WEBVTT - One Solution to the Border Crisis

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<v Speaker 1>This is Bloomberg Law with June Bresso from Bloomberg Radio.

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<v Speaker 1>Last month, migrants attempted to cross the US Mexico border

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<v Speaker 1>at the highest level in two decades. This as the

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<v Speaker 1>US prepares for even larger numbers with the expected lifting

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<v Speaker 1>of a pandemic error order that turned away asylum seekers

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<v Speaker 1>with COVID nineteen cases in decline. The Biden administration has

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<v Speaker 1>said it intends to end the use of Title forty

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<v Speaker 1>two at the border on May twenty three. Title forty

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<v Speaker 1>two is the public health authority that used the threat

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<v Speaker 1>of COVID nineteen to deny migrants a chance to seek asylum.

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<v Speaker 1>Joining me is Leon Fresco, a partner at Holland and Night.

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<v Speaker 1>He was the head of the Office of Immigration Litigation

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<v Speaker 1>during the Obama administration. Republican governors are complaining about the

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<v Speaker 1>recision of Title forty two. Even Democrats are complaining that

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<v Speaker 1>the Biden administration isn't prepared where the influx of migrants

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

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<v Speaker 1>and the answer is that what we need to do

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<v Speaker 1>is not to think about this debate in the current

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<v Speaker 1>palse binary choice and think about it as how do

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<v Speaker 1>we have an orderly process the process asylum seekers on

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<v Speaker 1>the southern border. Right now, the choices are both bad.

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<v Speaker 1>You have on one side a group of people saying

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<v Speaker 1>you have to keep Title forty two in place. You

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<v Speaker 1>have to ban every asylum seeker who wants to come

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<v Speaker 1>into the United States, regardless of whether they're from Ukraine,

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<v Speaker 1>or whether they're from Cuba, or whether they're from Nicaragua

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<v Speaker 1>or Venezuela, poor countries where there are clearly political instability

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<v Speaker 1>and where there actually are legitimate asylum seekers, or whether

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

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<v Speaker 1>So that's one group, and then you have another group

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<v Speaker 1>saying lift Title forty two and let everybody who wants

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<v Speaker 1>to apply for asylum in the United States enter the

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<v Speaker 1>United States and for years before their case has heard.

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<v Speaker 1>And so the truth is there are ways administratively and legislatively,

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<v Speaker 1>but if legislation can't be done administratively to try to

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<v Speaker 1>create a more orderly fashion with regard to how asylum

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<v Speaker 1>cases are brought into the United States. So let's start

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<v Speaker 1>with the administrative which the Biden administration then could just enact.

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<v Speaker 1>So the way you would do this is as follows.

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<v Speaker 1>You could announce a number. So let's say just you

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<v Speaker 1>pick the number twenty five hundred per day, and you

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<v Speaker 1>can say, we are going to process on our ports

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<v Speaker 1>of entry twenty hundred asylum cases per day. And so

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<v Speaker 1>what that would actually be is if you multiply undred

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<v Speaker 1>times three hundred and sixty five days a year, a

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<v Speaker 1>million people per year. You're saying would be able to

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<v Speaker 1>come to our port of entry and declare themselves as

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<v Speaker 1>someone who wants to seek asylum in the United States,

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<v Speaker 1>and you would actually space them out between the many

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<v Speaker 1>ports of entries along this southern order, so that no

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<v Speaker 1>particular port of entry actually saw a surge. And then

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<v Speaker 1>you would tell people here, you go to this port

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<v Speaker 1>of entry, go to that one. And in addition to that,

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<v Speaker 1>with a combination of keeping Title forty two in between

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<v Speaker 1>the ports of entry and using the Migration Protection Protocols

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<v Speaker 1>also known as remained in Mexico for other cases that

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<v Speaker 1>there simply is no capacity to process through the ports

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<v Speaker 1>of entry, you could actually restrict the traffic in between

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<v Speaker 1>the ports of entry because the problem that happens now

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<v Speaker 1>is there aren't asylum cases being processed at the ports

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<v Speaker 1>of entry, which is where they should be processed. These

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<v Speaker 1>are the bridges that connect Mexico to the United States,

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<v Speaker 1>where there are already CBP personnel there. That's where the

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<v Speaker 1>cases should be going, but in an orderly and spaced fashion.

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

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<v Speaker 1>if you're going to cross between the port of entry,

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

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<v Speaker 1>because what you're gonna be doing if you search in

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<v Speaker 1>between the ports of entry is you're gonna be creating

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<v Speaker 1>situations where large numbers of people have to be held

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<v Speaker 1>in holding cells for days and days at a time, adults, children,

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<v Speaker 1>all together, and that actually does create a health risk

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<v Speaker 1>for the people in those cells and for the people

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<v Speaker 1>guarding the people in those cells. And so that's how

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<v Speaker 1>I would do it, June is. I would try to say,

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<v Speaker 1>have a million people that you're gonna be able to

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<v Speaker 1>see through the asylum process, and have that come in

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

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<v Speaker 1>meaning day that want to come along the southern border,

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<v Speaker 1>then you're telling them you will have to use the

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<v Speaker 1>process where you apply for asylum from within Mexico. But

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<v Speaker 1>we will give you the expedited process, but if you

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<v Speaker 1>try to go in between the ports of entry, you're

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<v Speaker 1>gonna be excluded visa the title four the two number

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<v Speaker 1>one and number two, you will actually be precluded from

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<v Speaker 1>applying for asylum as the deterrent for not trying to

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<v Speaker 1>do that. There are ways to do this, and they

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<v Speaker 1>just have to come up with a practical plan. And

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<v Speaker 1>by the way, if you processed a million people through

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<v Speaker 1>the ports of entry, that would be more than have

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<v Speaker 1>ever been processed before, So it would be a great

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<v Speaker 1>humanitarian process to process those million people. And if there's

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<v Speaker 1>more than that who in a given year now wants

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<v Speaker 1>to actually apply for asylum again, we would use the

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<v Speaker 1>expedited remain in Mexico policy for those individuals while they

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<v Speaker 1>waited for their asylum place. What's the average number of

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<v Speaker 1>migrants processed yearly? So on a normal year, And the

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<v Speaker 1>problem is COVID has made this sort of a difficult

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<v Speaker 1>thing to consider. What is a normal year, because the

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<v Speaker 1>last three or four years haven't been normal. But in

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<v Speaker 1>a normal year, we're talking about somewhere between five hundred

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<v Speaker 1>thousand and one million total border crossers. Not all of

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<v Speaker 1>those people even want asylum. They're just people apprehended crossing

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<v Speaker 1>the border into the United States, and some are allowed

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<v Speaker 1>to come in and apply for asylum, and some don't

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<v Speaker 1>even say that they have any asylum plates. And so

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<v Speaker 1>what we would be talking about here is replacing that

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<v Speaker 1>with ad per day actual asylum seeker pool, like actually

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<v Speaker 1>goes into the ports of entry and actually gets processed.

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<v Speaker 1>So you may have a hundred people a day going

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<v Speaker 1>in through the San Diego port of entry, or a

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<v Speaker 1>hundred people a day going through the Brownsville port of entry,

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<v Speaker 1>all along the southern border, El Paso, et cetera. And

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<v Speaker 1>you could actually coordinate that with nonprofits so that you

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<v Speaker 1>could actually steer people to the ports of entry that

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<v Speaker 1>have less traffic, and that would actually be a way

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<v Speaker 1>to make this process orderly, so that you're not giving

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<v Speaker 1>up on the commitments to help refugees who need help,

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<v Speaker 1>but you're not in the sort of worst case scenario

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<v Speaker 1>that DHS is talking about. And I don't know how

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<v Speaker 1>realistic their worst case scenario is, but the worst case

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

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<v Speaker 1>and so that would be six million people in a year.

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<v Speaker 1>And if there really is that that would be unsustainable

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<v Speaker 1>at an order of magnitude that we've never seen on

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<v Speaker 1>the border before. I literally don't know how we would

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<v Speaker 1>even process that many people. Would there be an objection

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<v Speaker 1>to setting a number at all? Would people say, you

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<v Speaker 1>know you're not supposed to set numbers at the border,

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

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<v Speaker 1>I don't think you're setting a number as a cap

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<v Speaker 1>in this situation. But what you're doing is you're trying

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<v Speaker 1>to determine realistically, how many appointments per day can you

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<v Speaker 1>have at the San Diego Port of Injury without bogging

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<v Speaker 1>that down for its normal operations. The same question for Brownsville,

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<v Speaker 1>the same question for El Paso, the same question for

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

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<v Speaker 1>believe you could very easily process day total along the

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<v Speaker 1>southern border, but maybe you could process or maybe you

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<v Speaker 1>end up finding out you can only process sift hundred,

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<v Speaker 1>whatever that number is. I would just encourage them to

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<v Speaker 1>process the maximum number that could be processed along the

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<v Speaker 1>Southern border on a daily basis, and then if there

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<v Speaker 1>are more than that, the point is you simply cannot

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<v Speaker 1>take matters into your own hands and go in between

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<v Speaker 1>the ports of entry. What we should do there is

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<v Speaker 1>work with Mexico to establish safe locations that are protected

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<v Speaker 1>and are safe for people to wait either for their

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<v Speaker 1>appointment to come through the ports of entry or to

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<v Speaker 1>literally pursue their asylum claim from that location. And we

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<v Speaker 1>could even provide counsel for those individuals to allow them

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<v Speaker 1>to make their claim. And by doing it and providing

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<v Speaker 1>counsel just at those locations, you might be actually giving

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<v Speaker 1>an incentive to stay because they'll actually have representation, whereas

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<v Speaker 1>that representation might not be guaranteed to them if they

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<v Speaker 1>enter the United States. So there's lots of ways to

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<v Speaker 1>think creatively. But what has to be done is that

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<v Speaker 1>this debate about keeping or ending Title forty two just

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<v Speaker 1>as a blanket option without any delineation, that debate really

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<v Speaker 1>needs to change because it's not productive for anyone involved.

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<v Speaker 1>So that's the administrative solution. What's the legislative solution you

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<v Speaker 1>have in mind? If you wanted to actually operationalize this

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<v Speaker 1>with the consent of the Congress, then the Congress could

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<v Speaker 1>actually create this by statute. And what the Congress would

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<v Speaker 1>actually do is you something that would make it much stronger,

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<v Speaker 1>which would be to say, if you go in between

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<v Speaker 1>the ports of entry, once we've decided to allow people

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<v Speaker 1>per day in the southern border to go through the

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

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<v Speaker 1>The only thing you could get would be withholding of removal,

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<v Speaker 1>which is a very temporary relief or what's called Convention

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<v Speaker 1>against Torture relief if you could prove you're gonna be

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<v Speaker 1>tortured in your home country. So the Congress could actually

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<v Speaker 1>enact that and say, look, we are gonna buy law

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<v Speaker 1>force people to go in between the ports of entry.

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<v Speaker 1>But what would also be necessary would be to guarantee

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<v Speaker 1>slots through those sports of entries to make sure that

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<v Speaker 1>no future president would actually get rid of those slots

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<v Speaker 1>number one and then number two, and a trade could

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<v Speaker 1>actually be made in my view at this point, given

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<v Speaker 1>where the Supreme Court is headed on DOCA most likely,

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<v Speaker 1>which is to invalidate data, is you could actually make

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<v Speaker 1>a trade to help the Dreamers in exchange for this

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<v Speaker 1>border security measure. And I think that benefits both sides

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<v Speaker 1>in that situation, because these two issues have been very

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<v Speaker 1>difficult for both sides the Dreamer issue has been pretty

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<v Speaker 1>positive for the Democrats and it's been a harder one

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<v Speaker 1>for the Republicans to grapple with. And the border issue

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<v Speaker 1>has been sort of a winner for the Republicans, have

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<v Speaker 1>been harder for the Democrats to grapple with. You could

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<v Speaker 1>put these two issues together and solve these two problems

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<v Speaker 1>at once in a durable way for both parties. Does

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<v Speaker 1>word get out that you know, you have to get

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<v Speaker 1>an appointment and you have to do this, or do

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<v Speaker 1>people still end up showing up at the border. The

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<v Speaker 1>people who are coming to the United States are quite

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<v Speaker 1>sophisticated for the most part about their strategy and their

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<v Speaker 1>plan for entering the United States. For instance, once Ukrainians

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<v Speaker 1>learned that they were getting paroled at the Southern border,

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<v Speaker 1>you started to see many more Ukrainians actually appear at

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<v Speaker 1>one specific location in the southern border where they had

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<v Speaker 1>heard that other Ukrainians were being paroled into the United States.

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<v Speaker 1>And parole is actually being given legal status that allows

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<v Speaker 1>you to enter legally and allows you to work legally

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<v Speaker 1>while you're in the United States, which is something that

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

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<v Speaker 1>And so my point being, even if both don't know,

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<v Speaker 1>if they try to cross the border without permission, the

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<v Speaker 1>Border Patrol can tell them, Look, here's what you have

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<v Speaker 1>to do. You have to turn back and ask for

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<v Speaker 1>an appointment. And here's how you ask for an appointment,

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<v Speaker 1>and here the NGOs that are working with this, or

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<v Speaker 1>here's the website that you go to to ask for

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

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<v Speaker 1>assistance to get the appointment, but people are getting assistance

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<v Speaker 1>to do a lot more within the context of this trip.

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<v Speaker 1>It would be actually a lot easier to show up

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<v Speaker 1>at a specific appointment at a specific port of entry

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<v Speaker 1>than it is to try to guess where across at

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<v Speaker 1>what time of day so that you're least likely to

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<v Speaker 1>be apprehended, or on the other hand, where it is

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<v Speaker 1>to cross where you're most likely you know you're gonna

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<v Speaker 1>be apprehended, but you're least likely to be detained long

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<v Speaker 1>term by the CBP or by ICE at a specific location.

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<v Speaker 1>So there really is, for better or for worse, a

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<v Speaker 1>lot of intelligence going on on both sides of this,

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<v Speaker 1>on the US government side and on the side of

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<v Speaker 1>people bringing people in through the Southern border. And so

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<v Speaker 1>if you were to announce such a change, you would

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<v Speaker 1>see pretty quickly an adaptation to the new state of

0:13:10.440 --> 0:13:13.160
<v Speaker 1>affairs on the southern border. I want to talk about

0:13:13.360 --> 0:13:17.360
<v Speaker 1>the lawsuit. Now. Eighteen Republican attorneys general have joined the

0:13:17.440 --> 0:13:22.280
<v Speaker 1>lawsuit that was filed by Arizona, Louisiana, Missouri earlier this month.

0:13:22.480 --> 0:13:26.960
<v Speaker 1>Refresh our recollection what the basis of that lawsuit is? Sure.

0:13:27.080 --> 0:13:29.600
<v Speaker 1>The basis of that lawsuit is twofold. One that the

0:13:29.640 --> 0:13:33.760
<v Speaker 1>action is arbitrary and capricious, and two that they required

0:13:33.800 --> 0:13:37.920
<v Speaker 1>some sort of notice and comment before eliminating Title forty two,

0:13:38.040 --> 0:13:42.880
<v Speaker 1>both claims being administrative procedure at claims. And so the

0:13:42.960 --> 0:13:45.160
<v Speaker 1>question that the states are going to be making is

0:13:45.920 --> 0:13:50.840
<v Speaker 1>why is the Biden administration doing only some things related

0:13:50.880 --> 0:13:53.920
<v Speaker 1>to COVID and not others. So, for instance, why would

0:13:53.920 --> 0:13:56.640
<v Speaker 1>you eliminate Title forty two but not eliminate the mask

0:13:56.720 --> 0:13:59.160
<v Speaker 1>mandate in the airports, Or why would you eliminate Title

0:13:59.200 --> 0:14:03.000
<v Speaker 1>forty two but not eliminate the testing requirements for U

0:14:03.120 --> 0:14:06.040
<v Speaker 1>S citizens to re enter the United States on airplanes.

0:14:06.320 --> 0:14:08.760
<v Speaker 1>And so those are the claims that are going to

0:14:08.800 --> 0:14:10.240
<v Speaker 1>be made, and it's going to be up to the

0:14:10.280 --> 0:14:14.160
<v Speaker 1>individual judge to decide whether it does seem to that

0:14:14.240 --> 0:14:16.920
<v Speaker 1>judge to be an arbitrary and capricious fact or not,

0:14:17.280 --> 0:14:20.280
<v Speaker 1>or even if this is reviewable at all by the courts,

0:14:20.360 --> 0:14:23.440
<v Speaker 1>because Congress really made an effort that these Title forty

0:14:23.440 --> 0:14:27.680
<v Speaker 1>two decisions wouldn't be reviewable, and so it seems like

0:14:27.760 --> 0:14:29.880
<v Speaker 1>the first difficulty would be would a judge be able

0:14:29.920 --> 0:14:33.040
<v Speaker 1>to find that this is reviewable at all? But if

0:14:33.040 --> 0:14:36.240
<v Speaker 1>a judge could find that it's reviewable, then is an

0:14:36.320 --> 0:14:40.320
<v Speaker 1>arbitrary and caprecion. But I do anticipate, just because of

0:14:40.320 --> 0:14:42.640
<v Speaker 1>how many states are involved in and how many different

0:14:42.640 --> 0:14:45.760
<v Speaker 1>places they can see, that you'll probably see at least

0:14:45.840 --> 0:14:49.080
<v Speaker 1>one district court judge if this case doesn't work in

0:14:49.200 --> 0:14:53.920
<v Speaker 1>some other court joining the Title forty two, and then

0:14:53.960 --> 0:14:56.480
<v Speaker 1>that will have to work this way through the upper

0:14:56.560 --> 0:14:59.080
<v Speaker 1>levels of the court. Thanks for your insights, Leon, as

0:14:59.120 --> 0:15:02.640
<v Speaker 1>always that Leon Fresco of Holland and Night. And that's

0:15:02.640 --> 0:15:05.280
<v Speaker 1>it for this edition of the Bloomberg Law Show. Remember

0:15:05.320 --> 0:15:07.360
<v Speaker 1>you can always get the latest legal news on our

0:15:07.400 --> 0:15:11.520
<v Speaker 1>Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify,

0:15:11.760 --> 0:15:16.760
<v Speaker 1>and at www dot bloomberg dot com. Slash podcast slash law,

0:15:17.200 --> 0:15:19.800
<v Speaker 1>and remember to tune into The Bloomberg Law Show every

0:15:19.840 --> 0:15:23.280
<v Speaker 1>week night at ten pm Wall Street Time. I'm June

0:15:23.320 --> 0:15:25.479
<v Speaker 1>Grosso and you're listening to Bloomberg