Speaker 1: This is Bloomberg Law with June Brussel from Bloomberg Radio.
Speaker 1: In a six or three decision with an unusual alignment
Speaker 1: of justices, the Supreme Court hand did a victory to
Speaker 1: longtime illegal immigrants this week with a ruling that turned
Speaker 1: on a single word, the smallest word in the English
Speaker 1: language of that what does the word A mean in
Speaker 1: the term a notice to appear? Justice Neil Gorsts wrote
Speaker 1: the majority opinion and had telegraphed in oral arguments that
Speaker 1: it means one notice. I would have thought the government
Speaker 1: might have taken the hint from an ah Justice majority
Speaker 1: in per a notice of appeal means what it seems
Speaker 1: to me. Let me ask you this, what if what
Speaker 1: if I had a law clerk and I said, in
Speaker 1: my manu, my law cart manual, I want to bench
Speaker 1: memoranimentalize in the facts law in your proposed disposition, and
Speaker 1: instead of providing that my lawhart provided three step meadows,
Speaker 1: each sailing various views of the facts or more on
Speaker 1: the law. And then I don't know a couple on
Speaker 1: proposed disposition, so that the bench memorandum, the answer Justice
Speaker 1: course which was looking for, was no. Those nine separate
Speaker 1: memos would not be a bench memorandum joining me is
Speaker 1: Leon Fresco, a partner at Holland and Knight and the
Speaker 1: former head of the Office of Immigration Litigation at the
Speaker 1: Justice Department. Leon tell us how the notice to appear
Speaker 1: figures into the process for deportation proceedings. Whenever the government
Speaker 1: wants to play someone into removal proceeedings, it begins by
Speaker 1: giving them a piece of paper, and that piece of
Speaker 1: paper is called the notice to appear. That's the form
Speaker 1: that looks the same every single time. You can Google
Speaker 1: it and see it online. And that notice to appear
Speaker 1: is supposed to have a date and time and location
Speaker 1: and there's actually little black bomb the form wherein you
Speaker 1: fill out the date and time and location of the area.
Speaker 1: So in this case, the notice, like an honestly hundreds
Speaker 1: of thousands of other cases, did not have that date
Speaker 1: and time and location where to appear at the immigration
Speaker 1: court hearing because what often happens in these cases is
Speaker 1: when the government apprehends someone, especially in the southern border,
Speaker 1: it doesn't have time to figure out where the hearing
Speaker 1: is going to be at what they've designed to be at,
Speaker 1: so it just places to be announced. C B A
Speaker 1: on the notice to appear, and then you're supposed to
Speaker 1: get some notice later that tells you, Okay, you moved
Speaker 1: to Los Angeles or you moved to New York. Here
Speaker 1: is when you're hearing is going to be And so
Speaker 1: that's what's been usually happening, but that practice was challenged
Speaker 1: in this case. So in this case, Augusta Nisha Vez,
Speaker 1: a Guatemalan immigrant who came to the US illegally in
Speaker 1: two thousand five, received his first notice to appear at
Speaker 1: a deportation here in eight years later. Explain why the
Speaker 1: timing is so important here, Well, so here is the issue.
Speaker 1: So this is about a very small sliver of cases,
Speaker 1: which are called cancelation of removal cases. And in order
Speaker 1: to be eligible for cancelation of removal, you have to
Speaker 1: be someone who's been in the United States for ten
Speaker 1: years before you were placed into removal proceedings. And during
Speaker 1: those ten years you have to have basically had a
Speaker 1: qualifying relative that now is the reason why your removal
Speaker 1: should be canceled. So you've given birth to a US
Speaker 1: citizen or you married a US citizen, and in those situations,
Speaker 1: if you can prove that your removal will cause extreme
Speaker 1: and unusual hardship, but usually because that that relative has
Speaker 1: some major medical issue or something like that, and if
Speaker 1: you were to leave, they would have totally someone not
Speaker 1: able to defend their interests and so they probably die.
Speaker 1: If you left, you could get this relief called cancelation
Speaker 1: of removal. And so the question in this case is, well,
Speaker 1: how do you prove that you have been in the
Speaker 1: United States for ten years before your removal proceedings started?
Speaker 1: And so for people who never were even placed at
Speaker 1: the removal proceedings for ten years, that's easy enough. But
Speaker 1: for someone who got a notice that didn't tell them
Speaker 1: what the date and time of the hearing? One could
Speaker 1: that notice then stop the clock so to seek meaning
Speaker 1: you were properly placed in removal proceedings before you had
Speaker 1: established that you lived in the United States for ten years,
Speaker 1: and what the court rook is. The answer that question
Speaker 1: is no. The only way to stop the clock is
Speaker 1: to serve that document, the notice to appear in the
Speaker 1: proper way, filling in all the blames with the data
Speaker 1: and time and location of the hearing. And the focus
Speaker 1: in the decision was on the article A in the
Speaker 1: phrase a notice to appear correct meaning the question was
Speaker 1: in this case, did the ten year period that needed
Speaker 1: to take place before you were placed at removal proceedings
Speaker 1: stop the first time you were given any notice, even
Speaker 1: if it wasn't a complete notice, or did it need
Speaker 1: to be a complete notice to appear with everything that's
Speaker 1: required in the notice to appear? And what Justice Gorson
Speaker 1: said is because it said a quote notice to appear,
Speaker 1: that means has to be in one document, one notice
Speaker 1: to appear that has all of the items to it.
Speaker 1: It could be that you got this one document, a
Speaker 1: notice to appear, and that document says TB A to
Speaker 1: be abound, and then you get another piece of paper
Speaker 1: later that's not the form called the notice to appear
Speaker 1: that tells you, hey, you're hearing is on October fourth
Speaker 1: one at the Houston Court House. That's not gonna work.
Speaker 1: You actually have to get the document from notice to appear.
Speaker 1: That's why it says a quote notice to appear. And
Speaker 1: only if you get that document with everything in it
Speaker 1: that is required by law, have you been properly placed
Speaker 1: into removal proceedings such that's at that moment we stopped
Speaker 1: counting whether you've been in the US for ten years
Speaker 1: or not justice. Course, such wrote that the dispute may
Speaker 1: seem semantic since the gentlystices are basing the decision on
Speaker 1: the meaning of one word, isn't it semantic? Well, it's
Speaker 1: semantic in terms of how you define an article in
Speaker 1: a statute. But in real life, this is now going
Speaker 1: to mean hundreds of thousands of individuals who have US
Speaker 1: citizen children or got married, but they can't change their
Speaker 1: status because people think when you get married, you can
Speaker 1: change your status. But that's only true of you overstayed
Speaker 1: the visa, not true if you entered illegally by crossing
Speaker 1: the border. So for all the people who entered illegally
Speaker 1: by crossing the border and got married to a US citizen,
Speaker 1: or for all of the people who have had U
Speaker 1: s citizens children since they acquired illegal status in the
Speaker 1: United States, for any of those people, they can now
Speaker 1: move to reopen their case and apply for cancelation of removal,
Speaker 1: and that will actually have two different benefits. One, they
Speaker 1: might actually get cancelation of removal, although that's unlikely because
Speaker 1: there's an annual cap of four thousand and there's a
Speaker 1: huge line already, so it's unlikely that that will happen.
Speaker 1: But what's more likely to happen is that by reopening
Speaker 1: their removal proceeding, they will no longer have a removal
Speaker 1: order against them, which means they're back to normal. And
Speaker 1: so what could then happen, especially for the people whose
Speaker 1: children will have turned twenty one maybe during the Biden administration,
Speaker 1: is that once goes to older in one, they can
Speaker 1: apply for green cards for their parents and the parrots
Speaker 1: doesn't have a removal order against them. So this is
Speaker 1: actually potentially going to lead to the regularization of the
Speaker 1: status of at least a few thousand people and maybe
Speaker 1: tens of thousands of people. Let's talk about the lineup
Speaker 1: justice course which wrote the majority opinion. The majority also
Speaker 1: included Justices Clarence Thomas, Stephen Bryer, Sonya Sotomayor, Elena Kaig
Speaker 1: and Amy Coney Barrett. The descent was written by Justice
Speaker 1: Brett Kavanaugh, joined by Chief Justice John Roberts and Samuel Alito.
Speaker 1: How do you account for those alliances? I think if
Speaker 1: you're a textual is there's no way you could have
Speaker 1: ruled gets what the ruling was in this case. It
Speaker 1: literally says a notice to appear, and it says in
Speaker 1: the stattoo what the notice to appear has to had.
Speaker 1: The problem is, if you're sort of a practical policy person,
Speaker 1: you might say, well, my lord, this point beheaded sort
Speaker 1: of conclusion is going to drive us to a point
Speaker 1: where what is the government's supposed to do. There's no
Speaker 1: way it can know when the hearing is going to
Speaker 1: be when it first apprehends people, and so this is
Speaker 1: not practical, and so we can't interp for laws in
Speaker 1: a way that are not practicable to enforce. But that's
Speaker 1: not what the Congress intended. The Congress intended that you
Speaker 1: get a notice to appear, and that notice that tells
Speaker 1: you where to appear and when is what triggers your
Speaker 1: removal proceeding. And so what's the court said is, even
Speaker 1: if you think this is not practical, if it's reasonable
Speaker 1: enough to think why Congress would have wanted you to
Speaker 1: get that in one notice and not in several notices,
Speaker 1: because if you lose one of the several notices, then
Speaker 1: you still don't know when you're hearing. Is so that's
Speaker 1: a practical enough reason why you could say, converse asked
Speaker 1: for one notice, the case is over. That's it. We
Speaker 1: don't get into these discussions of well does one make
Speaker 1: more sense then the other? The statute clearly reads one notice,
Speaker 1: and there's a reason why Congress might have all wanted
Speaker 1: this to be in one notice. So that's the end
Speaker 1: of the analysis. So let me ask you about the
Speaker 1: Descent also used textualism, but came to a different decision
Speaker 1: on how to understand the article A right. The Descent
Speaker 1: was basically making an argument about that there was no
Speaker 1: practical way to interpret the statute in the way that
Speaker 1: the people who were challenging this we're saying. They first
Speaker 1: of all, they really were upset that the argument chosen
Speaker 1: by the majority opinion was not even one that was
Speaker 1: briefed about this issue of A the letter A meaning singular.
Speaker 1: They claimed that wasn't even really briefed in the case.
Speaker 1: This was a decision that Justice Gorsage appeared to just
Speaker 1: come up with on his own and then was able
Speaker 1: to rally his five other leagues around getting it. So
Speaker 1: that was their first criticism of the decision. But moving forward,
Speaker 1: what they were really trying to get at is that
Speaker 1: the A doesn't necessarily being a singular. If you say
Speaker 1: a manu spirit, a manu sprit comes over courses of time,
Speaker 1: and so that could be the same thing as the
Speaker 1: notice to appear, So that there's no reason the aid
Speaker 1: necessarily required a singular notice. And so because it's not
Speaker 1: practical to expect the government at the border to know
Speaker 1: when and where everybody's hearing was gonna be, why should
Speaker 1: they have to know that in order to start the
Speaker 1: removal proceeding? Why should a person get the benefits of
Speaker 1: these proceedings if the government never served the right documents
Speaker 1: to which Justice course had said, Well, because that's the
Speaker 1: way of the bureaucracy works. People all the time are
Speaker 1: punished for not filling out the right forms of the
Speaker 1: right way. So if the government doesn't fill out the
Speaker 1: right forms in the right way, it should have the
Speaker 1: same punishments that people get what they don't of the
Speaker 1: right forms in the right way. So what does it
Speaker 1: tell you that textualism was used to justify both the
Speaker 1: majority and the dissent. There are textualists on both sides
Speaker 1: of these arguments, and no matter what ethos or governing
Speaker 1: principle you use, you'll always be able to get to
Speaker 1: a different outcome. But at the end of the day,
Speaker 1: the reason you have the amalgamation of justices that you
Speaker 1: have in this case is because you have both the
Speaker 1: practical and the fairness arguments and the literal interpretation of
Speaker 1: the statute argument merged into the same results, which is
Speaker 1: the compassionate results of this case. And that's rarely the case,
Speaker 1: but when it happens, that's why you get a six
Speaker 1: or three ruling here. So what happens to the guatemal
Speaker 1: And immigrant in this case now? So now this person
Speaker 1: can actually reopen their proceedings and try to make the
Speaker 1: argument that their deportation would harm a U s it
Speaker 1: is a child because it would lead to extreme an
Speaker 1: unusual hardship to that U s it is in child.
Speaker 1: The question will be will they be early enough in
Speaker 1: the cap to be able to get one of the
Speaker 1: four thousand green cards available each year where they have
Speaker 1: to wait several years, or will they be able to
Speaker 1: get a green card from their child eventually when the
Speaker 1: child turns one, so long as the court and basically
Speaker 1: the Biden administration is willing to hold the proceedings in
Speaker 1: a bay in until the child turns one, or even
Speaker 1: administratively closed the proceeding, which you can imagine the Biden
Speaker 1: administration doing in many cases. Moving forward, Thanks Leon, that's
Speaker 1: Leon Fresco of Hollanden Night. Coming up next, the justices
Speaker 1: will confront the confrontation clause. This is Bloomberg the first
Speaker 1: Senate here and for President Joe Biden's judicial nominations seemed
Speaker 1: to go fairly smoothly. The committee heard from five nominees,
Speaker 1: with Judge Katangi Brown Jackson attracting most of the attention.
Speaker 1: Joining me is Madison Alder, Bloomberg Law reporter. When did
Speaker 1: the White House begin vetting judicial nominees? So we learned
Speaker 1: from the documents that the nominees who were at the
Speaker 1: most recent Senate Judiciary Committing hearing submitted that the White
Speaker 1: House started vetting nominees pretty early on um Katondi Brown Jackson,
Speaker 1: who is Biden's pick for the DC Circuit and it's
Speaker 1: kind of thought of as a favorite for potential Supreme
Speaker 1: Court vacancy, was contacted by the White House on January
Speaker 1: which is six days after Biden was not gary that
Speaker 1: we also have, uh, you know, Candice Jackson Akiblumy, who
Speaker 1: was one of the nominees that the hearing, the Senate
Speaker 1: Judiciary Committee hearing on Wednesday. She was contacted by the
Speaker 1: White House on January eleven and asked about, you know,
Speaker 1: the potential vacancy the following day. So the White House
Speaker 1: is really getting started quite early on this, um, you know,
Speaker 1: compared to previous administrations. Um. The Trump administration got started
Speaker 1: fairly early as well with their first Lower Court nominee
Speaker 1: in most of heart Um, you know, so did Obama.
Speaker 1: He reached out to his first appeal of Court nominee
Speaker 1: in January. Biden, as we all know, I had eleven
Speaker 1: nominees in his first list, so it was kind of
Speaker 1: a larger group of people in that first group that
Speaker 1: they were looking at. Explain that how the nomination process works.
Speaker 1: Take us through it because some people think that, you know,
Speaker 1: Biden just looks at the lists and decides who he wants.
Speaker 1: But it's more complicated than that. So it is more
Speaker 1: complicated than that. Um. The Biden administration works with senators
Speaker 1: to um look at nominees for their states, especially in
Speaker 1: the district court level. And blue slip is is how
Speaker 1: senators will indicate their support for nominee. It's natural blue
Speaker 1: slip of paper in which they indicate their support. That
Speaker 1: is no longer in place for the fields court nominee
Speaker 1: as the Republicans did away with that during the Trump administration. UM,
Speaker 1: but they still have to work with senators for for
Speaker 1: district court picks and the buying administrations, you know, trying
Speaker 1: to work with with Democrats right now in the Senate,
Speaker 1: there's a few vacancies and in red states and purple
Speaker 1: states as well, so that's that's a big part of
Speaker 1: the process. And White House Council dainagrenas on the certain
Speaker 1: transition as senators of Democratic senators to make sure that
Speaker 1: they are affording names quickly, and asked senators to send
Speaker 1: names for already vacant seats by January nineteenth, the day
Speaker 1: before inauguration, and for any vacancies after that within forty
Speaker 1: five days of you know, vacancies. So they're basically asking
Speaker 1: for people to speed up this process, to get quicker,
Speaker 1: UM with this process, so that on their end they
Speaker 1: can you know, do do things um expeditiously as well.
Speaker 1: And on the White House end, you know, they're they're
Speaker 1: getting the candidates, they're doing background checks on them, they're
Speaker 1: interviewing them. Um. Their process, from what I've heard, is
Speaker 1: a lot of paperwork. So UM, that also takes quite
Speaker 1: some time before they can actually formally nominate people. So
Speaker 1: why is the Biden administration seemingly in this rush to
Speaker 1: get nominees? They have four years in office? What is
Speaker 1: the rush? So part of the rush is that, Um,
Speaker 1: the Senate majority is very slim. Uh. You know, Democrats
Speaker 1: have the fifty fifty split right now, very very slim margin. Um,
Speaker 1: the slimness of margins for the majority of the Senate,
Speaker 1: and mid terms often don't turn out well for for
Speaker 1: the party in the White House. So what they're worried about,
Speaker 1: or you know, what could happen, um, is that the
Speaker 1: Senate could change hands and getting judicial nominees advanced would
Speaker 1: become that much harder. If you have a Republican majority
Speaker 1: in the Senate, they could easily block any of Biden's
Speaker 1: judicial picks. That happened with President brockle Vama. His judicial
Speaker 1: nominees did not move forward when Republicans were in control
Speaker 1: of the Senate. So I think that's the large part
Speaker 1: of why the administration would like to move quickly here.
Speaker 1: So you mentioned the early deadlines that the Biden administration
Speaker 1: set for the senators. Did all the senators make those deadlines.
Speaker 1: My colleague and I, Courtney Rosen, who are a White
Speaker 1: House reporter, we took a look at at this and
Speaker 1: spoke to the Senate offices and the commissions that they
Speaker 1: set up to help them that picks before they can
Speaker 1: send him over the White House. We spoke to as
Speaker 1: many people as we could about how they were meeting
Speaker 1: those and found that some states were having difficulty meeting
Speaker 1: these deadlines. At least six states are having difficulty. A
Speaker 1: few states wouldn't tell us if they met the deadlines
Speaker 1: or not, and then there's they're also is a handful
Speaker 1: of states that have met these deadlines, and you know
Speaker 1: a few of those were on the president's first list
Speaker 1: of of nominees. But the reasons why some people aren't
Speaker 1: meeting these deadlines is because the lot of the January
Speaker 1: mis app during the transition also included some other really
Speaker 1: key elements the Biden administration is looking for in judicial nominees,
Speaker 1: like diversity of experienced, racial and ethnic diversity. They're really
Speaker 1: looking for candidates who aren't currently represented on the federal courts,
Speaker 1: and that is challenging for some Senate offices to those
Speaker 1: for nominees who don't fit the mold of not me
Speaker 1: they for in the past. They're looking for new people.
Speaker 1: And you know, we learned in one state in Massachusetts,
Speaker 1: Nancy Gartner, who's a former federal judge who chairs the
Speaker 1: commission there, told us that they couldn't meet the January
Speaker 1: nightte deadline specifically because they were looking for a more
Speaker 1: diverse pool. Some of the other reasons include, you know,
Speaker 1: getting a lot of of applications for for judicial nominations.
Speaker 1: In California, they've received over three hundred judicial applications. They
Speaker 1: have eighteen vacancies in the state at least right now,
Speaker 1: so they have a massive undertaking um But Senators are
Speaker 1: told us that they're working as as quickly as the
Speaker 1: possibly can, and the White House also told us that
Speaker 1: they understand that Senators are working on this and and
Speaker 1: and that it does take time to find these nominees.
Speaker 1: At the first hearings, the focus was on Judge Katangi
Speaker 1: Brown Jackson. Tell us about her. So, Katangi Brown Jackson
Speaker 1: is a judge on the District of DC currently. She
Speaker 1: has public defense experience, and she was one of the
Speaker 1: nominees who was at this first Senate Judiciary Committee hearing.
Speaker 1: She's being talked about as a potential nominee for the
Speaker 1: Supreme Court. There's an vacancy yet, but she's one of
Speaker 1: the people that people think Biden would be likely to nominate.
Speaker 1: She's nominated to Merritt Garland's seat on the DC Circuit,
Speaker 1: and the d C Circuit is seen as it's kind
Speaker 1: of a springboard for Supreme Court nominees. It's considered the
Speaker 1: second highest court in the land. So if she's named
Speaker 1: there and liberals are I'm Justice Bryers and maybe stepped down,
Speaker 1: it would be a quick turnaround if she were nominated
Speaker 1: that seat. But maybe getting a little ahead of ourselves.
Speaker 1: So there was a lot of reculation by conservative activists
Speaker 1: that Republicans might give Jackson a hard time with tough
Speaker 1: questions about her record as a judge and reversals by
Speaker 1: the court she's nominated to sit on. So how did
Speaker 1: it go? So in large part, Republicans did ask tough
Speaker 1: questions and they, you know, try to pin the nominees
Speaker 1: down on how they felt about judicial activism, how they
Speaker 1: felt about controversial matters of law, but they received relatively
Speaker 1: little pushback. There was one offense where Senator Tom Tillis
Speaker 1: pulled up a clip from NSNBC talking about one of
Speaker 1: Katanji Brown Jackson's decisions. Thing was written for a broad audience,
Speaker 1: kind of seeming to make the link Katani Brown Jackson
Speaker 1: potentially auditioning for the Supreme Court. But that was really
Speaker 1: the only instance where we had something that was, you know,
Speaker 1: a little bit more of aggressive exchange between the senators
Speaker 1: and phenomenes. Is the opinion that he was referring to
Speaker 1: the one It evolved from a White House counsel Don McGann,
Speaker 1: and she said, presidents aren't King's. That was the decision
Speaker 1: he was referring to. And I should note also in
Speaker 1: the hearing, Senator Mike Lee of Utah as the Republicans
Speaker 1: also mentioned that same phrasing and that he's said that
Speaker 1: in the past before. All four of the nominees at
Speaker 1: the hearing are people of color. Were there any questions
Speaker 1: involving race? There was, So she and her fellow Circuit
Speaker 1: Court nominee who's nominated to the seventh Circuit were both
Speaker 1: asked how their race they're both black, how their race
Speaker 1: would impact their decision making, if at all, by Senator
Speaker 1: John Cornan of Texas, who is a Republican he was
Speaker 1: making the link that Democrats were making, you know, a
Speaker 1: huge deal lot of svertifying the courts, and both of
Speaker 1: them said that their race would not make an impact
Speaker 1: on their decision making. As I mentioned before the hearing,
Speaker 1: a lot of conservative activists were pointing to this visions
Speaker 1: that Jackson has made that have been reversed on appeal.
Speaker 1: And Carrie Severino, who's the president of the Conservative Judicial
Speaker 1: Crisis Network, told you that she's someone who was a
Speaker 1: record of being regularly overturned by the d C Circuit.
Speaker 1: What is her record as far as reversals and did
Speaker 1: the Republicans question her about her record? The Republicans really
Speaker 1: didn't question her about this reversal record, um, even though
Speaker 1: this is something that I heard beforehand would potentially be
Speaker 1: something that they would ask her about her record. She
Speaker 1: has decided about six hundred cases and it was mentioned
Speaker 1: that the hearing that nine percent of them have not
Speaker 1: been reversed. So that was something that was maybe anticipated
Speaker 1: to be a bigger deal than it ended up being.
Speaker 1: And the questions she did get about that kind of
Speaker 1: throwing her to talk about her record were remotely from Democrats.
Speaker 1: Were you expecting to see a hearing where there was
Speaker 1: some fireworks and a lot of tough, confrontational questioning. I mean,
Speaker 1: I think the hearing was definitely different than a lot
Speaker 1: of people expected it to be, UM in terms of
Speaker 1: the intensity with which some of the questions were being asked.
Speaker 1: It did seem that the answers from both nominees satisfied
Speaker 1: the senators, roscking them on. On both sides of the aisle,
Speaker 1: they were congratulated for their nominations. A few of the
Speaker 1: senators also, Um, you spoke about to Tonty Brown Jackson's
Speaker 1: experience in the U S Sentencing Commission and applauded her
Speaker 1: for that. I think it was kind of a docile
Speaker 1: hearing as far as these hearings go UM, at least
Speaker 1: in my experience. Thanks Madison. That's Bloomberg Law reporter Madison Alder,
Speaker 1: and that's it for this edition of the Bloomberg Law Show.
Speaker 1: Remember you can always get the latest legal news on
Speaker 1: a Bloomberg Law podcast. You can find them on Apple Podcasts, Spotify,
Speaker 1: and wherever you get your favorite podcasts. I'm June Grosso
Speaker 1: and you're listening to Bloomberg