WEBVTT - Trump's Attempt To Limit Asylum Struck Down By Judge

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

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

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

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

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<v Speaker 1>and on Bloomberg dot com slash podcasts. Turning now to immigration,

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<v Speaker 1>President Trump's many attempts to limit immigration have ended up

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<v Speaker 1>in the courts. The latest a DC judge has struck

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<v Speaker 1>down Trump's attempt last year to limit asylum only to

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<v Speaker 1>people who cross into the US at official entry points

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<v Speaker 1>along the southern border. Joining me is Leon Fresco, former

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<v Speaker 1>head of the Justice Department's Office of Immigration Litigation and

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<v Speaker 1>a partner at Hollanden Night. Leon tell us about the

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<v Speaker 1>latest ruling and the basis for it. So, the latest

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<v Speaker 1>ruling is one of two rulings that have happened. One

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<v Speaker 1>was in California, now one is in DC. On an

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<v Speaker 1>earlier Trump administration policy which said that anybody who crossed

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<v Speaker 1>border illegally would be unable to apply for asylum, the

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<v Speaker 1>idea being that you'd have to wait at the port

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<v Speaker 1>of entry, but you couldn't literally just cross one step

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<v Speaker 1>over the Rio grand and ask for asylum. And so

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<v Speaker 1>the Trump administration that issued a proclamation like the travel

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<v Speaker 1>band that said you would be banned if you be

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<v Speaker 1>from applying for asylum if you crossed illegally, and they

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<v Speaker 1>tried to say, well, this is a new factor that

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<v Speaker 1>then denies all asylum place allows us to expeditedly remove people.

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<v Speaker 1>And the court said, no, discontradicts the statute because the

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<v Speaker 1>statue literally says that you can apply for asylum or

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<v Speaker 1>regardless of whether you rise or did not arise at

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<v Speaker 1>a port of jury. So they looked at this as

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<v Speaker 1>a clear cut, simple case of a Trump administration order

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<v Speaker 1>contravening a statue, and in both judges ruled the same way, Yes,

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<v Speaker 1>if this instant in this case about crossing illegally, both

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<v Speaker 1>the court in the East Bay sanctuary case, which is

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<v Speaker 1>in California, and the court in the d C District

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<v Speaker 1>Court both ruled that it was illegal to say that

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<v Speaker 1>simply the act of crossing the border illegally made one

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<v Speaker 1>ineligible for asylum. There's a different set of cases that

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<v Speaker 1>also have one in d C and one in California,

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<v Speaker 1>that have to do with a new rule that the

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<v Speaker 1>Trump administration tries to put in which said that you

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<v Speaker 1>have a duty to apply for asylum in any country

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<v Speaker 1>you've crossed through first, and if you don't do that,

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<v Speaker 1>then you can't apply for asylum in the United States.

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<v Speaker 1>And they're The DC Court said it's fine, but the

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<v Speaker 1>California Court said that's illegal too, and has enjoyed that

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<v Speaker 1>on a national basis from operating. So there's two different

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<v Speaker 1>bars that the Trump administration is trying to to bar

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<v Speaker 1>people based on asylum. One if you cross illegally, and

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<v Speaker 1>another one is if you don't ask for asylum in

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<v Speaker 1>every country you're crossing through before coming to the US.

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<v Speaker 1>And so far neither of those has been allowed to

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<v Speaker 1>be maintained yet in the United States. But the Washington

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<v Speaker 1>d c. Federal judge did deny the request to put

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<v Speaker 1>the newer rule on temporary whole, but then he was

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<v Speaker 1>over not overturned, but the San Francisco judge then issued

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<v Speaker 1>a nationwide injunction, which sort of which eliminates the ruling

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<v Speaker 1>of the DC judge. And this sort of brings up

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<v Speaker 1>those nationwide injunctions and what many people consider the problems

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<v Speaker 1>with them. Correct, it's a bit of an odd procedural

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<v Speaker 1>formulation which is you only have to get one judge

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<v Speaker 1>to agree to enjoin a policy nationwide, even if a

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<v Speaker 1>hundred other judges refused to enjoin it in order to

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<v Speaker 1>be successful, which is why the plaints have filed lawsuit

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<v Speaker 1>them l A. San Francisco, Seattle, DC, etcetera, is to

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<v Speaker 1>try to find that district judge who will then answer

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<v Speaker 1>the temporary injunction, which in this case was done in California,

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<v Speaker 1>and then the question we in San Francisco, And so

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<v Speaker 1>then the question will be, okay, well, what will the

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<v Speaker 1>Ninth Circuit do versus what will the DC Circuit do?

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<v Speaker 1>And ultimately then what will the Supreme Court do? And

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<v Speaker 1>will they say that a person seeking asylum as a

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<v Speaker 1>duty to apply in every country that they crossed before

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<v Speaker 1>coming in to the United States. Is such a limitation

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<v Speaker 1>legal or not? And in the meantime, to make things

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<v Speaker 1>even more complicated, is now, because President Trump was able

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<v Speaker 1>to get what we think art to still know, a

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<v Speaker 1>safe third country agreement with Guatemala, then that's the third

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<v Speaker 1>layer of complexity here is, well, will everyone other than

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<v Speaker 1>Watemalans and Mexicans be banned from getting asylum in the

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<v Speaker 1>United States? Because now that's a third band, which is

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<v Speaker 1>that you have to apply in Guatemala. And so all

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<v Speaker 1>of these are all working their way up through the

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<v Speaker 1>courts of the same side. It's this situation sort of

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<v Speaker 1>reminds me of the travel band situation, where you had

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<v Speaker 1>different orders and judges in different places across the US,

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<v Speaker 1>and then eventually, I mean, the only true decisive moment

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<v Speaker 1>is when the Supreme Court decides. Will this end up

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<v Speaker 1>that way? Yes? Correct? I think the Supreme Court is

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<v Speaker 1>going to end up probably consolidating and grappling with all

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<v Speaker 1>three of these bands on asylum, the ban on asylum

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<v Speaker 1>for illegal entrance, the ban on asylum for people who

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<v Speaker 1>didn't apply in every country they crossed, and the ban

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<v Speaker 1>of asylum on people who didn't apply in Guatemala. So

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<v Speaker 1>probably combined all three of these and decide what was

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<v Speaker 1>legal and what was not legal. Unless the Trump administration

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<v Speaker 1>just wants to say, Okay, we're gonna give up on

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<v Speaker 1>the first two and just think with this gatemaland issue,

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<v Speaker 1>because assuming they actually got a say, third country agreement

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<v Speaker 1>with the Gatemala, that's actually their best chance at restricting

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<v Speaker 1>asylum because that's one that Congress actually lets them do.

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<v Speaker 1>Congress literally wrote in if you have a safe third

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<v Speaker 1>country agreement with the country, then you can restrict asylum

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<v Speaker 1>unless somebody applies in that country, and so that may

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<v Speaker 1>be their best chance. But then even in that case,

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<v Speaker 1>there's gonna be debates about whether Guatemala actually meets the

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<v Speaker 1>criteria of a say third country. Let me ask you this, leon,

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<v Speaker 1>instead of imposing new rules, could the Trump administration just

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<v Speaker 1>raise the bar for initial asylum in this country, raise

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<v Speaker 1>the bar about you know who, they'll allow to wait

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<v Speaker 1>in the country until their asylum claim is litigated. Well,

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<v Speaker 1>they tried to do that, and that was one of

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<v Speaker 1>the reasons that France assists of the U s c

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<v Speaker 1>i S director was fired. And why can't Couchinelli is

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<v Speaker 1>currently under a lot of scrutiny in the news. Is

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<v Speaker 1>there is this initial factor called credible fear, which is

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<v Speaker 1>you have to show you have a credible fear in

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<v Speaker 1>order to stay in the eligibility cycle forgetting asylum. And

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<v Speaker 1>so the president and his advisors were very upset that

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<v Speaker 1>under Francisista, the credible fear screening rate was at about

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<v Speaker 1>eighty to nine success rate and it has gone down

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<v Speaker 1>with with with new director. Can Cucinelli. But the problem

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<v Speaker 1>is the the the the even there, there's going to

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<v Speaker 1>be claims that will be filed very soon that will

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<v Speaker 1>say we'll wait a second. The legal standard didn't change

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<v Speaker 1>and the claims that are being made are essentially identical.

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<v Speaker 1>So why did this go down? Are you forcing your

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<v Speaker 1>adjudicators to violate the law. There's even adjudicators in the

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<v Speaker 1>Asylum Officers Union that are raising complaints about this that

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<v Speaker 1>they feel that they're being forced to deny claims contrary

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<v Speaker 1>to law. Well, I need to map all these cases

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<v Speaker 1>out because it's getting very confusing at this point. Thanks

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<v Speaker 1>so much, Leon for keeping it straight. That's Leon Presco,

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<v Speaker 1>a partner at hollanden Night. Thanks for listening to the

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<v Speaker 1>Bloomberg Lawn podcast. You can subscribe and listen to the

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

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