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Speaker 1: This is Bloomberg Law with June Bresso from Bloomberg Radio.

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Speaker 1: An underground market has emerged since the Biden administration announced

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Speaker 1: it would accept thirty thou immigrants each month, arriving by

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Speaker 1: air from Venezuela, Cuba, Nicaragua, and Haiti. Applicants for that

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Speaker 1: humanitarian parole program needs someone in the US to promise

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Speaker 1: to provide financial support for at least two years. Off

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Speaker 1: in that person is a friend or relative. But what

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Speaker 1: happens if a migrant doesn't have that friend or relative

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Speaker 1: to promise financial support. Facebook groups with names like Sponsors

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Speaker 1: US carried dozens of posts offering financial supporters, some demanding

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Speaker 1: up to ten thousand dollars. According to the Associated Press,

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Speaker 1: US Citizenship and Immigration Services warns about potential scams with

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Speaker 1: the humanitarian parole program, but there's no indication that applications

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Speaker 1: have been rejected because of concerns that potential sponsors might

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Speaker 1: be requesting money joining these. Immigration law expert Leon Fresco,

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Speaker 1: a partner at Holland to Night, Leon explain what's happening here,

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Speaker 1: So here's what this situation is. Ever since the Russian

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Speaker 1: invasion of Ukraine, the Biden administration has responded to various

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Speaker 1: events around the world with a new concept calls allowing

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Speaker 1: people to be paroled into the United States. They basically

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Speaker 1: created this bifurcated process whereby an American could actually come

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Speaker 1: forward and step up to the plate and say, you

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Speaker 1: know what, I'm going to take the financial responsibility responsoring

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Speaker 1: a particular foreign nationals. And then if that person gets

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Speaker 1: vetted and it is used to have sufficient assets to

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Speaker 1: do that, that that too happens. And then the foreign

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Speaker 1: national comes forward and declares they're desired to want to

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Speaker 1: be paroled and to essentially be within the offices of

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Speaker 1: this foreign national and assuming those backgrounds checks clear, then

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Speaker 1: the person can actually be paroled into the United States.

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Speaker 1: And what a parole is is it's basically a permission

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Speaker 1: document that says for a year, you have legal status

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Speaker 1: in America, but at any point we can kick you

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Speaker 1: out within the year if we revoke your parole. And

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Speaker 1: within that year, you're gonna have to figure out what

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Speaker 1: you want to do. Do you want to apply for asylum,

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Speaker 1: do you want to do something? You know us, but

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Speaker 1: you get to come in for a year and figure

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Speaker 1: out what your plan is. And so what has happened

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Speaker 1: is there are obviously many more people who demands to

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Speaker 1: come into the United States, then there are a supply

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Speaker 1: of individuals who are willing to actually and legitimately come

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Speaker 1: forward and sponsor people financially for these parole documents. And so,

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Speaker 1: like anything, nature of horrors a vacuums, and where people

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Speaker 1: can find a way to make money, they do. And

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Speaker 1: so people have decided, well, what if we were to

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Speaker 1: sell sponsorship to some of these foreign nationals so they

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Speaker 1: can pay to have people sponsor them. And so the government,

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Speaker 1: having found out that this is now happening through various

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Speaker 1: vomitoring of social media and talking to people and doing

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Speaker 1: intelligence work, is trying to figure out, well, given the

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Speaker 1: fact that we kind of made this program up in

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Speaker 1: the fly and didn't actually say or figure out a

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Speaker 1: way where this would be illegal, what are we to

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Speaker 1: do now? Is this something we will allow to happen?

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Speaker 1: Do we have to do something to not permit it

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Speaker 1: to happen? And the government has sort of caught betwixt

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Speaker 1: them between there because it seems odd. So you're paying someone,

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Speaker 1: let's say, ten dollars for a promise to provide financial support,

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Speaker 1: is that a real promise. Are they going to be

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Speaker 1: providing the financial backup that the government is looking for.

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Speaker 1: I mean, it's absolutely against for sure the spirit of

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Speaker 1: the program. I think the question is what does sponsorship

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Speaker 1: mean in this context. What I mean by that is

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Speaker 1: to say, this process generates itself from something that happened

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Speaker 1: in where the government was concerned about marriage fraud and

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Speaker 1: what it said was, We're not just gonna let anybody

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Speaker 1: marry a US citizens that U S citizens who marries

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Speaker 1: a foreign national has to make a sufficient amount of

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Speaker 1: income and actually say, if my wife, for my husband,

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Speaker 1: whoever the spouse is, that the four nationals ends up

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Speaker 1: using any government resources, then I agreed to be on

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Speaker 1: the hook for paying those government resources. The government can't

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Speaker 1: come in and have to sponsor my spouse for me.

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Speaker 1: I have to do this. And so that's where the

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Speaker 1: concept is based off of. And although that concept is

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Speaker 1: very very very rarely enforced. The Trump administration was about

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Speaker 1: to start doing that near the end of the first

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Speaker 1: term of the Trump administration, to start coming after people

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Speaker 1: and asking for money to be paid. It hadn't really

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Speaker 1: been done since now this new program is sort of

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Speaker 1: mimicking that but doesn't have the same statutory guideline, because

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Speaker 1: that's part of the affidavit of sport was a statutory

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Speaker 1: thing for that marriage issue. And so the question is

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Speaker 1: if you're doing something that's not even a regulation, because

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Speaker 1: this is all memo. Bay if you're basically writing a

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Speaker 1: memo creating a parole program and creating the sponsorship requirement,

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Speaker 1: does the government have any teeth to whatsoever to punish

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Speaker 1: someone who's being a sponsor just because they're being paid

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Speaker 1: to be a sponsor. And so that's the problem that

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Speaker 1: the government has encountered. So it seems like there's a

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Speaker 1: real possibility that fraud is involved. When they're filling out

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Speaker 1: the forms and making these promises, they had to say

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Speaker 1: what the relation is to the person? Right right? I mean,

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Speaker 1: for sure, there's definitely if you commit fraud on the

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Speaker 1: form if you say that you intend the papers for

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Speaker 1: benefits of money if they don't actually do it, or

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Speaker 1: if you say you're they're relative and you're not actually

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Speaker 1: they're relative, or if you declare that you're doing this

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Speaker 1: and good faith and you haven't been paid for it,

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Speaker 1: which I think they're going to try to amend the

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Speaker 1: form to do that that you can for sure, charge

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Speaker 1: the person for fraud there, but it's something that I

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Speaker 1: think they didn't even think about at the beginning, that

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Speaker 1: this could be something that would happen. And of course,

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Speaker 1: you always when you do one of these programs, have

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Speaker 1: to be worried that bad actors will try to manipulate it,

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Speaker 1: because that's been the history of any immigration programs of

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Speaker 1: the United States. You've often said that most of the

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Speaker 1: people who are coming here have someone that they're you know,

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Speaker 1: intend to go to relative shouldn't most of these, you know,

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Speaker 1: the Cubans and Nicaraguans and the Venezuelans have people here

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Speaker 1: who could vouch for them this way, Oh agree. So

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Speaker 1: for the people who would normally have used this program,

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Speaker 1: there was not a problem at all finding a sponsor.

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Speaker 1: And fact there are many many more people who have

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Speaker 1: sponsors than there are going to be plots for these

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Speaker 1: thirty six thousand visas a month. The point is, though,

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Speaker 1: there are many people who don't know anybody, and now

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Speaker 1: those people are being told, well, here's a way for

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Speaker 1: you to know somebody. But what what is happening is

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Speaker 1: not that there's an insufficient number of people who have sponsors.

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Speaker 1: What's happening is that not every single person in that

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Speaker 1: country has a sponsor, but by buying a sponsor you

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Speaker 1: now open up the possibility of being sponsored to even

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Speaker 1: more people than could have otherwise had that possibility. So

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Speaker 1: these are people who would never have come but now

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Speaker 1: might come because they can acquire a sponsor. I want

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Speaker 1: to turn down to this case that's before the Supreme

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Speaker 1: Court in two thousand three, sit to Wilkinson fled government

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Speaker 1: persecution in his native Trinidad and Tobega for the United

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Speaker 1: States on a tourist visa. He overstayed the visa and

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Speaker 1: had a son who's a US citizen and who's regularly

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Speaker 1: hospitalized due to severe asthma tax and when the government

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Speaker 1: moved to deport him, Wilkinson asked for what's called cancelation

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Speaker 1: of removal, arguing that his son and the boy's mother

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Speaker 1: need him because he's the family's soul breadwinner. The boy's

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Speaker 1: mother suffers from depression and would be left unable to

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Speaker 1: cope medically or financially without his support. And immigration judge

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Speaker 1: denied his request, as did the Third Circuit, and he's

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Speaker 1: asking the Supreme Court to look at his case. So

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Speaker 1: explain the background here whenever a don citizen goes through

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Speaker 1: the removal process, if they have a claim that the

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Speaker 1: Immigration Court and or the Board of Immigration Appeals applied

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Speaker 1: the wrong laws their case, or incorrectly decided the law,

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Speaker 1: or incorrectly did something that violated the constitution, those claims

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Speaker 1: of law can be appealed to the courts of appeal.

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Speaker 1: What can't be appealed are factual determinations. There's a small

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Speaker 1: exception for factual determinations and asylum cases, but mostly factual

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Speaker 1: determinations cannot be appealed. Now, three years ago, there was

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Speaker 1: a decision in the Supreme Court that talked about these

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Speaker 1: waivers of deportation, which is what happens is sometimes a

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Speaker 1: deportation order has entered against you, but you can actually

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Speaker 1: get a waiver where the judge says, Okay, I know

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Speaker 1: we can deport you, but we will waive this deportation

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Speaker 1: because you qualify. As a matter of discretion, you qualify

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Speaker 1: for this waiver and so I'll give it to you.

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Speaker 1: So you get to say. And what the court said

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Speaker 1: is if something is an issue of mixed questions of

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Speaker 1: facts and law, then they can review it. So now

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Speaker 1: in this upcoming case that people are asking for review

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Speaker 1: in the Supreme Court. What happens is the following. There's

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Speaker 1: about four thousands plots a year for this type of

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Speaker 1: relief called cancelation of removal. And what it is is

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Speaker 1: if you're here without any status at all period and

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Speaker 1: the government is trying to deport you, you can actually

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Speaker 1: avoid deportation if you can prove that you've been here

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Speaker 1: for over ten years. That's the first key thing, and

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Speaker 1: secondly that your deportation is going to be causing. And

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Speaker 1: it's a very difficult standard to meet. An exceptional and

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Speaker 1: extremely unusual hardship to a U. S. Citizen is usually

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Speaker 1: a US citizen child, but it can also be a U. S.

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Speaker 1: Citizen spoused. And if you could prove that, then you

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Speaker 1: could be allowed to say and actually get lawful permanent residency.

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Speaker 1: So the question in this case was that the court

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Speaker 1: felt that the amount of hardship that the person showed

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Speaker 1: was not sufficient to meet this exceptional and extremely unusual

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Speaker 1: heart of standard. We would all agree if the court

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Speaker 1: got the facts wrong in this kind of question, you

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Speaker 1: couldn't review that. You know, if the court thought, let's

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Speaker 1: say they say this person didn't do anything for the community,

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Speaker 1: and the person said, well, I had evidence that I

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Speaker 1: volunteered in my church, so you should have put that

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Speaker 1: in there and waited as a discretionary thing. That kind

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Speaker 1: of thing wouldn't be able to be reviewed. But the

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Speaker 1: question is if everybody agrees on the fact, can you

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Speaker 1: then make a determination that could be reviewed about whether

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Speaker 1: those facts were sufficient to me this exceptional and extremely

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Speaker 1: unusual hardship standard or is that just for the judge

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Speaker 1: to decide and that can't get reviewed, And so that's

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Speaker 1: what's going to be potentially pizzing into the Supreme Court.

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Speaker 1: So you know, a lot of people who have been

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Speaker 1: here for a decade have children who are US citizens,

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Speaker 1: and so it's not enough to say, well, I have

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Speaker 1: three children who are US citizens and they're gonna miss

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Speaker 1: me and it's gonna be awful for them. Correct, that's

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Speaker 1: considered normal hardship. There's actually a famous Board of Immigration

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Speaker 1: Appeals case called matter of Restina's and in that case,

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Speaker 1: the person had something like three or four U. S

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Speaker 1: citizens children, one with a severe mental illness, another one

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Speaker 1: with a severe medical problem. And then the problem was

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Speaker 1: if this person was deported, then not only could those

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Speaker 1: kids not be taken care of, but she also had

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Speaker 1: parents here in the United States and siblings, and the

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Speaker 1: court said, when we put all of this stuff together,

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Speaker 1: you barely make it. And so they didn't say, Okay,

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Speaker 1: this is a slam dunk. And that was a case

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Speaker 1: for where an immigration just said no, and then the

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Speaker 1: Board of Immigration Appeal said, yeah, you you make it,

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Speaker 1: but you barely make it. And so that was the

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Speaker 1: kind of thing that was considered exceptional as extremely unusual hardship.

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Speaker 1: And so that's the question here is does the person

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Speaker 1: in this case meet that standard? And you know, to

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Speaker 1: show it, you have to basically show serious medical issues

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Speaker 1: or something of that kind that the U s it

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Speaker 1: is in relative has that requires not only them to

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Speaker 1: stay here, but perhaps you more importantly to stay here

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Speaker 1: so you can give them the care they need or

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Speaker 1: pay for the care that they need. And that's the

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Speaker 1: kind of thing that's being talked about here. So here,

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Speaker 1: I think that the sun has asthma and the mother

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Speaker 1: is depressed, so she can't take care of him or

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Speaker 1: support him financially. So now in this case, the immigration

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Speaker 1: judge said no, did the Board of Immigration take a

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Speaker 1: look at it? Yes, So in every case, both have

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Speaker 1: to look at it, the immigration judge and the Board

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Speaker 1: of Immigration Appeals, and the decision actually always gets appealed

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Speaker 1: from the Board of Immigration Appeals. But what happens is

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Speaker 1: the Board of Immigration Appeals often like here, acts like

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Speaker 1: a rubber stamp, so they don't actually issue anything more.

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Speaker 1: So that's why people say Board of Immigration a peals,

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Speaker 1: But sometimes it's actually the immigration judge who they make

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Speaker 1: the decision, and the Board of Immigration Appeal just as affirmed,

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Speaker 1: and so then that decision gets appealed to the Court

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Speaker 1: of Appeals. And so exactly like you said, this case

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Speaker 1: here was the one where the child has as mine.

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Speaker 1: They said that, you know, without some mother they wouldn't

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Speaker 1: be able to betically or financially provide for this child

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Speaker 1: who has asked not tax. And they viewed that as hardship,

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Speaker 1: but again not exceptional and extremely unusual hardship. And so

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Speaker 1: that's the question. And you know, this is like a

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Speaker 1: perfect gray area type of case where if you get

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Speaker 1: a very sympathetic judge they might approve it. But if

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Speaker 1: you're get a judge that doesn't want to approve any

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Speaker 1: of these, then they wouldn't approve this. And the question

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Speaker 1: is can you set a standard for a case like

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Speaker 1: this or is this really just up to the judge?

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Speaker 1: And I think that's what the Supreme Court is going

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Speaker 1: to be grappling with. Are the circuits split on this? Yes? Correct,

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Speaker 1: the circuits are split on this. And so there are

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Speaker 1: some circuits like the Ninth Circuit who says, yes, this

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Speaker 1: can be reviewed because this is actually not a discretionary determination.

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Speaker 1: This is a legal determination as to whether a specific

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Speaker 1: agreed upon that a fact meets the legal standard of

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Speaker 1: exceptional and extremely unusual art chip. But the Third Circuit says, no,

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Speaker 1: this is not a legal question. This is a discretionary question,

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Speaker 1: basically saying have you sufficiently tugged at the discretionary heart

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Speaker 1: strings of the judge who get the relief? And so

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Speaker 1: it'll be interesting to see what the Supreme Court thinks

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Speaker 1: about this. Yet another case that now the Ninth Circuit

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Speaker 1: is going to hear on banks over temporary protected status

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Speaker 1: and so Trump pullback protections from migrants m L. Salvador, Haiti, Nicaragua,

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Speaker 1: Sudan and also Nepal and Honduras, and the Biden administration

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Speaker 1: has redesignated Haiti and Sudan for TPS. Status. Isn't that

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Speaker 1: the Biden administration's decision whether or not there should be

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Speaker 1: a TPS status for a country. I mean, why is

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Speaker 1: this correct? Interestingly, this lawsuit started in the Trump administration

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Speaker 1: when Trump tried to say, look, there's a lot of

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Speaker 1: countries where their nationals were given temporary protective status for

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Speaker 1: disasters that happened in the nineties, and so why here

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Speaker 1: in the second part of the twenty one century are

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Speaker 1: people still to stay on the basis of a disaster

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Speaker 1: that was supposed to temporarily affect them in And so

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Speaker 1: there was this lawsuit saying, yeah, but what you did

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Speaker 1: was you were acting in a discriminatory manner that violated

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Speaker 1: equal Protection clause, and you also violated the Administrative Procedure

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Speaker 1: Act by not explaining the current conditions in the country

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Speaker 1: and how those conditions have been effected since that mentor

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Speaker 1: of disaster. And so all of this was in litigation,

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Speaker 1: and then the Trump administration leeds and the Biden administration

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Speaker 1: to come fact and oddly enough, as you point out,

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Speaker 1: the Buiding administration doesn't continue the temporary protective status for

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Speaker 1: some of these countries, and it actually continues to choose

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Speaker 1: to litigate this issue, and so now this issue where

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Speaker 1: the applicants had actually lost in the Ninth circuits, they

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Speaker 1: are actually now getting a full on bond, meaning well

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Speaker 1: that's the full Courtcuse in the ninth circuits there's so

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Speaker 1: many judges. You get twelve judges, which is considered the

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Speaker 1: full court. You get you get an on bank panel

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Speaker 1: of well twelve judges. But but those judges are now

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Speaker 1: going to consider what will be done? Could you an

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Speaker 1: temporary protective states? That way, it affects the question if

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Speaker 1: the government wins and wins all of the lawsuits, will

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Speaker 1: the Biden administration simply find a different route to protect

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Speaker 1: these people's fighting effects? Now, because I think what they've

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Speaker 1: had a problem with, at least justifying this intellectually is

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Speaker 1: I think they too think that there's a complication with

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Speaker 1: saying that the conditions justify extensions of EPs. I think

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Speaker 1: they think when that was sort of being done on

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Speaker 1: an automated basis every eighteen months, that was one thing.

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Speaker 1: But once an actual Department of Homeland Security, even if

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Speaker 1: it was President Trump's department, it doesn't matter, went through

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Speaker 1: the facts and said, look, we need to break this

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Speaker 1: chain of causation. When they feel like it's true, there's

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Speaker 1: not a natural disaster from to justify this continuous of

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Speaker 1: PPS anymore. And so it will be interesting to see

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Speaker 1: what happens after all of this is over. Do they

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Speaker 1: cite some new reason that's more current to protect these

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Speaker 1: people under temporary protective status or does that end up

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Speaker 1: falling away yet again, That's going to be very interesting

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Speaker 1: to see after this litigation is all over. It's supposed

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Speaker 1: to be temporary, So why continue to protect people if

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Speaker 1: you know the reason for protecting them is gone. That's

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Speaker 1: sort of belies the whole the whole PILM. There was

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Speaker 1: a bit of inertia that happened here where when the

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Speaker 1: first happened in there were these earthquakes and hurricanes and

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Speaker 1: things for these countries from Central America, you know. So

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Speaker 1: there was eighteen months and then there was another eighteen months,

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Speaker 1: and people sort of understood those first thirty six months,

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Speaker 1: and then for the next eighteen months people said, well,

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Speaker 1: maybe we need this last eighteen months. And then once

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Speaker 1: you got past those eighteen months, then it was well,

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Speaker 1: people have already been here for five years, six years,

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Speaker 1: they've had U S citizen kids. Now you're going to

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Speaker 1: deport them. What a creation of a tragedy you're doing.

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Speaker 1: And so then that was the argument, and that sort

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Speaker 1: of was inertia upon inertia upon inertia, and you ended

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Speaker 1: up with this situation where you couldn't emotionally justify kicking

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Speaker 1: people out who's now been here twenty five years. And

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Speaker 1: so that's why Congress has these bills to try to

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Speaker 1: get these folks green cards, but they have not passed.

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Speaker 1: And so we are where we are, which is that

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Speaker 1: the real purpose of the statute, which is to give

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Speaker 1: temporary relief very difficult to argue that disaster is still

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Speaker 1: the basis for someone saying in America, and so the

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Speaker 1: question is what do you do that? So you know,

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Speaker 1: every week there's another immigration problem, more policy that there's

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Speaker 1: news on. So I guess it doesn't come as much

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Speaker 1: as a surprise that a new Gallipo that was released

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Speaker 1: today revealed that Americans are more dissatisfied with immigration into

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Speaker 1: the country than they've been in years. Sixtent of respondents

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Speaker 1: are dissatisfied with US immigration overall, and that's the lowest

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Speaker 1: reading in a decade, and most say that they want

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Speaker 1: immigration decreased. I wonder if a lot of this is

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Speaker 1: because of the bussing of migrants from Texas has led

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Speaker 1: to people in different parts of the country, you know,

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Speaker 1: being exposed to the problems of placing migrants. I think

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Speaker 1: this is all part of it. I think really what

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Speaker 1: anything comes down to with regard to immigration law, or

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Speaker 1: immigration policy or immigration acceptance by the populace in the

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Speaker 1: United States is the following people of r A VACU.

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Speaker 1: And so what happens is right now the only people

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Speaker 1: talking about immigration are people pointing out that there's a

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Speaker 1: problem with the immigration system. So Biden administration doesn't want

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Speaker 1: to spend any time talking about immigration. In fact, in

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Speaker 1: the State of the Union, they may have mentioned it

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Speaker 1: for thirty seconds. If they mentioned it for thirty seconds,

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Speaker 1: it was too long. And what really comes down to

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Speaker 1: is this, whether you set the level at a high level,

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Speaker 1: or you set the level at a low level, or

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Speaker 1: you set the level at a medium level, what the

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Speaker 1: American people want is a strategy of explanation and a

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Speaker 1: feeling that it's not out of control. And that's the

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Speaker 1: key for the Biden administration is to explain to people

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Speaker 1: why the system is the way it is, why it's

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Speaker 1: not out of control to the extent that they can

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Speaker 1: explain that what their plan is to get it further

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Speaker 1: under control, and why the system and the decisions they're making.

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Speaker 1: This is the key part actually advanced the interests of

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Speaker 1: America and American because a lot of the rhetoric for

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Speaker 1: better and for worse for both because I think it's

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Speaker 1: helpful and it's good to be compassionate to the people

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Speaker 1: trying to flee a lot of terrible conditions in their

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Speaker 1: home countries. But a lot of the rhetoric you hear

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Speaker 1: from immigration advocate and from some people in the Democratic

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Speaker 1: Party is a rhetoric that centered on the interests of

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Speaker 1: the foreign national entering the United States and the problems

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Speaker 1: they're suffering. And while that's understandable and sympathetic, you have

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Speaker 1: to if you're going to sell a system and a

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Speaker 1: and a series of decisions, selling on why that decision

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Speaker 1: and that system is good for America and the national

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Speaker 1: interest of nine States. And that's where the Republicans have

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Speaker 1: made very good head road in talking about immigration in

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Speaker 1: that way. They constantly use this phrase the national interest,

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Speaker 1: and they constantly say that only low levels of immigration

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Speaker 1: are good for the national interests of Americans. But because

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Speaker 1: they're the only people making this argument, then that's what's

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Speaker 1: going to be assumed, because nobody's making an argument about

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Speaker 1: why moderate levels or higher levels are better for the

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Speaker 1: American interest And so that's why you see this disconnect

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Speaker 1: where more and more and more people continued to say

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Speaker 1: on a higher and higher level that low immigration is

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Speaker 1: good for America's national interests and that the current system

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Speaker 1: is out of control. So the problem really is moving forward,

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Speaker 1: can to buy the administration explain what it's doing, articulate

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Speaker 1: a vision, articulate a system, and explain why that system

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Speaker 1: and that vision is in the interests of America and

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Speaker 1: Americans well. And also, immigration satisfaction was highest during the

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Speaker 1: early part of former President Trump's term. So this is

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Speaker 1: something that the Biden administration is going to have to

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Speaker 1: answer when it comes time for the elections. Correct, That's

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Speaker 1: the point, and the key thing is if you look

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Speaker 1: at our president Trump changed the conversation on immigration. It

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Speaker 1: wasn't just that he lowered the levels of immigration. People

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Speaker 1: are not so sensitive to the numbers being high or low.

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Speaker 1: People are sensitive to the discussion that the immigration system

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Speaker 1: is being tailored to the national interests of the United States,

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Speaker 1: and that was constantly a praise that he used, and

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Speaker 1: he constantly tried to explain at least his vision of immigration,

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Speaker 1: which was that the less immigration that there was, the

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Speaker 1: more that was in America's interest. Thanks so much, Leon,

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Speaker 1: you always have the answers, and it's a pleasure to

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Speaker 1: have you on the show. That's Leon Fresco of Hondon Knight,

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Speaker 1: the wife of billionaire Israel is he in Lander, filed

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Speaker 1: an explosive lawsuit against the Millennial Management chairman and then

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Speaker 1: withdrew it the day after. In the suit, Carol Englander

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Speaker 1: claimed that her husband of forty eight years conducted a

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Speaker 1: year's long campaign of pressure and coercion against her and

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Speaker 1: her girlfriend, having them followed nearly constantly, hacking their emails

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Speaker 1: and phones and interfering with their family lives in order

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Speaker 1: to get her to sign a post nuptial Agreementzzy Englander

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Speaker 1: has a net worth of eleven point five billion dollars

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Speaker 1: according to the Bloomberg Billionaires Index, and his a strange

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Speaker 1: wife says he got more than of the value of

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Speaker 1: their marital assets in the post nup. On Friday, Carol

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Speaker 1: Englander dropped the suit, which was filed by her and

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Speaker 1: her girlfriend, Swiss art dealer Dominique Levy, a spokesperson for

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Speaker 1: england Or, said it was dropped in an effort to

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Speaker 1: resolve this as a family matter. Joining me is Peter Walser,

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Speaker 1: the founding partner of Walzer, Melcher and Yoda and L,

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Speaker 1: a family law firm. So Carol Englander is claiming that

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Speaker 1: she signed the post up under darrest. Tell us a

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Speaker 1: little about her allegations. Well, it sounded like what we

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Speaker 1: would call corrosive control, in other words, a pattern of

435
00:26:15,320 --> 00:26:26,080
Speaker 1: stocking rating, threatenings for having a relationship with her friend Dominique.

436
00:26:26,840 --> 00:26:30,639
Speaker 1: And it sounded like, according to Carol, there was a

437
00:26:30,640 --> 00:26:33,880
Speaker 1: lot of pressure on her and it was a very

438
00:26:34,119 --> 00:26:39,040
Speaker 1: unpleasant situation I imagined for all of them after a

439
00:26:39,160 --> 00:26:43,320
Speaker 1: very long marriage, almost fifty years. Do you know if

440
00:26:43,320 --> 00:26:47,560
Speaker 1: there was a pre nuptial agreement in this case, I

441
00:26:47,600 --> 00:26:51,400
Speaker 1: don't know, and there's been no report of that, so

442
00:26:51,560 --> 00:26:55,919
Speaker 1: one would think, considering the length of the marriage, probably

443
00:26:56,080 --> 00:27:02,360
Speaker 1: no premierital agreement. He allegedly got her to sign an

444
00:27:02,400 --> 00:27:07,120
Speaker 1: agreement before they divorced. Well, I don't know that they're

445
00:27:07,160 --> 00:27:12,800
Speaker 1: even divorced. There's no indication that they actually got divorced.

446
00:27:13,080 --> 00:27:17,199
Speaker 1: Tell me about postnups in general. Do a lot of

447
00:27:17,240 --> 00:27:20,840
Speaker 1: couples have postnups? Is it unusual? I mean, I've been

448
00:27:20,880 --> 00:27:26,040
Speaker 1: doing this over forty years and I've done literally hundreds

449
00:27:26,160 --> 00:27:32,120
Speaker 1: of we call them premyoral agreements, and I've done probably

450
00:27:32,400 --> 00:27:38,080
Speaker 1: five to ten post marrow agreements that actually got signed. Now,

451
00:27:38,080 --> 00:27:41,159
Speaker 1: people come in and they want them, but they often

452
00:27:41,240 --> 00:27:47,119
Speaker 1: lead to a divorce. Basically, they're harder than pups, and

453
00:27:47,320 --> 00:27:50,840
Speaker 1: the standards are a lot different than prenups. What are

454
00:27:50,840 --> 00:27:56,480
Speaker 1: the standards? For example? For prenups, no consideration is required.

455
00:27:56,680 --> 00:28:02,400
Speaker 1: Consideration means something barred in for an exchange, or if

456
00:28:02,440 --> 00:28:05,199
Speaker 1: you give me this, I'll give you that, Whereas in

457
00:28:05,200 --> 00:28:09,800
Speaker 1: a post marital agreement there is a requirement of consideration.

458
00:28:10,440 --> 00:28:13,440
Speaker 1: Somebody's got to get something for what they're giving up.

459
00:28:13,960 --> 00:28:17,639
Speaker 1: And in this case, if Carol was giving up half

460
00:28:17,760 --> 00:28:21,639
Speaker 1: the marital of state, which could be five billion dollars,

461
00:28:22,280 --> 00:28:25,400
Speaker 1: she would have to get something in exchange for that.

462
00:28:25,520 --> 00:28:28,320
Speaker 1: It doesn't have to be equal, but there has to

463
00:28:28,359 --> 00:28:34,480
Speaker 1: be consideration for it. Next. Whereas people in a premarital

464
00:28:34,480 --> 00:28:38,080
Speaker 1: agreement do not have a fiduciary duty to one another

465
00:28:38,880 --> 00:28:42,920
Speaker 1: in a post marital agreement, they have a fiduciary duty,

466
00:28:43,000 --> 00:28:47,080
Speaker 1: which means a lot stronger scrutiny of the agreement for

467
00:28:47,680 --> 00:28:53,080
Speaker 1: fairness and so on. So in addition, in a premarial agreement,

468
00:28:53,200 --> 00:28:59,480
Speaker 1: you can waive the disclosure beyond what's provided, but in

469
00:28:59,520 --> 00:29:03,400
Speaker 1: a postmarril agreement, you can't wait for disclosure. There's got

470
00:29:03,400 --> 00:29:08,200
Speaker 1: to be a full disclosure to both people signing the agreement.

471
00:29:08,680 --> 00:29:12,160
Speaker 1: In this case, she claims that he didn't disclose the

472
00:29:12,240 --> 00:29:16,520
Speaker 1: extent of their marrit assets. Right, she made all the

473
00:29:16,960 --> 00:29:24,040
Speaker 1: necessary claims to arrests, perhaps fod all those required claims.

474
00:29:24,320 --> 00:29:27,640
Speaker 1: But the problem with that is we don't know the details.

475
00:29:27,760 --> 00:29:30,560
Speaker 1: But you can imagine she had an attorney review it.

476
00:29:31,360 --> 00:29:37,320
Speaker 1: She signed the agreement. The agreement, like most agreements between

477
00:29:37,400 --> 00:29:41,320
Speaker 1: spouse's state, there was no arrest, there was no fraud,

478
00:29:41,480 --> 00:29:45,240
Speaker 1: she had adequate time to review the agreement and so

479
00:29:45,320 --> 00:29:49,480
Speaker 1: on and so forth. So once she does that and

480
00:29:50,160 --> 00:29:54,400
Speaker 1: the agreements notarized, it's hard to say that you didn't

481
00:29:54,400 --> 00:29:56,720
Speaker 1: know what you were doing or you were pressured. In

482
00:29:56,760 --> 00:30:00,960
Speaker 1: the same day, it's different. Occasionally, at these agreements, the

483
00:30:01,040 --> 00:30:04,920
Speaker 1: spouses signed between each other on a piece of paper

484
00:30:05,640 --> 00:30:08,720
Speaker 1: that's not what we're talking about. We're talking about wealthy

485
00:30:08,840 --> 00:30:13,200
Speaker 1: people who how attorneys who reviewed it, who made a decision.

486
00:30:14,040 --> 00:30:17,240
Speaker 1: She says that he got most of the marital assets,

487
00:30:17,560 --> 00:30:20,240
Speaker 1: but he's worth eleven and a half billion, and if

488
00:30:20,240 --> 00:30:23,560
Speaker 1: she got five percent, that's still a lot of money

489
00:30:23,600 --> 00:30:27,600
Speaker 1: to most people. I was doing the numbers like that too,

490
00:30:27,680 --> 00:30:30,480
Speaker 1: and I thought that's not bad. I think I could

491
00:30:30,600 --> 00:30:35,680
Speaker 1: live on I don't know. I don't know. I might

492
00:30:35,760 --> 00:30:39,840
Speaker 1: have to, you know, budget on the food, but otherwise

493
00:30:39,880 --> 00:30:42,520
Speaker 1: i'd be fought. Let's just say that this goes forward.

494
00:30:42,920 --> 00:30:47,200
Speaker 1: How would a judge decide whether or not there was dressed,

495
00:30:47,320 --> 00:30:50,959
Speaker 1: whether or not this pass the test for a post up. Well,

496
00:30:50,960 --> 00:30:57,000
Speaker 1: there's a great New York case called Hershkowitz versus Levy.

497
00:30:57,680 --> 00:31:01,320
Speaker 1: You could google and it lays out the anderds. And

498
00:31:01,360 --> 00:31:05,840
Speaker 1: in this twenty twenty one case, which is recent in

499
00:31:06,040 --> 00:31:09,840
Speaker 1: terms of the law, talks about a post that between

500
00:31:09,880 --> 00:31:14,240
Speaker 1: a self represented attorney and his wife and they agreed

501
00:31:14,360 --> 00:31:18,880
Speaker 1: that after a few thousand and thirteen everything they had

502
00:31:18,960 --> 00:31:23,040
Speaker 1: would be separate. And then the kidson comes along in

503
00:31:23,920 --> 00:31:28,080
Speaker 1: trying to set aside the post marital agreement. I guess

504
00:31:28,320 --> 00:31:32,200
Speaker 1: wife did better than him in the marriage, and he

505
00:31:32,320 --> 00:31:35,880
Speaker 1: said it was unconscionable, and there was the rest, and

506
00:31:35,960 --> 00:31:38,760
Speaker 1: she didn't give him enough time to sign it. And

507
00:31:38,840 --> 00:31:44,320
Speaker 1: it really lays out the law for post marital agreements,

508
00:31:44,400 --> 00:31:48,120
Speaker 1: and the case says an agreement between spouses which spare

509
00:31:48,200 --> 00:31:52,320
Speaker 1: on its base will be enforced according to its terms

510
00:31:52,400 --> 00:31:58,280
Speaker 1: unless there's proof of unconscionability or fraud. The less overreaching

511
00:31:59,120 --> 00:32:04,120
Speaker 1: or other duct. Unconsciouent ability means shocking for the conscious.

512
00:32:04,200 --> 00:32:08,840
Speaker 1: It's just not unfair. So New York's really laid out

513
00:32:08,840 --> 00:32:12,280
Speaker 1: the law for post ups in a nice way in

514
00:32:12,360 --> 00:32:16,400
Speaker 1: this case. So the person trying to set it aside

515
00:32:16,440 --> 00:32:21,680
Speaker 1: initially has the burden to show it was unfair. So

516
00:32:21,960 --> 00:32:24,880
Speaker 1: now we find out that just a day after filing

517
00:32:24,880 --> 00:32:29,200
Speaker 1: this she withdrew it. So what do you make of that. Well,

518
00:32:29,280 --> 00:32:31,840
Speaker 1: when there's not much of money, a deal could always

519
00:32:31,880 --> 00:32:35,560
Speaker 1: be struck. It's not like money is the issues. And

520
00:32:35,600 --> 00:32:41,200
Speaker 1: she probably didn't have much of a case except bad publicity.

521
00:32:41,720 --> 00:32:46,040
Speaker 1: When you're in your seventies, you probably don't need bad publicity.

522
00:32:46,080 --> 00:32:50,600
Speaker 1: And either of them dead, and so a deal could

523
00:32:50,600 --> 00:32:53,400
Speaker 1: be struck. Now we don't know if a deal was struck,

524
00:32:54,160 --> 00:32:58,280
Speaker 1: but somebody said, hey, let's let's talk about it. We

525
00:32:58,320 --> 00:33:02,760
Speaker 1: could work something out with that kind of money. You know,

526
00:33:02,960 --> 00:33:06,680
Speaker 1: maybe else you wanted was another half billion powers, you know,

527
00:33:07,480 --> 00:33:11,160
Speaker 1: I mean, really, you've got to look what causes these

528
00:33:12,280 --> 00:33:17,000
Speaker 1: losses between anybody, but especially well the People's not the money.

529
00:33:17,760 --> 00:33:22,800
Speaker 1: It's hurt feelings, it's anger, it's resentment. And if people

530
00:33:22,840 --> 00:33:26,120
Speaker 1: can sit down and talk, they can make a deal. Now,

531
00:33:26,240 --> 00:33:30,680
Speaker 1: she made a deal already, but she obviously wanted more,

532
00:33:31,520 --> 00:33:33,080
Speaker 1: and he has more to give. What's he going to

533
00:33:33,160 --> 00:33:35,640
Speaker 1: do with it? You know, that kind of money, it's

534
00:33:35,680 --> 00:33:39,160
Speaker 1: not gonna make anybody's life different. Now, she could have

535
00:33:39,280 --> 00:33:43,040
Speaker 1: reacted differently and been angry and said, it's a matter

536
00:33:43,040 --> 00:33:44,960
Speaker 1: of principle, I'm not going to talk to you if

537
00:33:45,000 --> 00:33:49,160
Speaker 1: ever again, I'll see you in court. But that's time consuming,

538
00:33:49,760 --> 00:33:52,720
Speaker 1: and even though expense is not an issue, it's expensive.

539
00:33:53,160 --> 00:33:59,520
Speaker 1: But mainly it's aggravating, emotionally disturbing. So at their age,

540
00:34:00,040 --> 00:34:04,680
Speaker 1: both in the need that kind of straps. So they

541
00:34:04,760 --> 00:34:08,040
Speaker 1: did the smart thing, you know, with and workout a deal.

542
00:34:08,640 --> 00:34:11,759
Speaker 1: Thanks so much, Peter. That's Peter Walser of Walls or

543
00:34:11,880 --> 00:34:14,279
Speaker 1: Melcher and yodah. And that's it for this edition of

544
00:34:14,320 --> 00:34:17,000
Speaker 1: the Bloomberg Law Show. Remember you can always get the

545
00:34:17,040 --> 00:34:20,360
Speaker 1: latest legal news by subscribing to the Bloomberg Law Podcast

546
00:34:20,760 --> 00:34:24,160
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550
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00:34:43,360 --> 00:34:47,000
Speaker 1: the future of law. Visit Bloomberg Law dot com. I'm

553
00:34:47,080 --> 00:34:49,160
Speaker 1: joom Bronso and you're listening to Bloomberg