Speaker 1: This is Bloomberg Law with June Grosseo from Bloomberg Radio.
Speaker 2: A shooter with a rifle opened fire from a nearby
Speaker 2: roof onto a US Immigration and Customs Enforcement field office
Speaker 2: in Dallas today, killing one detainee and injuring two others
Speaker 2: before taking his own life. The head of the FBI,
Speaker 2: Cash Patel, released a photo on social media that shows
Speaker 2: a bullet found at the scene with the words anti
Speaker 2: ICE written in what appears to be marker. The acting
Speaker 2: Director of ICE, Todd Lyons, said, there's been a rise
Speaker 2: in threats against ICE agents.
Speaker 1: All of our officers have an increased presence now with
Speaker 1: security from Federal Protective Services just because, like I said,
Speaker 1: assaults in a threats on officer of one thousand percent.
Speaker 2: This was the third shooting this year at a Department
Speaker 2: of Homeland Security facility in Texas. Joining me is Immigrat
Speaker 2: attorney Leon Fresco, a partner at Hound and Knight. Leon
Speaker 2: I says it's officers are facing a more than one
Speaker 2: thousand percent increase in threats and assaults against them. Leon
Speaker 2: I says that it's officers are facing more than a
Speaker 2: thousand percent increase in assaults against them, including vehicles being
Speaker 2: used as weapons toward them, and doxing campaigns targeting officers
Speaker 2: and their families.
Speaker 3: These situations are terrible. The violence obviously has to stop
Speaker 3: against the ICE officers that are just there trying to
Speaker 3: do their job.
Speaker 4: In this particular.
Speaker 3: Instance, the individuals who ended up actually being shot were detainees,
Speaker 3: and so it's not clear what the shooter's intent is.
Speaker 3: But it's just a tough situation because it seems like,
Speaker 3: just in general, in every aspect of things, the default becomes,
Speaker 3: if I don't get my way through the police process
Speaker 3: or through some other manner, violence is the next mode
Speaker 3: of settling one's dispute, and everybody involved everywhere needs to
Speaker 3: end that ethos because you see, it's in all facets,
Speaker 3: it denies, it's in the detention facilities, it's in society generally.
Speaker 3: I think everybody on all side just needs to say
Speaker 3: violence is not the next stept of dispute resolution, for instance,
Speaker 3: like litigation. Litigation is another way people used to resolve disputes.
Speaker 3: It's not violent, and that just has to be taken
Speaker 3: up the table by everyone involved.
Speaker 2: Immigration advocates and others have called out aggressive tactics by
Speaker 2: ICE agents and on Saturday, California Governor Gavin Newsom signed
Speaker 2: a set of bills meant to check the Trump administration's
Speaker 2: aggressive immigration crackdown in California, including a first in the
Speaker 2: nation measure to prohibit officers from wearing masks and other
Speaker 2: is that limit their access to schools and hospitals. The
Speaker 2: question is whether a state law can be enforced on
Speaker 2: federal agents. Is that easily challengeable by the Trump administration?
Speaker 3: Well, absolutely, This is going to set up a preemption
Speaker 3: situation where there's sort of two preemption issues. One that'll
Speaker 3: just be in the court, which is, if this law presented,
Speaker 3: does the state government ever have the ability to tell
Speaker 3: the federal government how or where it can enforce federal
Speaker 3: law within the context of a state. So that will
Speaker 3: be an issue that will be squarely and clearly tied
Speaker 3: up for the courts, which is different than the sanctuary
Speaker 3: city issue, because the sanctuary city issue is about whether
Speaker 3: a state or a city can be compelled to enforce
Speaker 3: federal law. That's different than the state or a city
Speaker 3: actually limiting the manner in which the federal government enforces
Speaker 3: its laws. So, for instance, could you amine a state
Speaker 3: or a local government saying in our state, we're not
Speaker 3: going to let the federal government come into somebody's house
Speaker 3: who committed federal tax violations. You're not allowed to do it.
Speaker 3: You have to follow this other procedure. So where would
Speaker 3: that end? And so you start asking those questions. But
Speaker 3: obviously the concern is a serious one. You want the
Speaker 3: police to identify themselves at all times, or ICE in
Speaker 3: this case, to identify themselves at all times, then not
Speaker 3: have a situation where ICE can can easily be impersonated
Speaker 3: by other bad actors who will aren't Ice. So everybody
Speaker 3: has some interest in coming into a more transparent process
Speaker 3: where it's clear that it is actual immigration enforcement officers
Speaker 3: who they are, and that when someone is apprehended, that
Speaker 3: person can be identified and known where they're being housed
Speaker 3: and where they're being stationed so that the attorneys can
Speaker 3: get to them. So all of that is important. So
Speaker 3: the courts one will decide what is the level of
Speaker 3: pre empsion. But the other thing I was going to
Speaker 3: say is to the extent that it's not preempted at
Speaker 3: the moment. The next question would be, well, what does
Speaker 3: someone do. Let's say you're at some state university and
Speaker 3: ICE shows up on campus. Do you literally call the
Speaker 3: university police? And what does the university police do? Do
Speaker 3: they actually arrest the ICE agents for violating the rules?
Speaker 3: This is where I think this gets very dicey, and
Speaker 3: I probably would say that that's not going to end
Speaker 3: up happening. That there's going to be state and local
Speaker 3: police that end up getting into confrontations with ICE or
Speaker 3: they start trying to arrest ICE agents. But theoretically that
Speaker 3: is contemplated under the statute, and so I think sooner
Speaker 3: rather than later, this is going to have to be
Speaker 3: addressed by the court so that you never even get
Speaker 3: close to an unfortunate situation like this.
Speaker 2: And in twenty eighteen, California had passed a law to
Speaker 2: restrict immigration arrest at superior court buildings, but that hasn't
Speaker 2: stopped the Trump administration from detaining people at those courts
Speaker 2: this year. It's the question of whether there's an ability
Speaker 2: to enforce or not.
Speaker 3: Right, That's the point is, whenever you write a law,
Speaker 3: that's only half of the game.
Speaker 4: The other half of the game is can.
Speaker 3: You enforce the law?
Speaker 4: And if you cannot enforce.
Speaker 3: Whatever law you've written, and that law's meaningless and so
Speaker 3: there's two levels of enforcement. So the first is will
Speaker 3: the courts allow it to be enforced? But the second is,
Speaker 3: even if the courts allow it to be enforced, what
Speaker 3: actual human beings in California are actually going to try
Speaker 3: to enforce this law? And I think until both of
Speaker 3: those issues are addressed, I think you would say it's
Speaker 3: highly unlikely that the state would be able to take
Speaker 3: matters into its own hands, as has been attempted here.
Speaker 2: President Donald Trump signed a proclamation on Friday that will
Speaker 2: require a one hundred thousand dollars annual fee for H
Speaker 2: one B visas, which enables skilled workers from overseas to
Speaker 2: temporarily work in the United States. Commerce Secretary Howard Lutnick
Speaker 2: said all big companies are on board.
Speaker 5: So the whole idea is no more with these big
Speaker 5: tech companies or other big companies train foreign workers. They
Speaker 5: have to pay the government one hundred thousand dollars, then
Speaker 5: they have to pay the employee. So it's just non economic.
Speaker 5: If you're going to train somebody, you're going to train
Speaker 5: one of the recent graduates from one of the great
Speaker 5: universities across our land. Train Americans. Stop bringing in people
Speaker 5: to take our jobs. That's the policy here, one hundred
Speaker 5: thousand dollars a year for H one B visas, and
Speaker 5: all of the big companies are on board. We've spoken
Speaker 5: to them about the Golden Card.
Speaker 4: They love us, they love it, they really love it.
Speaker 4: They need it.
Speaker 2: I've been talking to immigration attorney Leon Fresco of Holland
Speaker 2: and Knight. An immigration issue that's gotten a lot of
Speaker 2: attention is President Trump signing a proclamation on frey that
Speaker 2: will require one hundred thousand dollars annual fee for H
Speaker 2: one B visas, which allows skilled workers from overseas to
Speaker 2: temporarily work in the United States. I mean, what's the
Speaker 2: fee like now at.
Speaker 3: The moment if an employer wins the lottery, Because that's
Speaker 3: the first step of this is that there are more
Speaker 3: people who want, more businesses that want H one B
Speaker 3: employees than there are slots. And there's eighty five thousand
Speaker 3: slots per year, and there's usually a demand of between
Speaker 3: four hundred and five hundred thousand people that employers want
Speaker 3: to hire for these slots. And that's just on day
Speaker 3: one of the programs. Over the rest of the year,
Speaker 3: there'd be people who would apply, but they can't because
Speaker 3: the slots are all gone.
Speaker 4: But the point is.
Speaker 3: That if you then win the lottery and you get
Speaker 3: one of those slots.
Speaker 4: It costs about five thousand.
Speaker 3: Dollars in fees to take that worker into your employee.
Speaker 3: So there's fees for the application. There's fees to get
Speaker 3: a decision in fifteen days that most employers use because
Speaker 3: they don't want to wait a year or two to
Speaker 3: get an answer. So they said they get what's called
Speaker 3: premium processing. And there's two other fees. One that's a
Speaker 3: fee to fight fraud in the system, so the money
Speaker 3: literally goes toward fraud investigators to make sure that nobody's
Speaker 3: gaming the system. And then there's another fee that actually
Speaker 3: goes toward the Department of Labor to train American workers
Speaker 3: to do high skill jobs. And so all of those
Speaker 3: fees aed up to five thousand dollars, and the idea
Speaker 3: would be that this proclamation, if enacted, would raise that
Speaker 3: fee to one hundred thousand, but it's not clear where
Speaker 3: that money would go to. It would just go to
Speaker 3: the treasury, and then within the treasury it can be
Speaker 3: allocated just I suppose for deficit reduction.
Speaker 2: Besides bringing that money into the treasury, what's the underlying
Speaker 2: purpose of this.
Speaker 3: The purpose of that fee is ostensibly to say that
Speaker 3: if an employer is using the H one B program
Speaker 3: not to hire a super skilled, highly talented employee where
Speaker 3: money isn't an object, but as instead trying to hire
Speaker 3: an employee for the purposes of undercutting the wage of
Speaker 3: a US national that it otherwise would have hired. This
Speaker 3: takes that off the table because you would never do this.
Speaker 3: You would never pay an extra one hundred thousand dollars
Speaker 3: to undercut the wages of an American. So the only
Speaker 3: reason you would pay one hundred thousand dollars is because
Speaker 3: you were hiring the best of the best, and money
Speaker 3: is no object. You really need this individual.
Speaker 4: The problem is the.
Speaker 3: Language of that proclamation is under the travel ban authority.
Speaker 3: We've talked about this many times on the show. There's
Speaker 3: a statute called IA Immigration Nationality Act, Section two twelve
Speaker 3: that basically gives the president almost unfettered authority to ban
Speaker 3: the entry of anyone the president thinks it's not in
Speaker 3: the interests of the United States to allow their entry.
Speaker 3: But the problem with that statute is it applies to
Speaker 3: banning entry. So the question is if you are a
Speaker 3: foreign student who's now attending Harvard or who's attending Stanford
Speaker 3: or MIT or cal Tech or something, and you now
Speaker 3: want to after you graduate, get an H one B
Speaker 3: because you've been hired by Nvidia or you've been hired
Speaker 3: by Facebook or Intel or Google or something. You've already
Speaker 3: entered the country, so this doesn't apply to you.
Speaker 4: And so the.
Speaker 3: Question is, does everybody know that here, does the administration
Speaker 3: think that those people are going to have to pay
Speaker 3: the one hundred thousand dollars fee or does it know that, Look,
Speaker 3: those people have entered, so they're not subject to one
Speaker 3: hundred thousand fee. If the people already here, it's understood
Speaker 3: and everybody gets it, and it's clear that if the
Speaker 3: people already here as students in US universities are not
Speaker 3: subject to the one hundred thousand feet then this is
Speaker 3: going to apply to a lot fewer people than what
Speaker 3: I think the people who are initially cheering this proposal
Speaker 3: on on the restriction AST side would have thought it's
Speaker 3: going to apply to significantly fewer people and what it
Speaker 3: actually will turn out. The most likely scenario is that
Speaker 3: this will basically only lead to a de facto ban
Speaker 3: on the ability of what are these famous Indian contractors
Speaker 3: like Whipro, Tata, Infoss, etc. Who hire more people from
Speaker 3: India directly than they do from US universities. Those people
Speaker 3: will end up being effectively banned because they will not
Speaker 3: pay one hundred thousand for those workers. And so if
Speaker 3: this survives litigation, that's probably who's going to be banned here,
Speaker 3: leon does.
Speaker 2: The Trump administration have the authority, the statutory authority to
Speaker 2: impose this one hundred thousand dollars fee because isn't the
Speaker 2: fee supposed to cover the costs of processing the application?
Speaker 3: So this is very interesting because there's a very similar
Speaker 3: type of litigation with regard to asylum, where there's a
Speaker 3: whole set of asylum statutes and then there's another one
Speaker 3: that says, yeah, but you can deny asylum for any
Speaker 3: discretionary reason, and that the courts have been fighting this
Speaker 3: out and they're still fighting it out. Which card Trump's
Speaker 3: the other card? Does the eight trump the joker? Does
Speaker 3: the joker trump the eight? Same situation here, you have
Speaker 3: a large exhaustive set of H one B statutory regime
Speaker 3: that's very clear and that you cannot change by regulation
Speaker 3: or presidential proclamation or anything else. So you would think
Speaker 3: that that would win. But you also have another statute,
Speaker 3: which is the IA two twelve F that says that
Speaker 3: the president can ban anyone that the president wants for
Speaker 3: issues of public interest, and can set any conditions upon entry.
Speaker 4: That the president wants. So the president is.
Speaker 3: Saying, well, here's a condition I'm setting upon entry.
Speaker 4: So, for instance, in twenty twenty, twenty twenty.
Speaker 3: One, there actually was a ban on these H one
Speaker 3: be holders under the COVID protocol. Those folks were banned
Speaker 3: and they couldn't come in the country. And so this
Speaker 3: is just the same thing. It's a ban, but rather
Speaker 3: than being a complete and total ban, it's a ban
Speaker 3: which you can circumvent by paying one hundred thousand dollars fee.
Speaker 3: And so when the courts analyze this, which card will
Speaker 3: be the Trump card? Will it be the banning statute
Speaker 3: that says, no matter who you are, if you're any
Speaker 3: foreign national of any kind, the president can set these
Speaker 3: conditions and terms for letting you in the country. Or
Speaker 3: will it be the large H one B statutory scheme
Speaker 3: under the idea that you can't have an exception that
Speaker 3: swallows the entire rule of immigration law so that the
Speaker 3: president can just rewrite the entire immigration code with the
Speaker 3: INA to twelve authority. So that's really the question for
Speaker 3: the course is can the president basically use INA two
Speaker 3: twelve F authority to rewrite the entire immigration code in
Speaker 3: the way the president wants to?
Speaker 4: Or is that overdoing it?
Speaker 3: And when there's a statutory regime like the H one
Speaker 3: B which is very extensive and lays out how many
Speaker 3: days the government has to make a decision, et cetera,
Speaker 3: et cetera, it's very detailed, unlike most statutes, does that
Speaker 3: actually win the debate?
Speaker 4: And we're gonna have to wait and see.
Speaker 2: The President also wants to change the lottery system. Can
Speaker 2: you explain what he's trying.
Speaker 1: To do there?
Speaker 3: Yes, this is very simple. What happens is every March,
Speaker 3: there's four hundred thousand people that want to get an
Speaker 3: H one B visa. There's eighty five thousand slots. They
Speaker 3: have a lottery. It's a blind lottery. Eighty five thousand
Speaker 3: people win three hundred and twenty five thousand loose. They
Speaker 3: want to change that to basically weight the system.
Speaker 4: So what they want to do is they.
Speaker 3: Want to find out what kind of job are you
Speaker 3: coming to do, where are you coming to do the job,
Speaker 3: and how much are you going to be paid? Because
Speaker 3: the Department of Labor has surveys and they'll say, oh,
Speaker 3: the average, the average lawyer in San Francisco makes two
Speaker 3: hundred and fifty thousand dollars a year, but in the
Speaker 3: top twenty five percent, that lawyer will make three hundred
Speaker 3: and fifty thousand, or the bottom twenty five percent that
Speaker 3: lawyer will make one hundred thousand, and so they put
Speaker 3: those as levels. Level four is the top level, Level
Speaker 3: one is the bottom level. So what they want to
Speaker 3: do is to say, if you will agree upfront that
Speaker 3: you will pay your worker the level four wage for
Speaker 3: that occupation in that location, your worker will get four
Speaker 3: lottery balls essentially instead of one. And if you pay
Speaker 3: the level three ways, your worker will get three lottery
Speaker 3: bus And if you pay the level two wage, your
Speaker 3: worker will get two lottery balls. And if you only
Speaker 3: want to pay the initial level one wage, which is
Speaker 3: the bottom twenty five percent, your worker will get one
Speaker 3: lottery ball. And that's how they'll allocate the lottery with
Speaker 3: the hope and the intention that the eighty five thousand
Speaker 3: plus will be allocated towards the highest paid individuals as
Speaker 3: opposed to just a random allocation. Now that obviously there's
Speaker 3: going to be companies who pay level one wages who
Speaker 3: will try to sue and make the same types of
Speaker 3: arguments here again it's going to be the fifty to
Speaker 3: fifty argument. Is there regulatory authority under and here there's
Speaker 3: another catch all provision in what's called IMA Section two
Speaker 3: fourteen that says that in non immigrant visas, which is
Speaker 3: what H one B is, the president by regulation can
Speaker 3: set the terms and conditions. And so that's what the
Speaker 3: president is trying to do here. But there's also, again
Speaker 3: as I indicated, pre this very long statutory authority for
Speaker 3: H one B. What you can do what you can't do,
Speaker 3: which every time somebody tries the thinker with it, they
Speaker 3: lose in court. So the question is who wins there?
Speaker 3: Does the president win under the catch all authority or
Speaker 3: does the companies that are going to sue win because
Speaker 3: they say, no, this has to be done by Congress,
Speaker 3: it cannot be done by regulation.
Speaker 2: Let's turn out to what's happening in immigration courts with bonds.
Speaker 2: For decades, immigration judges have granted bonds to immigrants and
Speaker 2: detention who the court determined would show up for future
Speaker 2: hearings and were not public safety threats. But now the
Speaker 2: Trump administration, specifically the Board of Immigration Appeals, which has
Speaker 2: a majority of Trump appointees on it, has made a
Speaker 2: new policy binding on all immigration judges that they can't
Speaker 2: grant bonds to people who cross the border unlawfully. See
Speaker 2: is being challenged in federal court by civil rights and
Speaker 2: immigration advocacy groups. What do you think their chances are?
Speaker 3: So, here's what's complicated about this case. You have a
Speaker 3: situation where previously, if someone was placed in deportation proceedings
Speaker 3: after being here for some amount of time, then they
Speaker 3: could make an argument that they could be released on
Speaker 3: bond while those proceedings were pending. Because the whole point
Speaker 3: of the immigration system is it's not a criminal system,
Speaker 3: it's a civil system, and so typically the law does
Speaker 3: not favor detention for civil anything. It's detension is meant
Speaker 3: for criminal proceedings. And even most criminals when they're going
Speaker 3: through criminal proceedings have bond that they can either apply
Speaker 3: for or not. Now what's complicated here is the law
Speaker 3: was that Again, like I said, everybody used to be
Speaker 3: able to apply for bond, with two exception if you
Speaker 3: had certain criminal convictions. The Supreme Court has said you're
Speaker 3: not eligible for bond, because the statutory authority says you're not.
Speaker 3: And secondly, if you just arrived into the US, meaning
Speaker 3: you were apprehended at the airport, or you were apprehended
Speaker 3: trying to cross the border right at that moment, then
Speaker 3: the idea was, look, we detain you. We keep you
Speaker 3: in detention at least subject to having enough beds. We
Speaker 3: don't reward this effort across the border by letting you out.
Speaker 3: We keep you in detention until we decide if you
Speaker 3: have a case to remain or if you don't have
Speaker 3: a case to remain, you get booted out. But the
Speaker 3: question is what happens with people who crossed the border illegally,
Speaker 3: but we didn't realize it until five years later, ten
Speaker 3: years later, et cetera. And so historically those people were
Speaker 3: allowed to get bond hearings because the idea was they
Speaker 3: were already here, they were circulating.
Speaker 4: In the United States.
Speaker 3: They presumably hadn't committed any criminal offenses other than the
Speaker 3: initial offense of crossing illegally. But now the administration is saying, look,
Speaker 3: this original thing that says that if we apprehend you
Speaker 3: crossing the border, we have to keep you detained forever,
Speaker 3: while where the proceedings are pending, there's no bond that
Speaker 3: applies whether it took us one minute or whether it
Speaker 3: took us five years to cut you. So that's the
Speaker 3: change in the interpretation. So this doesn't apply to someone
Speaker 3: who came legally and overstated their visa. They can still
Speaker 3: get a bond during their removal hearing. But this applies
Speaker 3: to the person who crossed illegally and they were never apprehended.
Speaker 3: And so this is really going to come down to
Speaker 3: more I think of a constitutional due process argument rather
Speaker 3: than a statutory argument, because the statute, interestingly, I think
Speaker 3: it's fifty to fifty. But what happened was it was
Speaker 3: always interpreted in the way that you get bond because
Speaker 3: people were worried.
Speaker 4: About the fact that how could someone.
Speaker 3: Have been here five years or ten years and circulating
Speaker 3: amongst the United States, not committing any crimes, etc. And
Speaker 3: then for a civil proceeding you would deny them bond,
Speaker 3: when if this were a criminal proceeding, they would be
Speaker 3: eligible for bond. What would be the constitutional authority to
Speaker 3: keep someone mandatorily detained like that, And so they always
Speaker 3: interpreted the statute in a cautious manner to say, no, no, no,
Speaker 3: give those people a bond hearing, and if they are
Speaker 3: dangerous or if some other reason exist, been fine, you
Speaker 3: can deny them bond. But if they're not dangerous, you
Speaker 3: have to let them out because they had already been
Speaker 3: out for such a long time. So ultimately the courts
Speaker 3: are going to have to struggle with not what the
Speaker 3: statute means, because the statute actually probably supports the argument
Speaker 3: that if someone processes the border illegally, whenever they're found,
Speaker 3: you have to detain them, but really the constitutionality of
Speaker 3: that concept, because the issue is that someone's really been
Speaker 3: here for that long. Is it constitutional to have them
Speaker 3: detained with no bonds for a civil proceeding when the
Speaker 3: constitution ab whores any kind of civil detention period, And
Speaker 3: so I think that's going to be the main question here.
Speaker 2: Always a lot of questions and not that many clear
Speaker 2: answers in our immigration law system. Thanks so much, Leon.
Speaker 2: That's Leon Fresco of Holland and Knight, And that's it
Speaker 2: for this edition. Of the Bloomberg Law Show. Remember you
Speaker 2: can always get the latest legal news on our Bloomberg
Speaker 2: Law Podcast. You can find them on Apple Podcasts, Spotify,
Speaker 2: and at www dot bloomberg dot com, slash podcast Slash Law,
Speaker 2: And remember to tune into The Bloomberg Law Show every
Speaker 2: weeknight at ten pm Wall Street Time. I'm June Grosso
Speaker 2: and you're listening to Bloomberg