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

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Speaker 1: Last month, migrants attempted to cross the US Mexico border

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Speaker 1: at the highest level in two decades. This as the

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Speaker 1: US prepares for even larger numbers with the expected lifting

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Speaker 1: of a pandemic error order that turned away asylum seekers

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Speaker 1: with COVID nineteen cases in decline. The Biden administration has

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Speaker 1: said it intends to end the use of Title forty

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Speaker 1: two at the border on May twenty three. Title forty

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Speaker 1: two is the public health authority that used the threat

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Speaker 1: of COVID nineteen to deny migrants a chance to seek asylum.

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Speaker 1: Joining me is Leon Fresco, a partner at Holland and Night.

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Speaker 1: He was the head of the Office of Immigration Litigation

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Speaker 1: during the Obama administration. Republican governors are complaining about the

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Speaker 1: recision of Title forty two. Even Democrats are complaining that

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Speaker 1: the Biden administration isn't prepared where the influx of migrants

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Speaker 1: when Title forty two ends. So is there an answer, yes, Jude,

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Speaker 1: and the answer is that what we need to do

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Speaker 1: is not to think about this debate in the current

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Speaker 1: palse binary choice and think about it as how do

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Speaker 1: we have an orderly process the process asylum seekers on

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Speaker 1: the southern border. Right now, the choices are both bad.

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Speaker 1: You have on one side a group of people saying

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Speaker 1: you have to keep Title forty two in place. You

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Speaker 1: have to ban every asylum seeker who wants to come

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Speaker 1: into the United States, regardless of whether they're from Ukraine,

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Speaker 1: or whether they're from Cuba, or whether they're from Nicaragua

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Speaker 1: or Venezuela, poor countries where there are clearly political instability

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Speaker 1: and where there actually are legitimate asylum seekers, or whether

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Speaker 1: they're from countries where there might not be legitimate asylum claims.

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Speaker 1: So that's one group, and then you have another group

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Speaker 1: saying lift Title forty two and let everybody who wants

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Speaker 1: to apply for asylum in the United States enter the

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Speaker 1: United States and for years before their case has heard.

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Speaker 1: And so the truth is there are ways administratively and legislatively,

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Speaker 1: but if legislation can't be done administratively to try to

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Speaker 1: create a more orderly fashion with regard to how asylum

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Speaker 1: cases are brought into the United States. So let's start

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Speaker 1: with the administrative which the Biden administration then could just enact.

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Speaker 1: So the way you would do this is as follows.

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Speaker 1: You could announce a number. So let's say just you

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Speaker 1: pick the number twenty five hundred per day, and you

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Speaker 1: can say, we are going to process on our ports

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Speaker 1: of entry twenty hundred asylum cases per day. And so

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Speaker 1: what that would actually be is if you multiply undred

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Speaker 1: times three hundred and sixty five days a year, a

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Speaker 1: million people per year. You're saying would be able to

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Speaker 1: come to our port of entry and declare themselves as

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Speaker 1: someone who wants to seek asylum in the United States,

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Speaker 1: and you would actually space them out between the many

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Speaker 1: ports of entries along this southern order, so that no

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Speaker 1: particular port of entry actually saw a surge. And then

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Speaker 1: you would tell people here, you go to this port

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Speaker 1: of entry, go to that one. And in addition to that,

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Speaker 1: with a combination of keeping Title forty two in between

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Speaker 1: the ports of entry and using the Migration Protection Protocols

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Speaker 1: also known as remained in Mexico for other cases that

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Speaker 1: there simply is no capacity to process through the ports

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Speaker 1: of entry, you could actually restrict the traffic in between

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Speaker 1: the ports of entry because the problem that happens now

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Speaker 1: is there aren't asylum cases being processed at the ports

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Speaker 1: of entry, which is where they should be processed. These

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Speaker 1: are the bridges that connect Mexico to the United States,

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Speaker 1: where there are already CBP personnel there. That's where the

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Speaker 1: cases should be going, but in an orderly and spaced fashion.

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Speaker 1: And then tell people if you're going to not use this,

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Speaker 1: if you're going to cross between the port of entry,

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Speaker 1: that's where we're gonna keep Title forty two in place,

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Speaker 1: because what you're gonna be doing if you search in

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Speaker 1: between the ports of entry is you're gonna be creating

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Speaker 1: situations where large numbers of people have to be held

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Speaker 1: in holding cells for days and days at a time, adults, children,

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Speaker 1: all together, and that actually does create a health risk

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Speaker 1: for the people in those cells and for the people

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Speaker 1: guarding the people in those cells. And so that's how

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Speaker 1: I would do it, June is. I would try to say,

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Speaker 1: have a million people that you're gonna be able to

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Speaker 1: see through the asylum process, and have that come in

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Speaker 1: through an orderly fashion. And if there's more people than that,

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Speaker 1: meaning day that want to come along the southern border,

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Speaker 1: then you're telling them you will have to use the

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Speaker 1: process where you apply for asylum from within Mexico. But

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Speaker 1: we will give you the expedited process, but if you

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Speaker 1: try to go in between the ports of entry, you're

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Speaker 1: gonna be excluded visa the title four the two number

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Speaker 1: one and number two, you will actually be precluded from

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Speaker 1: applying for asylum as the deterrent for not trying to

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Speaker 1: do that. There are ways to do this, and they

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Speaker 1: just have to come up with a practical plan. And

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Speaker 1: by the way, if you processed a million people through

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Speaker 1: the ports of entry, that would be more than have

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Speaker 1: ever been processed before, So it would be a great

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Speaker 1: humanitarian process to process those million people. And if there's

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Speaker 1: more than that who in a given year now wants

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Speaker 1: to actually apply for asylum again, we would use the

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Speaker 1: expedited remain in Mexico policy for those individuals while they

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Speaker 1: waited for their asylum place. What's the average number of

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Speaker 1: migrants processed yearly? So on a normal year, And the

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Speaker 1: problem is COVID has made this sort of a difficult

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Speaker 1: thing to consider. What is a normal year, because the

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Speaker 1: last three or four years haven't been normal. But in

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Speaker 1: a normal year, we're talking about somewhere between five hundred

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Speaker 1: thousand and one million total border crossers. Not all of

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Speaker 1: those people even want asylum. They're just people apprehended crossing

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Speaker 1: the border into the United States, and some are allowed

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Speaker 1: to come in and apply for asylum, and some don't

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Speaker 1: even say that they have any asylum plates. And so

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Speaker 1: what we would be talking about here is replacing that

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Speaker 1: with ad per day actual asylum seeker pool, like actually

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Speaker 1: goes into the ports of entry and actually gets processed.

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Speaker 1: So you may have a hundred people a day going

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Speaker 1: in through the San Diego port of entry, or a

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Speaker 1: hundred people a day going through the Brownsville port of entry,

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Speaker 1: all along the southern border, El Paso, et cetera. And

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Speaker 1: you could actually coordinate that with nonprofits so that you

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Speaker 1: could actually steer people to the ports of entry that

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Speaker 1: have less traffic, and that would actually be a way

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Speaker 1: to make this process orderly, so that you're not giving

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Speaker 1: up on the commitments to help refugees who need help,

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Speaker 1: but you're not in the sort of worst case scenario

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Speaker 1: that DHS is talking about. And I don't know how

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Speaker 1: realistic their worst case scenario is, but the worst case

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Speaker 1: scenario that they've told Congress is eighteen thousand people a day,

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Speaker 1: and so that would be six million people in a year.

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Speaker 1: And if there really is that that would be unsustainable

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Speaker 1: at an order of magnitude that we've never seen on

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Speaker 1: the border before. I literally don't know how we would

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Speaker 1: even process that many people. Would there be an objection

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Speaker 1: to setting a number at all? Would people say, you

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Speaker 1: know you're not supposed to set numbers at the border,

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Speaker 1: or will there be still objections if you set a number? Well,

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Speaker 1: I don't think you're setting a number as a cap

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Speaker 1: in this situation. But what you're doing is you're trying

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Speaker 1: to determine realistically, how many appointments per day can you

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Speaker 1: have at the San Diego Port of Injury without bogging

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Speaker 1: that down for its normal operations. The same question for Brownsville,

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Speaker 1: the same question for El Paso, the same question for

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Speaker 1: no Gallus. And then you're adding those up, and I

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Speaker 1: believe you could very easily process day total along the

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Speaker 1: southern border, but maybe you could process or maybe you

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Speaker 1: end up finding out you can only process sift hundred,

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Speaker 1: whatever that number is. I would just encourage them to

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Speaker 1: process the maximum number that could be processed along the

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Speaker 1: Southern border on a daily basis, and then if there

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Speaker 1: are more than that, the point is you simply cannot

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Speaker 1: take matters into your own hands and go in between

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Speaker 1: the ports of entry. What we should do there is

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Speaker 1: work with Mexico to establish safe locations that are protected

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Speaker 1: and are safe for people to wait either for their

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Speaker 1: appointment to come through the ports of entry or to

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Speaker 1: literally pursue their asylum claim from that location. And we

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Speaker 1: could even provide counsel for those individuals to allow them

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Speaker 1: to make their claim. And by doing it and providing

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Speaker 1: counsel just at those locations, you might be actually giving

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Speaker 1: an incentive to stay because they'll actually have representation, whereas

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Speaker 1: that representation might not be guaranteed to them if they

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Speaker 1: enter the United States. So there's lots of ways to

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Speaker 1: think creatively. But what has to be done is that

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Speaker 1: this debate about keeping or ending Title forty two just

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Speaker 1: as a blanket option without any delineation, that debate really

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Speaker 1: needs to change because it's not productive for anyone involved.

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Speaker 1: So that's the administrative solution. What's the legislative solution you

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Speaker 1: have in mind? If you wanted to actually operationalize this

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Speaker 1: with the consent of the Congress, then the Congress could

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Speaker 1: actually create this by statute. And what the Congress would

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Speaker 1: actually do is you something that would make it much stronger,

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Speaker 1: which would be to say, if you go in between

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Speaker 1: the ports of entry, once we've decided to allow people

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Speaker 1: per day in the southern border to go through the

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Speaker 1: ports of entry, then you're actually statutorially banned from getting asylum.

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Speaker 1: The only thing you could get would be withholding of removal,

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Speaker 1: which is a very temporary relief or what's called Convention

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Speaker 1: against Torture relief if you could prove you're gonna be

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Speaker 1: tortured in your home country. So the Congress could actually

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Speaker 1: enact that and say, look, we are gonna buy law

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Speaker 1: force people to go in between the ports of entry.

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Speaker 1: But what would also be necessary would be to guarantee

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Speaker 1: slots through those sports of entries to make sure that

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Speaker 1: no future president would actually get rid of those slots

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Speaker 1: number one and then number two, and a trade could

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Speaker 1: actually be made in my view at this point, given

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Speaker 1: where the Supreme Court is headed on DOCA most likely,

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Speaker 1: which is to invalidate data, is you could actually make

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Speaker 1: a trade to help the Dreamers in exchange for this

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Speaker 1: border security measure. And I think that benefits both sides

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Speaker 1: in that situation, because these two issues have been very

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Speaker 1: difficult for both sides the Dreamer issue has been pretty

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Speaker 1: positive for the Democrats and it's been a harder one

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Speaker 1: for the Republicans to grapple with. And the border issue

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Speaker 1: has been sort of a winner for the Republicans, have

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Speaker 1: been harder for the Democrats to grapple with. You could

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Speaker 1: put these two issues together and solve these two problems

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Speaker 1: at once in a durable way for both parties. Does

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Speaker 1: word get out that you know, you have to get

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Speaker 1: an appointment and you have to do this, or do

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Speaker 1: people still end up showing up at the border. The

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Speaker 1: people who are coming to the United States are quite

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Speaker 1: sophisticated for the most part about their strategy and their

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Speaker 1: plan for entering the United States. For instance, once Ukrainians

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Speaker 1: learned that they were getting paroled at the Southern border,

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Speaker 1: you started to see many more Ukrainians actually appear at

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Speaker 1: one specific location in the southern border where they had

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Speaker 1: heard that other Ukrainians were being paroled into the United States.

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Speaker 1: And parole is actually being given legal status that allows

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Speaker 1: you to enter legally and allows you to work legally

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Speaker 1: while you're in the United States, which is something that

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Speaker 1: a lot of other countries aren't getting, but Ukrainians are getting.

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Speaker 1: And so my point being, even if both don't know,

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Speaker 1: if they try to cross the border without permission, the

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Speaker 1: Border Patrol can tell them, Look, here's what you have

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Speaker 1: to do. You have to turn back and ask for

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Speaker 1: an appointment. And here's how you ask for an appointment,

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Speaker 1: and here the NGOs that are working with this, or

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Speaker 1: here's the website that you go to to ask for

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Speaker 1: this appointment. And yes, they'll have to go and get

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Speaker 1: assistance to get the appointment, but people are getting assistance

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Speaker 1: to do a lot more within the context of this trip.

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Speaker 1: It would be actually a lot easier to show up

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Speaker 1: at a specific appointment at a specific port of entry

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Speaker 1: than it is to try to guess where across at

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Speaker 1: what time of day so that you're least likely to

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Speaker 1: be apprehended, or on the other hand, where it is

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Speaker 1: to cross where you're most likely you know you're gonna

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Speaker 1: be apprehended, but you're least likely to be detained long

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Speaker 1: term by the CBP or by ICE at a specific location.

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Speaker 1: So there really is, for better or for worse, a

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Speaker 1: lot of intelligence going on on both sides of this,

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Speaker 1: on the US government side and on the side of

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Speaker 1: people bringing people in through the Southern border. And so

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Speaker 1: if you were to announce such a change, you would

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Speaker 1: see pretty quickly an adaptation to the new state of

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Speaker 1: affairs on the southern border. I want to talk about

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Speaker 1: the lawsuit. Now. Eighteen Republican attorneys general have joined the

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Speaker 1: lawsuit that was filed by Arizona, Louisiana, Missouri earlier this month.

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Speaker 1: Refresh our recollection what the basis of that lawsuit is? Sure.

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Speaker 1: The basis of that lawsuit is twofold. One that the

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Speaker 1: action is arbitrary and capricious, and two that they required

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Speaker 1: some sort of notice and comment before eliminating Title forty two,

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Speaker 1: both claims being administrative procedure at claims. And so the

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Speaker 1: question that the states are going to be making is

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Speaker 1: why is the Biden administration doing only some things related

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Speaker 1: to COVID and not others. So, for instance, why would

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Speaker 1: you eliminate Title forty two but not eliminate the mask

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Speaker 1: mandate in the airports, Or why would you eliminate Title

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Speaker 1: forty two but not eliminate the testing requirements for U

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Speaker 1: S citizens to re enter the United States on airplanes.

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Speaker 1: And so those are the claims that are going to

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Speaker 1: be made, and it's going to be up to the

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Speaker 1: individual judge to decide whether it does seem to that

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Speaker 1: judge to be an arbitrary and capricious fact or not,

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Speaker 1: or even if this is reviewable at all by the courts,

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Speaker 1: because Congress really made an effort that these Title forty

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Speaker 1: two decisions wouldn't be reviewable, and so it seems like

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Speaker 1: the first difficulty would be would a judge be able

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Speaker 1: to find that this is reviewable at all? But if

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Speaker 1: a judge could find that it's reviewable, then is an

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Speaker 1: arbitrary and caprecion. But I do anticipate, just because of

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Speaker 1: how many states are involved in and how many different

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Speaker 1: places they can see, that you'll probably see at least

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Speaker 1: one district court judge if this case doesn't work in

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Speaker 1: some other court joining the Title forty two, and then

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Speaker 1: that will have to work this way through the upper

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Speaker 1: levels of the court. Thanks for your insights, Leon, as

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Speaker 1: always that Leon Fresco of Holland and Night. And that's

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Speaker 1: it for this edition of the Bloomberg Law Show. Remember

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Speaker 1: you can always get the latest legal news on our

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Speaker 1: Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify,

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Speaker 1: and at www dot bloomberg dot com. Slash podcast slash law,

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Speaker 1: and remember to tune into The Bloomberg Law Show every

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Speaker 1: week night at ten pm Wall Street Time. I'm June

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Speaker 1: Grosso and you're listening to Bloomberg