Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
Speaker 1: Since the invasion by Russia, about three million Ukrainians have
Speaker 1: fled their country, the vast majority to European Union countries,
Speaker 1: which allow them to travel visa free. President Biden praised
Speaker 1: the Irish Prime Minister this week for his country's welcome
Speaker 1: to Ukrainians. What Ireland is doing now, what you're doing
Speaker 1: taking in Ukrainian refugees. Speak so loudly about your principles,
Speaker 1: and it's amazing, and I want to public recompliment you
Speaker 1: for it. But what about the Ukrainians who want to
Speaker 1: come to the United States to join family here? The
Speaker 1: Biden administration has done nothing to help those refugees get
Speaker 1: into the country, a process that's far from easy. My
Speaker 1: guest is Leon Fresco, a partner at Holland and Knight
Speaker 1: and a immigration official in the Obama administration. Clean are
Speaker 1: many Ukrainians trying to get into the country. Many Ukrainians
Speaker 1: are trying to get into the United States. I'm getting
Speaker 1: calls in my law as you know, I'm a private
Speaker 1: attorney when I'm not on Bloomberg, and I'm getting called
Speaker 1: all the time from people all over our country. You'd
Speaker 1: be shocked how many people seem to have connections to
Speaker 1: people in Ukraine and they all want to figure out
Speaker 1: what can be done. And so what's complicated is there
Speaker 1: are some well meaning pieces of information that are not
Speaker 1: exactly accurate. So you'll hear in all the United States
Speaker 1: is letting in Ukrainian refugees as we speak. But those
Speaker 1: Ukrainian refugees are people that have been vetted for many years,
Speaker 1: who are refugees from the Russian annexation of Primea. So
Speaker 1: they're not people who are refugees from last week. There
Speaker 1: are people who are refugees from many years ago. And
Speaker 1: so the problem with saying we will welcome refugees is
Speaker 1: refugee process could take a year or two years, and
Speaker 1: then the question is we don't know what the state
Speaker 1: of affairs in Ukraine will be at that point. Maybe
Speaker 1: there will be no refugee issue in Ukraine a year
Speaker 1: or two from now, and so the question is what,
Speaker 1: if anything, the Biden administration can do now. And so
Speaker 1: here is where you have a doctrinal issue versus sort
Speaker 1: of what I would call a compacion issue, which is
Speaker 1: plenty of people are seeking to come here on student visas,
Speaker 1: now on visitor visa, humanitarian parole applications. And it's just
Speaker 1: gonna come down to whether the Biden administration provides guidance
Speaker 1: saying that that's okay to let people come here and
Speaker 1: say during the duration of the crisis, essentially knowing that
Speaker 1: hopefully some large segment of those individuals would go back
Speaker 1: if the war word is subsided. Or are they going
Speaker 1: to take a more doctrinal, dogmatic approach and say, look,
Speaker 1: you can't come on a visitor visa if you're from
Speaker 1: Ukraine because we have no evidence you're gonna come back.
Speaker 1: We can't give you a student visa you're from Ukraine
Speaker 1: because we have no evidence you're gonna come back, etcetera.
Speaker 1: The more of those pathways that they cut off, the
Speaker 1: harder it's gonna be. And what you'll see, and you're
Speaker 1: starting to see some batterings of this is actually Ukrainians
Speaker 1: appearing on the southern border and just applying for asylum
Speaker 1: on the southern border. And if that's the only way
Speaker 1: you're gonna let Ukrainians in, that's the way that Ukrainians
Speaker 1: are gonna use if and I repeat, if they have
Speaker 1: an American family member that's arranging this for them, and
Speaker 1: that's usually what you would see if the American family
Speaker 1: member would say, Okay, fly to Mexico and then we'll
Speaker 1: work it so that you can apply for asylum at
Speaker 1: support of entry between the United States and Mexico. Let's
Speaker 1: say someone calls you up and says, my family's in
Speaker 1: Ukraine now or went from Ukraine to Poland. I want
Speaker 1: to get them into this country. Besides flying to Mexico.
Speaker 1: What else can you do? Well, the most compelling legal
Speaker 1: options in terms of what you would do doctrinally, is
Speaker 1: something called the humanitarian parole, and you would ask them
Speaker 1: to put together a pocket that you would assist that
Speaker 1: baking with their information and why they can't say where
Speaker 1: they are and why as a humanitarian nature, the United
Speaker 1: States should give them a one year parole to sort
Speaker 1: of weather the storm here, and then after that one
Speaker 1: year they can leave and showing that they have sufficient
Speaker 1: family ties here, that they have an economic sponsor here
Speaker 1: who can take care of them while they're here, which
Speaker 1: would usually be some very close family member with a
Speaker 1: pretty decent income, and you would let the chips fall
Speaker 1: where they may. We're at the beginning stages of this process.
Speaker 1: U s c i S endeavors to give decisions in
Speaker 1: ninety days of these parole applications, but we'll know in
Speaker 1: a few weeks whether U s c i S is
Speaker 1: treating these claims compassionately or not. And quite frankly, the
Speaker 1: state of affairs may be completely different in the next
Speaker 1: few weeks than it is right now. So we don't know.
Speaker 1: A lot of this is going to be wait and see,
Speaker 1: but that's the main way, and the U s CIS
Speaker 1: being the United States Citizenship and Immigration Services leon. What
Speaker 1: about getting in with a student visa or a tourist visa.
Speaker 1: People can come in very quickly if they could get
Speaker 1: admitted it to a university, but you'd have to find
Speaker 1: some open embassy of ours. It would either be our
Speaker 1: embassy in Poland, our embassy in Moldova, embassy in Romania,
Speaker 1: or if you could even get further with you know,
Speaker 1: Germany or wherever you could get to in order to
Speaker 1: get yourself an appointment for a student visa. But in
Speaker 1: that situation, you're gonna need an adjudicator who's going to
Speaker 1: not take so seriously the fact that you're from Ukraine
Speaker 1: and might not be able to return because one of
Speaker 1: the criteria for students visa if you have to be
Speaker 1: a person who can show that you would leave the
Speaker 1: United States after your studies are over. And so the
Speaker 1: question is are they going to say that Ukraine gives
Speaker 1: us a facto matter, aren't going to return? So those
Speaker 1: are the questions that are being wrestled with. And then
Speaker 1: a lot of people want to just come on visitor visas,
Speaker 1: which would give you six months of the United States.
Speaker 1: But there's two problems there. One, the embassies all over
Speaker 1: the world have about two year wait time for visitor
Speaker 1: visa applications because of COVID. But even if you could
Speaker 1: get yourself in for a visitor visa appointment, will the
Speaker 1: embassy say you're not gonna truly visit. You're gonna say
Speaker 1: you're never going back, so we're not going to give
Speaker 1: you a visitor visa. And so that's the challenge with
Speaker 1: the visitor visa and the student visa. The Bonding administration
Speaker 1: has given Ukrainians who are already here temporary protected status,
Speaker 1: right right, But you can't come here now and get
Speaker 1: temporary protective status. But for the people who are already
Speaker 1: here on the first day of the commencement of the
Speaker 1: how facilities in Ukraine. Those individuals can stay now until
Speaker 1: that temporary protective status is one day taken away. And
Speaker 1: I don't know if and when that would ever happen,
Speaker 1: but for the moment, those people, even if their visa
Speaker 1: has expired, can take advantage of this temporary protective status
Speaker 1: in order to remain here and work lawfully in the
Speaker 1: United States. And so bottom line is the Biden administration
Speaker 1: hasn't done anything so far to open our country's doors
Speaker 1: to Ukrainian refugees. Correct, There's been no policy change that
Speaker 1: has said how it would be easier for a Ukrainian
Speaker 1: to access the United States. They haven't said, hey, apply
Speaker 1: for humanitarian parole if you have a US citizen foused parents, child,
Speaker 1: or sibling. You know, if as an example, and we'll
Speaker 1: give a one year humanitarian parole. They have an issued
Speaker 1: a memmo like that. They have an issued a memo
Speaker 1: that says here's how you can act that's the refugee
Speaker 1: program if you're in Poland or in Moldova or Romania.
Speaker 1: They haven't done anything like that. So everybody's just trying
Speaker 1: to figure out a way to kind of go through
Speaker 1: this roof Goldberg divice that is our immigration system to
Speaker 1: get their body into the US. The problem that happens
Speaker 1: with all of these issues is if you don't take
Speaker 1: the trouble to plan something out and issue something, then
Speaker 1: what you will inevitably see with some number of people
Speaker 1: is well, then I'm just going to take the most
Speaker 1: direct round. I'm appearing at the southern border, and I'm
Speaker 1: making an asylum play lee, and I want to turn
Speaker 1: to another immigration topic. Now, migrants have been expelled more
Speaker 1: than one point six million times under Title forty two,
Speaker 1: which was introduced in March of to prevent the spread
Speaker 1: of COVID nineteen. However, the Binding Administration now says unaccompanied
Speaker 1: migrant children trying to enter the United States will not
Speaker 1: be denied a chance to seek asylum. The same as
Speaker 1: not true for adults and families traveling with children joining
Speaker 1: me is Leon Fresco, a partner at Hollandon Knight, just
Speaker 1: review what the broader policy has been since known as
Speaker 1: titled Well, at the same time that the COVID national
Speaker 1: emergency was declared, and the Trump administration was the administration
Speaker 1: that was in power at the time of the COVID
Speaker 1: national emergency. The administration also decided to at the same
Speaker 1: time have two different kinds of health related travel bans.
Speaker 1: The first kind of health related travel bans were the
Speaker 1: very similar types of travel bands that had been put
Speaker 1: into place because of the the Middle Eastern countries and
Speaker 1: things of that nature, and that was the travel band
Speaker 1: authority under I n A Section to twelve F. But
Speaker 1: then secondly, the administration needed to put a travel ban
Speaker 1: on the border. Because the I n A Section to
Speaker 1: twelve F travel bands only covered entry from foreign countries
Speaker 1: in terms of legal immigration, they needed to do something
Speaker 1: that would permit them to expel even asylum speakers from
Speaker 1: the United States. And so that's something called Title forty
Speaker 1: two authority under the US Code, and that's in the
Speaker 1: Public Health section of the Code, is actually not in
Speaker 1: the Immigration section of the Code. And what that says
Speaker 1: is that during an emergency involving a communicable disease, the
Speaker 1: CDC Director can instruct the Department of Homeland Security to
Speaker 1: exclude any foreign nationals trying to enter the United States.
Speaker 1: And so that's been the state of affairs since March
Speaker 1: of till this day. Leon Why did the CDC come
Speaker 1: out with this new guidance for migrant children traveling alone. Well,
Speaker 1: there's been litigation in the DC Circuit, and this litigation
Speaker 1: actually in disregard for unaccount any children, actually didn't change
Speaker 1: much practically on the ground. The DC circule litigation is
Speaker 1: called we Shall, we Shall versus Majorkis, and it's trying
Speaker 1: to offend all of the use of the Title forty
Speaker 1: two for everyone. It's a southern border. But they did
Speaker 1: not get a victory in the DC Circuit fully, But
Speaker 1: what they did get is this understanding that for unaccompanied children,
Speaker 1: there's a separate statutory regime that's been played for what
Speaker 1: happens when an unaccompanied child reaches the border, and that
Speaker 1: statutory regime is that they have to go to the
Speaker 1: Department of Health and Human Services, they have to get inspected,
Speaker 1: they get chops. If they don't have the shops, they
Speaker 1: then get put into the custody of either a shelter
Speaker 1: or of an adult in the United States who can
Speaker 1: take custody of that child. And then they're put in
Speaker 1: removal proceedings while they're in that person of custody, and
Speaker 1: sometimes they can win their proceedings, sometimes they don't win,
Speaker 1: and so the idea was you could not operate Title
Speaker 1: forty two on those other company children because the Congress
Speaker 1: I've said very clearly what it wanted to be done,
Speaker 1: and Title forty two didn't supersede those statutory provisions with
Speaker 1: regard to what he did for un accompanied children. So
Speaker 1: then why the CDC announcement. Well, the CDC then solidified
Speaker 1: the guidance from the court, which is to stay, fine,
Speaker 1: you don't need to give us an injunction. We're not
Speaker 1: gonna do this, So we can move out this part
Speaker 1: of the case by letting you know that we are
Speaker 1: not going to put on accompany children into Title forty
Speaker 1: two expulsion. But quite frankly, the administration wasn't doing that
Speaker 1: because it's very hard. What are you gonna do with
Speaker 1: a seventeen year old or sixteen year old or even
Speaker 1: god perbided, they're much younger children. If you use this
Speaker 1: Title forty two authority, then you're just expelling them into
Speaker 1: the middle of Mexico and they have no place to go. No,
Speaker 1: for isn't none of that. And so as a practical matter,
Speaker 1: this was only being done in the rarest of cases.
Speaker 1: But nevertheless, nilence is not going to be done at
Speaker 1: all personally to this memo. Now, you were talking about
Speaker 1: a case in the d C circuit in March of
Speaker 1: t there's a conflicting case in Texas just recently tell
Speaker 1: us about that. So in March fourth, the District Court
Speaker 1: for the Northern District of Texas issued a preliminary injunction
Speaker 1: enjoining the CDC from using this title forty two expulsion
Speaker 1: authority against unaccompanied children. And their their decision was that
Speaker 1: they hadn't adequately explained why they would treat unaccompanied children
Speaker 1: differently than other people under the CDC order, and so
Speaker 1: that decision was made, and then it was up to
Speaker 1: the CDC to decide what were they going to do.
Speaker 1: Were they going to challenge that in appeal or were
Speaker 1: they just gonna trying to mood out the injunctions? And
Speaker 1: so what the CDC decided to do in conjunction with
Speaker 1: the Department of Homeland Securities to say, look, this is
Speaker 1: such a rare thing that we're using this title forty
Speaker 1: to authority for unaccompanied children. We're just going to make
Speaker 1: a public health reassessment and say we're not going to
Speaker 1: be using this title forty to authority to expel unaccompanied
Speaker 1: children from the United States, but they're still going to
Speaker 1: use Title forty two to expel migrant adults and families
Speaker 1: with children. Correct, So for migrant adults, such the simplest case,
Speaker 1: which is that the courts of health still so far
Speaker 1: that you can use this authority for cases involving adults
Speaker 1: because adults don't pose any issues with regard to children
Speaker 1: being present. The trickier issue is this litigation as it's
Speaker 1: going to proceed, and what's going to happen with families
Speaker 1: meaning adults and drin that traveled together, and so far
Speaker 1: the courts offense that that can be used for family
Speaker 1: because again this becomes the stain problems as the problem
Speaker 1: we face with regard to detaining families, which is that
Speaker 1: when the court said you couldn't detained families, then that
Speaker 1: led to a very tricky situation where you have to
Speaker 1: decide whether to separate families or let them all in.
Speaker 1: And so the court don't want to get involved with
Speaker 1: that so far under Title forty two, and what they
Speaker 1: are instead doing is saying that you can exclude still
Speaker 1: entire families under Title forty two. So, now is this
Speaker 1: complicated because the d C Appellate Court said last week
Speaker 1: that officials couldn't expel families to places where they could
Speaker 1: be persecuted or harmed. So correct. So so this is
Speaker 1: again I'm not are one of those decisions. That's an
Speaker 1: interesting decision, but it's not a deviation from the practical authority.
Speaker 1: And so what is what do I mean by that?
Speaker 1: What I mean by that is the Department of Homeland Security,
Speaker 1: at least under the Biden administration, not so much under
Speaker 1: the Trump administration, but under the Biden administration was already
Speaker 1: issuing credible fear determinations to try to figure out if
Speaker 1: it was going to expel someone to a country that
Speaker 1: they were going to fear persecution from. As a practical
Speaker 1: matter of these expulsions are going to be to Mexico.
Speaker 1: The only time they wouldn't be to Mexico would be
Speaker 1: if someone was coming on a flight and for some
Speaker 1: reason they were going to be expelled under Title forty two,
Speaker 1: which would be very very very very rare, or if
Speaker 1: there was some very quick ability to expel someone after
Speaker 1: very brief detention back to trill American country. But that's
Speaker 1: very very rare. And so the real question that they
Speaker 1: asked is do you fear persecution in Mexico. And only
Speaker 1: a very small number of people are going to actually
Speaker 1: be able to articulate claims of why they fear persecution
Speaker 1: in Mexico. But nevertheless, what the court has said is
Speaker 1: if someone is going to say, incredibly show that they
Speaker 1: fear persecution in Mexico, then you cannot use Title forty
Speaker 1: to authority to expel them to Mexico. And again, this
Speaker 1: is the same theory as the kid, which is that
Speaker 1: there's a statutory framework in the Statute for what we're
Speaker 1: supposed to do with people that fear persecution, and Title
Speaker 1: forty two again does not supersed that framework. So if
Speaker 1: someone comes from Mexico and says I fear persecution, they'll
Speaker 1: have to be given an asylum hearing. No, what they're
Speaker 1: given is a credible fear screening, and that's a very
Speaker 1: brief screening by employee of the Department of Homeland Security
Speaker 1: where they're at I understand, let's say you're from Central America.
Speaker 1: Here's my question to you. Do you fear that you
Speaker 1: will be harmed in Mexico on the basis of your
Speaker 1: raised religion, national origin, political opinion, or social group and
Speaker 1: if they say no, then they can be expelled into Mexico.
Speaker 1: But if they say yes, then they'll be yes, why
Speaker 1: do you fear you'll be persecuted in Mexico? And only
Speaker 1: if they have a credible answer to that can they
Speaker 1: if they the title forty to authority. Now, that doesn't
Speaker 1: mean that the bid administration apply Title forty two to everyone.
Speaker 1: It actually doesn't. It's very sort of hodgepodge, and that
Speaker 1: on any given day you may see one family get
Speaker 1: applied and so one doesn't get applied. Adults and it
Speaker 1: apply and other adults don't get it applied. There's no
Speaker 1: right or reason to it a lot of times, but
Speaker 1: just the sheer numbers of how many people are getting
Speaker 1: tited forty two like to then, is why this continues
Speaker 1: to be an esue. Immigration advocates are saying that it
Speaker 1: isn't about COVID, the Biden administration is just using this
Speaker 1: as a way to curtail immigration. Well, the question is,
Speaker 1: and WoT does that become true? Because that would certainly
Speaker 1: be true at some point if there is very little
Speaker 1: concern about COVID. There there are no restrictions anywhere else
Speaker 1: in the state but for the southern border. At that point,
Speaker 1: that argument is onefect iron clad. In the world we
Speaker 1: lived in, let's say months ago, we were in a
Speaker 1: very huge state of pendicant concerns or the amicon variant,
Speaker 1: that argument was not very strong. And so the question
Speaker 1: is when did you get to a point where the
Speaker 1: court can actually say that the justification for Title forty
Speaker 1: two is now so flipsy that you're only doing it
Speaker 1: as a way to a a the immigration Code. And
Speaker 1: I don't know when will be there, but I think
Speaker 1: the best proxim will be, Hey, when there's international dribical
Speaker 1: that's taking place where people won't have to do anything
Speaker 1: related to COVID. At that point, you can't have fital
Speaker 1: party to anymore. That's Leon Fresco, a partnered Hollandon Knight.
Speaker 1: Billionaire Leon Black, the co founder of Apollo Global Management,
Speaker 1: sued Gazelle Ganiyeva and her lawyers last year, claiming they
Speaker 1: violated civil racketeering laws by conspiring to destroy him personally
Speaker 1: and professionally. This was after Ganieva had sued Black for defamation,
Speaker 1: intentional infliction of emotional distress, gender motivated violence, and retaliation
Speaker 1: at a federal court hearing, none of the seven lawyers
Speaker 1: present gave the judge an indication that there was a
Speaker 1: prospect for settling the case. Joining me is Bloomberg Legal
Speaker 1: reporter Bob Van Voris Bob tell us about these dueling lawsuits.
Speaker 1: Sure Ganieva, who is a former model and a former
Speaker 1: girlfriend of Leon Black, claims that he raped her and
Speaker 1: that he defamed her in the press. She's suing over
Speaker 1: in state court. He has countered by filing a suit
Speaker 1: in federal court claiming violations of federal racketeering law. Basically,
Speaker 1: he's claiming that Ganieva conspired with PR representatives and used
Speaker 1: her lawyers to defame him and to try to ruin
Speaker 1: his life and his reputation. He claims that the suit
Speaker 1: is basically concocted by Josh Harris, the person who co
Speaker 1: founded Apollo Global with Black, in response to being passed
Speaker 1: over for the role of CEO after him. This is
Speaker 1: basically an internal coup with and Apollo claims Leon Black,
Speaker 1: and that the entire thing was orchestrated by Josh Harris.
Speaker 1: The federal case is a defamation lawsuit based on RICO allegations.
Speaker 1: The federal case is RICO a racketeering suit claiming that
Speaker 1: people conspired to violate federal laws to try to ruin
Speaker 1: black life, and to to de pay them in the press.
Speaker 1: Is that an unusual claim for private citizen to be making. Well,
Speaker 1: it's difficult to make civil claims under the Rico Act.
Speaker 1: There are a whole lot of legal hoops that you
Speaker 1: have to jump through. The people on the other side
Speaker 1: of the suit, Rubenstein, the PR Agency and Josh Harris
Speaker 1: claimed that this complaint comes nowhere close to stating the
Speaker 1: things that they have to state to be able to
Speaker 1: recover against them, so they are moving to dismiss the suit.
Speaker 1: Judge the other day ruled in favor of Black. Black
Speaker 1: has said that Ganiyeva he gave her millions of dollars
Speaker 1: in exchange for her agreement not to talk about their relationship.
Speaker 1: Is that involved in any of this? Yeah, that's one
Speaker 1: of the claims in the state court lawsuit that basically
Speaker 1: she violated this contract. He paid her, and she took
Speaker 1: the money and is out there talking dirt about him,
Speaker 1: and he claims that, you know, he ought to recover
Speaker 1: for that as well. So, now, why were there seven
Speaker 1: attorneys in the hearing in federal court? There were a
Speaker 1: couple of each representing black In Ganieva. There were others
Speaker 1: in representing the other parties in the lawsuits, including Josh
Speaker 1: Harris and the PR Agency. At one point, the judge
Speaker 1: asked if there was any prospect of settlement anytime soon,
Speaker 1: and he said, you know, if you've kind an answer
Speaker 1: other than slim to none, raise your hand. Everyone said
Speaker 1: there's stone still, and no hand were raised. Blacks lawyer
Speaker 1: filed a letter with the judge claiming that her team
Speaker 1: had received WhatsApp messages between Ganieva and a New York
Speaker 1: Times reporter showing that she was working with her lawyer
Speaker 1: months before Ganieva officially retained him. What does that have
Speaker 1: to do with anything, Well, it's it's hard to figure
Speaker 1: out exactly what that has to do anything, if not
Speaker 1: all that unusual to be talking to lawyers before you
Speaker 1: formally retain them. Um, but the other side is saying
Speaker 1: the black side is saying, hey, look, uh, you know
Speaker 1: these lawyers claimed in papers that made a big deal
Speaker 1: out of being retained at a certain point, But it
Speaker 1: turns out they appear to have been talking to Ganieva
Speaker 1: months before that. So if you believe the allegation that
Speaker 1: there's a conspiracy. The conspiracy goes back further than you know,
Speaker 1: than we knew, and and here's evidence of it. One
Speaker 1: of Ganieva's lawyers said, for now, Black's billions have bought
Speaker 1: him access to our court system in a way that
Speaker 1: most people do not have. What was she referring to.
Speaker 1: I think she was referring to the suit itself. That
Speaker 1: he has high priced lawyers pursuing Ganieva in the suit
Speaker 1: that they claim has absolutely no UH basis to be
Speaker 1: in court and that ought to be dismissed. What's the
Speaker 1: next step here? The next step the judge in the
Speaker 1: federal case is going to hear motions to dismiss They've
Speaker 1: kind a file briefs on that, and the judge will
Speaker 1: hear arguments and decide whether that case belongs in court
Speaker 1: at all. The state case is on a separate track
Speaker 1: that will go forward with discovery, and presumably that will
Speaker 1: at some point also come to motions where the independants
Speaker 1: trying to get the case kicked out. Thanks Bob. That's
Speaker 1: Bob Van Boris, Bloomberg Legal Reporter. And that's it for
Speaker 1: this edition of The bloom A Glaw Show. Remember you
Speaker 1: can always get the latest legal news on our Bloomberg
Speaker 1: Law Podcast. You can find them on Apple Podcasts, Spotify,
Speaker 1: and at www dot bloomberg dot com, slash podcast slash Law,
Speaker 1: and remember to tune into The Bloomberg Law Show every
Speaker 1: week night at ten pm Wall Street Time. I'm June
Speaker 1: Grosso and you're listening to Bloomberg