WEBVTT - Judge Questions ’Ouija Board’ Process for Rapid Deportation

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<v Speaker 1>Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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<v Speaker 1>day we bring you insight and analysis into the most

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<v Speaker 1>important legal news of the day. You can find more

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<v Speaker 1>episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud

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<v Speaker 1>and on Bloomberg dot com slash podcasts. Did the Trump

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<v Speaker 1>administration craft it's new policy for expedited removal of undocumented

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<v Speaker 1>miners using AWGI board? That's what a DC federal judge

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<v Speaker 1>asked government lawyers during a hearing over whether she should

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<v Speaker 1>block the new measure joining us as Rick, Suprofessor of

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<v Speaker 1>Law at the University of North Carolina School of Law.

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<v Speaker 1>So Rick, these new procedures were announced without notice or

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<v Speaker 1>public comment back in July, but they haven't been enforced yet.

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<v Speaker 1>What are the basics? So essentially, what it does is

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<v Speaker 1>expand something called expedited removal and expedity removal of the

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<v Speaker 1>process by which a immigrant can be removed from the

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<v Speaker 1>country essentially without ever seeing an immigration judge. It makes

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<v Speaker 1>the process very fast. A low level immigration officer can

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<v Speaker 1>make the determination all themselves and actually can expodite the removal.

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<v Speaker 1>It can happen within a day, so it greatly speeds

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<v Speaker 1>up the process and raises the risk for error. You

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<v Speaker 1>have a mid level immigration officer making the decision, you

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<v Speaker 1>have no hearing. Are their due process concerns? Is that

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<v Speaker 1>what the immigration advocates were complaining about. Yeah, there's two

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<v Speaker 1>concerns at play. One is due process, which is sort

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<v Speaker 1>of important in this particular case because actually the particular

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<v Speaker 1>provision that the Trump administration wants to do, which is,

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<v Speaker 1>anyone in the country that can't show that they've been

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<v Speaker 1>in the country for two years and anywhere in the

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<v Speaker 1>country would be subject to this. And this raises constitution

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<v Speaker 1>concerns because constitution applies to everyone that's within the United States.

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<v Speaker 1>But the second concern, which is what you raise in

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<v Speaker 1>the lead, has to do with how this particular regulation

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<v Speaker 1>was put into place and essentially without notice and comment

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<v Speaker 1>and without a lot of good explanation for why the

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<v Speaker 1>administration needs it. The judge seemed to be concerned that

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<v Speaker 1>this just may violate how an agency on or the

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<v Speaker 1>president puts out policies and procedures. Did the judge give

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<v Speaker 1>anything away about her ruling when she told the government

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<v Speaker 1>lawyers that, however, the government had arrived at the rule

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<v Speaker 1>even if by dart board or Wigi board. It wasn't

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<v Speaker 1>allowed to implement the policy without warning. Yeah, so there

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<v Speaker 1>seems to be two things at play, especially the comments

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<v Speaker 1>about the wigi board and the dart board. This echoes

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<v Speaker 1>some of the other litigation which regards executive orders have

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<v Speaker 1>been put out really fast. Judges have expressed concerns that

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<v Speaker 1>they haven't been exactly thought out. There hasn't been a

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<v Speaker 1>good explanations given. And although there's a lot of discretion

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<v Speaker 1>in the president, that discretion has to be within the

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<v Speaker 1>context of serving the particular task as opposed to just

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<v Speaker 1>sort of reckless or sort of willful, you know, sort

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<v Speaker 1>of decision that they're making on the fly. So this

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<v Speaker 1>seems to be echoing some of that here, and it

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<v Speaker 1>could be that is how how the judge is going

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<v Speaker 1>to decide the other aspects with regard to giving notice.

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<v Speaker 1>This really applies to a lot of policy has been

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<v Speaker 1>put into place and being kind of hidden. The separation

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<v Speaker 1>of children have been going on for months before the

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<v Speaker 1>administration even knowledge that I was happy, and there seems

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<v Speaker 1>to be concerned that administration might try that again. What

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<v Speaker 1>was the basic argument from the Justice Department lawyers about

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<v Speaker 1>this rule and why they felt it was valid. Yeah,

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<v Speaker 1>so they certainly defended on the merits by saying that

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<v Speaker 1>the attorney General in this case, the secretary to helmelet security,

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<v Speaker 1>has a discretion to sort of just implement these rules

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<v Speaker 1>without notice and comment. But there was also the strange

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<v Speaker 1>argument that we're making that they can't really challenge the

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<v Speaker 1>regulation until they start enforcing it, but wouldn't tell the

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<v Speaker 1>judge when they would start enforcing it, which I think

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<v Speaker 1>really raise the suspicion of the judge not to mention

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<v Speaker 1>when expedity removal actually happens. Because it happened so fast,

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<v Speaker 1>it may be that when it does happen, those people

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<v Speaker 1>won't be able to challenge it. So there's a lot

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<v Speaker 1>of concerns about exactly how they're trying to implement this.

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<v Speaker 1>Let's talk about how this would play out on on

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<v Speaker 1>the ground, so to speak, because they have to immediately

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<v Speaker 1>show that they've been here for two years, and if

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<v Speaker 1>someone is even a US citizen but is not being

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<v Speaker 1>paid a wage weekly and perhaps he's living with someone else,

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<v Speaker 1>that might be difficult to prove. Yeah, this is really

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<v Speaker 1>this is a big concern, especially the United States in

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<v Speaker 1>which most of us actually don't have the documents to

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<v Speaker 1>prove that we're legally here or that we've been here

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<v Speaker 1>for a certain number of years, certainly not documents we

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<v Speaker 1>carry with us in our wallet. And essentially what this

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<v Speaker 1>does is puts the burden on whoever an immigration official

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<v Speaker 1>confronts to show to the satisfication of this officer that

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<v Speaker 1>they've been in the United States for two years, or

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<v Speaker 1>they could be put into this sort of limbo zone

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<v Speaker 1>in which they don't have a lot of du process

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<v Speaker 1>and a determination about their missibility or the removals made immediately.

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<v Speaker 1>So I think it does raise a lot of concerns

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<v Speaker 1>about false positives, and it's just we don't have these

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<v Speaker 1>documents on us all the time, and there's no way

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<v Speaker 1>to review what these individual officers are going to decide.

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<v Speaker 1>In fact, they're saying that they are completely nonreviewable once

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<v Speaker 1>the decision is made. It's hard to keep track of

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<v Speaker 1>all the immigration lawsuits, and last week they are actually

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<v Speaker 1>two advocacy groups filed a federal lawsuit challenging legitimacy of

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<v Speaker 1>the acting US Citizenship and Immigration Services Director Ken Cucinelli

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<v Speaker 1>to issue a set of asylum directives at the agency

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<v Speaker 1>tell us what this is about. Yeah, so there's there

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<v Speaker 1>are two parts of that. One has to do with

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<v Speaker 1>Ken Katinelli himself and whether he has an authority to

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<v Speaker 1>do so, but more importantly has to do with the

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<v Speaker 1>substance of that asylum directive. And again it's part of

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<v Speaker 1>the broader sort of effort by the Trump administration to

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<v Speaker 1>foreclosed opportunities for individuals to claim essentially they're legal right

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<v Speaker 1>under the law, but by using the process and speeding

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<v Speaker 1>it up and putting up different criterias and conditions like

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<v Speaker 1>this one saying that they wouldn't be able to apply

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<v Speaker 1>if they've gone through any other countries and didn't apply

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<v Speaker 1>for asylum there, that they wouldn't be applied at all. Essentially,

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<v Speaker 1>they seemed to be going towards a procedural way of

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<v Speaker 1>blocking these claims as it's supposed to just adjudicating the

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<v Speaker 1>claims or getting Congress to change the laws. Rick. There

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<v Speaker 1>have been a lot of attempts by the Trump administration

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<v Speaker 1>to speed up deportations. Are they working, Actually, it's hard

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<v Speaker 1>to tell. I mean, in some ways, even before the

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<v Speaker 1>speeding up, the numbers have actually already been going down,

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<v Speaker 1>certainly since the Obama administration. So it's hard to know

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<v Speaker 1>what the natural baseline is and whether these policies have

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<v Speaker 1>put even lower than what it would have been had

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<v Speaker 1>they not been put into place. But the speeding up

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<v Speaker 1>is actually happening on two sides as well. Not only

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<v Speaker 1>are trying to speed at the process, we're seeing a

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<v Speaker 1>lot of the chaos in the courts because they're speeding

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<v Speaker 1>up the way they're implementing them. A lot of these

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<v Speaker 1>things usually go through years of development, notice and comment,

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<v Speaker 1>a lot of sort of explanation, but they're doing it

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<v Speaker 1>so quickly in some ways, trying to get it on

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<v Speaker 1>the ground before even goes through a proper review. And

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<v Speaker 1>I think that's also what's annoying a lot of the courts.

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<v Speaker 1>They want to have an opportunity to actually review these things.

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<v Speaker 1>And I take it that most of these cases are

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<v Speaker 1>going to end up certainly at the federal Palate Court level,

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<v Speaker 1>if not the Supreme Court. Yeah, definitely, And in some ways,

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<v Speaker 1>some of the fight going on right now is the

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<v Speaker 1>power of the district court to issue these injunctions before

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<v Speaker 1>they make it up to the Palate Court or the

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<v Speaker 1>Supreme Court. Certainly, the administration wants it to go all

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<v Speaker 1>the way to the top before they can be blocked.

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<v Speaker 1>But the concern is if you go through that entire

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<v Speaker 1>review process and it takes a year or two years,

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<v Speaker 1>that means administration may be implementing something against the constitution

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<v Speaker 1>or the law for that period of time. So nice

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<v Speaker 1>to have you on again, Rick, Thanks so much. That's

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<v Speaker 1>Rick Suey's a professor of law at the University of

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<v Speaker 1>North Carolina School of Law. Thanks for listening to the

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<v Speaker 1>Bloomberg Law Podcast. You can subscribe and listen to the

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<v Speaker 1>show on Apple Podcasts, SoundCloud, and on Bloomberg dot com

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<v Speaker 1>slash podcast. I'm June Brasso. This is Bloomberg