WEBVTT - Jailing Immigrants Without Bond & ICE Plays Whack-a-Mole 0:00:02.759 --> 0:00:07.520 This is Bloomberg Law with June Grosseo from Bloomberg Radio. 0:00:08.640 --> 0:00:12.960 The acting head of ICE, Todd Lyons, defended his agency's 0:00:13.080 --> 0:00:17.360 training standards and denounced threats against officers at a hearing 0:00:17.400 --> 0:00:20.759 before the House Homeland Security Committee today, let me. 0:00:20.760 --> 0:00:23.160 Send a message to anyone who thinks they can intimidate us, 0:00:23.239 --> 0:00:24.360 you will fail well. 0:00:24.400 --> 0:00:27.320 The shootings of Renee Good and Alex Pretty have drawn 0:00:27.360 --> 0:00:32.440 by partisan scrutiny and calls for transparency. The hearing largely 0:00:32.479 --> 0:00:36.600 played out along partisan lines. There were some heated moments, 0:00:36.680 --> 0:00:40.479 like this when New York Democrat Dan Goldman asked Lyons 0:00:40.560 --> 0:00:44.599 about US citizens being asked for proof of citizenship? 0:00:44.800 --> 0:00:48.040 Do you know what other regimes in the twentieth century 0:00:48.440 --> 0:00:51.000 century required similar proof of citizenship? 0:00:52.240 --> 0:00:59.040 Yes, sir? What so those various nefarious regimes that did that? 0:00:59.360 --> 0:01:00.520 Is Nazi one? 0:01:00.880 --> 0:01:01.160 Yes? 0:01:01.240 --> 0:01:05.000 But I is the Soviet Union life I'm asking the questions. 0:01:05.080 --> 0:01:06.280 Is the Soviet Union one? 0:01:06.480 --> 0:01:07.760 Yes, sir? But I told you. 0:01:07.800 --> 0:01:11.319 A topic that was not addressed at the hearings is 0:01:11.400 --> 0:01:15.440 one that affects every non citizen detained by ICE, the 0:01:15.480 --> 0:01:21.039 Trump Administration's mandatory detention policy. It's a reversal of every 0:01:21.080 --> 0:01:25.559 other administration's policy for the last thirty years. The Trump 0:01:25.640 --> 0:01:31.319 administration is detaining all non citizens without hearings indefinitely, even 0:01:31.360 --> 0:01:34.080 if they've lived in this country for decades and have 0:01:34.200 --> 0:01:37.920 no criminal records. And in a huge win for the administration, 0:01:38.560 --> 0:01:42.959 the ultra conservative Fifth Circuit Court of Appeals just greenlit 0:01:43.160 --> 0:01:47.760 that mandatory detention policy. My guest is Leon Fresco, a 0:01:47.840 --> 0:01:50.760 partner at hollanden Knight and the former head of the 0:01:50.760 --> 0:01:55.360 Office of Immigration Litigation in the Obama administration. Lee and 0:01:55.360 --> 0:01:57.400 I want to start with what's been happening in the 0:01:57.440 --> 0:02:02.000 lower federal courts the Trump administration. The immigration courts have 0:02:02.720 --> 0:02:08.040 largely stopped conducting bond hearings, even though three federal judges 0:02:08.600 --> 0:02:13.680 explicitly declare that non citizen detainees have a right to 0:02:13.880 --> 0:02:17.320 argue for their release, so the right to a bond hearing. 0:02:17.639 --> 0:02:22.079 But there was contrary guidance by the head immigration judge 0:02:22.360 --> 0:02:26.160 who said the immigration judges weren't bound by the federal 0:02:26.440 --> 0:02:27.440 judges orders. 0:02:28.240 --> 0:02:32.880 What happens is that there is Supreme Court precedent from 0:02:32.960 --> 0:02:36.160 a couple of years ago during the Biden administration that 0:02:36.280 --> 0:02:40.120 clarify that the only court in America that can issue 0:02:40.160 --> 0:02:45.960 injunctive relief of immigration, deportation or detention statue is the 0:02:46.000 --> 0:02:49.040 Supreme Court. And so what that has meant is that 0:02:49.120 --> 0:02:52.920 the lower courts, when they're trying to issue relief in 0:02:53.000 --> 0:02:56.400 certain cases, the only thing they can issue is what's 0:02:56.440 --> 0:03:01.840 called declaratory judgment relief. They can say, we declare that 0:03:02.400 --> 0:03:06.919 the immigration authorities are acting in an unlawful manner, and 0:03:07.080 --> 0:03:10.760 based on that declaration, we are ordering that there be 0:03:10.919 --> 0:03:14.440 a release of a particular person who we are claiming 0:03:14.520 --> 0:03:18.320 is wrongfully detained. And usually that's done in a habeas 0:03:18.320 --> 0:03:21.720 corpus matter, which is what happened is someone says, my 0:03:21.880 --> 0:03:27.040 body is wrongfully detained by the federal government, please release me. Now, 0:03:27.520 --> 0:03:30.520 what has been happening is, and we'll talk more about 0:03:30.520 --> 0:03:33.160 this when we get to the Fifth Circuit case, is 0:03:33.160 --> 0:03:35.720 that ISA has taken the position that nobody can be 0:03:35.800 --> 0:03:39.440 released from detention if they snuck across the border or 0:03:39.480 --> 0:03:41.880 the United States. It doesn't matter if it was thirty 0:03:41.960 --> 0:03:45.360 years ago, twenty years ago, or anything. If we catch you, 0:03:45.600 --> 0:03:49.440 that means you're in detention until your deportation case is over. 0:03:50.120 --> 0:03:54.280 And so from that perspective, people have been filing habeas 0:03:54.280 --> 0:03:59.840 corpus petitions trying to say that that's an improper decision 0:04:00.040 --> 0:04:04.520 and let me unt. And what has happened is that 0:04:05.240 --> 0:04:08.960 when they win, they get declaratory relief, they don't get 0:04:09.040 --> 0:04:13.680 injunctive relief. And so now the immigration courts under the 0:04:13.760 --> 0:04:18.680 Department of Justice, so Pambombi, being the Attorney General and 0:04:18.720 --> 0:04:22.520 then bringing those orders down to her designees in the 0:04:22.560 --> 0:04:27.200 Department of Justice and the Immigration courts, has said a 0:04:27.360 --> 0:04:32.120 declaratory judgment is not an injunction. It doesn't force us 0:04:32.160 --> 0:04:35.760 to do anything. It just declares that we've acted illegally, 0:04:35.839 --> 0:04:39.839 which is you know, quite a stretch. You know, usually 0:04:39.880 --> 0:04:43.560 people defer to these declarations, but here the Department of 0:04:43.680 --> 0:04:47.320 Justice is saying, we are not going to defer to 0:04:47.440 --> 0:04:51.839 these declarations that we're acting illegally. We will wait till 0:04:52.120 --> 0:04:55.760 the Supreme Court enjoins us to do anything. And so 0:04:55.880 --> 0:04:59.400 now they're ignoring the court orders, which is setting up 0:04:59.440 --> 0:05:03.120 these CROs where the district court judges are going to 0:05:03.279 --> 0:05:07.719 decide whether to have to hold the Justice Department officials 0:05:07.720 --> 0:05:11.440 and the ICE officials in contempt. And if they do, 0:05:11.520 --> 0:05:14.760 what does that mean and would people get ordered to 0:05:14.760 --> 0:05:17.480 be thrown in jail if they would, who would enforce 0:05:17.560 --> 0:05:20.920 these orders? We use these words, but these words are 0:05:21.000 --> 0:05:24.760 the definition of a constitutional crisis, which is when you 0:05:24.839 --> 0:05:29.000 have a court ordering something, and you even have a 0:05:29.200 --> 0:05:33.760 content proceeding and the administration will ignore that. Then that's 0:05:33.800 --> 0:05:37.760 when you have a constitutional crisis, because then no longer 0:05:37.800 --> 0:05:40.880 does the administration say that it will submit itself to 0:05:41.040 --> 0:05:44.200 the rule of the courts in terms of their decisions. 0:05:44.279 --> 0:05:49.279 And that's when you have potentially problematic situations. 0:05:49.640 --> 0:05:52.600 But if the Supreme Court ruled that, then is the 0:05:52.600 --> 0:05:54.559 Department of Justice in the right here? 0:05:55.320 --> 0:05:59.640 Well, the Supreme Court has it ruled about these bond issues. 0:05:59.640 --> 0:06:02.960 But if they've ruled that, which they have, that they 0:06:02.960 --> 0:06:05.719 are the only ones who can issue an injunction, then 0:06:06.080 --> 0:06:12.040 the injunction would be for policy wide challenges. For instance, 0:06:12.120 --> 0:06:16.160 you challenge a certain memo or you challenge a certain 0:06:16.720 --> 0:06:20.040 program that got put into place in the immigration world. 0:06:20.400 --> 0:06:23.080 But in these habeas cases, it's a little bit more 0:06:23.120 --> 0:06:27.000 complicated because the whole point of a habeas case is 0:06:27.240 --> 0:06:29.960 you're not getting an injunction. In a habeas you're getting 0:06:29.960 --> 0:06:32.800 an order. You're getting a rid of habeas corpus, which 0:06:32.880 --> 0:06:37.320 is done in a declaratory nature, and so to say 0:06:37.400 --> 0:06:41.000 we're not subject to habeas petitions anymore. We don't have 0:06:41.080 --> 0:06:45.160 to respect those decisions unless somebody gets all the way 0:06:45.200 --> 0:06:48.200 to the Supreme Court and the Supreme Court says release 0:06:48.279 --> 0:06:52.160 them on a habeas that's unprecedented territory. 0:06:53.279 --> 0:06:56.440 Both the Fifth and the Seventh Circuit had arguments on 0:06:56.480 --> 0:07:00.559 the same day. The Fifth Circuit made its decision within 0:07:00.680 --> 0:07:04.360 days of the arguments. I mean, how big a victory 0:07:04.560 --> 0:07:07.240 is that Fifth Circuit decision for the administration. 0:07:08.000 --> 0:07:10.840 The reason it's a big victory is because most of 0:07:10.880 --> 0:07:14.280 the detention facilities in the United States are in the 0:07:14.280 --> 0:07:18.960 Fifth Circuit Texas, Louisiana, and Mississippi. It's a big part 0:07:19.080 --> 0:07:22.880 of the detention infrastructure of the United States is actually 0:07:22.920 --> 0:07:26.480 in those locations. And so what the Fifth Circuit held 0:07:27.000 --> 0:07:32.640 is that if a person crossed the border illegally and 0:07:32.960 --> 0:07:36.840 entered the United States illegally, if and when the United 0:07:36.880 --> 0:07:40.560 States government finally apprehends them, whether it's two days later, 0:07:41.000 --> 0:07:44.360 ten days later, one year later, twenty years later, forty 0:07:44.440 --> 0:07:48.040 years later, none of that matters. What matters is that 0:07:48.120 --> 0:07:52.440 they were apprehended when they had crossed the border. Illegally, 0:07:53.400 --> 0:07:56.520 and so under the version of the statute that the 0:07:56.560 --> 0:08:00.000 Trump administration and the Fifth Circuit feel is the correct 0:08:00.120 --> 0:08:03.680 interpretation of the statute, they say that no matter when 0:08:03.720 --> 0:08:09.320 you're apprehended, if you've crossed illegally, what your intent is. 0:08:09.360 --> 0:08:13.560 Your intent is you're trying still every day of your life, 0:08:13.640 --> 0:08:17.160 to be admitted into the United States legally, that this 0:08:17.240 --> 0:08:21.280 is your goal. Because the statue uses these words seeking admission, 0:08:21.640 --> 0:08:24.320 and what it says is if you're seeking admission into 0:08:24.360 --> 0:08:28.000 the United States, then if you get apprehended, you will 0:08:28.040 --> 0:08:32.320 be detained indefinitely without bond until we decide whether you 0:08:32.400 --> 0:08:37.240 win or lose your deportation case. And so that's the definition. 0:08:37.960 --> 0:08:42.320 Previously for the last thirty years, all the administrations prior 0:08:42.360 --> 0:08:46.360 to this said that at a certain point after you 0:08:46.440 --> 0:08:49.000 cross the border, you're no longer seeking admission, you're just 0:08:49.120 --> 0:08:52.760 here in the country, and that seeking admission is only 0:08:52.760 --> 0:08:56.160 for people apprehended at or near the border right when 0:08:56.160 --> 0:08:58.880 they're trying to cross. It's not for people who've been 0:08:58.920 --> 0:09:02.360 here an extended period of time. Those people are entitled 0:09:02.400 --> 0:09:06.920 to bond. And so this is a new interpretation that's 0:09:06.960 --> 0:09:09.920 different than what has occurred in the last thirty years. 0:09:10.440 --> 0:09:13.040 And so what the Fifth Circuit has said is absolutely 0:09:13.080 --> 0:09:16.040 if someone is in detention in the Fifth Circuit and 0:09:16.160 --> 0:09:19.280 they cross the border illegally, it does not matter how 0:09:19.320 --> 0:09:21.880 long they've been in the country. They can be detained 0:09:22.240 --> 0:09:25.760 during the entire removal hearing without bond until they can 0:09:25.800 --> 0:09:26.880 finally be deported. 0:09:27.440 --> 0:09:31.839 And if the Seventh Circuit comes out with a contrary decision, 0:09:32.360 --> 0:09:35.720 it won't make that much difference because not that many 0:09:35.760 --> 0:09:39.640 people are held in detention in the territory of the 0:09:39.679 --> 0:09:40.520 Seventh Circuit. 0:09:41.240 --> 0:09:44.360 Correct. What's very interesting about this is usually the government 0:09:44.480 --> 0:09:47.839 is motivated to go to the Supreme Court whenever it's 0:09:47.880 --> 0:09:51.200 got bad law. But it would be very interesting if 0:09:51.280 --> 0:09:54.840 what will have to happen is that the Fifth Circuit 0:09:55.360 --> 0:09:58.800 petitioners that the foreign nationals will have to go to 0:09:58.840 --> 0:10:02.200 the Supreme Court and that the Supreme Court takes the case, 0:10:02.280 --> 0:10:05.720 because usually the Supreme Court only takes these cases for 0:10:05.720 --> 0:10:08.720 the most part, because the Department of Justice is asking 0:10:08.760 --> 0:10:11.360 them to take the case. Almost always, when the Department 0:10:11.440 --> 0:10:13.640 of Justice wants the Supreme Court to take a case, 0:10:14.080 --> 0:10:16.720 they take it. But the Department of Justice may say, 0:10:16.720 --> 0:10:18.600 you know what, if we lose in the Seventh Circuit 0:10:18.960 --> 0:10:21.840 or the Ninth Circuit, No big deal. We'll just put 0:10:21.840 --> 0:10:25.800 the visa overstate people in detention in those facilities and 0:10:26.000 --> 0:10:27.800 they can get a bond and it's not a big 0:10:27.840 --> 0:10:30.760 deal and whatever. But for the people we want to 0:10:30.840 --> 0:10:35.080 keep in detention as the border crossers, we will put 0:10:35.120 --> 0:10:38.280 them in detention in the Fifth Circuit, and that way 0:10:38.360 --> 0:10:41.199 they won't be able to have a habeas petition. And 0:10:41.400 --> 0:10:43.600 if the Supreme Court never takes this case, then that 0:10:43.679 --> 0:10:47.520 can't be fixed. And so from their perspective, there's a 0:10:47.559 --> 0:10:52.240 possibility they may not ask perserciary review in the Supreme Court, 0:10:52.480 --> 0:10:55.040 and that the only way it would get there would 0:10:55.040 --> 0:10:59.959 be if the foreign nationals involved actually try to appeal 0:11:00.080 --> 0:11:02.800 a fitth Circuit decision to the Supreme Court. 0:11:03.360 --> 0:11:07.720 When immigrants are released as their case is being processed, 0:11:08.440 --> 0:11:11.959 do they have better odds of fighting their removal from 0:11:12.040 --> 0:11:12.800 the country. 0:11:13.240 --> 0:11:17.079 Yeah, here's what happens. There's two sort of big dramatic 0:11:17.760 --> 0:11:22.079 complications when immigration detension is involved. One to the extent 0:11:22.120 --> 0:11:25.480 that you have family and friends and everybody else, you're 0:11:25.520 --> 0:11:29.000 separated from them, and you're separated from your source of income, 0:11:29.400 --> 0:11:31.360 which makes it harder for you to even hire a 0:11:31.440 --> 0:11:33.080 lawyer in the first place, so you may not have 0:11:33.120 --> 0:11:36.360 a lawyer because you can't afford a lawyer. But second, 0:11:36.360 --> 0:11:38.400 and even more importantly than that, so you don't have 0:11:38.440 --> 0:11:40.640 your family, you don't have any money, you can't hire 0:11:40.640 --> 0:11:43.800 a lawyer. That's bad enough theoretically, but then it gets 0:11:43.840 --> 0:11:45.959 even worse, which is, even if you have a lawyer, 0:11:46.440 --> 0:11:50.680 the lawyer now has to communicate with you, basically through 0:11:50.880 --> 0:11:54.320 ICE whatever ICE decides to allow you to be able 0:11:54.400 --> 0:11:57.680 to communicate with your lawyer. So you know, most of 0:11:57.720 --> 0:12:00.320 these detention facilities are in the middle of nowhere, they're 0:12:00.360 --> 0:12:03.320 not near any lawyers, and so very few lawyers are 0:12:03.400 --> 0:12:06.959 driving out or flying hours and hours. Usually what you're 0:12:07.000 --> 0:12:11.240 having to do is set up conferences visa the you're 0:12:11.280 --> 0:12:15.120 passing documents to the client through ICE. ICE is getting 0:12:15.200 --> 0:12:17.800 this and they're getting the documents back. So any sort 0:12:17.840 --> 0:12:21.560 of attorney client privilege is not that it's not respected, 0:12:21.640 --> 0:12:25.360 it just doesn't exist because you're passing documents through ICE. 0:12:25.440 --> 0:12:28.200 So the only way to have attorney client privilege would 0:12:28.200 --> 0:12:31.520 be for lawyers to drive many, many hours or fly 0:12:32.200 --> 0:12:35.880 and drive to these remote facilities. So all of that 0:12:35.920 --> 0:12:37.960 makes it very very hard if you're trying to prepare, 0:12:38.040 --> 0:12:41.680 let's say, an asylum application, which requires if you were 0:12:41.760 --> 0:12:45.520 if you were doing a gold standard asylum case, you'd 0:12:45.520 --> 0:12:49.640 be with your client maybe eight to sixteen hours getting 0:12:49.640 --> 0:12:53.880 their whole story, documenting it, saying where can I get 0:12:53.920 --> 0:12:57.559 this proof from? Where can I get this document from? 0:12:57.600 --> 0:13:01.160 Trying to really set forward a case, and you just 0:13:01.200 --> 0:13:03.160 don't have the ability to do any of that if 0:13:03.200 --> 0:13:07.960 your client is a detention. So it basically is like saying, fine, 0:13:08.000 --> 0:13:10.640 we're gonna let you play basketball, but you can't use 0:13:10.840 --> 0:13:13.440 your left arm or your right leg. Good luck to youse, 0:13:13.520 --> 0:13:17.440 see if you can win this match against Shaquille O'Neal 0:13:17.800 --> 0:13:21.160 or something like that. That's basically what happens if you're 0:13:21.160 --> 0:13:22.280 an immigration detention. 0:13:22.760 --> 0:13:26.160 Coming up next, I'll continue this conversation with Leon Fresco. 0:13:26.840 --> 0:13:30.640 Lawyers are struggling to find their detained clients in a 0:13:30.679 --> 0:13:33.880 game of whackam o by ice. This is Bloomberg. 0:13:37.920 --> 0:13:42.120 This is Bloomberg Law with June Grosseo from Bloomberg Radio. 0:13:43.360 --> 0:13:47.400 The federal courts have been flooded with habeas petitions from 0:13:47.440 --> 0:13:52.120 immigrants claiming their detention is illegal. According to pro Publica. 0:13:52.440 --> 0:13:57.480 The Trump administration's push for mass deportations has resulted in 0:13:57.559 --> 0:14:02.160 more than eighteen thousand habeas potis filed in federal court 0:14:02.520 --> 0:14:06.280 in the first thirteen months of Trump's second term. That's 0:14:06.360 --> 0:14:10.600 more than we're filed under the last three administrations combined. 0:14:11.240 --> 0:14:14.720 I've been talking to Immigration attorney Leon Fresco of Honda 0:14:14.880 --> 0:14:18.439 Night So, Leon, with this Fifth Circuit decision, will that 0:14:18.600 --> 0:14:20.520 flood subside tug? 0:14:20.600 --> 0:14:24.320 You're in the Fifth Circuit absolutely, because that becomes binding President, 0:14:24.400 --> 0:14:27.160 So none of those habeas petitions will work in the 0:14:27.240 --> 0:14:31.040 district courts in Texas, Mississippi, and Louisiana. If you are 0:14:31.080 --> 0:14:34.560 in other district courts around the country, the problem you 0:14:34.640 --> 0:14:37.120 have is that that Fifth Circuit decision could be cited 0:14:37.160 --> 0:14:41.440 as persuasive, and maybe the particular district judge who's listening 0:14:41.480 --> 0:14:44.800 to the case will find it persuasive, and then you'll 0:14:44.840 --> 0:14:46.920 need to go to the Circuit court and we'll have 0:14:46.960 --> 0:14:49.760 to see what happens. But the other problem that could 0:14:49.760 --> 0:14:53.200 happen is the government can try to move you and 0:14:53.280 --> 0:14:55.600 get your habeas dismissed, and then the court would have 0:14:55.640 --> 0:14:58.200 to decide whether it wants to keep the habeasts or not. 0:14:58.640 --> 0:15:03.400 So there's just too much uncertainty and procedural machinations that 0:15:03.400 --> 0:15:06.400 can occur in all of these cases, where at the 0:15:06.480 --> 0:15:09.360 end of the day, many many of these foreign nationals involved, 0:15:09.440 --> 0:15:12.920 unless they get some very committed pro bono project, are 0:15:12.960 --> 0:15:15.040 not going to have the resources to make all of 0:15:15.080 --> 0:15:15.880 these challenges. 0:15:16.360 --> 0:15:18.000 It almost sounds like game over. 0:15:18.600 --> 0:15:22.720 I mean, the only way that this detention issue will 0:15:22.800 --> 0:15:26.160 change is if the Supreme Court gets involved and says 0:15:26.160 --> 0:15:28.240 that the Fifth Circuit got it wrong. But if the 0:15:28.280 --> 0:15:31.800 Fifth Circuit decision stands, then what you will see as 0:15:31.840 --> 0:15:36.320 the entire detention infrastructure of America moved to the Fifth Circuit, 0:15:36.440 --> 0:15:38.280 and then that will be how it operates. 0:15:38.920 --> 0:15:42.240 So then is it as important that the Justice Department 0:15:42.480 --> 0:15:47.040 is overhauling the Board of Immigration Appeals and cutting off 0:15:47.080 --> 0:15:50.280 an avenue for challenging immigration court orders. 0:15:50.640 --> 0:15:53.760 Well, that absolutely is critical for all of these cases, 0:15:53.800 --> 0:15:58.680 because a removal in the United States cannot occur currently 0:15:59.280 --> 0:16:02.640 unless there's two levels of review, one before one immigration 0:16:02.840 --> 0:16:06.760 judge and two before the Board of Immigration Appeals. Then 0:16:06.800 --> 0:16:09.800 there's theoretically a third one where you can go to 0:16:09.840 --> 0:16:13.440 the Federal Court of Appeals and they can decide whether 0:16:13.480 --> 0:16:15.960 they want to review your case and issue US stay. 0:16:16.440 --> 0:16:18.560 But if they don't issue US stay while the case 0:16:18.640 --> 0:16:21.640 is under review, you can actually be deported while the 0:16:21.640 --> 0:16:24.880 case is under review, and you'd have to win and 0:16:24.960 --> 0:16:28.960 hope that you can get re reparolled back into the 0:16:29.040 --> 0:16:32.440 United States if you win your case, but in the 0:16:32.480 --> 0:16:36.760 meantime you've been deported. So it's not so easy there. 0:16:37.000 --> 0:16:40.040 The only guarantee of non non deportation is to be 0:16:40.680 --> 0:16:43.840 either before the immigration judge or before the Board of 0:16:43.840 --> 0:16:49.000 Immigration Appeals. Now here's what the Trump administration is saying, 0:16:49.520 --> 0:16:53.880 and to this extent they're mostly correct. Is they've said, 0:16:54.440 --> 0:16:56.680 if you really look at what the Board of Immigration 0:16:56.800 --> 0:17:02.000 Appeals does, in ninety percent of cases, they just issue 0:17:02.000 --> 0:17:04.879 a rubber stamp decision that says, you know, what, the 0:17:04.920 --> 0:17:08.360 immigration judge was correct, So we don't really have anything 0:17:08.440 --> 0:17:12.480 more substantive to add to this. And then people either 0:17:12.560 --> 0:17:16.000 get deported or they review it to the federal Court 0:17:16.040 --> 0:17:18.520 of Appeals that applies to them. And so what they're 0:17:18.560 --> 0:17:21.960 saying is if this process takes one year or two 0:17:22.040 --> 0:17:24.600 years or three years, as it does for many cases, 0:17:25.000 --> 0:17:27.680 in order to ultimately get a decision, that's not very 0:17:27.720 --> 0:17:31.720 substantively helpful. Why not just get rid of this altogether, 0:17:32.320 --> 0:17:34.920 and just if you lose in front of the Immigration court, 0:17:35.560 --> 0:17:38.439 go directly to the Federal Court of Appeals and not 0:17:38.520 --> 0:17:41.720 even have this if it's not adding anything to it. Now, 0:17:41.960 --> 0:17:45.800 on the other side, the advocates would say, yeah, well 0:17:45.920 --> 0:17:49.320 that's that's because you're not taking this process seriously. This 0:17:49.400 --> 0:17:52.640 is not meaningful appellate review. That doesn't mean get rid 0:17:52.640 --> 0:17:56.120 of it, that means make it meaningful appellet review. And 0:17:56.160 --> 0:18:00.720 so you really have two completely different view points here. 0:18:00.880 --> 0:18:04.920 But it has not been to be fair meaningful appellate 0:18:05.000 --> 0:18:09.480 review under either the Trump administration or the Biden administration 0:18:10.080 --> 0:18:13.760 or the other Trump administration, or the Obama administration or 0:18:13.800 --> 0:18:18.840 the Bush administration. It was never meaningful appellate review. And 0:18:18.920 --> 0:18:22.760 so you start really grappling with this issue of if 0:18:22.800 --> 0:18:24.840 you don't really have it, and all it's doing is 0:18:25.160 --> 0:18:28.840 delaying people's deportation by a year or two, then what 0:18:29.000 --> 0:18:32.720 is really going on here? And so that's going to 0:18:32.720 --> 0:18:35.439 be a debate because so now what's interesting is that 0:18:35.480 --> 0:18:38.919 the federal statutes never say that there needs to be 0:18:39.040 --> 0:18:42.120 something called the Board of Immigration Appeals. They don't say 0:18:42.119 --> 0:18:45.000 anything like that. They just say the Attorney General has 0:18:45.040 --> 0:18:48.600 to establish something, and whatever that is, that's the system. 0:18:49.200 --> 0:18:52.760 So the system that the Attorney General established had an 0:18:52.760 --> 0:18:55.920 immigration court and a Board of Immigration Appeals. So now 0:18:55.960 --> 0:18:59.040 by regulation they're trying to say, you don't need this 0:18:59.119 --> 0:19:04.000 Board of Immigration Appeals anymore unless the entire board decides 0:19:04.000 --> 0:19:06.760 on bank. We're going to listen to a case only 0:19:06.840 --> 0:19:10.200 then in those situations. So they're saying, in that situation, 0:19:10.359 --> 0:19:13.520 we'll have that, but otherwise we won't have it, and 0:19:13.600 --> 0:19:15.640 so they'll be a lawsuit. But I don't know how 0:19:15.760 --> 0:19:17.960 likely it is to be successful. Now they may not 0:19:18.000 --> 0:19:21.320 have followed the correct formalities because they're not doing notice 0:19:21.320 --> 0:19:23.760 and comment, and I don't know why. If you're doing it, 0:19:23.800 --> 0:19:26.760 I think if you're doing something this substantive, I think 0:19:26.800 --> 0:19:29.520 you'd want to dot all the i's and cross all 0:19:29.600 --> 0:19:32.680 the t's, even if it takes six months longer, because 0:19:32.720 --> 0:19:37.960 it's a very large substantive change here. But nevertheless, it 0:19:38.040 --> 0:19:40.959 might get dinged for the lack of formalities. But if 0:19:40.960 --> 0:19:43.760 it doesn't get dinged on the lack of formalities, I'm 0:19:43.800 --> 0:19:47.639 not so optimistic for the challengers that they would actually 0:19:47.640 --> 0:19:50.680 win here because there's nothing in the statute that actually 0:19:50.720 --> 0:19:53.520 requires this Board of Immigration Appeals to exist. 0:19:53.760 --> 0:19:57.760 So the chief judge of the Minnesota Courts US District, 0:19:57.840 --> 0:20:02.119 Judge Patrick Schiltz, found that ICE had violated court orders 0:20:02.160 --> 0:20:05.840 almost one hundred times in seventy four cases brought by 0:20:05.920 --> 0:20:09.400 immigrants so far this year, and many other federal judges 0:20:09.440 --> 0:20:12.680 have found that ICE is not complying with their orders, 0:20:13.200 --> 0:20:17.439 or they're being threatened by judges with contempt, and so 0:20:17.600 --> 0:20:20.920 then they comply with court orders, but they're slow walking. 0:20:21.000 --> 0:20:25.360 I mean, many federal judges are finding that ICE is 0:20:25.440 --> 0:20:30.280 not complying with court orders, or they're being threatened by 0:20:30.440 --> 0:20:34.480 judges with contempt, and so then they comply with court orders, 0:20:34.480 --> 0:20:37.720 but they're slow walking. I mean, what's going on in 0:20:37.840 --> 0:20:39.000 the courts? 0:20:39.520 --> 0:20:42.840 I think there are many different issues, and so it's 0:20:42.880 --> 0:20:47.120 not one clear issue. It's many different issues. Number One, 0:20:47.720 --> 0:20:52.040 there is the issue of the amount of litigation that's 0:20:52.080 --> 0:20:55.879 happening now because of this new policy that says that 0:20:55.920 --> 0:20:59.920 if you've crossed the border illegally, there is no bond 0:21:00.119 --> 0:21:02.920 hearing for you. So that's a change from the past. 0:21:03.520 --> 0:21:07.879 The system didn't align itself, So it's this expression of 0:21:08.200 --> 0:21:11.520 building the airplane while you're trying to fly it. There 0:21:11.680 --> 0:21:14.800 was a system in place where when you got detained 0:21:14.800 --> 0:21:18.119 by ICE, you filed for a bond hearing, and that 0:21:18.240 --> 0:21:21.399 bond hearing was done in an immigration court by an 0:21:21.400 --> 0:21:25.760 immigration judge, and the government was represented by an ICE attorney, 0:21:26.320 --> 0:21:31.439 and the foreign national either represented themselves or had an attorney. Now, 0:21:32.320 --> 0:21:36.600 if your client is detained and they're not allowed to 0:21:36.680 --> 0:21:41.280 have bond because of this new policy, then what people 0:21:41.280 --> 0:21:44.960 are doing is they're filing habeas petitions. And the habeas 0:21:44.960 --> 0:21:48.359 petition doesn't have ICE as the attorney, it has a 0:21:48.600 --> 0:21:53.760 USDJ attorney, and those attorneys are understaffed, and in fact, 0:21:53.800 --> 0:21:57.280 the USDOJ attorneys many of them are resigning, and so 0:21:57.440 --> 0:22:01.240 all of these offices are understaffed, and now they're having 0:22:01.280 --> 0:22:04.480 this surge of cases. So they have this surge of 0:22:04.560 --> 0:22:10.000 cases and they're having to deal with not the immigration courts, 0:22:10.040 --> 0:22:13.240 but the federal courts, and ICE is having to respond 0:22:13.800 --> 0:22:17.960 to all of these various court orders at the same time, 0:22:18.400 --> 0:22:22.080 it's trying to have a record number of people in detention. 0:22:22.280 --> 0:22:26.800 There's currently something like seventy three thousand foreign nationals in detention. 0:22:27.280 --> 0:22:32.120 That number normally is something like forty thousand, thirty five thousand, 0:22:32.600 --> 0:22:35.160 but now we're up to about seventy three thousand per day. 0:22:36.240 --> 0:22:39.679 And so you have the government lawyers, we have something 0:22:39.800 --> 0:22:42.840 like eighty or ninety of these cases that they're trying 0:22:42.840 --> 0:22:46.200 to handle, all at the exact same time, and the 0:22:46.280 --> 0:22:49.399 ICE agents who are dealing with the fact that these 0:22:49.800 --> 0:22:53.720 foreign nationals may have been in that location when the 0:22:53.760 --> 0:22:57.159 habeas was filed, but they might have gotten moved because 0:22:57.200 --> 0:22:59.760 they needed to move the person to a different facility, 0:23:00.280 --> 0:23:05.360 either because of real reasons or procedural imaginations. I mean, 0:23:05.400 --> 0:23:08.200 there could have been beaesels on a facility and they 0:23:08.200 --> 0:23:11.520 needed to move them, or there could have been a 0:23:11.600 --> 0:23:15.760 glut of people that were in one facility, an overpopulation, 0:23:15.880 --> 0:23:17.879 so you need it to move. And so the point 0:23:18.000 --> 0:23:21.040 is a lot of things conspire together when you don't 0:23:21.040 --> 0:23:25.639 build out this infrastructure proportionally, all at the same time, 0:23:26.160 --> 0:23:30.360 such that there's a lot of ignoring of these orders 0:23:30.640 --> 0:23:34.440 by necessity and also by choice. I'm not going to 0:23:34.520 --> 0:23:37.359 discount that there's by choice as well, but it's not 0:23:37.480 --> 0:23:40.280 all by choice. Some of it is by necessity in 0:23:40.400 --> 0:23:44.119 terms of the way they're doing it, and so it's tough, 0:23:44.160 --> 0:23:46.639 and it's tough for the courts to unwind all of that, 0:23:47.480 --> 0:23:51.280 and the judges are getting frustrated, and especially if they 0:23:51.280 --> 0:23:54.320 feel like their orders are being completely ignored. Unless the 0:23:54.320 --> 0:23:58.760 Supreme Court steps in very quickly and does something, it's 0:23:58.800 --> 0:24:02.240 going to end one of three ways. Either it will 0:24:02.359 --> 0:24:05.760 end with all of this being enjoined and restoring back 0:24:05.800 --> 0:24:09.359 to the original system where the bond situation exists again, 0:24:09.400 --> 0:24:11.960 and it goes back to the immigration court and everybody 0:24:12.000 --> 0:24:15.440 remembers the old system. That's one way. It could end 0:24:15.920 --> 0:24:20.560 with nobody getting bond of any kind if they've crossed illegally, 0:24:20.640 --> 0:24:23.280 and then that's just the law of the land. And 0:24:23.320 --> 0:24:25.960 then the problem subsides because there won't be content of 0:24:26.040 --> 0:24:28.800 court because the federal Court won't be involved in this anymore. 0:24:28.960 --> 0:24:33.080 That's the second solution, or the third solution will be 0:24:33.640 --> 0:24:37.280