WEBVTT - Dakota Access Pipeline Still Faces Threats 0:00:03.200 --> 0:00:07.960 This is Bloomberg Law with June Brussel from Bloomberg Radio. 0:00:11.560 --> 0:00:14.000 There have been an unending number of legal threats to 0:00:14.120 --> 0:00:19.640 the Dakota Access pipeline since, and the pipeline faces continued 0:00:19.680 --> 0:00:23.600 threats to its existence even after surviving another shutdown battle 0:00:23.640 --> 0:00:27.080 in federal court. A federal district court refused to halt 0:00:27.120 --> 0:00:31.520 the oil pipeline last week, an important win for Dakota Access, 0:00:31.520 --> 0:00:34.640 but an appeal or agency action could change its fate. 0:00:35.040 --> 0:00:38.440 Joining me as Brandon Barnes, Bloomberg Intelligence Senior analyst for 0:00:38.560 --> 0:00:42.120 energy litigation, Brandon tell us why the judge decided not 0:00:42.200 --> 0:00:45.639 to shut down the pipeline. Well, there's a long underlying 0:00:45.720 --> 0:00:49.040 history here with the same court and the same judge 0:00:49.760 --> 0:00:55.760 dating well back into but this decision was predicated on 0:00:55.800 --> 0:00:58.880 the fact that judge didn't believe he had the authority 0:00:59.720 --> 0:01:02.200 to go so far as to stop the pipeline based 0:01:02.240 --> 0:01:06.160 on the injuries that were being complained of by the 0:01:06.240 --> 0:01:08.560 challenges here, which were some of the tribes. Why did 0:01:08.640 --> 0:01:11.840 you think he had the authority? So a number of 0:01:11.880 --> 0:01:15.160 the issues that the tribes had brought up as it 0:01:15.200 --> 0:01:19.440 relates to the environmental review that had been done. Um 0:01:19.520 --> 0:01:22.200 that triggered this review to go back to the U. S. 0:01:22.319 --> 0:01:27.959 Army Corps were possible injuries um and wouldn't rise, according 0:01:28.000 --> 0:01:32.080 to the court, to this level requiring a shutdown. So 0:01:32.200 --> 0:01:36.080 you need an irreparable harm. You need you know, likelihood 0:01:36.160 --> 0:01:38.760 that goes along with that in terms of the harm 0:01:38.840 --> 0:01:41.760 that's out there, and not just a possible harm. The 0:01:41.760 --> 0:01:44.759 the injuries that or the potential injuries that were being 0:01:44.760 --> 0:01:48.440 claimed by the tribes were related to what if scenarios 0:01:48.640 --> 0:01:51.440 that are you know, have chances attached them there you know, 0:01:51.440 --> 0:01:53.600 one in a hundred thousand, one in a million based 0:01:53.640 --> 0:01:56.920 on industry statistics. So this was a you know, the 0:01:56.960 --> 0:02:00.280 likelihood of any of these issues being actually occur ring 0:02:00.320 --> 0:02:03.720 and the harm accompanying it actually occurring was so low 0:02:03.760 --> 0:02:07.440 that the judge couldn't then attach that to the legal 0:02:07.440 --> 0:02:11.440 standard for putting an injunction in place. The standing Rock 0:02:11.520 --> 0:02:15.200 Sioux Tribe has been fighting this for years. Is it 0:02:15.320 --> 0:02:18.400 likely that they'll appeal this decision? You know, that's a 0:02:18.600 --> 0:02:23.560 I don't know that they've come out publicly as to that. 0:02:23.560 --> 0:02:29.200 That question, however, certainly would would preserve their rights if 0:02:29.200 --> 0:02:32.840 they were going to appeal. Um. They've they've essentially won 0:02:33.320 --> 0:02:37.760 everything they've they've tried except for shutting the project down. 0:02:37.760 --> 0:02:41.480 So they have in hand the idea that there is 0:02:41.520 --> 0:02:46.040 no federal easement here and the because the environmental review 0:02:46.120 --> 0:02:50.760 that underpinned the easement for this lake crossing was judged 0:02:50.760 --> 0:02:52.800 in firm and they got that confirmed by the Court 0:02:52.800 --> 0:02:56.519 of Appeals in April, but neither but the lower court 0:02:56.600 --> 0:03:01.079 was not willing to go further to at b I. 0:03:01.200 --> 0:03:04.880 It's unlikely that the Court of Appeals would would overturn 0:03:04.919 --> 0:03:06.960 the lower court here because they've kind of gone with 0:03:06.960 --> 0:03:09.920 what lower courts said to date for the most part. 0:03:10.040 --> 0:03:12.280 But certainly you know, that may be part of the 0:03:12.360 --> 0:03:15.320 litigation strategy for the TRIST but it's in our view 0:03:15.320 --> 0:03:21.080 it's unlikely that's going to be successful. Since federal judges 0:03:21.120 --> 0:03:25.960 have issued three different decisions concluding that the Dakota Access 0:03:26.120 --> 0:03:31.000 Pipeline was permitted in violation of the National Environmental Policy Act. 0:03:31.400 --> 0:03:33.880 So to most people, the question would be, well, if 0:03:33.919 --> 0:03:37.720 it's in violation of NIPA, why is it still allowed 0:03:37.800 --> 0:03:42.600 to go on? That question has been sort of bandied 0:03:42.640 --> 0:03:45.600 about as a remedy issue back and forth between a 0:03:45.640 --> 0:03:47.800 couple of courts and It's an interesting question because it's 0:03:47.840 --> 0:03:51.400 not you're right. Typically, you know, NIPA violation is pretty 0:03:51.400 --> 0:03:54.360 easy to kind of address, and that's where the court, 0:03:54.480 --> 0:03:57.800 the lower court originally tripped up because what we're talking 0:03:57.800 --> 0:04:01.280 about here isn't necessarily a permit. It's actually it's you know, 0:04:01.400 --> 0:04:04.600 the land right. It's a property right because it's an easement. 0:04:04.720 --> 0:04:09.640 The federal government owns Lake Owahi because they created it 0:04:09.680 --> 0:04:13.640 back in the fifties via you know, a dam, and 0:04:14.080 --> 0:04:17.240 so the permission to go underneath that lake and use 0:04:17.360 --> 0:04:22.400 that path be an easement or land right grant goes 0:04:22.400 --> 0:04:27.240 through a different regulatory structure under Army Corps. And so 0:04:28.080 --> 0:04:30.520 what in fact has happened is, even though there's nep 0:04:30.560 --> 0:04:34.440 A violations, there's a process that Army Corps has to 0:04:34.680 --> 0:04:38.719 decide what happens to an encroachment, which is, you know, 0:04:39.279 --> 0:04:43.599 basically an illegal easement. You're on our land with something 0:04:43.680 --> 0:04:48.680 some structure without permission, and so what Army Corps decided 0:04:48.720 --> 0:04:51.760 to do is nothing. And what that does is if 0:04:51.800 --> 0:04:54.880 they make no decision on what to do with an encroachment, 0:04:55.400 --> 0:04:59.000 and there can be no sort of legal ramifications after 0:04:59.040 --> 0:05:01.159 the fact, and that's something the judge lamented in his 0:05:01.240 --> 0:05:04.839 opinion most recently, how does the Army Corps just decide 0:05:04.880 --> 0:05:08.680 not to do anything? Don't they have a responsibility? Well so, 0:05:09.040 --> 0:05:12.760 they certainly do have a duty to do something, but 0:05:12.880 --> 0:05:16.240 their take on this is revolved around, Look, you ordered 0:05:16.279 --> 0:05:19.839 us to go back and redo this environmental assessment and 0:05:19.880 --> 0:05:23.040 turn it into a much more robust environmental impact statement, 0:05:23.320 --> 0:05:24.839 and that's going to take time. In fact, it's going 0:05:24.880 --> 0:05:27.920 to take us until March at this point. So why 0:05:27.920 --> 0:05:30.000 don't you let us do that and then decide what 0:05:30.080 --> 0:05:32.880 to do? And you know, that's sort of a it's 0:05:32.920 --> 0:05:35.600 a good argument because it leaves the court and the 0:05:35.680 --> 0:05:37.919 challengers saying, well, you know, we can't force you to 0:05:37.960 --> 0:05:41.400 make that decision on the current status of when we 0:05:41.480 --> 0:05:45.359 forced you to make another report so and more robusts. 0:05:45.400 --> 0:05:47.560 So the interesting thing here, I think with all of 0:05:47.600 --> 0:05:50.200 this is that there has been no real change in 0:05:50.279 --> 0:05:53.240 heart with the change in administration in terms of how 0:05:53.320 --> 0:05:55.800 Army Corps responded, saying that they will still continue to 0:05:55.839 --> 0:05:59.040 support their stance, which is sort of a status quote 0:05:59.080 --> 0:06:02.080 do nothing stance, but they have said that if something 0:06:02.120 --> 0:06:05.320 comes up in this more robust process, they're certainly willing 0:06:05.360 --> 0:06:09.200 to revisit. So the judge sort of scolded the Biden 0:06:09.200 --> 0:06:13.280 administration for refusing to take a clear stance on the pipeline. 0:06:13.960 --> 0:06:16.720 I had thought, maybe I have my pipeline is confused. 0:06:16.760 --> 0:06:19.560 I had thought that in his first days in office, 0:06:20.240 --> 0:06:24.560 Biden had issued an executive order about the Dakota Access pipeline. 0:06:25.360 --> 0:06:29.279 He issued an executive order restending the Keystone Excel permit, 0:06:31.160 --> 0:06:34.000 which was well within his powers to do so, because 0:06:34.000 --> 0:06:38.880 he's basically doing the mirror image of what President Trump 0:06:38.920 --> 0:06:44.680 had done for Keystone, which is exercising executive power to 0:06:44.880 --> 0:06:48.320 issue a permit to cross the border for an energy project, 0:06:49.600 --> 0:06:52.880 and by circumventing sort of the U. S. State Department 0:06:52.880 --> 0:06:56.000 process which President Trump did to issue that March I 0:06:56.040 --> 0:07:00.440 think twenty nineteen permit presidential permit um that set that 0:07:00.480 --> 0:07:03.599 permit up for being able to be rescinded by President 0:07:03.600 --> 0:07:09.560 Biden with very little, UH procedure or oversight around it. Um. 0:07:09.600 --> 0:07:11.520 That is not the case of the Code Access because 0:07:11.560 --> 0:07:16.880 right now we're not in a place where yet, you know, 0:07:17.160 --> 0:07:20.280 Army Corps can do something because they they've got this 0:07:20.440 --> 0:07:26.040 pending environmental review on their plate um. So they could 0:07:26.080 --> 0:07:27.720 have taken more of a stance in front of the 0:07:27.760 --> 0:07:31.080 court here, but they did not, and maybe that's sort 0:07:31.080 --> 0:07:33.440 of in deference to the work that the Army Corps 0:07:33.520 --> 0:07:36.720 done over the years. Anyway, cording to analysis last week 0:07:36.760 --> 0:07:40.800 by clear View Energy Partners, it said Dakota Access opponents 0:07:40.840 --> 0:07:43.960 could also get creative in the courtroom and raise an 0:07:43.960 --> 0:07:48.480 Administrative Procedure Act claim that challenges the Army Corps in 0:07:48.520 --> 0:07:52.160 action in response to the encroachment on federal land. Is 0:07:52.200 --> 0:07:55.400 that a possibility in your mind? I think it is. 0:07:55.520 --> 0:07:58.120 I think so the form they could more formally raise 0:07:58.240 --> 0:08:01.480 that as an issue, um, it is. It has been 0:08:01.560 --> 0:08:04.760 discussed at the lower court as but only part of 0:08:04.760 --> 0:08:06.640 the remedy phace. So it's really you know, it's kind 0:08:06.640 --> 0:08:11.120 of we're talking about legal shades of gray here. But 0:08:11.200 --> 0:08:13.600 to really get at and get a ruling of final 0:08:13.680 --> 0:08:16.600 ruling from court on the issue of Army Corps not 0:08:16.720 --> 0:08:20.680 moving fast enough or moving at all, um, they would 0:08:20.720 --> 0:08:22.360 have to file that sort of a separate claimant that 0:08:22.440 --> 0:08:25.440 I'm within the remedy portion of the lower court in 0:08:25.480 --> 0:08:29.440 this bigger case. Uh, you know, I think you could 0:08:29.480 --> 0:08:32.600 do that, but the Army Corps is going to be 0:08:32.640 --> 0:08:36.720 given a lot of leeway here and the fact that 0:08:36.720 --> 0:08:40.760 they've got a pending environmental review that they're doing, and 0:08:40.800 --> 0:08:43.400 that's going to give them a much better set of 0:08:43.559 --> 0:08:46.640 information and data to work with because it's supposed to 0:08:46.640 --> 0:08:51.560 be more robust. UM. But environmental groups have been you know, 0:08:51.679 --> 0:08:54.160 this this case and many others involving pipelines, have been 0:08:54.240 --> 0:08:58.280 very creative and they have not shirked on spending the 0:08:58.320 --> 0:09:00.880 resources on these different cases. I wouldn't be surprised if 0:09:00.880 --> 0:09:05.959 that happened. I would not give it great odds of 0:09:06.040 --> 0:09:08.920 success at this point. Kind of thinking it through theoretically though, 0:09:09.960 --> 0:09:16.280 so was this lawsuit the greatest threat to the pipeline? Yes, 0:09:16.800 --> 0:09:21.120 in this the short answer at the at at all points, 0:09:21.160 --> 0:09:25.560 this was really the threat because it reaches all the 0:09:25.559 --> 0:09:30.120 way back to preconstruction and permitting. UM. Now that this 0:09:30.200 --> 0:09:33.439 is sort of out of the way, although obviously appeals 0:09:33.440 --> 0:09:40.000 are available, the newest threat is what happens with a 0:09:40.080 --> 0:09:44.280 President Biden administration Army Corps when they get the chance 0:09:44.320 --> 0:09:48.360 to do take over this environmental impact teament. How does 0:09:48.400 --> 0:09:50.960 that play out? They've mentioned this is going to be 0:09:51.000 --> 0:09:55.360 probably at least until March until we see anything from 0:09:55.400 --> 0:09:57.760 them in terms of a final decision, But they've got 0:09:57.800 --> 0:10:00.760 a lot of works to before them, which includes consultation 0:10:00.800 --> 0:10:06.120 with various parties, including the Native American tribes, and they've 0:10:06.160 --> 0:10:09.360 got a lot of public comments to take. So that 0:10:09.720 --> 0:10:11.959 process is going to play out, and there's a lot 0:10:11.960 --> 0:10:15.559 of uncertainty there around what the end products will look like. 0:10:15.600 --> 0:10:18.559 And so now the biggest threat is probably outside of 0:10:18.559 --> 0:10:20.880 the court is now back in the agency hands. So 0:10:21.080 --> 0:10:24.280 let me ask you this, the Army Corps of Engineers. 0:10:24.800 --> 0:10:26.640 I sort of think of the Army Corps of Engineers 0:10:26.720 --> 0:10:30.880 as being not partisan, but does their position change depending 0:10:30.920 --> 0:10:34.120 on the administration or the way they approach things change? 0:10:35.520 --> 0:10:36.640 You know? Do you know I would have thought of 0:10:36.679 --> 0:10:39.800 a lot of different agencies non Parson before the past 0:10:39.840 --> 0:10:44.040 few years. I feel like we've had a bit of 0:10:44.080 --> 0:10:46.240 a seismic shift on that if you think of what's 0:10:46.240 --> 0:10:50.200 happening with FIRK these days as well. But you know, 0:10:50.720 --> 0:10:54.480 Army Corps has been involved in this bankline since before 0:10:54.480 --> 0:10:57.679 it was built, and just based on who was in 0:10:57.840 --> 0:11:03.840 office pushing the button or directing Army Corps policy, we 0:11:03.920 --> 0:11:08.360 had a change at the snap of a finger between 0:11:08.400 --> 0:11:11.079 the Obama administration the Trump administration in terms of what 0:11:11.120 --> 0:11:15.240 was being ordered done on the ground for these environmental reviews, 0:11:16.200 --> 0:11:18.120 and you know, for Army Corps, they're really just these 0:11:18.120 --> 0:11:22.160 are procedural changes, not necessarily substanti decision making changes. But 0:11:22.960 --> 0:11:25.640 you know, those can those can mean a lot of 0:11:25.880 --> 0:11:29.200 different things for these projects once those play out in 0:11:29.240 --> 0:11:32.480 the courts after the fact. So I think I would 0:11:32.520 --> 0:11:34.400 never say the Army Corps is partisan, but I think 0:11:34.440 --> 0:11:37.480 that they have the ability to look at something like 0:11:37.520 --> 0:11:41.000 an environmental review and the information that comes in from 0:11:41.040 --> 0:11:43.760 a different angle if they need, if they're directed to, 0:11:43.840 --> 0:11:45.959 which I think that wouldn't be surprised if that's how 0:11:45.960 --> 0:11:51.480 this administration would would want them to go. So bottom line, 0:11:51.520 --> 0:11:54.840 we can say that the Dakota Access pipeline is in 0:11:54.920 --> 0:11:59.760 the clear for now until the spring of I think 0:11:59.760 --> 0:12:01.720 that right. I think bottom line, they're in the clear 0:12:02.760 --> 0:12:05.200 until at least then, and then you know, and then 0:12:05.240 --> 0:12:09.959 it's back into the uncertainty around around shipping anything via 0:12:10.040 --> 0:12:13.920 pipeline these days, very difficult to to be able to 0:12:14.000 --> 0:12:17.000 kind of get any certainty out of the midstream world. 0:12:17.480 --> 0:12:19.679 Thanks so much for being on the Bloomberg Glass Show, Brandon. 0:12:20.040 --> 0:12:24.320 That's Brandon Barnes Bloomberg Intelligence Senior analyst for energy litigation. 0:12:26.280 --> 0:12:29.280 The Supreme Court sided with the government on Monday and 0:12:29.320 --> 0:12:33.600 found that an immigrant to was wrongfully deported in can 0:12:33.640 --> 0:12:37.440 be charged with re entering the country illegally. Joining me 0:12:37.480 --> 0:12:40.920 is Leon Fresco, a partner at Hollandon Knight. The facts 0:12:40.960 --> 0:12:45.239 here are a bit confusing. Tell us about the applicant 0:12:45.240 --> 0:12:48.200 here the plaintiff. Sure, so, the plaintiff was a man 0:12:48.320 --> 0:12:52.320 named Refudio Palomars Bantiago, and he was a person who 0:12:52.400 --> 0:12:56.000 had a green card when he lived in the United States. 0:12:56.120 --> 0:12:59.520 But what happened was he was convicted of a felony 0:12:59.679 --> 0:13:04.000 dry thing under the influence charge, which back then was 0:13:04.120 --> 0:13:06.920 thought of as a crime of violence. So it was 0:13:07.000 --> 0:13:12.280 considered an aggravated felony. And because of that, he was 0:13:12.320 --> 0:13:17.600 deported to Mexico. And he was deported to Mexico. But 0:13:17.760 --> 0:13:22.120 then what happened was in two thousand four, there was 0:13:22.320 --> 0:13:26.440 a U. S. Supreme Court case called Leatal versus Ashcroft, 0:13:27.040 --> 0:13:32.520 which said that a driving under the influence conviction isn't 0:13:32.600 --> 0:13:36.439 a crime of violence because you're not intending violence. Yes, 0:13:37.000 --> 0:13:39.920 violent acts may happen with your car while you're driving 0:13:40.000 --> 0:13:44.200 under the influence, but the person really only intends to 0:13:44.840 --> 0:13:48.800 drink and drive, They don't intense actually hurt somebody, So 0:13:48.880 --> 0:13:53.120 you can't call that a aggravated felony crime of violence. 0:13:53.600 --> 0:13:57.480 And so what happened was this person's conviction, Mr Palomar 0:13:57.640 --> 0:14:01.640 Santiago was actually no longer under the basis for a 0:14:01.760 --> 0:14:06.280 removal order. Meanings, had Mr Palomar Santiago not been removed, 0:14:06.600 --> 0:14:10.040 they wouldn't have been able to remove Palomar Santiago because 0:14:10.040 --> 0:14:15.680 the conviction wasn't a proper basis for his removal. So 0:14:15.880 --> 0:14:22.280 we fast forward and in ten, Mr Palomar Santiago actually 0:14:22.640 --> 0:14:28.080 crosses illegally into the United States and he's prosecuted for this, 0:14:28.320 --> 0:14:32.440 and they say, you can't cross the United States illegally 0:14:32.560 --> 0:14:36.720 if you've already been deported. That's a crime. And so 0:14:36.840 --> 0:14:40.600 what happened was he tried to make a very creative defense, 0:14:40.960 --> 0:14:45.640 which was wait a second, I wasn't deported because the 0:14:45.720 --> 0:14:50.040 deportation order against me was invalid. If you had tried 0:14:50.040 --> 0:14:53.880 to enter this deportation order, now there's no way you 0:14:53.960 --> 0:14:57.360 could have entered it. And so because of that, there 0:14:57.520 --> 0:15:02.600 is no way I should be allowed to be prosecuted 0:15:02.640 --> 0:15:05.680 for entering illegally with a removal order because I don't 0:15:05.760 --> 0:15:08.920 have a removal order. So tell us what the Ninth 0:15:08.960 --> 0:15:12.720 Circuit ruled. So what happened was there's a split in 0:15:12.760 --> 0:15:17.680 the circuit, and every other circuit held that you can't 0:15:17.960 --> 0:15:23.280 challenge a prosecution on the basis of illegally re entering 0:15:23.320 --> 0:15:27.520 with a removal order. If you are saying that, it's 0:15:27.560 --> 0:15:32.040 because the removal order in the past was now subsequently 0:15:32.400 --> 0:15:36.400 invalidated by a Supreme Court decision. So that's what the 0:15:36.440 --> 0:15:39.600 other circuits held. But the Ninth Circuit held that, yes, 0:15:39.640 --> 0:15:43.720 you can, you can challenge that order because what had 0:15:43.760 --> 0:15:49.920 happened was the conviction being vacated makes it so that 0:15:50.000 --> 0:15:53.680 there actually is no removal order to challenge, meaning you're 0:15:53.720 --> 0:15:58.000 not actually challenging a removal order. There just is no 0:15:58.120 --> 0:16:02.040 removal order. It doesn't exist. Hence, what happens is you 0:16:02.120 --> 0:16:06.120 can't be prosecuted for entering with the removal order because 0:16:06.120 --> 0:16:10.120 the removal order has already been eliminated by operation of law. 0:16:10.520 --> 0:16:12.800 That was the theory that the Ninth Circuit had put 0:16:12.800 --> 0:16:15.840 in the play, and so the Supreme Court needed to 0:16:15.840 --> 0:16:19.200 resolve the circuit split. I know there's a circuit split, 0:16:19.280 --> 0:16:22.400 but it seems like this scenario wouldn't apply in that 0:16:22.440 --> 0:16:27.600 many cases. It depends because it currently doesn't apply in 0:16:27.640 --> 0:16:30.680 a lot of cases, and now because of this Supreme 0:16:30.680 --> 0:16:36.360 Court holding, it won't apply in many cases. But interestingly, 0:16:37.200 --> 0:16:39.880 if the Supreme Court that held that you can re 0:16:40.120 --> 0:16:43.960 enter the United States illegally in order to sort of 0:16:44.040 --> 0:16:48.520 reclaim your green card status because your removal order goes away, 0:16:49.120 --> 0:16:54.120 you might have seen several thousand individuals try this, because 0:16:54.160 --> 0:16:58.440 there's a lot of people who have been deported who 0:16:58.600 --> 0:17:03.240 subsequently because of this lecal drinking and driving case, and 0:17:03.240 --> 0:17:08.359 then there are subsequent cases involving drawn and burglary and 0:17:08.680 --> 0:17:12.760 possession of tools and this kind of thing. There's a 0:17:12.800 --> 0:17:15.040 lot of people, I would say, at least in the 0:17:15.119 --> 0:17:18.520 tens of thousands, who have been deported from the United 0:17:18.560 --> 0:17:22.760 States in the past with orders that are now no 0:17:22.840 --> 0:17:27.680 longer valid removal orders and so, and what they would 0:17:27.720 --> 0:17:30.359 have gotten was a message that would have said, just 0:17:30.760 --> 0:17:33.560 enter the United States. Find some way to enter. So 0:17:33.800 --> 0:17:35.520 that's how they would have done it, to try to 0:17:35.640 --> 0:17:39.040 reclaim their green card status instead of trying to follow 0:17:39.440 --> 0:17:42.480 a more formal process. Which is what's known as the 0:17:42.520 --> 0:17:47.520 motion to reopen process, which gives discretion to the Board 0:17:47.520 --> 0:17:51.159 of Immigration appealc either granted or not granted. And so 0:17:51.320 --> 0:17:54.480 that's the issue is that is not a certain thing. 0:17:54.600 --> 0:17:58.680 It requires discretion. Whereas if this decision had been decided 0:17:58.720 --> 0:18:02.159 in favor of the foreign national, then it would have 0:18:02.200 --> 0:18:05.120 been a guarantee thing that if you enter the United States, 0:18:05.520 --> 0:18:09.480 you're triggering back your green card, because the basis for 0:18:09.640 --> 0:18:13.359 saying that you can't be convicted under the statute is 0:18:13.359 --> 0:18:16.720 that you don't have a removal order meeting, you automatically 0:18:16.840 --> 0:18:19.600 got your green card back. So tell us what the 0:18:19.640 --> 0:18:24.000 Supreme Court decided. So what's the Supreme Court decided was 0:18:24.280 --> 0:18:28.240 that the statute the way it's written, which requires three 0:18:28.359 --> 0:18:32.840 different elements in order for someone to challenge a removal 0:18:32.960 --> 0:18:35.640 order as part of one of these persecutions, is a 0:18:35.840 --> 0:18:41.840 very clear statute, and that statute requires all three things 0:18:41.880 --> 0:18:46.440 to be done by the person who's challenging it. Number One, 0:18:46.560 --> 0:18:50.360 that they had to exhaust any administrative remedies that they 0:18:50.400 --> 0:18:54.879 had before challenging it, meaning that when the removal order 0:18:55.000 --> 0:18:59.200 was first given, they had to appeal the removal order 0:18:59.240 --> 0:19:02.399 to the Board of it Aggration Appeals. Second, that the 0:19:02.480 --> 0:19:07.719 removal proceedings improperly depride them of the opportunity for judicial review, 0:19:08.240 --> 0:19:10.520 meaning not only did they have to appeal to the 0:19:10.520 --> 0:19:13.159 Board of Immigration Appeals, they actually have to take a 0:19:13.200 --> 0:19:16.600 petition for review in the Court of Appeals and lose 0:19:16.640 --> 0:19:19.600 that too. And then three, that entry of the order 0:19:19.680 --> 0:19:23.400 was fundamentally unfair, and so they had already won under 0:19:23.440 --> 0:19:26.439 that third prong that it was unfair because obviously the 0:19:26.480 --> 0:19:29.679 court decided that the basis for the removal order no 0:19:29.760 --> 0:19:34.679 longer existed. But these individuals had lost under the first 0:19:34.800 --> 0:19:37.919 and the second prong as well everyone else, because everyone 0:19:37.920 --> 0:19:40.840 who's gone through the criminal process will have had an 0:19:40.880 --> 0:19:46.480 opportunity to administratively exhaust the remedies and go to the 0:19:46.520 --> 0:19:49.320 Court of Appeals. And so from that standpoint, what the 0:19:49.359 --> 0:19:52.800 court is basically saying is this isn't the way we 0:19:52.840 --> 0:19:57.480 wanted to challenge and the removal order that became invalid. 0:19:57.920 --> 0:20:00.400 What we wanted to do is to file these oceans 0:20:00.400 --> 0:20:04.160 to reopen in the Board of Immigration Appeals. We don't 0:20:04.160 --> 0:20:07.200 want to just meeking in the country and then saying 0:20:07.240 --> 0:20:10.240 your green card has been returned because you snuck into 0:20:10.280 --> 0:20:14.080 the country. So now is it surprising that this was 0:20:14.280 --> 0:20:18.040 unanimous and that the majority opinion was written by Justice Sonia. 0:20:18.160 --> 0:20:21.199 So to Mayor, the reason I think this ended up 0:20:21.240 --> 0:20:25.320 being a unanimous opinion is for two reasons. One, I 0:20:25.400 --> 0:20:28.320 do think there's a desire amongst the members of the court, 0:20:28.359 --> 0:20:31.959 given a polarized things, are to try to compromise in 0:20:32.040 --> 0:20:37.040 cases where compromise is available. And here all the Court 0:20:37.119 --> 0:20:40.600 really did is say the statute says what the statute says. 0:20:40.880 --> 0:20:44.040 If you want to come back later and to on 0:20:44.200 --> 0:20:48.719 a theory that it's unconstitutional in a particular case because 0:20:48.760 --> 0:20:52.120 it's so unfair that this person should have an opportunity 0:20:52.119 --> 0:20:54.679 to get their green card back, do it. But what 0:20:54.800 --> 0:20:57.000 you can't do is do what the Ninth Circuit said 0:20:57.320 --> 0:21:00.440 and say that the statute doesn't really mean what it needs. Yes, 0:21:00.480 --> 0:21:02.879 it does. And so if you think that the result 0:21:03.000 --> 0:21:07.320 is an unconstitutional, you aconian result, you can come back 0:21:07.359 --> 0:21:10.440 and sue and say that and say the result here 0:21:10.560 --> 0:21:15.040 was unconstitutional because it's so aconian it violates the process. 0:21:15.119 --> 0:21:17.159 You can do that. But what you can't do is 0:21:17.240 --> 0:21:20.719 reinterpret the meaning of a very clear statue. And so 0:21:20.800 --> 0:21:23.520 that's Why I think you saw the nine to zero 0:21:24.280 --> 0:21:27.399 is the ruling ends up being very very narrow. It 0:21:27.440 --> 0:21:30.919 doesn't go into the constitutional realm. It leads that for 0:21:30.960 --> 0:21:35.399 another day and tea. It provides a sign of good 0:21:35.480 --> 0:21:39.280 faith from the more liberal wing of the court, we 0:21:39.440 --> 0:21:43.199 will join you when we can. We're asking you on 0:21:43.240 --> 0:21:46.119 a future case to join us when you can. And 0:21:46.160 --> 0:21:47.800 I think you've seen that in a couple of these 0:21:47.800 --> 0:21:52.600 other immigration cases, where you've had Justice Course that reach out, 0:21:52.640 --> 0:21:55.160 where you've had Justice Robert reach out, where you've had 0:21:55.200 --> 0:21:58.480 Justice Cony Barrett reach out, and so I do think 0:21:58.520 --> 0:22:01.639 you're seeing some of this fourth trading going on in 0:22:01.640 --> 0:22:07.520 the immigration real This case span the Trump and Biden administrations, 0:22:07.560 --> 0:22:12.200 and the Biden administration has changed positions in several cases, 0:22:12.280 --> 0:22:14.639 but not in this case. Why do you think it 0:22:14.720 --> 0:22:18.120 chose not to change positions in this case? I think 0:22:18.160 --> 0:22:21.920 for the same reason that Justice sort of myorrothy opinion here, 0:22:22.200 --> 0:22:25.080 which is that the statute is clear. So when you 0:22:25.200 --> 0:22:28.760 have a statute that's clear, the Department of Justice, even 0:22:28.800 --> 0:22:31.679 if they don't like what the statute says, has an 0:22:31.720 --> 0:22:35.280 obligation to defend the clear statute. There is a separate 0:22:35.359 --> 0:22:39.000 question as to whether the statute is unconstitutional. But the 0:22:39.119 --> 0:22:42.960 way that should be resolved, in my view, especially by 0:22:43.080 --> 0:22:46.879 this Department of Justice, is to just instruct the Board 0:22:46.880 --> 0:22:51.000 of Immigration Appeal whenever you have a motion to reopen 0:22:51.720 --> 0:22:54.800 on the basis of a conviction that no longer is valid, 0:22:55.080 --> 0:22:57.320 you should reopen the case and give the person their 0:22:57.359 --> 0:23:00.480 green card back. And that's the way they can solve that, 0:23:00.720 --> 0:23:03.280 and they should issue that guidance. I would encourage them 0:23:03.320 --> 0:23:06.920 to do that, and that way you eliminate this horrible, 0:23:06.960 --> 0:23:10.400 perverse incentive for the way people to get their green 0:23:10.440 --> 0:23:13.600 card back would be to sneak across the country. What 0:23:13.680 --> 0:23:17.960 are the long term implications here as far as federal prosecutors, 0:23:18.240 --> 0:23:23.560 are they more likely to pursue criminal reentry charges? Yes? 0:23:23.680 --> 0:23:27.119 I think Now what you will see is that as 0:23:27.280 --> 0:23:33.040 the immigration enforcement portfolio moves away from the interior, because 0:23:33.119 --> 0:23:36.800 the Biden administration doesn't want to be deporting people who 0:23:36.840 --> 0:23:39.920 have roots into the United States, and as that portfolio 0:23:40.000 --> 0:23:43.160 moves to the border, what you will see is more 0:23:43.240 --> 0:23:46.080 of these prosecutions in cases where the government has spent 0:23:46.200 --> 0:23:50.760 resources in trying to already remove someone from the United States. 0:23:50.800 --> 0:23:53.520 And what I think will be key is this balanced 0:23:53.520 --> 0:23:56.760 perspective where you say, the reason we're doing this is 0:23:56.800 --> 0:24:00.159 because you have this other avenue available to you, and 0:24:00.240 --> 0:24:02.640 so you should have used this other avenue. You shouldn't 0:24:02.640 --> 0:24:05.439 be speaking across the border. That creates all kinds of 0:24:05.480 --> 0:24:08.399 problems with people trying to speak across the border that 0:24:08.480 --> 0:24:12.360 we'd rather prevent. Has there been a difference in enforcement 0:24:13.440 --> 0:24:18.920 under the immigration enforcement under the Biden administration. Absolutely, there 0:24:18.920 --> 0:24:21.879 has been a huge difference in enforcement, and in fact, 0:24:21.920 --> 0:24:26.000 there's actually some new stories today about this difference in enforcement, 0:24:26.000 --> 0:24:29.240 about how the numbers are at historic lows with regard 0:24:29.359 --> 0:24:32.879 to interior enforcement, meaning people who are living in the 0:24:32.920 --> 0:24:36.879 United States being placed into removal proceedings and being removed 0:24:37.080 --> 0:24:40.840 outside of the United States. You're seeing dramatic decreases, and 0:24:40.920 --> 0:24:44.639 that almost historic decreases that you haven't seen for twenty 0:24:44.720 --> 0:24:47.640 or thirty years. On that frame, there used to be 0:24:47.720 --> 0:24:51.359 this rule of thumb that Ice would or Sugar could 0:24:51.440 --> 0:24:55.359 deport four hundred thousand people per year, and we're talking 0:24:55.400 --> 0:24:58.920 about maybe forty thousand this year. So it's a dramatic 0:24:58.960 --> 0:25:01.919 decrease in the number of people being removed from the 0:25:02.000 --> 0:25:06.120 United States. And we haven't heard much lately, maybe because 0:25:06.119 --> 0:25:08.640 there's so much other news that we haven't heard about 0:25:08.680 --> 0:25:12.600