WEBVTT - Immigration Issues from ICE in Minneapolis to Mahmoud Khalil 0:00:02.759 --> 0:00:08.280 This is Bloomberg Law, with June Grosseo from Bloomberg Radio. 0:00:08.960 --> 0:00:14.000 Continuing clashes on the streets of Minneapolis between protesters and 0:00:14.120 --> 0:00:19.400 ICE agents. As tensions escalated following two shootings by agents, 0:00:19.640 --> 0:00:23.400 one of them deadly. Brooklyn Park Police Chief Mark Brooley 0:00:23.600 --> 0:00:27.560 says that his office has been fielding NonStop complaints about 0:00:27.600 --> 0:00:31.960 civil rights violations and that his own officers went off duty, 0:00:32.240 --> 0:00:35.960 have been stopped and racially profiled by federal officers. 0:00:37.080 --> 0:00:40.560 Every one of these individuals is a person of color 0:00:40.840 --> 0:00:42.239 who has had this happen to them. 0:00:42.880 --> 0:00:47.080 Border Patrol Commander Gregory Bavino, who was seen recently on 0:00:47.159 --> 0:00:51.080 a video tossing a smoke canister into a crowd, said 0:00:51.080 --> 0:00:55.400 the tactics employed by ICE are justified, but the Minnesota 0:00:55.440 --> 0:00:58.320 Attorney General, Keith Ellison, disagrees. 0:00:59.080 --> 0:01:03.680 Our operations are lawful. They're targeted, and they're focused on 0:01:03.800 --> 0:01:08.240 individuals who pose a serious threat to this community. They 0:01:08.240 --> 0:01:11.640 are not random, and they are not political. 0:01:12.959 --> 0:01:16.360 These tactics that we've seen from MICE are brutal, they 0:01:16.400 --> 0:01:20.880 are unfair, they are racial profiling, they are hurting our economy, 0:01:21.040 --> 0:01:23.399 and they're running up our costs in terms of policing 0:01:23.560 --> 0:01:27.160 and other public expenses. It is damaging to our state. 0:01:27.920 --> 0:01:31.399 Joining me is immigration law expert Leon Fresco, a partner 0:01:31.400 --> 0:01:34.160 at Honda Knight Leo. Let's start with this order from 0:01:34.200 --> 0:01:38.040 a federal judge that the Eighth Circuit has put on hold. 0:01:38.520 --> 0:01:44.520 Federal Judge Catherine Menendez had granted the ACLU's request and 0:01:44.760 --> 0:01:48.960 ruled that the federal agents are prohibited from arresting or 0:01:49.000 --> 0:01:53.920 detaining peaceful protesters in retaliation for their protected conduct and 0:01:54.040 --> 0:01:58.120 absent a showing of probable cause or reasonable suspicion that 0:01:58.120 --> 0:02:01.720 the person has committed a crime or obstructing or interfering 0:02:01.840 --> 0:02:05.240 with the activities. Is this order anything more than her 0:02:05.280 --> 0:02:08.799 basically saying follow the law eyes. Is there anything extraordinary 0:02:08.800 --> 0:02:09.280 about it? 0:02:10.120 --> 0:02:13.240 Well, a couple of things. First of all, I suppose 0:02:13.720 --> 0:02:17.919 so to this extent that the Eighth Circuit on Wednesday 0:02:18.000 --> 0:02:23.600 issued an administrative stay temporarily lifting that injunction, which did 0:02:23.680 --> 0:02:28.359 block the federal agents from retaliating against her detaining peaceful 0:02:28.400 --> 0:02:34.040 protesters without probable cause. I think the reason that the 0:02:34.040 --> 0:02:38.400 Eighth Circuit did stay the district court order is that 0:02:38.560 --> 0:02:44.440 perhaps there was some confusion about how you would implement 0:02:44.560 --> 0:02:48.840 this order in the sense of if an ICE agent 0:02:49.000 --> 0:02:54.200 does something illegal against a peaceful protester, then the recourse 0:02:54.240 --> 0:02:57.680 would be a civil lawsuit or a criminal action. So 0:02:58.320 --> 0:03:03.120 adding an injunction that does it change the law, but 0:03:03.320 --> 0:03:07.640 just says enforced the law doesn't really add anything except 0:03:07.639 --> 0:03:12.240 it adds confusion as to whether the injunction does anything more. 0:03:12.480 --> 0:03:17.280 So the issue would be, are you adding additional requirements 0:03:17.320 --> 0:03:20.760 that other than those that exist in the law, And 0:03:21.040 --> 0:03:23.760 then what so now you sue for a violation of 0:03:23.800 --> 0:03:27.840 this injunction as opposed to a civil lawsuit, because perhaps 0:03:27.919 --> 0:03:30.760 what you're saying is that you're worried that the federal 0:03:30.800 --> 0:03:34.560 government won't prosecute an ICE agent who violates the law. 0:03:34.760 --> 0:03:37.360 This is sort of the complex issues there, and so 0:03:37.400 --> 0:03:39.960 I think the Eighth Circuit said, we're going to need 0:03:40.000 --> 0:03:43.440 more time to consider this. Let's pause this for a while, 0:03:44.120 --> 0:03:48.440 because it seemed like it was going to be too complicated. 0:03:48.440 --> 0:03:52.280 That every use of potentially, for instance, chemical agents, or 0:03:52.320 --> 0:03:57.880 every arrest of a protester, or every discussion about a 0:03:57.920 --> 0:04:03.400 protester perhaps following to close and perhaps potentially obstructing, were 0:04:03.400 --> 0:04:07.600 they obstructing or were they peacefully protesting? Perhaps every single 0:04:07.960 --> 0:04:10.560 instance of that could have led to a contempt of 0:04:10.680 --> 0:04:15.120 court injunction violation hearing. And the question was from the 0:04:15.160 --> 0:04:19.400 Eighth Circuits perspective, I suppose did they want to have 0:04:19.560 --> 0:04:24.040 that granular hearing every single time in front of this 0:04:24.080 --> 0:04:26.400 district cord or did they just think, look at the end, 0:04:26.400 --> 0:04:29.560 that there's something really wrong. People can file civil suit 0:04:29.720 --> 0:04:32.160 or criminal actions can be filed. 0:04:33.040 --> 0:04:35.479 The problem is it's hard to deny what you can 0:04:35.520 --> 0:04:38.599 see on the videos. I saw one video where a 0:04:38.640 --> 0:04:42.599 man was already restrained and on the ground and an 0:04:42.640 --> 0:04:46.880 ice officer was spraying some kind of yellow chemical into 0:04:46.920 --> 0:04:49.760 his face while he's on the ground. So the ice 0:04:49.800 --> 0:04:53.520 officers don't seem to be exhibiting any kind of restraint, 0:04:53.600 --> 0:04:57.200 and there are multiple reports of US citizens getting arrested. 0:04:58.400 --> 0:05:02.040 Well, this is what becomes complicated from the standpoint of 0:05:02.720 --> 0:05:05.160 in a normal course of action, when you have an 0:05:05.200 --> 0:05:10.159 agent that you believe violates the federal laws, then you 0:05:10.200 --> 0:05:12.800 can have a prosecution of that agent by a US 0:05:12.880 --> 0:05:15.680 Attorney's office who says that that agent acted in correctly, 0:05:16.200 --> 0:05:19.480 or you can of course obviously file a civil lawsuit 0:05:19.839 --> 0:05:24.039 in that situation. But I think what motivated this injunction 0:05:24.360 --> 0:05:26.960 was all of that would take far too long or 0:05:27.080 --> 0:05:29.320 might not even occur at all, and so you needed 0:05:29.440 --> 0:05:33.039 to have something in place that was faster in order 0:05:33.120 --> 0:05:36.800 to try to tamp down any actions that might violate 0:05:36.839 --> 0:05:39.880 the law. But the problem was how do you do 0:05:39.920 --> 0:05:43.640 that and who sets the line for when one of 0:05:43.680 --> 0:05:46.440 those uses of chemical agents did cross the line or 0:05:46.440 --> 0:05:50.920 when it was necessary to protect the agents. This situation 0:05:51.080 --> 0:05:56.280 in Minnesota has become so intense and so high octane 0:05:56.960 --> 0:06:00.640 that you may have in fifty percent of this situations 0:06:00.720 --> 0:06:05.080 the ice agents acting completely correctly, and in fifty percent 0:06:05.120 --> 0:06:08.240 of the time, perhaps they do not completely correctly. And 0:06:08.720 --> 0:06:11.760 now you're having a debate every single day in the 0:06:11.760 --> 0:06:14.800 federal court who did what when? What does that mean? 0:06:15.360 --> 0:06:19.160 And I think that this is just a situation that 0:06:19.440 --> 0:06:23.719 needs to be handled, perhaps in a new manner. Irrespective 0:06:23.760 --> 0:06:28.200 of either this injunction or anything else where, the targeted 0:06:28.240 --> 0:06:32.960 operations happen in a way that are not intersecting with 0:06:33.000 --> 0:06:35.479 all of these protests and not causing all of these 0:06:36.000 --> 0:06:39.440 city skirmishes, and so I think that's a matter for 0:06:39.520 --> 0:06:42.560 everybody involved to try to figure out. But I think 0:06:42.600 --> 0:06:47.120 this injunction, the reason it was stayed is because the 0:06:47.120 --> 0:06:51.000 Eighth Circuit may have believed that it just wasn't the 0:06:51.080 --> 0:06:54.719 right approach to have a district judge basically trying to 0:06:54.760 --> 0:06:57.840 be a referee for every single thing that was happening 0:06:57.839 --> 0:06:59.279 in Minneapolis at that point. 0:07:00.000 --> 0:07:03.880 The problem is one of perception. You have the FEDS 0:07:04.040 --> 0:07:09.080 refusing to open a civil rights investigation into the killing 0:07:09.120 --> 0:07:12.320 of Renee Good by an ICE officer, with the Vice 0:07:12.360 --> 0:07:15.600 President again declaring today that it was her own fault. 0:07:16.160 --> 0:07:19.160 At the same time, they're serving the governor of Minnesota 0:07:19.240 --> 0:07:23.960 and the mayor of Minneapolis with subpoenas over their refusal 0:07:24.080 --> 0:07:28.240 to cooperate with federal law enforcement. It doesn't help to 0:07:28.360 --> 0:07:29.720 quell the protests. 0:07:30.120 --> 0:07:34.800 Absolutely. I understand why the injunction was sought and why 0:07:34.840 --> 0:07:38.040 the injunction was issued to the extent that people believe 0:07:38.160 --> 0:07:42.520 that any actions that are taken would not be dealt 0:07:42.520 --> 0:07:44.840 with in a normal course of action where there would 0:07:44.840 --> 0:07:47.640 be an investigation and a prosecution, So you needed to 0:07:47.680 --> 0:07:50.200 do something else so that you could have a content order. 0:07:50.520 --> 0:07:52.320 But at the end of the day, even that, let's 0:07:52.360 --> 0:07:55.480 say you have a content order from a court saying 0:07:55.640 --> 0:07:58.840 this person is held in content, then what at the 0:07:58.920 --> 0:08:01.280 end of the day, the federal agents aren't going to 0:08:01.280 --> 0:08:04.960 put anyone in detention. We end up just back where 0:08:04.960 --> 0:08:08.760 we were, which is with a constitutional crisis. So it's 0:08:08.840 --> 0:08:11.160 not like this injunction at the end of the day 0:08:11.640 --> 0:08:16.200 would avoid the constitutional crisis, because you could still have 0:08:16.280 --> 0:08:19.800 an injunction from a court that says this ICE agent 0:08:19.880 --> 0:08:23.520 acted incorrectly, they are now in contempt of court and 0:08:23.640 --> 0:08:27.920 put them in jail, and the administration will just say, well, no, sorry, 0:08:28.200 --> 0:08:31.320 too bad. And then what is the actual judge going 0:08:31.400 --> 0:08:34.960 to start picking up ICE agents and you know, putting 0:08:34.960 --> 0:08:39.240 them in detention. No, they require federal agents to implement 0:08:39.280 --> 0:08:42.240 these orders, and so we're back at square one. And 0:08:42.280 --> 0:08:44.400 so I think that's what makes this complicated. 0:08:44.640 --> 0:08:49.600 According to reports, hundreds of soldiers are on standby to 0:08:49.840 --> 0:08:54.359 enter Minneapolis, and the preparations are tied to the possibility 0:08:54.440 --> 0:08:59.439 that Trump could invoke the Insurrection Act. He's threatened that before. 0:09:00.400 --> 0:09:01.199 How would that go. 0:09:02.080 --> 0:09:06.559 Well, the way the Insurrection Act works, there's two main ways. 0:09:06.760 --> 0:09:08.760 One is not going to happen, which is that the 0:09:08.800 --> 0:09:13.880 state actually requests the assistance of the federal government through 0:09:13.920 --> 0:09:16.920 the governor or the state legislature. That's the opposite of 0:09:16.920 --> 0:09:19.720 what's happening here. Here you have the state governor and 0:09:19.800 --> 0:09:22.400 the local officials and everyone else saying that they don't 0:09:22.679 --> 0:09:25.760 want the federal authorities. So then the second way is 0:09:25.800 --> 0:09:29.600 what's called the federal authority standard, which allows the president 0:09:29.679 --> 0:09:33.559 to act unilaterally to enforce the federal law. And there 0:09:33.679 --> 0:09:36.840 the president has to say that there's been some sort 0:09:36.880 --> 0:09:41.599 of unlawful obstruction or rebellion against the authority of the 0:09:41.720 --> 0:09:45.040 United States and makes it impracticable to enforce the laws 0:09:45.360 --> 0:09:48.440 of the United States. And here the president would say, 0:09:48.440 --> 0:09:51.880 I'm trying to just enforce immigration law, and I have 0:09:52.480 --> 0:09:58.360 a number of individuals that are causing me problems because 0:09:58.400 --> 0:10:03.240 they're basically like the Civil War, it's refusing certain things 0:10:03.280 --> 0:10:05.440 to happen that the federal government wants to happen in 0:10:05.520 --> 0:10:08.120 particular states. And so I have to come in and 0:10:08.160 --> 0:10:11.920 protect the ICE agents who are being followed around by 0:10:12.040 --> 0:10:16.080 protesters and everywhere they go, they're being followed around or obstructed. 0:10:16.400 --> 0:10:18.920 I need to be able to come in and solve 0:10:19.000 --> 0:10:21.760 that problem. And then what would happen is the president 0:10:21.800 --> 0:10:25.200 access to the issue of proclamations, saying I'm going to 0:10:25.320 --> 0:10:29.800 be invoking the Insurrection Act unless you disperse, give people 0:10:29.880 --> 0:10:33.880 time to disperse, and if they don't, then insert the 0:10:33.880 --> 0:10:38.760 Insurrection Act. And then we're back to if there's a lawsuit, Okay, well, 0:10:38.800 --> 0:10:42.800 who has the authority? Is this reviewable? Is their judicial review? 0:10:42.960 --> 0:10:46.160 If there is judicial review? How much different? And we're 0:10:46.160 --> 0:10:49.880 back to all of that again. And those are going 0:10:49.920 --> 0:10:51.400 to be the issues that would then need to be 0:10:51.440 --> 0:10:54.120 decided ultimately by the Supreme Court. I mean, yes, there'll 0:10:54.120 --> 0:10:56.600 be lower courts that way in, but the Supreme Court 0:10:56.640 --> 0:10:59.800 would ultimately need to decide is this reviewable? If so, 0:11:00.080 --> 0:11:05.000 how much deference is given to the president, and who 0:11:05.040 --> 0:11:07.720 can challenge it, etc. So we'd be back to all 0:11:07.800 --> 0:11:09.280 of those ar givens. 0:11:08.880 --> 0:11:12.400 Again, seemingly back to square one. Coming up next on 0:11:12.440 --> 0:11:16.640 the Bloomberg Lawn Show, more with immigration expert Leon Fresco. 0:11:17.160 --> 0:11:21.920 Vice President JD Vance visits Minneapolis and defends the Trump 0:11:21.960 --> 0:11:27.920 Administration's aggressive deportation raids. I'm June Grosso and you're listening 0:11:28.040 --> 0:11:34.360 to Bloomberg. Vice President JD Vance visited Minneapolis today, where 0:11:34.360 --> 0:11:39.160 he sought to defend the Trump Administration's aggressive deportation raids, 0:11:39.360 --> 0:11:44.600 which have set off street confrontations between demonstrators and immigration agents. 0:11:45.200 --> 0:11:50.040 ICE operations turned deadly earlier this month when agent Jonathan 0:11:50.160 --> 0:11:54.240 Ross shot and killed Renee Good, something the federal government 0:11:54.360 --> 0:11:58.800 is not investigating and refuses to allow the state access 0:11:58.880 --> 0:12:02.439 to the evidence. Here's what Van said about his previous 0:12:02.480 --> 0:12:05.599 statement that ICE officers have absolute immunity. 0:12:06.080 --> 0:12:08.720 When federal law enforcement officers violate the law, that is 0:12:08.760 --> 0:12:11.720 typically something that federal officials would look into. We don't 0:12:11.720 --> 0:12:14.319 want these guys to have kangaroo courts. We want them 0:12:14.320 --> 0:12:17.160 to actually have real due process, real investigation. 0:12:17.559 --> 0:12:20.160 Of course that's not happening in the case of Renee 0:12:20.160 --> 0:12:24.120 Good shooting. I've been talking to immigration expertly on Fresco 0:12:24.320 --> 0:12:28.280 of Holland and Knight back to the beginning. So, immigration 0:12:28.520 --> 0:12:33.280 advocates and legal aid groups have warned people or urged 0:12:33.280 --> 0:12:36.880 them not to open their doors to immigration agents to 0:12:37.000 --> 0:12:41.120 ICE agents unless they're shown a warrant signed by a judge. 0:12:41.840 --> 0:12:45.480 But according to an internal ICE memo obtained by the 0:12:45.480 --> 0:12:50.320 Associated Press, the federal immigration officers are asserting power to 0:12:50.640 --> 0:12:55.600 forcibly enter people's homes without a judge's warrant to do 0:12:55.720 --> 0:13:00.920 it based on an administrative warrant. Isn't that on constitutional? 0:13:01.840 --> 0:13:04.920 So let's give you both of the arguments, and let's 0:13:04.920 --> 0:13:08.000 give you some facts. What is an administrative warrant. It's 0:13:08.000 --> 0:13:11.600 a form document. You can look at the ICE administrative warrant. 0:13:11.840 --> 0:13:14.600 It's called an I two five. You can google it 0:13:14.640 --> 0:13:17.959 and see the blank warrant. But basically, an ICE agent 0:13:18.320 --> 0:13:21.160 could fill out that warrant and then get their supervisor 0:13:21.240 --> 0:13:24.880 to sign it, and on that basis, ICE is arguing 0:13:24.920 --> 0:13:27.360 that it can then enter the home. Now, to be 0:13:27.559 --> 0:13:29.520 very clear, because they're important that we get all the 0:13:29.520 --> 0:13:33.440 facts right. ICE is not currently taking the position now. 0:13:33.440 --> 0:13:36.319 It may it may evolve and take this position if 0:13:36.320 --> 0:13:39.760 its first position become successful, but let's just go with 0:13:39.880 --> 0:13:42.520 what the facts are. They're not currently taking the position 0:13:42.880 --> 0:13:45.040 that they can go into any home they want with 0:13:45.120 --> 0:13:50.000 an administrative warrant and knock things down and go around 0:13:50.040 --> 0:13:54.640 and grab people. What they're currently saying is if someone 0:13:54.880 --> 0:13:59.480 has a final order of removal, meaning that they were 0:13:59.520 --> 0:14:03.720 already served with what's called a notice to appear, which 0:14:03.800 --> 0:14:07.240 is saying, look, you're in deportation proceedings, and then they've 0:14:07.240 --> 0:14:11.000 gone to immigration court and then they've lost, then all 0:14:11.040 --> 0:14:14.720 of that due process was already done. So it's not 0:14:14.880 --> 0:14:17.440 like barging into your house in the first place and 0:14:17.640 --> 0:14:20.800 taking your computer and then convicting you of a crime 0:14:21.200 --> 0:14:24.040 based on that. It's not any's. They would say, it's 0:14:24.040 --> 0:14:26.640 not anything like that. They would say, this is the 0:14:26.680 --> 0:14:30.640 equivalent of somebody escaped from jail, and now we're just 0:14:30.680 --> 0:14:33.200 trying to find them, and so we don't need to 0:14:33.280 --> 0:14:36.800 go through the whole judicial warrant process to do this. 0:14:37.760 --> 0:14:40.920 Are they relying on any case law or precedent. 0:14:41.000 --> 0:14:44.560 The case they rely on for that is very interesting 0:14:44.640 --> 0:14:47.480 because it's if you've seen the movie The Bridge of 0:14:47.520 --> 0:14:52.360 Spies with Tom Hanks and the Academy Award winning Supporting 0:14:52.360 --> 0:14:56.440 actor Mark Rylands, that Rudolph Abel case, whereas the Russian 0:14:56.480 --> 0:15:00.520 spy from the nineteen sixties, he was taken pursue it 0:15:00.560 --> 0:15:04.040 to an administrative warrant for immigration. Originally that's what it's 0:15:04.080 --> 0:15:06.920 also searched for. And so there's some dicta in that 0:15:07.080 --> 0:15:10.760 case that says that because immigration is a civil matter, 0:15:10.840 --> 0:15:14.360 it's not a criminal matter, the concerns of the administrative 0:15:14.400 --> 0:15:20.600 warrant aren't necessarily valid in that instance, and so that's 0:15:20.680 --> 0:15:23.840 dick that wasn't necessary for the able case. But the 0:15:23.880 --> 0:15:28.280 point is ice wants to build off of that precedent 0:15:28.440 --> 0:15:31.000 and say, look, immigration is a civil matter. There's a 0:15:31.000 --> 0:15:35.040 final order of removal. We're just now trying to execute 0:15:35.080 --> 0:15:39.080 this civil removal that is not a criminal matter. There's 0:15:39.120 --> 0:15:41.800 already been the due process of the notice to appear 0:15:42.120 --> 0:15:45.360 and the hearing, and we should be allowed to do that. 0:15:45.760 --> 0:15:49.520 From the perspective obviously of the opponents of this, they say, 0:15:49.680 --> 0:15:52.840 when you're going into someone's home, that's literally if you're 0:15:52.880 --> 0:15:57.280 talking about rock scissors paper, someone's home is nuclear war. 0:15:57.520 --> 0:16:01.560 You know, it beats everything. It's the Fourth Amendment most 0:16:01.600 --> 0:16:05.560 sanctity location that there is. And so you can't go 0:16:05.640 --> 0:16:09.800 into anyone's home without a judicial warrant. Why because maybe 0:16:09.800 --> 0:16:12.280 you're gonna go into the wrong home. And now what 0:16:12.440 --> 0:16:15.840 you've just barged into somebody's home, there wasn't any judicial 0:16:15.880 --> 0:16:19.360 oversight to make sure that everything was correct before you 0:16:19.400 --> 0:16:23.880 started barging into people's homes. You're going to cause collateral damage. 0:16:24.560 --> 0:16:27.560 There's a lot of untrained people being deployed out onto 0:16:27.600 --> 0:16:31.080 the field, and so that's why you need this judicial 0:16:31.120 --> 0:16:33.960 warrant to sort of make sure that these untrained people 0:16:34.040 --> 0:16:36.560 are doing what they're doing. And of course, if people 0:16:36.600 --> 0:16:40.400 have unfettered anything in any aspect of the government, there's 0:16:40.440 --> 0:16:42.680 always going to be more mistakes than if they have 0:16:43.240 --> 0:16:47.160 to answer to independent authorities before they do things. And 0:16:47.240 --> 0:16:50.840 so from that perspective, this is where you have the tension. 0:16:51.360 --> 0:16:54.240 But it is possible that if they're allowed to do this, 0:16:54.920 --> 0:16:57.600 if the courts don't join this, then they may expand 0:16:57.640 --> 0:17:01.520 this to other immigration actions or the person doesn't currently 0:17:01.560 --> 0:17:04.800 have a final order of removal, but at the moment 0:17:04.920 --> 0:17:07.480 they're saying that they're limiting it to people who have 0:17:07.600 --> 0:17:09.040 a final order of removal. 0:17:09.359 --> 0:17:12.639 But there's also the point that perhaps most likely there 0:17:12.640 --> 0:17:16.320 are other people in the house, correct, and they're violating 0:17:16.320 --> 0:17:20.920 their constitutional rights. I mean they have a constitutional right absolutely. 0:17:20.960 --> 0:17:23.040 I think you know they have constitutional rights to the 0:17:23.080 --> 0:17:25.840 sanctity of their home. And especially if ICE is going 0:17:25.920 --> 0:17:29.120 to start engaging in what are called collateral operations once 0:17:29.160 --> 0:17:32.080 they're in there and say who else is undocumented here, 0:17:32.280 --> 0:17:36.440 or this is very interesting what we've uncovered, then that 0:17:36.600 --> 0:17:39.359 is going to weaken their argument for being able to 0:17:39.359 --> 0:17:42.080 come in with an administrative warrant as opposed to a 0:17:42.160 --> 0:17:44.879 judicial warrant. But we're going to have to wait and 0:17:44.920 --> 0:17:48.600 see what the courts say, and also in what procedural 0:17:48.640 --> 0:17:51.639 posture this ends up getting challenged. Does it only end 0:17:51.720 --> 0:17:56.400 up getting challenged in the context of a final order 0:17:56.440 --> 0:17:59.040 of removal or do the people who challenge it have 0:17:59.200 --> 0:18:02.760 better facts like you've talked about, where there are collateral 0:18:02.840 --> 0:18:06.280 cases that they're also challenging, and then that'll make the 0:18:06.280 --> 0:18:08.800 government's defense much more complicated. 0:18:09.119 --> 0:18:14.560 So, speaking of procedural issues, former Columbia grad student Mood Khalil, 0:18:14.640 --> 0:18:16.800 who was one of the first to be rounded up 0:18:16.920 --> 0:18:22.119 during the government's crackdown on anti Israel campus protests, is 0:18:22.160 --> 0:18:25.200 set to be deported to Algeria, according to a Homeland 0:18:25.240 --> 0:18:28.800 Security official. So it seemed as if Khalil was on 0:18:29.080 --> 0:18:31.800 a winning streak he was released from ice to attention. 0:18:32.240 --> 0:18:35.080 Tell us what happened with this third circuit decision. 0:18:35.400 --> 0:18:38.960 Mister Khalil was out of detention because a district judge 0:18:38.960 --> 0:18:42.040 at held that he should be released from detention because 0:18:42.400 --> 0:18:48.240 his deportation violated potentially the First Amendment because of concerns 0:18:48.280 --> 0:18:51.199 that he was just being penalized for his views on 0:18:51.480 --> 0:18:56.080 Middle Eastern conflicts. The Third Circuit comes in and says, wait, 0:18:56.080 --> 0:18:59.119 a second district court you shouldn't have been looking at 0:18:59.160 --> 0:19:02.280 any of this. All of this needed to go in 0:19:02.359 --> 0:19:06.840 the following mode. The government apprehends Khalil, places him in 0:19:07.000 --> 0:19:11.119 detention proceeding and removal proceedings, places him in detention and 0:19:11.320 --> 0:19:15.320 places him in removal proceedings. The removal proceedings go until 0:19:15.320 --> 0:19:18.200 the end, and then at the end of those administrative 0:19:18.240 --> 0:19:22.159 removal proceedings, you then make an appeal of every legal 0:19:22.200 --> 0:19:26.240 and constitutional claim you have directly to the Court of Appeals. 0:19:26.240 --> 0:19:29.680 The district judge should never have any view of any 0:19:29.760 --> 0:19:32.840 of this, because that's the way the statute is written, 0:19:33.400 --> 0:19:35.640 and so it was a two to one decision. There 0:19:35.680 --> 0:19:37.800 was assent saying, look, we don't have time for all 0:19:37.840 --> 0:19:40.960 of that. That could take years, and you unjustly are 0:19:40.960 --> 0:19:44.320 holding people in detention who are nice people for years 0:19:44.359 --> 0:19:46.200 while you're doing this. They'll never be able to make 0:19:46.240 --> 0:19:49.000 these claims if you don't let them file a habeas 0:19:49.640 --> 0:19:53.280 and you could just have unfettered chaos where administration just 0:19:53.280 --> 0:19:56.040 start putting people in jail and what are they supposed 0:19:56.080 --> 0:20:00.760 to do. And that's certainly very very sympathetic, but you 0:20:00.840 --> 0:20:04.040 can also take a view that the statutes don't care 0:20:04.080 --> 0:20:07.720 about any of that, and the statutes understand that all 0:20:07.760 --> 0:20:11.520 of these things may happen, but nevertheless they still say 0:20:12.160 --> 0:20:14.159 it doesn't matter. You've got to go first go to 0:20:14.160 --> 0:20:17.800 the Immigration judge, then go to the Board of Immigration Appeals, 0:20:18.119 --> 0:20:20.919 and then if you actually have these constitutional claims to 0:20:20.960 --> 0:20:24.720 make about the First Amendment or retaliation or anything else, 0:20:25.160 --> 0:20:27.359 you've then make it in what's called the petition for 0:20:27.480 --> 0:20:30.840 review in a final order of removal to the appropriate 0:20:31.280 --> 0:20:34.040 circuit Court of Appeals. And so that's what the Third 0:20:34.080 --> 0:20:36.920 Circuit said. It didn't say that the government was right 0:20:37.040 --> 0:20:40.920 or Khalil was wrong, or that Khalil was rightment didn't 0:20:40.920 --> 0:20:43.280 say any of that. It just said these all of 0:20:43.280 --> 0:20:46.000 these proceedings are just canceled because they shouldn't have happened 0:20:46.000 --> 0:20:49.920 in the first place. And when there's a final order 0:20:49.960 --> 0:20:53.040 of removal, the circuit court will deal with that. Now, 0:20:53.119 --> 0:20:55.640 the issue there is that that findal order of removal 0:20:56.040 --> 0:20:58.480 would be in the Fifth Circuit, and so it would 0:20:58.520 --> 0:21:01.160 be the Fifth Circuit, who's known as a conservative court, 0:21:01.600 --> 0:21:04.080 who would actually end up dealing with that. And then 0:21:04.080 --> 0:21:08.119 the other specific problem in the Khalil case is he 0:21:08.200 --> 0:21:11.920 doesn't just have this Middle Eastern speech issue. He also 0:21:12.040 --> 0:21:15.920 has a lying on his green card application issue, which 0:21:15.960 --> 0:21:19.280 I think he probably understands is fatal to his case, 0:21:19.760 --> 0:21:24.440 because even if he wins his constitutional argument, he still 0:21:24.520 --> 0:21:27.879 may be deported on this lying on his green card 0:21:27.920 --> 0:21:28.440 part of it. 0:21:29.280 --> 0:21:32.679 Despite what the Trump administration says. He hasn't agreed to 0:21:32.760 --> 0:21:36.440 go to Algeria yet. His lawyers are still fighting, right. 0:21:36.480 --> 0:21:39.639 I mean, he's still trying to fight the third Circuit 0:21:39.760 --> 0:21:43.160 order and take it on bank on appeal and try 0:21:43.200 --> 0:21:45.560 to make sure he can't be put in detention. But 0:21:45.680 --> 0:21:49.640 he may soon be forced to make this calculation, do 0:21:49.720 --> 0:21:54.040 I want to go to Algeria or do I want 0:21:54.119 --> 0:21:57.080 to fight this even if I'm in detention this whole time. 0:21:57.160 --> 0:22:01.320 And so he does have Algerian citizenship through his mother's family, 0:22:01.640 --> 0:22:04.960 which is why Algeria was designated as the country for removal. 0:22:05.240 --> 0:22:07.800 He's not saying I'm leaving today, but I think the 0:22:07.880 --> 0:22:11.199 reason they've settled on Algeria is because he does have 0:22:11.280 --> 0:22:15.960 that citizenship, and perhaps they think if he's put to 0:22:16.000 --> 0:22:18.399 this choice, he may end up taking it instead of 0:22:18.600 --> 0:22:20.920 having to fight two three years more in detention. 0:22:21.520 --> 0:22:24.960 The panel was composed of two Republican appointed judges who 0:22:25.040 --> 0:22:28.160 voted for the government and a Democratic appointee who voted 0:22:28.200 --> 0:22:31.520 against the government. If he goes to the Third Circuit, 0:22:32.000 --> 0:22:36.000 the balance there is still seven judges appointed by Democrats, 0:22:36.000 --> 0:22:40.439 but eight appointed by Republicans, including six Trump appointees. Is 0:22:40.480 --> 0:22:42.600 he going to have a better chance at an on 0:22:42.800 --> 0:22:43.479 bank hearing. 0:22:44.040 --> 0:22:48.480 Here's the problem with this. If the judge in this case, 0:22:48.640 --> 0:22:51.480 I mean, I might be biased. People can accuse me 0:22:51.520 --> 0:22:53.600 on either side of being biased. I really tried to 0:22:53.640 --> 0:22:56.199 give it as down the middle as I can. So 0:22:56.280 --> 0:22:58.320 I try to use this if the judge was a 0:22:58.440 --> 0:23:02.240 robot standard, and I would say it is my belief 0:23:02.280 --> 0:23:05.720 that if the judge was a robot, unmotivated in any 0:23:05.760 --> 0:23:09.840 way by human concerns, but only looking at language patterns, 0:23:10.480 --> 0:23:13.800 you would have to rule that the Third Circuit two 0:23:13.800 --> 0:23:18.520 to one decision is correct. That the statute says that 0:23:18.600 --> 0:23:21.560 where you make these arguments is in a petition for 0:23:21.680 --> 0:23:24.760 review in the Court of Appeals. The statue couldn't be 0:23:24.800 --> 0:23:29.320 any clearer about that. The problem is that that basically 0:23:29.359 --> 0:23:34.320 denies you due process for any random, arbitrary thing that 0:23:34.359 --> 0:23:36.680 the government wants to do. Now we're not talking about 0:23:36.720 --> 0:23:40.040 this specific case. This is anything. If you really take 0:23:40.119 --> 0:23:44.320 that statute to its logical conclusion, the government can impose 0:23:44.359 --> 0:23:48.800 all sorts of harm on foreign nationals without any checker 0:23:48.920 --> 0:23:51.680 balance for the entire time it's doing it. It could 0:23:51.720 --> 0:23:54.400 be a year, two year, three years, and who knows, 0:23:54.440 --> 0:23:57.879 they could potentially delay the proceedings for many years so 0:23:57.960 --> 0:24:01.320 that you never even get to the end of the proceedings, 0:24:01.400 --> 0:24:04.239 in which case you'd have to file what's called an 0:24:04.320 --> 0:24:08.800 unapplied challenge to your due process rights being taken away 0:24:08.800 --> 0:24:10.840 from you. So you would file, you would file this 0:24:10.880 --> 0:24:14.760 as applied challenge and say the Constitution is not being 0:24:14.800 --> 0:24:18.199 applied correctly in my case. But how long would that be? 0:24:18.359 --> 0:24:21.920 After eighteen months, twenty four months? The courts have had 0:24:21.960 --> 0:24:25.280 all kinds of deadlines in these immigration cases, but certainly 0:24:25.359 --> 0:24:28.680 not two months, three months, six months. They never say 0:24:29.040 --> 0:24:32.040 that that short of a period allows you to get 0:24:32.080 --> 0:24:35.160