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. President Trump is
Speaker 1: ratching up his crackdown on the number of people crossing
Speaker 1: the US Mexico border, moving to end asylum protections for
Speaker 1: most Central American migrants who crossed the US southern border.
Speaker 1: The President's new move reverses the decades old approach on
Speaker 1: asylum that the US has had, and the new policy
Speaker 1: is sure to attract legal challenges. Joining me is Leon
Speaker 1: Fresco Apartment at Holland and Knight Leon, who will be
Speaker 1: prohibited from seeking asylum under this new rule published in
Speaker 1: the Federal Register. Well. Under the new rule, it appears
Speaker 1: that anybody who enters the United States and did so
Speaker 1: by by by traveling and around via a third country,
Speaker 1: if they did not seek asylum in that third country
Speaker 1: and were denied or were not able to seek asylum
Speaker 1: based on some very compelling factor, all of those individuals
Speaker 1: will be denied. So basically, anybody who crossed through the
Speaker 1: Mexican border that's not Mexican will basically be barred from
Speaker 1: obtaining asylum if this regulation is allowed to persist. So
Speaker 1: US law allows refugees to request asylum when they arrive
Speaker 1: at the US, regardless of how they got there. But
Speaker 1: there is an exception for those who have come through
Speaker 1: a country considered to be quote safe. So does this
Speaker 1: new rule fit within that exception? So interestingly, that's not
Speaker 1: the exception that cited in the making of the rule.
Speaker 1: The rule does not claim that these third countries are
Speaker 1: safe third countries because the safe third Country provision makes
Speaker 1: it clear that what it says is is that you
Speaker 1: can be removed to a country where there is an agreement,
Speaker 1: and we don't have agreements with these countries, so there's
Speaker 1: not a removal. What they're using instead is a different
Speaker 1: exception that exists in that same statute, which says, quote unquote,
Speaker 1: the Attorney General may by regulation establish additional limitations and
Speaker 1: conditions consistent with this section under which an alien shall
Speaker 1: be ineligible for asylum. And so what they're saying is
Speaker 1: because the statute allows additional limitations and conditions, they're just
Speaker 1: going to add one called you pass through a third country.
Speaker 1: And the question is what part of the statute is
Speaker 1: going to be viewed as more compelling, this part that
Speaker 1: says you can add factors, or the part that specifically
Speaker 1: discusses third countries and says you have to have an
Speaker 1: agreement before you can cancel someone out because of a
Speaker 1: third country. And so that's going to be the debate
Speaker 1: in the court. So the a c l U has
Speaker 1: said that this rule is patently unlawful and will sue
Speaker 1: swiftly in the courts. Which argument do you think would
Speaker 1: win the day? Well, I think both sides can be
Speaker 1: at least comfortable that they have an argument that one
Speaker 1: judge or another would agree. I don't think either side
Speaker 1: has a slam dunk argument. I think if I was
Speaker 1: just fifty fifty had to make a choice at gunpoint,
Speaker 1: I would say that probably the fact that the Congress
Speaker 1: created a statute that described how third country UH disqualification
Speaker 1: would occur means that you can't then create a new
Speaker 1: third country disqualification that's inconsistent with the third country disqualification
Speaker 1: of Congress. You could create other factors that disqualified an
Speaker 1: asylum seeker. So, for instance, let's say you became a hacker,
Speaker 1: and hacking wasn't contemplated in so you could say any
Speaker 1: asylum seeker who was a hacker won't get asylum. Okay,
Speaker 1: that's the kind of thing they were thinking about. But
Speaker 1: when Congress actually described the criteria for a third country
Speaker 1: and didn't list this criteria, the argument is probably going
Speaker 1: to come out that it's inconsistent with what Congress wanted.
Speaker 1: So this is going to end up in the courts,
Speaker 1: where many of the administration's recent attempts to stop border
Speaker 1: crossings have failed. But the administration just got a rare
Speaker 1: win in a sanctuary city case at the Ninth Circuit
Speaker 1: Court of Appeals, which President Trump has repeatedly complained about.
Speaker 1: Tell us about that. Well. So this case is interesting
Speaker 1: because it wasn't like the other sanctuary city cases where
Speaker 1: the Department of Justice has said, if you don't enforce
Speaker 1: immigration law, we're not giving you any federal grant funding.
Speaker 1: This case was a little bit trickier because what it
Speaker 1: did was there was a point system that every city
Speaker 1: could apply with in order to get federal funding for
Speaker 1: police officers, and it gave extra points for or the
Speaker 1: issue of whether a city was allowing ICE to get
Speaker 1: criminal detainees out of its jails. And so Los Angeles
Speaker 1: didn't want to get those extra points because it didn't
Speaker 1: want ICE to have access to its jails. And so
Speaker 1: it suited and it said you shouldn't give extra points
Speaker 1: to anyone because this this due condition wasn't created by Congress.
Speaker 1: If Congress wanted that, it would have created this condition.
Speaker 1: And the courts disagreed to to one and said, yes,
Speaker 1: Congress didn't create that condition. But Congress basically gave a
Speaker 1: blank check to the Department of Justice to create any
Speaker 1: point system it wanted, and so it could add this
Speaker 1: factor if it wanted to, as long as it wasn't
Speaker 1: a factor that was so unreasonable that it violated the Constitution.
Speaker 1: So that's in the Ninth Circuit. Do do cities that
Speaker 1: are in, for example, the Second Circuit have to listen
Speaker 1: to that? Well, no, exactly. This is being challenged all
Speaker 1: over the country and it has been barred in the
Speaker 1: third circuits, Second Circuit, and this is probably there's probably
Speaker 1: gonna be what's called on bank review in the Ninth
Speaker 1: Circuit where the individuals who piled this lawsuit, the City
Speaker 1: of Los Angeles will probably seek an eleven judge panel
Speaker 1: to review the decision of the three judge panel and
Speaker 1: see if they can overturn it. And so most likely
Speaker 1: this case ends up in the Supreme Court at some point.
Speaker 1: But the stakes are not as high as a pure
Speaker 1: ban on grant funding. This is just can you get
Speaker 1: preference on grant funding? And so this is why I
Speaker 1: think the Ninth Circuit had a little bit more sympathy
Speaker 1: for it. Also, let's just return for a moment to
Speaker 1: the asylum questions. The Trump administration says that, you know,
Speaker 1: the changes are meant to close the gap between that
Speaker 1: initial asylum screening, which is called the credible fear interview,
Speaker 1: and the final decision on asylum. To the vast majority
Speaker 1: of immigrants claim they have a credible fear of returning home,
Speaker 1: and just that is that usually affirmed, right, So what
Speaker 1: happens is this, if you're applying for asylum when you
Speaker 1: can't when you enter the United States, then you you
Speaker 1: first survive and get to stay until your claim is heard.
Speaker 1: If you can survive what's called the credible fear standard,
Speaker 1: which has about a nine success rate, because you basically
Speaker 1: have to show that there's a significant possibility that you
Speaker 1: have a reasonable fear of removal, and the people view
Speaker 1: that as like that you have a one or two
Speaker 1: percent chance of success, and that gives you enough to
Speaker 1: to move on. But if you're not eligible for asylum,
Speaker 1: then the only way you can stay is if you
Speaker 1: get something called withholding of removal, which then is a
Speaker 1: much harder standard to prove, and you basically have to
Speaker 1: show that you have a fifty percent chance of being
Speaker 1: persecuted if you return home, and so that gets granted
Speaker 1: at a much much lower rate. And so that's what
Speaker 1: the White House is trying to accomplish. And you know,
Speaker 1: the rates here are complicated in terms of how many
Speaker 1: people are winning these claims because the statistics are all
Speaker 1: over the map. The statistics sometimes site cases where people
Speaker 1: didn't end up going to court, and it's not clear
Speaker 1: if people had noticed to go to court or not,
Speaker 1: and so people will say people lose or some people
Speaker 1: will say people win, because they'll only count. You have
Speaker 1: to leave it there. Thanks, thanks so much. It is
Speaker 1: a very very confusing area of the law. Thanks so much.
Speaker 1: Thanks for listening to the Bloomberg Law podcast. You can
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Speaker 1: and on bloomberg dot com slash podcast. I'm June Brosso.
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