Speaker 1: You're listening to Bloomberg Law with June Grusso from Bloomberg Radio.
Speaker 2: Today, I'm announcing actions to bar migrants who cross our
Speaker 2: southern border unlawfully from receiving astylum.
Speaker 3: President Joe Biden unveiled plans to head off a surgeon
Speaker 3: border crossings this summer by executive action, his most significant
Speaker 3: action to address the migrant crisis that has threatened his reelection.
Speaker 3: Biden said Republicans left him no choice but to act alone.
Speaker 3: The long anticipated presidential proclamation would bar migrants from being
Speaker 3: granted asylum when illegal border crossings reach high levels.
Speaker 2: To protect America as a land that welcomes immigrants, we
Speaker 2: must first secure the border and secure it now. The
Speaker 2: simple truth is there is a worldwide migrant crisis, and
Speaker 2: if the United States doesn't see QR border, there's no
Speaker 2: limit to the number of people may try to come here,
Speaker 2: because there's no better place than the planet than the
Speaker 2: United States of America.
Speaker 3: The ACLU has already said it will challenge Biden's action
Speaker 3: in court, much as it did Trump's actions on the border.
Speaker 3: Joining me is Leon Fresco, a partner at Holland and Knight.
Speaker 3: He was the head of the Office of Immigration Litigation
Speaker 3: at the Justice Department during the Obama administration. Leon tell
Speaker 3: us about this new policy.
Speaker 1: The policy is that starting now, if anyone tries to
Speaker 1: cross the border illegally in between the ports of injury
Speaker 1: and ask for asylum, they will be banned from doing
Speaker 1: it unless they were a victim of human trafficking or
Speaker 1: had some sort of urgent medical or humanitarian issue that
Speaker 1: was immediately evident to the border patrol officials who apprehended
Speaker 1: the person. There is a trigger that's being put in
Speaker 1: by executive order that's using the travel ban authority under
Speaker 1: Section two twelve f of the Immigration Code, which President
Speaker 1: Trump used many times during his presidency, And what they're
Speaker 1: saying is that if there's ever a situation where more
Speaker 1: than twenty five hundred people per day on average are
Speaker 1: crossing over any given week, that gives them the authority
Speaker 1: to trigger this ban procedure until such time as the
Speaker 1: daily crossings go down to fifteen hundred people a week,
Speaker 1: which the last time that's happened was during COVID where
Speaker 1: nobody was traveling anywhere, and at the moment, because we
Speaker 1: have something around thirty five hundred to four thousand crossings
Speaker 1: per day that exceeds the twenty five hundred person threshold,
Speaker 1: which is why at midnight on June fifth, the border
Speaker 1: will shut down and essentially people asking for asylum who
Speaker 1: are crossing the border will not be allowed to do
Speaker 1: that any longer.
Speaker 3: Are they allowed to apply for asylum at the port
Speaker 3: of entry.
Speaker 1: So here is how this works with regard to the
Speaker 1: ports of entry. There are appointments on an app on
Speaker 1: your phone called CBP one, and there are about fifteen
Speaker 1: hundred of those appointments every day, and so if you
Speaker 1: look at that, that you know six hundred thousand or
Speaker 1: five hundred thousand appointments a year. And what that does
Speaker 1: is if you want to get one of those appointments
Speaker 1: and apply for asylum, those will still be available and
Speaker 1: people will still be allowed to do that because that's
Speaker 1: an orderly process and one people can use without creating
Speaker 1: chaos on the border. As opposed to they will not
Speaker 1: be able to take matters into their own hands and
Speaker 1: cross in between the ports of entry and ask for asylum.
Speaker 1: They will be, according to this executive order, returned back,
Speaker 1: which was the same thing that was being done with
Speaker 1: COVID under the title forty two COVID authority.
Speaker 3: He's tapping executive powers outlined in section two twelve F
Speaker 3: of the Immigration and National Act. And that's the same
Speaker 3: law that former President Trump used in the Muslim ban
Speaker 3: of twenty seventeen and the twenty eighteen suspension of entry
Speaker 3: of migrants between the ports of entry. Explain what that
Speaker 3: law does so.
Speaker 1: Years where this is going to get a little complicated, June,
Speaker 1: and I want you and your listener to try to
Speaker 1: stay with me here because it will all make sense
Speaker 1: in a second. The statute, all it says is that
Speaker 1: the President, if the President thinks it's not in the
Speaker 1: national interests of the United States, may ban the entry
Speaker 1: of any category of non citizens that the President deans
Speaker 1: is not in the national interests of the United States
Speaker 1: to let them enter. So that is simple when the
Speaker 1: foreign national is outside the United States. So suppose you're
Speaker 1: at a US embassy in India and you're applying for
Speaker 1: a visa. If there's a ban on Indian immigration that
Speaker 1: the President put in onna section two twelve F, simple
Speaker 1: no visa can be issued. Or if you're at an
Speaker 1: airport in Canada you're trying to fly to the United
Speaker 1: States and there's a ban on flying from Canada to
Speaker 1: the United States because we've banned Canadian from coming in.
Speaker 1: That's a very easy band to enact too. Where it
Speaker 1: gets complicated is when someone has already crossed the border,
Speaker 1: the southern border, and has already entered the United States.
Speaker 1: Because then this is a very important word entry. This
Speaker 1: becomes a complicated issue because when you enter the United
Speaker 1: States illegally, that's what makes you subject to prosecution for
Speaker 1: illegal entry. Or if you get supported and you come
Speaker 1: back in, that's what makes you subject to prosecution for
Speaker 1: illegal re entry. You have to have an entry. It's
Speaker 1: an element of the crime in order to be subject
Speaker 1: to the crime. Here's where this is problematic. Biden is
Speaker 1: saying that this power to restrict entry all also apply
Speaker 1: to people who've already entered. And that's what's going to
Speaker 1: be the debate in the courts is whether that's true
Speaker 1: or not, because there's a very strong argument that if
Speaker 1: Congress had meant that, it would have said that. But
Speaker 1: it's said. What Congress provided was for the expedited Removal Authority,
Speaker 1: which is where someone can come in and the government
Speaker 1: can deport them immediately unless they apply for asylum and
Speaker 1: in that case, when they apply for asylum, they get
Speaker 1: to stay. And so that's the complication here is will
Speaker 1: the Supreme Court ultimately give leeway to the Biden administration
Speaker 1: to say that, yes, for this purpose, an entry doesn't
Speaker 1: count as an entry. If we taught you ten minutes
Speaker 1: after you entered, we will pretend that you still didn't enter.
Speaker 1: But if that's true, then does that eliminate, by the
Speaker 1: same token, the federal government's ability to ever prosecute anyone
Speaker 1: again for illegal entry or illegal re entry? Because that's
Speaker 1: why we prosecute people, because we got them ten minutes
Speaker 1: after entering. And so this is quite a very interesting
Speaker 1: thread that I don't know how courts can thread that
Speaker 1: needle and try to have both sides of both of
Speaker 1: these arguments.
Speaker 3: I knew there was some kind of a complication here
Speaker 3: when the ACLU successfully led the charge against the Trump
Speaker 3: administration's attempt to block asylum in twenty eighteen. Was that the.
Speaker 4: Argument, Yes, that was the exact argument, which is that
Speaker 4: the asylum statues specifically says it doesn't matter how you
Speaker 4: enter legally, illegally, anything else, it doesn't matter.
Speaker 1: You can still apply for asylum. Now that is in
Speaker 1: conflict with another statue, which says that the government can
Speaker 1: add regulatory reasons why you don't get asylum, and so
Speaker 1: they can add this one. Presumably you know that the
Speaker 1: border crossings are too high, and so this is a
Speaker 1: regulatory reason why you don't get a asylum. But the
Speaker 1: problem is that only operates for not giving you asylum.
Speaker 1: There are still two other reliefs that still allow you
Speaker 1: to stay, because the thing with the asylum is that
Speaker 1: gives you a path to citizenship. But there's two other
Speaker 1: kinds of relief you can apply for which still come
Speaker 1: up to work and prevent deportation. One is withholding of removal,
Speaker 1: which just lets you stay while whatever problem in your
Speaker 1: country exists, but doesn't let you stay permanently. And another
Speaker 1: one is relief under the Convention against Torture, which says,
Speaker 1: even if you're not being persecuted, if you're going to
Speaker 1: get tortured, we won't let you go back against tortured. So,
Speaker 1: for instance, a lot of Russian immigrants get this kind
Speaker 1: of relief because if they show that they're going to
Speaker 1: be imprisoned in Russia, the prison conditions in Russia are
Speaker 1: our tent amounts to torture, as has been documented in
Speaker 1: the the Bounty case, the Britney Grinder case than others.
Speaker 1: And so what ends up happening is people can apply
Speaker 1: for those reliefs and gum up the works. And so
Speaker 1: what Biden is trying to say is no, no, no, this
Speaker 1: executive order means you can't apply for anything. We're trying
Speaker 1: to do exactly what COVID did. That lets you pick
Speaker 1: people out. And the question is will this entry be
Speaker 1: considered a fiction or not? And if it's considered a fiction,
Speaker 1: then maybe the Supreme Court let's Biden get away with this,
Speaker 1: But most probably if entry is treated like the way
Speaker 1: it's treated in plain English, then the people have already entered.
Speaker 1: It's too late to ban them from coming in once
Speaker 1: they've already entered.
Speaker 3: To affirm Biden's policy, would the Supreme Court have to
Speaker 3: reverse how it ruled with Trump's policy.
Speaker 1: Well, no, because Trump's policy with regard to the travel
Speaker 1: ban was about who could be given travel bans. Could
Speaker 1: you discriminate quote unquote on the basis of religion, or
Speaker 1: was religion of prefects or all of that, And there
Speaker 1: the Supreme Court said, look, as long as the reason
Speaker 1: on his face is legitimate and bonified. We're not gonna
Speaker 1: second guess and go behind that and say what did
Speaker 1: the president really mean, etc. Now, there was an actual
Speaker 1: travel band that said all Muslims are banned from the
Speaker 1: United States. Come back to us with that case. We're
Speaker 1: not deciding that case today because this case is about
Speaker 1: objective factors of safety insecurity, and so the president gets
Speaker 1: broad discretion to do that. That's going to be different
Speaker 1: than this case, which will be about whether an entry
Speaker 1: is involved in a case where a person is already
Speaker 1: inside the United States. So Trump was about can you
Speaker 1: ban people outside the United States? This is now going
Speaker 1: to be about can you pretend that someone who just
Speaker 1: entered minutes ago didn't really enter such that you can
Speaker 1: kick them out like if they were applying in India
Speaker 1: for a visa.
Speaker 3: Did the Trump case where he suspended the entry of
Speaker 3: migrants between the ports of entry, did that go to
Speaker 3: the court?
Speaker 1: That did not because by the time what happened was,
Speaker 1: first the Northern District of California struck that down and
Speaker 1: said you can't have this kind of ban. Then the
Speaker 1: Ninth Circuit agreed, Then COVID happened, and then by the
Speaker 1: time this would have gotten around to any kind of
Speaker 1: Supreme Court review the administration's change and the policy change,
Speaker 1: and that was the end of it. So we never
Speaker 1: got to see the actual final work. We know the
Speaker 1: Ninth Circuit as finding president on this, So the Ninth
Speaker 1: Circuit would actually have to go unbond and reverse itself,
Speaker 1: which is very unlikely if they're going to overrule this
Speaker 1: precedent on the issue of entry and asylum. So the
Speaker 1: only hope that the Biden administration is going to have
Speaker 1: is to go to the Supreme Court.
Speaker 3: Stay with me Leon coming up, we're going to discuss
Speaker 3: what happens next in the courts and why there may
Speaker 3: be an injunction against this action before the weekend. I'm
Speaker 3: June Grosso and you're listening to Bloomber. Today, President Joe
Speaker 3: Biden unveiled plans to enact immediate, significant restrictions on migrants
Speaker 3: seeking asylum at the US Mexico border as he tries
Speaker 3: to neutralize immigration as a political liability ahead of the
Speaker 3: November elections. But the ACLU has already said it intends
Speaker 3: to sue to stop Biden's order, much as it argued
Speaker 3: similar legal challenges against former President Donald Trump. I've been
Speaker 3: talking to immigration law expert Leon Fresco, a partner at
Speaker 3: Hollanda Knight Lee on before the break. We were discussing
Speaker 3: the word entry and how that will be important in
Speaker 3: the legal arguments to come. So this is going to
Speaker 3: be a very technical argument for Biden to win. Is
Speaker 3: it going to be the Supreme Court justices or at
Speaker 3: least five of them saying wink, wink, nod, nod, it's okay.
Speaker 1: Correct, He's gonna need that. And then there's a second
Speaker 1: rinkle we haven't even talked about yet. Then going to
Speaker 1: need the cooperation of the Mexican government to repatriate people
Speaker 1: who are not Mexicans into Mexico, which the Mexican government
Speaker 1: has no obligation to do. They're doing it right now
Speaker 1: as a favor to Americans at a rate of thirty
Speaker 1: thousand per month, But this would require much more than that.
Speaker 1: Remember we're talking about at the moment four thousand people
Speaker 1: per day. So we do some amateur mathematics here, we're
Speaker 1: talking about one hundred and twenty thousand people per month.
Speaker 1: Is the Mexican government, especially after this election, likely to
Speaker 1: do that? So we have two big issues. Number one
Speaker 1: that there's going to be an immediate injunction that is
Speaker 1: a one hundred percent thirty on this Biden policy. I
Speaker 1: mean that injunction might be issued by the end of
Speaker 1: this week. And then the second question is after that
Speaker 1: injunction is issued, if it ever gets listed by the
Speaker 1: Supreme Court, Well, does the Mexican government allow you to
Speaker 1: actually implement this?
Speaker 3: Yeah, Biden mentioned the Mexican government in his in his
Speaker 3: statement indicating that they will cooperate, but who knows. You
Speaker 3: have a new president now. Administration officials said that individuals
Speaker 3: will be removed to their country of origin in a
Speaker 3: matter of days, if not hours. Does the Biden administration
Speaker 3: have enough resources to quickly expel them?
Speaker 1: So the answer to that question is going to be
Speaker 1: it depends what country the person is from. For instance,
Speaker 1: if they're from Venezuela, Venezuela is not accepting people who're
Speaker 1: trying to deport, and Cuba is not really accepting people
Speaker 1: we're trying to deport, and eighty has some very difficult
Speaker 1: conditions right now, so it's difficult to support people in
Speaker 1: large scale and so you start adding all of those up,
Speaker 1: and you start getting significant chunks of people that you
Speaker 1: cannot deport very quickly. China is another one. You can't
Speaker 1: really deport people to China. What are you going to
Speaker 1: be doing with all of those people who are crossing
Speaker 1: the border. Nothing really is going to be changing there
Speaker 1: other than unless Mexico lets you bring them back into Mexico.
Speaker 1: But then they become Mexico's problem, and then the question is, well,
Speaker 1: how long is Mexico willing to deal with such a
Speaker 1: surge of people inside of Mexico. So that's the complication here.
Speaker 1: But at the end of the day, that's where we're at.
Speaker 3: Lea take us through what actually will happen when these
Speaker 3: migrants are stopped. I mean, it's not just turn them
Speaker 3: around and have them go back. They'll have to be processed.
Speaker 1: Right, So it will depend what happens. Is if it'll
Speaker 1: be a Mexican person, that will be very simple. The
Speaker 1: Mexican person will come, they will be immediately banned, they
Speaker 1: will be sent back into Mexico. That one's very simple.
Speaker 1: Perhaps for some of the Central American migrants, that also
Speaker 1: will happen. They will be immediately apprehended, they will be detained,
Speaker 1: and they will be sent back into Mexico. They probably
Speaker 1: won't be flown back to Central America, but sometimes that's
Speaker 1: possible too, And so in those scenarios, if a flight
Speaker 1: can be arranged and it's quick enough, they would also
Speaker 1: be flown into Central America. For the others, this gets
Speaker 1: more complicated because if Mexico doesn't let you bring them
Speaker 1: into Mexico, then they will have to be detained. Because
Speaker 1: if they're not detained, you'll never get them back. It'll
Speaker 1: be impossible because they'll just be released for some future
Speaker 1: immigration hearing. So you'll have to keep them detained. And
Speaker 1: the question is do you have the sufficient detention resources
Speaker 1: to be able to keep them detained while you're trying
Speaker 1: to arrange for sometimes they don't have passports, and if
Speaker 1: they don't have passports, you need their home country to
Speaker 1: issue it in order to get them flown back or
Speaker 1: for whatever arrangements are needed to get them to be
Speaker 1: able to be flown back. But again, in cases where
Speaker 1: you know you're not going to be able to deport people,
Speaker 1: which are Chinese, Cuban, Venezuelan cases, some Haitian cases, some
Speaker 1: Nicaraguan cases, those are going to be very tough. I
Speaker 1: don't see what an executive order can change unless Mexico
Speaker 1: is willing to let you remove those people into Mexico,
Speaker 1: or as Trump starts doing, which the Bidens administration hasn't
Speaker 1: announced yet. Trump was starting to get deals with certain
Speaker 1: countries in Central America to actually deport people into those countries.
Speaker 3: The initial criticism from immigration advocates and progressives is that
Speaker 3: this is just what Trump did, But the administration has
Speaker 3: said this is not comparable to Trump's system wide crackdowns.
Speaker 3: What do you think It sounds a lot like it.
Speaker 1: It is almost identical to what Trump did, with the
Speaker 1: exception that they made some carveouts for unaccompanied children, which
Speaker 1: is required under the Trafficking Victims Protection Act, and also
Speaker 1: they made exceptions for people with urgent medical and humanitarian
Speaker 1: claims and victims of human trafficking, whatever that may appear.
Speaker 1: Because at the end of the day, all of those
Speaker 1: screenings are going to be done very quickly by someone
Speaker 1: who's a border patrol officer who may not necessarily that
Speaker 1: might not be their top priority at the moment. They
Speaker 1: may have a security agenda that they're trying to fulfill,
Speaker 1: and so asking if someone's been human traffic may not
Speaker 1: be at the moment's top of mind, and so what
Speaker 1: ends up happening is in its implementation, it ends up
Speaker 1: being almost identical to the Trump band.
Speaker 3: The numbers of unauthorized crossings have continued to go down
Speaker 3: in recent months from a high in December.
Speaker 1: Correct there were days that we were at twelve thousand
Speaker 1: people crossing per day, and now we're down to around
Speaker 1: four thousand. And if you recall what they were talking
Speaker 1: about the bill in Congress, they were actually talking about
Speaker 1: five thousand crossings per day. So interestingly enough, now the
Speaker 1: crossings are under four thousand, they're between thirty five hundred
Speaker 1: and four thousand, and so the question is why has
Speaker 1: the Biden administration decided that twenty five hundred is actually
Speaker 1: the unacceptable number? Because in the legislation that was being
Speaker 1: talked about before, it was actually sci fi, and now
Speaker 1: we're talking about twenty five hundred. And what seems to
Speaker 1: be happening is this number appears to be moving in
Speaker 1: order to be able to justify an executive order, so
Speaker 1: that what ends up happening is you can at least
Speaker 1: implement it for now. But I do think the Night
Speaker 1: administration understands because they have very smart lawyers that are
Speaker 1: there that the actual sequence of events of the way
Speaker 1: this is going to play out is they've written the
Speaker 1: executive order. Now it's going to be implemented tonight. It
Speaker 1: will be immediately sued. There will be an immediate injunction,
Speaker 1: so the order goes away, and then they try to
Speaker 1: appeal to the Ninth Circuit and the Supreme Court will
Speaker 1: be very interesting to see if they try to take
Speaker 1: a fast track or if they try to take a
Speaker 1: slow track. That will be very indicative of whether this
Speaker 1: was meant to be a political gambit or whether this
Speaker 1: was meant to be a legitimate border operation and procedure.
Speaker 1: If they take the slow road, then we know this
Speaker 1: is all because nothing's gonna happen until the election. If
Speaker 1: they take the fast road, I suppose the Supreme Court
Speaker 1: pen within the next thirty days or so decide whether
Speaker 1: they want to stay an injunction and allow this to
Speaker 1: go into effect. But if that does go into effect,
Speaker 1: then the question is going to be will you be
Speaker 1: able to get those numbers down to the actual twenty
Speaker 1: five hundred level that they're talking about. And we'll have
Speaker 1: to wait and see how that ends up getting implemented.
Speaker 3: And you seem pretty sure that this order won't to
Speaker 3: even make it to the weekend.
Speaker 1: Yeah, definitely, by the end of this week, this thing
Speaker 1: is going to be enjoying just because it's binding Ninth
Speaker 1: Circuit presidents already and we.
Speaker 3: May be a long way away from that. But I mean,
Speaker 3: what do you think the chances are at the Supreme Court?
Speaker 3: It sounds like a technicality.
Speaker 1: I think it would be very difficult. It's going to depend,
Speaker 1: I think on how the advocates would argue this. But
Speaker 1: the way I would argue it is this, be very
Speaker 1: careful what you wish for by an administration or or
Speaker 1: Trump administration or anyone else who thinks that you can
Speaker 1: ban people on the border using this statute, Because if
Speaker 1: what you're gonna say is we will not treat people
Speaker 1: whose bodies are inside the United States as people who
Speaker 1: have entered the United States, then you will have lost
Speaker 1: your ability to prosecute people for illegal entry. That's gone.
Speaker 1: You can't have it both ways, And so which one
Speaker 1: do you prefer. Do you prefer to have a statute
Speaker 1: to let you prosecute people for illegal entry or do
Speaker 1: you prefer to have this travel band situation? And that's
Speaker 1: what it's gonna come down to but entry either means
Speaker 1: entry or it doesn't mean it. If you're gonna say
Speaker 1: entry means, oh, you have to be here a certain
Speaker 1: amount of time, well that would have had to have
Speaker 1: been written in the executive order, and that's not written
Speaker 1: in the executive order. So I don't know how they're
Speaker 1: going to distinguish these two things, but I think that's
Speaker 1: going to be where the Court gets hung up and says,
Speaker 1: wait a second, I don't think we can do this.
Speaker 3: Considering all that, it sounds more like Biden did this
Speaker 3: for political reasons.
Speaker 1: Well. I think the timing of it, obviously right after
Speaker 1: the Mexican election, shows they were cognizant of that, and
Speaker 1: I think they did feel they needed to have something
Speaker 1: to speak about because they were being asked every day
Speaker 1: in the press room, in the White House news conference
Speaker 1: as well. I understand you keep blaming the Congress, but
Speaker 1: what has the Biden administration done? And they said, we
Speaker 1: can't do anything more? It's illegal, and that people say, well,
Speaker 1: why don't you try prove it? And so they have
Speaker 1: now succumbed to this argument and they're saying, okay, well
Speaker 1: you claim that we haven't tried. Well, now, we've tried,
Speaker 1: let's see what happened, and I think this is what's
Speaker 1: happened here.
Speaker 3: During his statement, Biden mentioned something that we've discussed before,
Speaker 3: which is the hope that migrants will start to know
Speaker 3: that they're going to be removed quickly and not be
Speaker 3: able to stay in the US for years through their
Speaker 3: immigration court process, and they perhaps just won't.
Speaker 4: Make the trip, right.
Speaker 1: I mean, that's the deterrent effect you're trying to instill.
Speaker 1: And that does work, but it only works when people
Speaker 1: are getting real time information that it's not working to
Speaker 1: come across the border. So if there's a stream of
Speaker 1: that kind of real time information, people will stop coming.
Speaker 1: But the communication networks the smugglers, it's all way too
Speaker 1: sophisticated now to simply say don't come. That doesn't work anymore.
Speaker 1: So now the next step is can the Biden administration
Speaker 1: actually build a resume of real time information that deters
Speaker 1: people from coming. It's going to be difficult at the beginning,
Speaker 1: because at the beginning this is going to be enjoyed,
Speaker 1: So they will need the Supreme Court to help them
Speaker 1: in order to have any hope of being implemented.
Speaker 3: Does this rule still comply with our obligations under international treaties.
Speaker 1: Well, this gets very complicated.
Speaker 3: Again, complicated, yes.
Speaker 1: Because at the end of the day. Number one, are
Speaker 1: they going to let people who are saying they're going
Speaker 1: to be tortured have a screening for that or are
Speaker 1: they just going to ban people even if they are
Speaker 1: in fear of torture. If they do ban those people,
Speaker 1: that is indeed in violation of the Convention against Torture.
Speaker 1: And that was happening during COVID. But that's because at
Speaker 1: the end of the day, we had a statute that
Speaker 1: when there's an international obligation, if you have a statute
Speaker 1: that is intension with that, the statute actually wins in
Speaker 1: one of those supremacy battles, and so Final forty two wins.
Speaker 1: But here that wouldn't take into effects, and so that
Speaker 1: would be one. And then secondly, with regard to what's
Speaker 1: called non refuel ma, which just means you can't return
Speaker 1: people without doing anything, without trying to actually screen them,
Speaker 1: that's going to be another one. And so obviously the
Speaker 1: bind administration will say say, well, we're doing this because
Speaker 1: we have the CVP APP, we have a refugee program,
Speaker 1: we have a bunch of other ways for people to
Speaker 1: do it. But in the end, if you're pushing people out,
Speaker 1: you are technically violating the rules. Now, you don't have
Speaker 1: a duty to give people asylum, which is the past
Speaker 1: the citizenship, but you do have a duty not to
Speaker 1: push people out who might face persecution unless and until
Speaker 1: you've given them due process, at least if you're going
Speaker 1: to meet your international obligations. And so this is going
Speaker 1: to be a very tough argument because there were no
Speaker 1: exceptions to that based on quote unquote twenty five hundred
Speaker 1: people coming across the border. That would be a new thing.
Speaker 3: So many complications, which seems to be a constant in
Speaker 3: immigration law. Thanks so much, Leon for taking us through it.
Speaker 3: That's Leon Fresco, a partner Hollanden Knight. Coming up next.
Speaker 3: Hunter Biden goes on trial. I'm June Grosso and you're
Speaker 3: listening to Bloomberg.
Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
Speaker 3: In opening statements today, federal prosecutors painted President Joe Biden's
Speaker 3: son Hunter as deceptive and driven by addiction, a man
Speaker 3: whose dark habits ensnared loved ones and who knew what
Speaker 3: he was doing when he lied on federal forms to
Speaker 3: purchase a gun in twenty eighteen. But Biden's defense attorney
Speaker 3: said he didn't knowingly lie when he filled out the
Speaker 3: form and checked the box saying he wasn't using drugs.
Speaker 3: A jury of six men and six women will decide
Speaker 3: whether Biden is guilty of three felonies stemming from the
Speaker 3: purchase of the cult Revolver. Joining me is criminal defense
Speaker 3: attorney Michael Huff. So, looking at the jury broadly, you
Speaker 3: have a substitute teacher, a secret service for tiree, several
Speaker 3: gun owners, a man whose father was killed by a gun,
Speaker 3: and a number of jurors whose family and friends have
Speaker 3: suffered from addiction. Does it sound like a better jury
Speaker 3: for the defense or the prosecution.
Speaker 5: It sounds like a fair jury and a reasonably seated jury,
Speaker 5: to the extent that in order for one to be
Speaker 5: judged by a jury of their peers, you have to
Speaker 5: sort of look at other substantive issues, such as do
Speaker 5: they have an understanding of, let's say, substance abuse, or
Speaker 5: do they have an aversion or preference towards possession of
Speaker 5: firearms and things of that nature. What's surprising is the
Speaker 5: former Secret Service member. I'm a former member of law enforcement,
Speaker 5: police officer and patrol supervisor from Houston, Texas. And as
Speaker 5: much as I would love to serve on a jury,
Speaker 5: I've never had the pleasure of being selected. So I'm
Speaker 5: surprised about that selection, not so much on the others.
Speaker 5: And I think it does give the defense. I wouldn't
Speaker 5: say an upper hand necessarily, but I do think they'll
Speaker 5: get a fair bite at the apple. And I would
Speaker 5: say if I had to choose on you know who,
Speaker 5: it benefits more. It leans towards the defense rather than
Speaker 5: the prosecution.
Speaker 3: So let's talk about the charges he faces three felony
Speaker 3: charges related to a gun he purchased in twenty eighteen.
Speaker 3: Is this overcharging to charge three felonies based on one transaction?
Speaker 5: Not necessarily? You know the nexus of the occurrence, meaning
Speaker 5: the factors that go into each offense just have to
Speaker 5: be satisfied for the prima facial case, so you can have,
Speaker 5: as we saw recently with President Trump, one interaction resulting
Speaker 5: in thirty four So any charges right, so three, I
Speaker 5: wouldn't say that that's overcharging. I think that there are
Speaker 5: some issues with respect to his mental culpability. He had
Speaker 5: to knowingly possess the firearm while understanding that he was
Speaker 5: violating the prohibition, which means that he had to know
Speaker 5: that misrepresenting that he was a drug use was a
Speaker 5: violation of the prohibition, not just that he was a
Speaker 5: drug user and possessed the weapon, but rather he knew
Speaker 5: that he was not supposed to because he was a
Speaker 5: drug user. And also there's the issue of whether or
Speaker 5: not he actually considered himself to be a drug user
Speaker 5: at the time that he completed that document. So I
Speaker 5: went a couple steps ahead there, but.
Speaker 3: No, it's okay, because that brings up the question if
Speaker 3: he was a drug user, can you hold him responsible
Speaker 3: for knowingly filling out a form?
Speaker 5: Right, So that's where I started doing a little bit
Speaker 5: more digging, and I came up with a case, and
Speaker 5: that's out of the Eleventh Circuit. It went up to
Speaker 5: the Supreme Court. So the Supreme Court last term held
Speaker 5: that knowingly here means that you knew both that you
Speaker 5: possessed the firearm and that your actions violated the elements
Speaker 5: of the prohibition. So how do you prove what he
Speaker 5: knew or didn't know beyond a reasonable doubt? And to
Speaker 5: your point, particularly if he is a drug user. So
Speaker 5: the construct of this law may be found to be
Speaker 5: too ambiguous and that might be an out for the dissent.
Speaker 3: Today, the prosecutors spent hours on Biden's drug problem, and
Speaker 3: they used his own words to show the depth of
Speaker 3: his addiction from his memoir from messages. How far does
Speaker 3: that get the prosecution.
Speaker 5: They definitely need to put facts into evidence that demonstrates
Speaker 5: that he satisfies the element of the prima facia case.
Speaker 5: He has to be unlawfully using a substance controlled substance
Speaker 5: Layman's terms of drug user basically, so they definitely have
Speaker 5: to get that into evidence. As I understand that there
Speaker 5: are also photos of him with known drug dealers, and
Speaker 5: I don't know whether he was actually smoking using a
Speaker 5: controlled substance believed to be crack cocaine, or it was
Speaker 5: in the photo. So those are things that will be
Speaker 5: very damaging if they in fact are entered into evidence.
Speaker 5: But nailing down the timeline is what's going to be hard.
Speaker 5: How close to the application was his drug use and
Speaker 5: are they able through data mining or other sources able
Speaker 5: to nail down the date of his usage. But again
Speaker 5: you're still going to end up back at the knowingly
Speaker 5: violating the prohibition, and most of us aren't, you know,
Speaker 5: most of us out in the world aren't until now
Speaker 5: aware of the fact that there are various prohibitions on
Speaker 5: the application right and knowing that being a drug user
Speaker 5: and buying a gun equal to felony. That's where the
Speaker 5: law comes into the knowingly piece. And I just don't
Speaker 5: know that the prosecution will be able to get there at.
Speaker 3: The end, And that was the main thrust of the
Speaker 3: defense opening statement. Hunter Biden didn't knowingly violate these laws.
Speaker 5: And so that's where it turns. And this does not
Speaker 5: look like it's a strict liability crime, meaning that you know,
Speaker 5: if you run a red light but you didn't know
Speaker 5: that you had to only go on green, that strict liability,
Speaker 5: no one cares. You're getting the citation and that's a
Speaker 5: done deal. But in this they're looking at a subjective intent,
Speaker 5: not an objective intent. Well, it may be objective subjective,
Speaker 5: but it's not strict liability, meaning that they have to
Speaker 5: actually show that he knowingly did though, and there's so
Speaker 5: much room to defend him on that because it ends
Speaker 5: with a subjective analysis. And that's why they're looking at potentially,
Speaker 5: which I've never done in my career, put my own
Speaker 5: client on the stand, But in this instance, I can
Speaker 5: see why they're considering it.
Speaker 3: His attorneys are arguing, well, you had to be a
Speaker 3: drug user at the time you're filling out the form,
Speaker 3: and the prosecution is saying, no, you're just a drug user.
Speaker 3: It doesn't have to be at the very moment you're
Speaker 3: filling out the form.
Speaker 5: That argument's going to fail June. That would be void
Speaker 5: for overbreadth, meaning that in that case, anyone ever, whoever
Speaker 5: used drugs could never own a weapon. And I don't
Speaker 5: think that that was the framer's intent when they enacted
Speaker 5: that statue. And I think that one's going to be
Speaker 5: a tough hurdle. I don't think they get anywhere with
Speaker 5: that argument, and folks in their own camp, like the NRA,
Speaker 5: would have a field day lobbying against that. I don't
Speaker 5: think they're going to get very far down that line.
Speaker 3: So there's going to be some difficult evidence for the defense.
Speaker 3: In Hunter Biden's own words in texts and emails. In
Speaker 3: one text at the time, he wrote that he was
Speaker 3: sleeping on a car smoking crack on Fourth Street, and Rodney,
Speaker 3: and the defense.
Speaker 5: Will have a tough time with that one, particularly if
Speaker 5: they're having him testify that evidence gets in and can
Speaker 5: be considered can get in as a state of then
Speaker 5: state of mind admission, so that one the defense will
Speaker 5: have a very tough time getting around. Now the question
Speaker 5: then will become does drug use after the fact satisfy
Speaker 5: the elements of the prima facia case? I think on
Speaker 5: count one then it gets them there, but still not
Speaker 5: on count three if I have them correct, which is
Speaker 5: the knowingly violating the prohibition, if at the time he
Speaker 5: filled out the application, they don't get one of the counts. Now,
Speaker 5: that goes back to your question did they overcharge? They've
Speaker 5: charged him with everything that they think could be viable
Speaker 5: in the event that they have to dismiss one or
Speaker 5: they lose on one, rather then they still have the
Speaker 5: other two remaining fight with.
Speaker 3: How often do you see someone being tried over statements
Speaker 3: that they made when purchasing a gun when it's not
Speaker 3: in connection with any other crime.
Speaker 5: I think there's some four hundred or five hundred central
Speaker 5: charges a year, and only I think it was two
Speaker 5: hundred and ninety eight of those cases approximately are picked
Speaker 5: up for these same types of charges, you know. So
Speaker 5: then of course it lends to the question of is
Speaker 5: he being singled out because of who his parents are
Speaker 5: and because of his position in the public domain, or
Speaker 5: under similarly situated circumstances, would another individual be facing three felony.
Speaker 3: This is going forward because the plea deal that he
Speaker 3: had reached with prosecutors collapsed.
Speaker 1: Right.
Speaker 3: Does that have any effect at all on the trial?
Speaker 5: Well, it may have effect on the trial because up
Speaker 5: until the verdict, he can accept a plea, and so
Speaker 5: they may re enter into negotiations. If the prosecution determines
Speaker 5: that their evidence is not as strong and on one
Speaker 5: or all of the counts, they may offer a plea.
Speaker 5: If the defense feels that they don't have as much
Speaker 5: as they need to defend him on all three counts,
Speaker 5: they may look to negotiate again. It'll be interesting to
Speaker 5: see how the judge handles that, because, as I understand it,
Speaker 5: the plea was reasonable to those who evaluated that, but
Speaker 5: the judge shot it down.
Speaker 3: There's going to be a lot of salacious evidence drugs
Speaker 3: and guns and affairs. Is there any way to keep
Speaker 3: this trial from being sort of sensational?
Speaker 5: You know? From my journey from law enforcement to lawyering,
Speaker 5: I've seen a lot in twenty seven years, and this
Speaker 5: has all the ingredients to cook up a salacious, sensational
Speaker 5: life story. And you know, and you're you're in the
Speaker 5: business in terms of journalism, you know how things get
Speaker 5: spun and take on a life of their own. And
Speaker 5: so we ride on the coattails of our first president
Speaker 5: in history being convicted of thirty four felonies but still
Speaker 5: going on to be on the ballot, to now the
Speaker 5: first first son facing felony. So it seems to be
Speaker 5: a parade of felony is going on, and I think
Speaker 5: it's going to be a free for all for bere for.
Speaker 3: Worth hearing about these trials. The average person must think
Speaker 3: every trial is equally exciting, and we know that that
Speaker 3: is not the case at all. Thanks so much, Michael.
Speaker 3: That's criminal defense attorney Michael Huff and that's it for
Speaker 3: this edition of the Bloomberg Law Podcast. Remember you can
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Speaker 3: dot com Slash podcast Slash Law. I'm June Grosso and
Speaker 3: this is Bloomberg,