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

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Speaker 2: They have a gag order, which to me is totally unconstitutional.

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Speaker 2: I'm not allowed to talk, but people are allowed to

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Speaker 2: talk about me, So they can talk about me. They

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Speaker 2: can say whatever they want, they can lie, but I'm

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Speaker 2: not allowed to say it. And I just have to

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Speaker 2: sit back and look at by a conflicting judge.

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Speaker 3: It's ordered me to have a gag order.

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Speaker 2: I don't think anybody's ever seen anything like this.

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Speaker 4: After trial today in the hush money case, Donald Trump

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Speaker 4: complained about the gag order preventing him from disparaging witnesses.

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Speaker 4: Of course, yesterday it seemed pretty clear that the former

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Speaker 4: president had violated the order on camera with his attorney

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Speaker 4: looking on disparaging the prosecution's star witness, Michael Cohen.

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Speaker 5: Because as you know, Colin is a lawyer representative people

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Speaker 5: over the years.

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Speaker 2: Now I'm not the only one, and.

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Speaker 5: Wasn't very good in a lot of ways in terms

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Speaker 5: of this representation.

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Speaker 2: But he represented a lot of people. But he puts.

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Speaker 5: In an invoice or whatever, a bill and they paid

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Speaker 5: to go to a legal expense. I got indicted for that.

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Speaker 5: And this is what they try and take me off

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Speaker 5: the trail for that checks being paid to a lawyer.

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Speaker 5: He is a lawyer or was a lawyer. And also

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Speaker 5: the things he got in trouble for were things that

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Speaker 5: had nothing to do with me.

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Speaker 2: He got in trouble, he went to jail. This had

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Speaker 2: nothing to do with me. This had to do with

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Speaker 2: the taxi gear, the company that he owned, which is

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Speaker 2: just something young.

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Speaker 5: And me, dagions and borrowing the money, and a lot

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Speaker 5: of things, but had nothing to do with me.

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Speaker 2: He represented a lot of people over the years.

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Speaker 4: Joining me from the courthouse in Lower Manhattan is Bloomberg

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Speaker 4: Legal reporter Patricia Hertie, who was in the courtroom for

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Speaker 4: some heated arguments this morning over the prosecution's request that

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Speaker 4: Trump be found in contempt of court for his social

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Speaker 4: media posts that they say violated the gag order.

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Speaker 6: Pat tell us.

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Speaker 4: About the prosecutor's argument for finding Trump in contempt and

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Speaker 4: the defense attorney Todd Blanche's argument against well.

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Speaker 7: They said, He's repeatedly made these postings on truth social

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Speaker 7: and reposted other statements by other people as a result,

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Speaker 7: end up criticizing and slamming and characterizing the veracity of

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Speaker 7: the witnesses, which were they say is a violation of

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Speaker 7: the gag order. And Todd Blanche was basically saying, reposting

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Speaker 7: these statements aren't Trump's false, but Trump, basically, you know,

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Speaker 7: is reposting statements. So it's not Trump's responsibility when he

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Speaker 7: reposts them, it's the people who originally posted them. And

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Speaker 7: the judge was kind of getting in a little impatient

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Speaker 7: with Todd Blanche's argument, you know, you're losing credibility here,

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Speaker 7: called his arguments silly. At one point.

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Speaker 4: Todd Blanch also argued that you know, this was political

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Speaker 4: speech and Trump had the right to respond to a

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Speaker 4: barrage of political attacks from witnesses, and the judge said,

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Speaker 4: you've presented nothing, and I've asked you eight or nine

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Speaker 4: times to support your arguments.

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Speaker 7: There's no evidence because it's the postings that Todd Blanche

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Speaker 7: was saying. Trump was responding to, we're not about politics

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Speaker 7: or the campaign for president, but we're all about Trump

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Speaker 7: commenting on the veracity of the witnesses that were going

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Speaker 7: to testify against him, including Michael Cohen and Stormy Daniels.

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Speaker 7: Blanche also said that Trump didn't know they were going

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Speaker 7: to be witnesses and the prosecutor, Chris Conry, said that

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Speaker 7: Trump is known for so long that they are key

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Speaker 7: witnesses in the case, so that was kind of stretching

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Speaker 7: the judge of patients there.

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Speaker 4: Did the judge lose patients and actually yell at Blanche

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Speaker 4: he hasn't.

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Speaker 7: Ever raised his voice. We'd all be so lucky to

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Speaker 7: be married to judge mercial so calm and quiet and

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Speaker 7: never seems raised his voice or get impatient. He was

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Speaker 7: getting a little testy, but it's never like yelling. His

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Speaker 7: style is just not that. He's very calm and even

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Speaker 7: calmly responding. You know, this is not political. Show me

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Speaker 7: where this is political. And at one point Blanche argued

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Speaker 7: that when Trump was complaining about someone getting a presidential pardon,

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Speaker 7: that that didn't have anything to do with this case,

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Speaker 7: and it also didn't have anything to do with the

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Speaker 7: campaign and his campaign as presidents. It's not political, and

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Speaker 7: Blanche was insisting it was. I mean, you can see

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Speaker 7: that there were kind of cross purposes there.

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Speaker 4: So they're talking about, you know, Trump's posts and reposts

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Speaker 4: eleven of them. Did anyone mention that Yesterday after court,

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Speaker 4: Trump discussed Michael Cohen and talked about his not being

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Speaker 4: a good lawyer outside the courthouse with his own lawyer

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Speaker 4: looking on.

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Speaker 7: That was not raised, but the prosecutors mentioned that there

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Speaker 7: are other additional time and instances where Trump has, in

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Speaker 7: their view, violated the gag order, which they said they

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Speaker 7: would be providing to the judge as additional evidence to

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Speaker 7: help him make a decision.

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Speaker 1: You know.

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Speaker 7: The other thing that was interesting that kind of caught

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Speaker 7: Todd Blanche was that at one point Blanche said that

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Speaker 7: Trump was reposting something a Fox TV personality had posted,

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Speaker 7: except that the timestamp of the posts showed that Trump

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Speaker 7: posted it first, and he didn't repost what the guy said.

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Speaker 7: He was posting it first, so he wasn't reposting someone

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Speaker 7: else's comments, He was posting his own comments. And the

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Speaker 7: judge basically asked if Trump had manipulated the postings to

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Speaker 7: make it look like he was reposting them when he

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Speaker 7: really wasn't. So this was on first exactly.

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Speaker 4: And the prosecutors didn't even ask for jail time, right,

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Speaker 4: are they just asking for fine?

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Speaker 7: It seems like right now they're sticking to the thousand

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Speaker 7: dollars each the three original violations, meaning three thousand totals,

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Speaker 7: but they wanted Trump to be warned that he better

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Speaker 7: knock it off and stop doing this. One thing that

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Speaker 7: the judge seems visibly concerned about was this did not

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Speaker 7: start until after Trump lost a bid to overturn the

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Speaker 7: gag order. He went to the Appellate Division apparently, and

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Speaker 7: tried to get a Manhattan appeals court overturn the gag order.

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Speaker 7: They refused, and then Trump immediately started tweeting and putting

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Speaker 7: on social media and on true social.

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Speaker 4: And explain the prosecutor's concerns about these posts.

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Speaker 7: Well, the prosecutors are concerned that many of these statements

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Speaker 7: are basically attacking the credibility of their two witnesses. They're

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Speaker 7: also concerned about posting that Trump had made. The one

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Speaker 7: that was an issue with the Fox TV personality was

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Speaker 7: complaining about the liberal jurors and the Democratic operatives that

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Speaker 7: were on the jury, and they were concerned that this

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Speaker 7: could frighten seated jurors on the case and could cause

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Speaker 7: him this trial by influencing her intimidating them. They also

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Speaker 7: argued that one of the jurors after the Fox News

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Speaker 7: posting came out, is the person who asked the excuse

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Speaker 7: last week on Friday because she'd been selected on Thursday,

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Speaker 7: and then she said she couldn't sit anymore, and you know,

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Speaker 7: she didn't want the publicity.

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Speaker 4: The judge didn't rule on the gag order from the bench,

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Speaker 4: and after the arguments, the first prosecution witness retook the stand,

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Speaker 4: David Pecker, the former publisher of The National Inquirer. What

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Speaker 4: was his demeanor like on the stand.

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Speaker 7: Well, it's interesting. I mean today he didn't have the

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Speaker 7: big smile he did when he first took the stand yesterday.

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Speaker 7: But he gave details about this August twenty fifty meeting

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Speaker 7: at Trump Tower with Michael Cohen, Trump's lawyer and fixer,

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Speaker 7: as well as Trump, where they agreed that he would

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Speaker 7: help Trump in any way by barry salacious news about Trump,

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Speaker 7: as well as helping Trump and trashing any of his

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Speaker 7: opponents in the campaign.

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Speaker 4: Is that what the prosecution referred to an opening statements

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Speaker 4: as the sort of conspiracy meeting.

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Speaker 7: Yes, And he said it was really interesting because he said,

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Speaker 7: you first met Trump and the nineties, and he helped

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Speaker 7: get a magazine together for Trump, and then when Trump

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Speaker 7: started the Celebrity Apprentice, they ended up having a truly

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Speaker 7: beneficial relationship. He and Trump, because Trump would leave him

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Speaker 7: things about which celebrity apprentice was going to get fired,

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Speaker 7: or you know, secret developments in the apprentice or the

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Speaker 7: Celebrity Apprentice, which really drove sales for the National Inquirer

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Speaker 7: and all of their magazine. So he said, quote, I

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Speaker 7: would add a lot of the contact with someone was

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Speaker 7: going to be fired or terminated. Mister Trump was kind

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Speaker 7: enough to give me this information first. That was very

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Speaker 7: beneficial for my magazine. He said. His magazine's loved mister

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Speaker 7: Trump as a celebrity and followed him religiously. And he said,

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Speaker 7: as a matter of fact, they conducted a survey when

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Speaker 7: they asked what the people thought of Donald Trump, and

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Speaker 7: it came out that people suggested that he run for president,

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Speaker 7: and that is what boosted Donald Trump into thinking maybe

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Speaker 7: he should run for president.

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Speaker 4: Which of the so called catch and kill schemes did

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Speaker 4: he describe before court.

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Speaker 7: Ended catch and kill stories he talked about is there

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Speaker 7: was a Trump dormant who claimed that he knew Donald

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Speaker 7: Trump had fathered a love child with a Latina worker

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Speaker 7: at Trump Power, and that he was trying to sell

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Speaker 7: his story. So then Pecker notified Cohen and Trump about

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Speaker 7: this and that Pecker agreed to pay thirty thousand dollars

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Speaker 7: for the story to basically buy and bury it. So

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Speaker 7: they paid him thirty thousand dollars and then they eventually

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Speaker 7: determined it wasn't true, but they had a elusive rights

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Speaker 7: to the story and if he went to any other publications,

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Speaker 7: they could collect a million dollars from the doormat, but

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Speaker 7: they would release him from this agreement after the election.

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Speaker 4: So has it been established that Michael Cohen was the

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Speaker 4: point person and that Trump actually designated him as the

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Speaker 4: point person?

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Speaker 7: Yes, it has been an According to David Pecker, the

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Speaker 7: person who was his intermediary and the person that was

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Speaker 7: on almost every call that he spoke to, you know,

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Speaker 7: multiple times almost every day, he said during the campaign

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Speaker 7: was Michael Cohen, and Michael Cohen would tell him, Hey,

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Speaker 7: I've got this, don't worry, I'm going to check this out.

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Speaker 7: When they talked to the door about the doormat story,

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Speaker 7: he said, that's not true, but let me check it out.

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Speaker 7: So he was definitely very very involved as a point

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Speaker 7: person that David Pecker dealt.

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Speaker 4: With for this. How is Trump reacting to all this?

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Speaker 4: I remember during Jury's election, the judge scolded him at

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Speaker 4: one point. But what's been happening since then, Well, at.

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Speaker 7: Times he seems like he's very engaged and was nodding when,

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Speaker 7: for example, during the argument about the contempt hearing, he

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Speaker 7: was nodding in his head in an agreement with Blanche

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Speaker 7: in his arguments that he was only reposting things and

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Speaker 7: that Donald Trump was entitled to respond to being attacked.

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Speaker 7: He's running for reelection, he wants to win the presidency.

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Speaker 7: This is all political speech. So Trump was nodding, intuted

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Speaker 7: that he was very acutbly listening to Pecker's testimony. I

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Speaker 7: didn't see any facial reaction, but it could be because

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Speaker 7: I was about ninety feet away from a camera, because

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Speaker 7: I was of the last row of the main courtroom.

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Speaker 4: Not optimal conditions for observing. I guess, thanks, Pat, that's

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Speaker 4: Bloomberg Legal reporter Patricia Hurtado coming up what happens when

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Speaker 4: a non citizen spouse is denied a visa. I'm June

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Speaker 4: gross when you're listening to Bloomberg. The first test today

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Speaker 4: at the Supreme Court in nearly a decade of whether

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Speaker 4: US citizens have a constitutional interest in visa decisions for

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Speaker 4: their foreign spouses. Sandram Unos has spent the last eight

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Speaker 4: years of fighting the denial of of visa for her husband,

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Speaker 4: a citizen of El Salvador, because of his supposed gang tattoos.

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Speaker 4: But the justice is, including the Chief Justice, seemed skeptical

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Speaker 4: of her attorney Eric Lee's arguments that her constitutional rights

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Speaker 4: were violated by the decision.

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Speaker 8: The rights of a US citizen are implicated. And the

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Speaker 8: position that the government has put miss Munio's in is

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Speaker 8: that she's been permanently separated from the man that she

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Speaker 8: loves for eight years without having any basis, any chance

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Speaker 8: when there was an opportunity to respond under the regulations,

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Speaker 8: to try and convince them that they made a mistake.

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Speaker 4: Jesterfo pause, Just very briefly, she's noted permanently separated from

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Speaker 4: the man that she loves.

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Speaker 7: That person is not allowed to be admitted into the

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Speaker 7: United States.

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Speaker 9: But at the same time, you're on a question, and

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Speaker 9: a majority of the justices seemed to agree that the

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Speaker 9: government had fulfilled its duty by informing the couple of

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Speaker 9: the reason it denied the visa.

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Speaker 6: Here's Justice Elena Kagan.

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Speaker 3: Okay, you got what you wanted. You got the information

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Speaker 3: that they were excluding the spouse because of gang activities,

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Speaker 3: and then that brings us back to justicecur such as

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Speaker 3: questions about why isn't this whole thing over because you

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Speaker 3: got what you wanted.

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Speaker 4: Joining me to sort through this visa morass is Immigration

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Speaker 4: law expert Leon Fresco, a partner at Holland and Knight.

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Speaker 4: Leon explain this doctrine of consular non reviewability, which was

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Speaker 4: created by the Supreme Court.

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Speaker 1: So here is what happened. Every year, something around the

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Speaker 1: lines of eleven million people apply outside of the United

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Speaker 1: States for a visa, and most of these are called

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Speaker 1: non immigrant visa, meaning people are coming just to visit

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Speaker 1: or work temporarily, but some are called immigrant visa, meaning

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Speaker 1: some people are coming to try to come here permanently,

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Speaker 1: but they apply abroad that visa, which is the request

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Speaker 1: to be given permission to enter the United States. And

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Speaker 1: what the council or non reviewability doctrin says is that

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Speaker 1: if one of the US embassies outside of the country

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Speaker 1: denies your visa application, you cannot sue in federal court

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Speaker 1: saying that the reason that was given was wrong and

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Speaker 1: that a judge should be able to look into that

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Speaker 1: reason and if they disagree grant you a visa, and

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Speaker 1: so that has been the law since the nineteen seventies

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Speaker 1: in this case called Klein Dens versus Mandel, which was

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Speaker 1: about professors who were challenging the fact that one of

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Speaker 1: the people they invited to come speak at a university

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Speaker 1: was denied a visitor visa to come visit because they

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Speaker 1: were said that they were a communistic concerns. And the

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Speaker 1: question was what was the due process that was owed

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Speaker 1: there and could you challenge that? And the court said

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Speaker 1: at that time, and this has sort of can continued

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Speaker 1: over various cases. We'll talk about the uniqueness of this

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Speaker 1: case in a minute, but this concept of what is

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Speaker 1: owed to you is a reason, and that that reason

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Speaker 1: actually has to be a reason that is in the law.

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Speaker 1: So the fendard is called fatially legitimate and bonified. But

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Speaker 1: what that means in plain English is if there's a

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Speaker 1: reason that is permitted by statue, and so there's a

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Speaker 1: lot of them. There's you're a drug trafficker, there's you've

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Speaker 1: committed a crime of corruption, whatever the reasons that are

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Speaker 1: that are in the statute for denying visa. As long

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Speaker 1: as you say that reason, then there's no later trial

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Speaker 1: that can be had. Whereas if you were to say

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Speaker 1: your visa was denied because it's Tuesday, and on Tuesdays,

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Speaker 1: we just don't grant visa. We deny all of the cases.

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Speaker 1: Then maybe you could go to court, although I haven't

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Speaker 1: seen that case either, but the idea is then maybe

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Speaker 1: you could go to court, because now they're admitting this

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Speaker 1: was not facially legit amen and bonified. But if you've

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Speaker 1: cited an actual reason that exists in the law, that's

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Speaker 1: the end of the analysis.

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Speaker 4: There was a lot of discussion about liberty interests, and

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Speaker 4: the Solicitor General said that you have a liberty interest

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Speaker 4: in living in the United States, you have a liberty

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Speaker 4: interest in living with your spouse, but you don't have

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Speaker 4: a liberty interest in getting your spouse admitted to the

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Speaker 4: United States.

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Speaker 8: Right.

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Speaker 1: Here's where this case gets complicated. And there was actually

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Speaker 1: a case similar to this case just a few years

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Speaker 1: ago that I was actually involved with. I didn't argue

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Speaker 1: the case before the Supreme Court, but my office handled

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Speaker 1: the case in the lower court, and so I was

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Speaker 1: part of the preparations and the argument for this That

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Speaker 1: case was called then versus Carry, and it was the

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Speaker 1: same principle, which is, okay, there's a US citizen. This

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Speaker 1: US citizen wants to get married to a foreign national.

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Speaker 1: This happened hundreds of thousands of times a year, and

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Speaker 1: the US citizen either apply for a green card for

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Speaker 1: that person from inside the United States if they're here,

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Speaker 1: or they apply for an immigrant visa for that person

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Speaker 1: if they're outside the United States. Ninety nine percent of

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Speaker 1: those cases get approved, but one percent of the time

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Speaker 1: you will have a case where the State Department says

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Speaker 1: that they cannot allow that person to enter the United States.

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Speaker 1: And the didn't case. It was about the person being

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Speaker 1: affiliated with the Taliban, and so the question was, well,

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Speaker 1: what information is required? Because what did the government tell

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Speaker 1: you are affiliated with the Taliban? And you say no,

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Speaker 1: I'm not, Well, what's the recourse there? What can you

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Speaker 1: do about this? The argument in Din was too bad.

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Speaker 1: There is no recourse. They told you the reason, and

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Speaker 1: even if their reason is wrong, there's nothing you can

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Speaker 1: do because they gave you a reason, and the court

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Speaker 1: they're assumed without deciding that a person who was a

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Speaker 1: US citizen had some extra rights in court visa VI

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Speaker 1: their liberty, interest to be reunited with their spouse that

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Speaker 1: just some random foreign national does not have when they apply,

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Speaker 1: let's say for a visitor visa or a student visa

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Speaker 1: or a work visa or something like that. That this

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Speaker 1: is kind of a heightened thing where a US citizen

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Speaker 1: is trying to reunite with their foreign national spouse in America.

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Speaker 1: But even in then and now, in this case, the

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Speaker 1: idea is fine, you may have that heightened interest, but

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Speaker 1: at the end of the day, that heightened interest only

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Speaker 1: is being assumed without decided, And really, what is the remedy?

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Speaker 1: Here and again in today's panel, nobody seemed excited about

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Speaker 1: actually getting a remedy called the State Department must make

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Speaker 1: a decision in the writing, and then a federal court

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Speaker 1: must review that decision. That nobody seems to be going

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Speaker 1: in that direction even after this case.

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Speaker 4: Yeah, several of the justices said, basically, you got everything

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Speaker 4: you asked for.

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Speaker 6: What more do you want?

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Speaker 4: Justice Amy Cony Barrett said, previous cases don't require that much.

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Speaker 4: You're asking for significantly more. I guess I don't know

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Speaker 4: why this isn't just game over correct.

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Speaker 1: The reason that the Supreme Court needed to review the

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Speaker 1: decision was because the Ninth Circuit actually ruled that what

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Speaker 1: was given initially to this individual litigant was not sufficient,

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Speaker 1: Miss Sandra Munho. But this was not sufficient and timely.

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Speaker 1: And so what they were saying is, you know, not

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Speaker 1: only do you have to give it, but you have

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Speaker 1: to give it in a timely fashion. You can't wait many,

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Speaker 1: many months for this. And here's the problem. I mean,

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Speaker 1: just in general, I see this in my practice all

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Speaker 1: the time, which is if you give any agency, even

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Speaker 1: the State Department, who is filled with wonderful professionals who

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Speaker 1: give up a lot of their life to live in

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Speaker 1: very dangerous places all over the world and make very

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Speaker 1: difficult sacrifices for themselves and their families. Even there, if

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Speaker 1: you give anybody unchecked power, or they know that their

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Speaker 1: decision is not subject to any scrutiny, you risk getting

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Speaker 1: wrong decisions. And I mean I've seen this in cases

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Speaker 1: where what happens is literally the client that I have

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Speaker 1: has the same four names, you know, let's say a

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Speaker 1: first name, a middle name, and then the two last names,

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Speaker 1: the mother's name and the father's name. But they're two

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Speaker 1: completely different people. There's one person who's a bad, bad,

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Speaker 1: bad actor, and there's my client who's a different actor,

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Speaker 1: and you have to give all of the evidence and

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Speaker 1: hope to God that the State Department will see it

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Speaker 1: and finally realize, oh yeah, oh my gosh, these really

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Speaker 1: there really are two different people with both of these names,

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Speaker 1: et cetera. And so you do see this on occasion,

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Speaker 1: and the Supreme Court is very hesitant to open up

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Speaker 1: that judges can start giving these in these cases. And

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Speaker 1: then part of the real problem is, once you have

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Speaker 1: sources and methods of intelligence to figure out how people

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Speaker 1: are inviscible or in inviscible, what are you going to

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Speaker 1: have to do in order to prove that your decision

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Speaker 1: was right? Are you going to literally have to litigate

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Speaker 1: all of these intelligent sources and say here's how we

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Speaker 1: know about this person, and then the person can try

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Speaker 1: to peach those sources. The courts seem to want no

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Speaker 1: part of that, and so this is where this issue

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Speaker 1: is stuck. It is a sympathetic issue, especially when a

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Speaker 1: US citizen wants to be married, But what the courts

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Speaker 1: have held previously and what it seems likely they will

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Speaker 1: hold here is, look, nobody's telling you you can't be married.

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Speaker 1: Nobody's denying you that piece of paper. But if the

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Speaker 1: United States has certain interests to exclude people from entering,

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Speaker 1: those interests overcome the interests to be married, because you

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Speaker 1: can still be married if you need to. You can

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Speaker 1: move to the country where the other person is as

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Speaker 1: opposed to having that person come to the United States.

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Speaker 1: And so that's the argument being made. Now, one other

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Speaker 1: minor point about this case, which is actually very important,

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Speaker 1: is that the problem with this case is that the

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Speaker 1: actual reason the person was denied, even though they did

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Speaker 1: cite a statute, which is all that's required in the law,

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Speaker 1: just was a statute which talked about that the person

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Speaker 1: is likely to come to the United States and commit crimes,

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Speaker 1: Meaning it wasn't even citing any past behavior. It was

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Speaker 1: citing a statute that says you are likely to be

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Speaker 1: coming here to commit crime. And then later they provided

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Speaker 1: context that they leave the person was a gang member

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Speaker 1: at a member of them thirteen. But the problem that

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Speaker 1: some of the justices had with that statute is, hey,

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Speaker 1: you know, if you're not even going to allow someone

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Speaker 1: to come in based on something you think they're going

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Speaker 1: to do as opposed to something they did, how is

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Speaker 1: that fair? And so there wasn't some of that discussion,

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Speaker 1: But I think that's just going to be for the

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Speaker 1: three more progressive justices as opposed to the stake more

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Speaker 1: conservative justices.

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Speaker 6: Stay with me.

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Speaker 4: Leon coming up next on the Bloomberg Lawn Show going

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Speaker 4: to talk about how the justices might rule in this

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Speaker 4: case and some of the concerns that the case raises.

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Speaker 4: I've been talking to Leon Fresco of Honda Knight about

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Speaker 4: Supreme Court oral arguments today about the question of whether

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Speaker 4: US citizens have a constitutional interest in visa decisions for

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Speaker 4: their foreign spouses. So, LeAnn, I'd like to ask you

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Speaker 4: a question about what happens in practice. Let's say you

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Speaker 4: live in this country and your spouse lives in a

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Speaker 4: foreign country. He or she gets rejected for visa. That

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Speaker 4: rejection is that reviewed by someone higher in the state

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Speaker 4: department than the consular office who rejects the person.

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Speaker 1: So what happens is in a situation where there's a

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Speaker 1: re injection by a state department official, the only real

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Speaker 1: things that people do that you know in those types

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Speaker 1: of frameworks are, number one, there is an administrative review

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Speaker 1: that you can ask you believe there is a legal error. Technically,

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Speaker 1: they don't even acknowledge an administrative review process for a

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Speaker 1: factual error, but they have a thing called legal nets

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Speaker 1: that allows if there's a legal error, that legal error

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Speaker 1: can be reviewed. And then what people also do sometimes

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Speaker 1: is they try to involve members of Congress by explaining

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Speaker 1: the case and getting some sympathy and seeing that the

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Speaker 1: member of Congress can ask the state department for more

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Speaker 1: information and potentially be a mediator or a conduit to say, hey,

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Speaker 1: maybe you've misinterpreted this because you don't really understand that

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Speaker 1: you have the wrong person or something. And so these

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Speaker 1: visa adjudications end up having a very quasi administer straight

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Speaker 1: of adjudication and a quasi political adjudication. And because of that,

439
00:25:06,000 --> 00:25:10,720
Speaker 1: because it's not really a legitimate fair adjudication and there's

440
00:25:10,760 --> 00:25:14,439
Speaker 1: really a lot of gray area there, people then start

441
00:25:14,520 --> 00:25:18,520
Speaker 1: to because they are desperate, then they start to move

442
00:25:18,560 --> 00:25:20,760
Speaker 1: towards those gray areas. Let me try to get media

443
00:25:20,840 --> 00:25:23,920
Speaker 1: coverage of my case. Let me try to get congressional

444
00:25:23,960 --> 00:25:27,399
Speaker 1: support for my case. Let me try to get, you know,

445
00:25:27,560 --> 00:25:30,920
Speaker 1: other state department officials to weigh in and see if

446
00:25:30,920 --> 00:25:33,480
Speaker 1: they can weigh in with their colleagues on this case,

447
00:25:33,840 --> 00:25:38,480
Speaker 1: et cetera, et cetera. Because there's no actual fair appellate

448
00:25:38,600 --> 00:25:42,920
Speaker 1: process to follow. People take matters into their own hands

449
00:25:42,920 --> 00:25:46,240
Speaker 1: and try to figure out any way possible to try

450
00:25:46,240 --> 00:25:48,880
Speaker 1: to influence the State department. But if none of those work,

451
00:25:49,280 --> 00:25:54,360
Speaker 1: there's no official, adjudicative appellate process that one can access.

452
00:25:54,640 --> 00:25:56,560
Speaker 4: How did this case get up to the Ninth Circuit then?

453
00:25:56,600 --> 00:25:58,040
Speaker 4: And then there's a case that got up to the

454
00:25:58,080 --> 00:25:58,960
Speaker 4: DC Circuit.

455
00:25:59,320 --> 00:26:03,000
Speaker 1: Yeah, what happened is then people sued and they see

456
00:26:03,160 --> 00:26:06,400
Speaker 1: under the expart a young doctrine where you can sue

457
00:26:06,400 --> 00:26:08,879
Speaker 1: an officer in their official capacity. So they sue the

458
00:26:08,920 --> 00:26:11,960
Speaker 1: Secretary of Faith, and they say that the Secretary of

459
00:26:12,000 --> 00:26:16,639
Speaker 1: State violated the Administrative Procedure Act by issuing essentially an

460
00:26:16,720 --> 00:26:21,280
Speaker 1: arbitrary and capricious decision that didn't provide the information required

461
00:26:21,800 --> 00:26:25,159
Speaker 1: in past cases. And so that's what they said and

462
00:26:25,320 --> 00:26:28,040
Speaker 1: what the court is revisiting for what is basically the

463
00:26:28,119 --> 00:26:32,520
Speaker 1: fourth time, because there was a ruling him like I

464
00:26:32,560 --> 00:26:36,399
Speaker 1: said Kleindine's versus Mandela in the seventies about the communist professors.

465
00:26:36,760 --> 00:26:40,080
Speaker 1: Then there was then versus Scary about the woman in Afghanistan.

466
00:26:40,480 --> 00:26:42,320
Speaker 1: She was a US citizen, and they said that the

467
00:26:42,400 --> 00:26:45,919
Speaker 1: husband was a terrorists that they they lost. Then there

468
00:26:46,000 --> 00:26:49,560
Speaker 1: was Trump versus Hawaii about the travel ban. Could you

469
00:26:49,720 --> 00:26:52,840
Speaker 1: just ban people? And they also had a councilar non

470
00:26:52,880 --> 00:26:55,879
Speaker 1: reviewability problem. And this is now the fourth case with

471
00:26:55,960 --> 00:26:59,719
Speaker 1: regards to this gang membership issue, and this will probably

472
00:26:59,800 --> 00:27:03,800
Speaker 1: before time that the Supreme Court says, look, what do

473
00:27:03,800 --> 00:27:05,920
Speaker 1: you want us to do? There's something we can do here.

474
00:27:06,560 --> 00:27:09,240
Speaker 4: So now, as I mentioned, several of the justices were saying,

475
00:27:09,480 --> 00:27:12,160
Speaker 4: you got with you entitled to what else do you want? Basically,

476
00:27:12,240 --> 00:27:15,800
Speaker 4: and the lawyer for the spouse said that they wanted

477
00:27:15,840 --> 00:27:19,320
Speaker 4: a declaration from the court that the State Department's reason

478
00:27:19,400 --> 00:27:23,200
Speaker 4: for denying the visa was inadequate. Is there any chance,

479
00:27:23,600 --> 00:27:26,719
Speaker 4: any chance at all that the Supreme Court would do that?

480
00:27:27,359 --> 00:27:30,679
Speaker 1: I just don't see it, because there's no way to

481
00:27:30,760 --> 00:27:34,560
Speaker 1: do that in all but the rarest of cases where

482
00:27:34,560 --> 00:27:38,679
Speaker 1: there's any kind of security concern. This case included without

483
00:27:38,960 --> 00:27:43,119
Speaker 1: having this problem of sources and methods and then having

484
00:27:43,160 --> 00:27:46,800
Speaker 1: a mini little trial in the federal courts. And so

485
00:27:46,880 --> 00:27:50,280
Speaker 1: that's what the courts are trying to avoid, is all

486
00:27:50,359 --> 00:27:54,520
Speaker 1: of that. You wonder if one day an identification case

487
00:27:54,600 --> 00:27:58,000
Speaker 1: could come forward where it's literally the person is trying

488
00:27:58,000 --> 00:28:00,239
Speaker 1: to convince the State Department, I'm not the person than

489
00:28:00,320 --> 00:28:02,399
Speaker 1: you think I am. You know, I'm the other person

490
00:28:02,480 --> 00:28:05,280
Speaker 1: with that name. But the real truth is they tend

491
00:28:05,320 --> 00:28:07,720
Speaker 1: to solve those. They might take them a while, but

492
00:28:07,800 --> 00:28:09,800
Speaker 1: they tend to solve those. And if you really are

493
00:28:09,880 --> 00:28:13,480
Speaker 1: the other person, they figure it out. And so, especially

494
00:28:13,480 --> 00:28:17,560
Speaker 1: in these days where there's many many more digital fingerprints

495
00:28:17,600 --> 00:28:22,120
Speaker 1: out there, literal and figurative digital fingerprints where you can

496
00:28:22,160 --> 00:28:26,240
Speaker 1: really show who's who, those types of cases get solved.

497
00:28:26,320 --> 00:28:28,320
Speaker 1: It's something they don't happen. They happen all the time,

498
00:28:28,600 --> 00:28:31,600
Speaker 1: but they get solved. And so it's these kinds of

499
00:28:31,600 --> 00:28:36,360
Speaker 1: cases where you're essentially questioning sources and methods and conclusions.

500
00:28:36,800 --> 00:28:38,840
Speaker 1: I just don't see the courts that we're getting there.

501
00:28:39,320 --> 00:28:41,400
Speaker 6: So Leon this is just curiosity.

502
00:28:41,480 --> 00:28:45,040
Speaker 4: Because there are so many movies where when someone marries

503
00:28:45,280 --> 00:28:48,440
Speaker 4: a person from another country they investigate whether the marriage

504
00:28:48,480 --> 00:28:50,080
Speaker 4: is real or not correct.

505
00:28:50,160 --> 00:28:51,120
Speaker 6: Do they still do that?

506
00:28:51,560 --> 00:28:55,520
Speaker 1: So there's two again aspects of this. The one is

507
00:28:55,560 --> 00:28:58,880
Speaker 1: if the marriage takes place inside of the United States

508
00:28:59,280 --> 00:29:02,320
Speaker 1: and both parts are in the United States, there is

509
00:29:02,320 --> 00:29:06,520
Speaker 1: an interview which takes place here in the United States

510
00:29:07,160 --> 00:29:11,840
Speaker 1: where both people come in and there's an adjudicator who

511
00:29:11,880 --> 00:29:14,840
Speaker 1: asks about the marriage to both of them. Sometimes they

512
00:29:14,920 --> 00:29:17,440
Speaker 1: separate the people, but not all the time. In fact,

513
00:29:17,520 --> 00:29:21,680
Speaker 1: it's not even common to separate the people unless there's

514
00:29:21,680 --> 00:29:24,760
Speaker 1: some suspicion that there's a problem, meaning, you know, the

515
00:29:24,800 --> 00:29:28,280
Speaker 1: first few questions, we're already having serious issues. One person

516
00:29:28,320 --> 00:29:32,560
Speaker 1: doesn't know the other person's parents, or their birthday, or

517
00:29:32,600 --> 00:29:35,120
Speaker 1: where they got married or something. Okay, now now we're

518
00:29:35,120 --> 00:29:37,040
Speaker 1: having a crazy issue. We got to split them up

519
00:29:37,080 --> 00:29:41,000
Speaker 1: and see what's going on. In these cases, oddly enough,

520
00:29:41,440 --> 00:29:45,440
Speaker 1: where the foreign national is living outside of the United States,

521
00:29:45,640 --> 00:29:50,200
Speaker 1: they don't actually force the US citizen to come and

522
00:29:50,320 --> 00:29:55,120
Speaker 1: attend the interview abroad. They only ask the foreign national

523
00:29:55,240 --> 00:29:58,120
Speaker 1: to come, and it's through those questions to the foreign

524
00:29:58,200 --> 00:30:04,080
Speaker 1: national that they try to determine the bonifides of the marriage. Here,

525
00:30:04,920 --> 00:30:07,520
Speaker 1: there wasn't really a question as to the bonafides of

526
00:30:07,560 --> 00:30:11,360
Speaker 1: the marriage. The larger question was you can have the

527
00:30:11,400 --> 00:30:14,040
Speaker 1: most bonified marriage of all time if you are still

528
00:30:14,080 --> 00:30:17,800
Speaker 1: in one of these what are called in admissibility grounds,

529
00:30:18,240 --> 00:30:20,960
Speaker 1: you can't get in, And the obvious ones would be look,

530
00:30:20,960 --> 00:30:23,760
Speaker 1: if you murdered somebody, it doesn't matter that you're in

531
00:30:23,760 --> 00:30:25,920
Speaker 1: a bonified marriage, you can't come in the country because

532
00:30:25,920 --> 00:30:29,160
Speaker 1: you murdered somebody. The problem with this case is that

533
00:30:29,240 --> 00:30:32,640
Speaker 1: the ground that they used was we believe you will

534
00:30:32,720 --> 00:30:35,440
Speaker 1: answer the United States for the purpose of committing crime.

535
00:30:35,960 --> 00:30:37,640
Speaker 1: And so that is a little bit of a harder

536
00:30:37,640 --> 00:30:40,640
Speaker 1: pill to swallow, if we're being honest, because at the

537
00:30:40,760 --> 00:30:45,680
Speaker 1: end of the day, that's a speculative determination. But I

538
00:30:45,720 --> 00:30:47,960
Speaker 1: don't think the court's still gonna do anything about that.

539
00:30:48,400 --> 00:30:50,040
Speaker 6: Did you ever see that movie The Proposal.

540
00:30:51,080 --> 00:30:55,400
Speaker 1: I've seen all of those movies, you know. There's actually

541
00:30:55,440 --> 00:30:58,560
Speaker 1: a great judge Poser decision on this where I think

542
00:30:58,560 --> 00:31:02,320
Speaker 1: he gets it right about marriage and immigration, which is

543
00:31:02,360 --> 00:31:04,480
Speaker 1: he basically says, look, we've got to get out of

544
00:31:04,520 --> 00:31:07,440
Speaker 1: this business of trying to figure out if a marriage

545
00:31:07,480 --> 00:31:09,920
Speaker 1: is legitimate or not. But we have to figure out

546
00:31:09,920 --> 00:31:13,840
Speaker 1: is did money change hands? And if money change hands, okay,

547
00:31:13,880 --> 00:31:17,920
Speaker 1: that's a fraudulent marriage. But if people are getting married,

548
00:31:17,960 --> 00:31:20,240
Speaker 1: like in The Proposal, for instance, where he says, look,

549
00:31:20,280 --> 00:31:22,920
Speaker 1: I want to marry you because I love you enough

550
00:31:22,960 --> 00:31:26,000
Speaker 1: that I want to start dating you, you know, and

551
00:31:26,080 --> 00:31:27,920
Speaker 1: I care so much about you. I don't want you

552
00:31:28,040 --> 00:31:31,160
Speaker 1: to leave the country. Why is that not a more

553
00:31:31,200 --> 00:31:35,280
Speaker 1: bona fide marriage then somebody that got married for the

554
00:31:35,320 --> 00:31:38,880
Speaker 1: purpose of taking the other person's well, you know. And

555
00:31:39,000 --> 00:31:43,040
Speaker 1: so these are the difficulties of getting into this business.

556
00:31:43,480 --> 00:31:45,640
Speaker 4: I tell you, Leon, you not only watched it, but

557
00:31:45,720 --> 00:31:46,520
Speaker 4: you can quote it.

558
00:31:46,560 --> 00:31:47,080
Speaker 6: I love that.

559
00:31:48,080 --> 00:31:50,680
Speaker 1: I'm a big movie I'm a big movie quoter. There.

560
00:31:51,760 --> 00:31:54,440
Speaker 1: I have actually one of the most famous immigration marriage

561
00:31:54,480 --> 00:31:56,840
Speaker 1: cases of all time where they actually changed the law

562
00:31:57,320 --> 00:31:59,640
Speaker 1: after and it was a case I was forced to

563
00:31:59,640 --> 00:32:01,760
Speaker 1: take by my law firm when I was a very

564
00:32:01,840 --> 00:32:06,000
Speaker 1: very young lawyer about a woman who married a guy

565
00:32:06,120 --> 00:32:10,040
Speaker 1: on death row and the immigration service said that was

566
00:32:10,080 --> 00:32:13,320
Speaker 1: not a legitimate marriage because you cannot consummate the marriage

567
00:32:13,840 --> 00:32:17,360
Speaker 1: because the person was sitting there in death row. And

568
00:32:18,080 --> 00:32:20,600
Speaker 1: our argument was, well, what is consummating the marriage have

569
00:32:20,680 --> 00:32:22,600
Speaker 1: anything to do with this? And you if you want

570
00:32:22,600 --> 00:32:24,600
Speaker 1: to say some other reason, like hey, the guy's on

571
00:32:24,640 --> 00:32:27,760
Speaker 1: death row, fine, But the problem was this woman moves

572
00:32:27,800 --> 00:32:32,280
Speaker 1: from Denmark to the middle of Florida in a like

573
00:32:32,320 --> 00:32:36,440
Speaker 1: a rural, very very depressing place where you would never

574
00:32:36,680 --> 00:32:40,080
Speaker 1: move to unless you truly love the person. She visited

575
00:32:40,120 --> 00:32:43,719
Speaker 1: him every time there was visiting hours. She called him

576
00:32:43,760 --> 00:32:46,440
Speaker 1: every time she was permitted to make a call, and

577
00:32:46,840 --> 00:32:52,200
Speaker 1: later she actually exonerated him, which was amazing really, yes,

578
00:32:53,040 --> 00:32:56,160
Speaker 1: but the point of this was they weren't recognizing that

579
00:32:56,200 --> 00:32:59,120
Speaker 1: it's like, well, who's moving from Denmark to this rural

580
00:32:59,200 --> 00:33:02,840
Speaker 1: town in Florida. That's very depressing for no reason, you know,

581
00:33:02,960 --> 00:33:05,600
Speaker 1: to stay in America. That's not what's happening. That she

582
00:33:05,720 --> 00:33:08,200
Speaker 1: loves them, whether that's just guided or not. But then

583
00:33:08,240 --> 00:33:10,800
Speaker 1: they ended up actually changing the law and it was

584
00:33:10,840 --> 00:33:14,080
Speaker 1: part of something called the Adam walshag and they said, look,

585
00:33:14,120 --> 00:33:16,480
Speaker 1: you can't get a green card based on a marriage

586
00:33:16,720 --> 00:33:19,360
Speaker 1: to someone who's been convicted of a number of crimes.

587
00:33:19,600 --> 00:33:21,440
Speaker 1: And it's so fine. I mean, it is what it is.

588
00:33:21,480 --> 00:33:23,880
Speaker 1: But you know, because I was the lawyer at that time,

589
00:33:24,400 --> 00:33:27,840
Speaker 1: I said that wasn't the law at that time. And

590
00:33:27,920 --> 00:33:31,840
Speaker 1: so this argument that the problem was consummation of the marriage,

591
00:33:31,920 --> 00:33:35,320
Speaker 1: that can't be a thing, because we all know there's

592
00:33:35,360 --> 00:33:38,040
Speaker 1: all kinds of people with all kinds of problems and

593
00:33:38,120 --> 00:33:40,080
Speaker 1: we can't say that they can't get married. What are

594
00:33:40,080 --> 00:33:40,640
Speaker 1: we doing here?

595
00:33:41,040 --> 00:33:43,800
Speaker 4: I see why the law firm partners gave you the case,

596
00:33:43,880 --> 00:33:47,320
Speaker 4: because when I was an associate, I also got cases

597
00:33:47,400 --> 00:33:50,200
Speaker 4: like that that they thought were undoable, But you.

598
00:33:50,240 --> 00:33:51,880
Speaker 6: Are exactly Thanks so much.

599
00:33:52,200 --> 00:33:55,600
Speaker 4: That's Leon Fresco, a partnered hollanden Knight joining me. Now

600
00:33:55,640 --> 00:33:58,440
Speaker 4: is Daniel Pierce, a partner with the Government Strategies and

601
00:33:58,520 --> 00:34:02,840
Speaker 4: Compliance Group at Fragham Delray, Burnson and Loewie. After hearing

602
00:34:02,880 --> 00:34:06,840
Speaker 4: this argument, do you think that the justices are going

603
00:34:06,920 --> 00:34:08,960
Speaker 4: to reverse the Ninth Circuit?

604
00:34:09,840 --> 00:34:13,399
Speaker 10: I think that. Unfortunately, the arguments were pretty muddled, right.

605
00:34:13,760 --> 00:34:16,560
Speaker 10: There were some very complicated questions. There was a lot

606
00:34:16,600 --> 00:34:19,799
Speaker 10: of back and forth about the nature of the constitutional

607
00:34:19,880 --> 00:34:22,560
Speaker 10: ride up play here and how to define it. You know,

608
00:34:22,640 --> 00:34:25,279
Speaker 10: does the US citizen have a right to marry who

609
00:34:25,360 --> 00:34:28,480
Speaker 10: he or she wants? Does the right include you know,

610
00:34:28,600 --> 00:34:30,840
Speaker 10: living with the person? Does that right include living with

611
00:34:30,840 --> 00:34:33,120
Speaker 10: a person in the United States? So there was a

612
00:34:33,120 --> 00:34:36,920
Speaker 10: lot of back and forth about that, and then you

613
00:34:37,000 --> 00:34:41,319
Speaker 10: also heard very muddled discussions about if there's a right here,

614
00:34:41,320 --> 00:34:43,759
Speaker 10: if the US citizen has a constitutional right at play,

615
00:34:44,480 --> 00:34:47,320
Speaker 10: how robust is that right? What does the State Department

616
00:34:47,400 --> 00:34:49,719
Speaker 10: have to give the court? What do they have to say,

617
00:34:49,760 --> 00:34:52,279
Speaker 10: for example, do they have to say this is the

618
00:34:52,280 --> 00:34:54,319
Speaker 10: statute we're keeping you out under, or do they have

619
00:34:54,360 --> 00:34:56,960
Speaker 10: to say we think you're a criminal because of X.

620
00:34:57,200 --> 00:34:59,399
Speaker 10: Do we think you're in a game, we think you're

621
00:34:59,400 --> 00:35:03,080
Speaker 10: in a specific justice Alito at one point was pressing

622
00:35:03,080 --> 00:35:06,919
Speaker 10: for specificity. So really, one thing that started happening towards

623
00:35:06,920 --> 00:35:08,759
Speaker 10: the end of the argument is the justices we're trying,

624
00:35:08,800 --> 00:35:11,440
Speaker 10: we're puzzling through what last after the Ninth Circuit's ruling,

625
00:35:12,200 --> 00:35:15,920
Speaker 10: because here the Ninth Circuit had already forced the government

626
00:35:15,960 --> 00:35:18,480
Speaker 10: to give some specificity to the reason for the denial,

627
00:35:19,200 --> 00:35:22,160
Speaker 10: and you know, it isn't clear what more there is

628
00:35:22,200 --> 00:35:24,600
Speaker 10: to do. The government basically wants them to reverse the

629
00:35:24,719 --> 00:35:27,560
Speaker 10: Ninth Circuit and just say, in the future, we don't

630
00:35:27,560 --> 00:35:30,920
Speaker 10: have to say very much when we deny someone at

631
00:35:30,920 --> 00:35:34,080
Speaker 10: a consulate. And you know, last time in carry Me

632
00:35:34,160 --> 00:35:36,480
Speaker 10: den when the Serene Court looked at this case, they

633
00:35:36,560 --> 00:35:39,880
Speaker 10: split in a lot of different ways. And there's a

634
00:35:39,920 --> 00:35:42,000
Speaker 10: hope I think that they'll find a majority this time.

635
00:35:42,040 --> 00:35:44,719
Speaker 10: But I'm just not quite sure what that majority is

636
00:35:44,719 --> 00:35:46,560
Speaker 10: going to say in which of the questions they're going to.

637
00:35:46,480 --> 00:35:48,840
Speaker 4: Answer which way, Because I mean, did it seem to

638
00:35:48,880 --> 00:35:53,200
Speaker 4: you that any of the justices were sympathetic to the

639
00:35:53,280 --> 00:35:59,040
Speaker 4: idea of providing more information or providing some kind of

640
00:35:59,080 --> 00:36:04,080
Speaker 4: a proces says to appeal a visa denial. I mean,

641
00:36:04,280 --> 00:36:06,279
Speaker 4: did it seem like there was any sympathy for that.

642
00:36:06,719 --> 00:36:09,319
Speaker 10: I think that there was at least some sympathy for

643
00:36:09,760 --> 00:36:12,840
Speaker 10: common scenarios and common problems that you see at conflict.

644
00:36:13,080 --> 00:36:15,960
Speaker 10: Justice again, for example, was bringing up you know what

645
00:36:16,200 --> 00:36:19,520
Speaker 10: if the person before the consul or officer isn't the

646
00:36:19,520 --> 00:36:22,520
Speaker 10: person that they think, you know, it's John Doe who

647
00:36:22,560 --> 00:36:25,520
Speaker 10: has the criminal record and not John Doe that's before them,

648
00:36:25,560 --> 00:36:28,120
Speaker 10: and there's a mistake. I think that a lot of

649
00:36:28,120 --> 00:36:32,880
Speaker 10: the justices were basically on board with perhaps requiring a

650
00:36:33,000 --> 00:36:36,440
Speaker 10: bit more information from the State Department than a simple statute,

651
00:36:36,760 --> 00:36:39,400
Speaker 10: but probably not very much more. You know, Justice Kagan

652
00:36:39,480 --> 00:36:42,200
Speaker 10: was saying, well, now that you know that they think

653
00:36:43,040 --> 00:36:45,960
Speaker 10: it was his tattoos that meant that he's an MS thirteen,

654
00:36:46,040 --> 00:36:48,760
Speaker 10: don't you have enough to basically go back and present

655
00:36:48,840 --> 00:36:51,600
Speaker 10: your case to the conflict. So I think if if

656
00:36:51,640 --> 00:36:53,640
Speaker 10: they're if they find that there's a right, and if

657
00:36:53,680 --> 00:36:57,480
Speaker 10: they think that they're that the conflict needs to provide more,

658
00:36:57,520 --> 00:36:59,600
Speaker 10: it's unfortunately not going to be very much more. It's

659
00:36:59,640 --> 00:37:02,359
Speaker 10: going to need to be you know, a sentence or two.

660
00:37:02,440 --> 00:37:04,640
Speaker 10: Several of them were saying, well, what if a conflict

661
00:37:04,640 --> 00:37:06,759
Speaker 10: gave you a sentence or two about why they're keeping

662
00:37:06,760 --> 00:37:10,480
Speaker 10: you out? Isn't that enough? I don't think it's going

663
00:37:10,520 --> 00:37:13,280
Speaker 10: to be the sort of more robust, you know, written

664
00:37:13,320 --> 00:37:15,200
Speaker 10: analysis that Munno's was pushing for.

665
00:37:15,680 --> 00:37:20,080
Speaker 4: Besides this particular scenario, are there other cases that would

666
00:37:20,080 --> 00:37:22,279
Speaker 4: be implicated by the decision here?

667
00:37:23,000 --> 00:37:27,240
Speaker 10: Well, my concern, you know, I'm an employment immigration lawyer largely,

668
00:37:27,320 --> 00:37:29,800
Speaker 10: and my concern is that depending on how they rule,

669
00:37:30,200 --> 00:37:33,520
Speaker 10: they could really impact other kinds of constitutional rights that

670
00:37:33,680 --> 00:37:36,160
Speaker 10: might might find their way into court. So, you know,

671
00:37:36,200 --> 00:37:40,320
Speaker 10: if a business is sponsoring their CEO for a green

672
00:37:40,320 --> 00:37:43,120
Speaker 10: card abroad, and that ceo gets a similar kind of denial,

673
00:37:43,480 --> 00:37:45,799
Speaker 10: does the business have some sort of property right or

674
00:37:45,800 --> 00:37:49,440
Speaker 10: some sort of other constitutional rights to learn a bit

675
00:37:49,480 --> 00:37:52,040
Speaker 10: more so they can help their CEO through it. That's

676
00:37:52,080 --> 00:37:55,160
Speaker 10: not directly implicated in Munno's, but it certainly could be

677
00:37:55,800 --> 00:37:59,040
Speaker 10: foreclosed or given the green light depending on exactly how

678
00:37:59,080 --> 00:38:02,560
Speaker 10: the Supreme Court talk about the way that they look

679
00:38:02,560 --> 00:38:07,080
Speaker 10: at constitutional rights in this area. And the justices were

680
00:38:07,080 --> 00:38:10,759
Speaker 10: also raising you know, sort of mission creep problems. I

681
00:38:10,800 --> 00:38:14,360
Speaker 10: would say you know, does a US citizen have the

682
00:38:14,440 --> 00:38:18,080
Speaker 10: right have constitutional rights concerning bringing his parents or his

683
00:38:18,239 --> 00:38:20,920
Speaker 10: kids to the US the same way he does his spouse,

684
00:38:21,920 --> 00:38:26,080
Speaker 10: Which is a complicated question, And the government was pointing out, look,

685
00:38:26,080 --> 00:38:28,480
Speaker 10: we deal with a million cases a year and we

686
00:38:28,520 --> 00:38:31,080
Speaker 10: deny sixty two thousand of them, And implicitly it was

687
00:38:31,440 --> 00:38:33,879
Speaker 10: do you really want to have sixty two thousand visa

688
00:38:33,920 --> 00:38:38,560
Speaker 10: denials on the federal court dockets? If you know you

689
00:38:38,880 --> 00:38:41,040
Speaker 10: find a constitutional right here, you're going to be faced

690
00:38:41,080 --> 00:38:42,760
Speaker 10: with a bunch of constitutional rights.

691
00:38:42,960 --> 00:38:47,319
Speaker 4: What's the process if let's say someone you're representing the

692
00:38:47,440 --> 00:38:49,560
Speaker 4: visa is denied an employment visa?

693
00:38:50,080 --> 00:38:51,640
Speaker 6: Is there an appellate process?

694
00:38:52,040 --> 00:38:55,520
Speaker 10: The problem is that there isn't. There isn't much effective process.

695
00:38:55,680 --> 00:38:58,880
Speaker 10: So that was actually something that justice is also focused

696
00:38:58,920 --> 00:39:00,520
Speaker 10: on as well, like what did you planning to do

697
00:39:00,560 --> 00:39:02,600
Speaker 10: with this information? If we say you're entitled to it,

698
00:39:03,120 --> 00:39:06,160
Speaker 10: and you are entitled to go to the state department

699
00:39:06,200 --> 00:39:07,880
Speaker 10: and say, hey, you got this wrong, you know you

700
00:39:07,880 --> 00:39:10,200
Speaker 10: should reconsider I have to do that within a year.

701
00:39:11,160 --> 00:39:14,160
Speaker 10: It's common enough to also send someone back in for

702
00:39:14,239 --> 00:39:18,120
Speaker 10: another visa interview. The problem on a practical level is

703
00:39:18,120 --> 00:39:21,160
Speaker 10: that if you don't know why they think your client

704
00:39:21,239 --> 00:39:23,279
Speaker 10: as a criminal, or they think your client as a.

705
00:39:23,360 --> 00:39:24,719
Speaker 1: Terrorist, or what have you.

706
00:39:25,719 --> 00:39:28,800
Speaker 10: Effectively, it's not quite clear how you prove the negative,

707
00:39:28,920 --> 00:39:32,279
Speaker 10: what you send them in with to convince the State

708
00:39:32,320 --> 00:39:35,600
Speaker 10: Department that it got it wrong. And so without even

709
00:39:35,680 --> 00:39:39,440
Speaker 10: the bare bone minimum of he's an MS thirteen because

710
00:39:39,440 --> 00:39:42,200
Speaker 10: of tattoos, which is what Muno's was ultimately able to get,

711
00:39:42,600 --> 00:39:44,960
Speaker 10: you're sort of left in the dark. You know, all

712
00:39:44,960 --> 00:39:47,640
Speaker 10: you're told is the State Department believes your client to

713
00:39:47,640 --> 00:39:49,600
Speaker 10: be a criminal, and you somehow have to prove.

714
00:39:49,440 --> 00:39:49,920
Speaker 1: That he's not.

715
00:39:50,200 --> 00:39:51,960
Speaker 10: You know, well, what does that mean. It's sort of

716
00:39:52,000 --> 00:39:54,239
Speaker 10: like minority report. We think you're going to commit a

717
00:39:54,239 --> 00:39:57,840
Speaker 10: crime at some point in the future, but we don't

718
00:39:57,880 --> 00:39:59,799
Speaker 10: have to tell you what crime, or when, or how

719
00:39:59,840 --> 00:40:02,240
Speaker 10: we Why do you think that? How are you supposed

720
00:40:02,239 --> 00:40:04,960
Speaker 10: to you as an attorney or as a client, you know,

721
00:40:05,080 --> 00:40:06,960
Speaker 10: really defend yourself in that kind of circumstance.

722
00:40:07,160 --> 00:40:08,840
Speaker 6: Thanks so much for being on the show. Daniel.

723
00:40:09,200 --> 00:40:13,080
Speaker 4: That's Daniel Peers of Fragman, Delray, Burnson and Lowie. And

724
00:40:13,120 --> 00:40:15,600
Speaker 4: that's it for this edition of the Bloomberg Law Podcast.

725
00:40:15,960 --> 00:40:18,319
Speaker 4: Remember you can always get the latest legal news by

726
00:40:18,360 --> 00:40:22,200
Speaker 4: subscribing and listening to the show on Apple Podcasts, Spotify,

727
00:40:22,480 --> 00:40:26,319
Speaker 4: and at bloomberg dot com, slash podcast, slash Law. I'm

728
00:40:26,400 --> 00:40:28,839
Speaker 4: June Grosso and this is Bloomberg