way to the top before they can be blocked.
Speaker 1: But the concern is if you go through that entire
Speaker 1: review process and it takes a year or two years,
Speaker 1: that means administration may be implementing something against the constitution
Speaker 1: or the law for that period of time. So nice
Speaker 1: to have you on again, Rick, Thanks so much. That's
Speaker 1: Rick Suey's a professor of law at the University of
Speaker 1: North Carolina School of Law. Thanks for listening to the
Speaker 1: Bloomberg Law Podcast. You can subscribe and listen to the
Speaker 1: show on Apple Podcasts, SoundCloud, and on Bloomberg dot com
Speaker 1: slash podcast. I'm June Brasso. This is Bloomberg