1 00:00:03,200 --> 00:00:08,000 Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio. 2 00:00:09,280 --> 00:00:12,800 Speaker 2: As we have said multiple times, our border enforcement plan works. 3 00:00:12,840 --> 00:00:17,200 Speaker 2: It is deterrence, a diplomacy and enforcement. We have seen 4 00:00:17,720 --> 00:00:20,599 Speaker 2: that plan working on lawful border crossing have come down 5 00:00:20,640 --> 00:00:22,840 Speaker 2: to the lowest that we have seen in the past 6 00:00:23,200 --> 00:00:23,800 Speaker 2: two years. 7 00:00:24,200 --> 00:00:28,960 Speaker 1: The Biden Administration's new enforcement plan to reduce illegal crossings 8 00:00:28,960 --> 00:00:32,400 Speaker 1: on the US Mexico border does seem to be working, 9 00:00:32,880 --> 00:00:36,960 Speaker 1: just as White House Press Secretary Kareem Jean Pierre said. However, 10 00:00:37,000 --> 00:00:40,320 Speaker 1: that success played no part in a federal judge's decision 11 00:00:40,400 --> 00:00:43,920 Speaker 1: on Tuesday to block the rule that denies asylum to 12 00:00:44,000 --> 00:00:48,000 Speaker 1: migrants who arrive at the border without first applying online 13 00:00:48,200 --> 00:00:51,320 Speaker 1: or seeking protection in a country they passed through. The 14 00:00:51,360 --> 00:00:54,880 Speaker 1: Biden administration immediately appealed the judge's order, which is on 15 00:00:55,000 --> 00:00:58,920 Speaker 1: hold for two weeks. Joining me is immigration law expert 16 00:00:59,000 --> 00:01:02,320 Speaker 1: Leon Fresco, partner at Holland and Knight. How big a 17 00:01:02,360 --> 00:01:06,800 Speaker 1: blow is Judge Tiger's decision to the Biden administration and 18 00:01:06,840 --> 00:01:08,920 Speaker 1: its efforts to control the border. 19 00:01:09,400 --> 00:01:12,360 Speaker 3: Well. If the decision is allowed to stand, it would 20 00:01:12,400 --> 00:01:16,280 Speaker 3: be a significant blow to the Biden administration's ability to 21 00:01:16,319 --> 00:01:20,399 Speaker 3: control the border, because right now the Biden administration is 22 00:01:20,480 --> 00:01:23,760 Speaker 3: using what's called a carrots and six approach along the border, 23 00:01:24,120 --> 00:01:26,920 Speaker 3: which is to say, here are the carrots. Either come 24 00:01:26,959 --> 00:01:30,160 Speaker 3: in legally through one of our parole programs, or at 25 00:01:30,200 --> 00:01:32,640 Speaker 3: least apply it to the ports of entry with an 26 00:01:32,680 --> 00:01:35,840 Speaker 3: appointment at one of our ports so that we know 27 00:01:35,959 --> 00:01:38,919 Speaker 3: you're coming and complain on it. But don't just walk 28 00:01:39,000 --> 00:01:42,360 Speaker 3: in between the ports through the border illegally where we 29 00:01:42,400 --> 00:01:44,480 Speaker 3: don't know how many people are coming on what date, 30 00:01:44,560 --> 00:01:47,520 Speaker 3: We can't plan for it, and it creates chaos. And 31 00:01:47,560 --> 00:01:49,240 Speaker 3: what it's saying is is if you do do that, 32 00:01:49,640 --> 00:01:52,800 Speaker 3: we're going to ban you from getting asylum and place 33 00:01:52,880 --> 00:01:56,400 Speaker 3: you in the expedited removal process. So most people so 34 00:01:56,600 --> 00:02:00,000 Speaker 3: far have acted in accordance with this charts and stay 35 00:02:00,240 --> 00:02:03,480 Speaker 3: approach and use the carrots space approach because they know 36 00:02:03,560 --> 00:02:06,720 Speaker 3: that the sticks are there. If the sticks aren't taken away, 37 00:02:07,320 --> 00:02:10,560 Speaker 3: it's unclear whether the benefits of the cats will still 38 00:02:10,720 --> 00:02:15,960 Speaker 3: be sufficient to dissuade people from coming across the border illegally, 39 00:02:16,120 --> 00:02:19,080 Speaker 3: and so if the decision is allowed to stand, it 40 00:02:19,200 --> 00:02:21,919 Speaker 3: will be a big problem for the Biden administration. As 41 00:02:21,960 --> 00:02:24,880 Speaker 3: soon as the weather becomes a little less hot on 42 00:02:24,919 --> 00:02:25,720 Speaker 3: the southern border. 43 00:02:26,200 --> 00:02:29,680 Speaker 1: The judge said that the rules were not lawful because 44 00:02:29,680 --> 00:02:34,120 Speaker 1: they imposed conditions on asylum seekers that Congress did not intend. 45 00:02:34,320 --> 00:02:38,320 Speaker 3: How So, there's actually two congressional statues and they're in 46 00:02:38,600 --> 00:02:41,960 Speaker 3: one hundred percent tension with one another. There's a congressional 47 00:02:41,960 --> 00:02:44,679 Speaker 3: statue which is pretty clear and is the one the 48 00:02:44,800 --> 00:02:48,720 Speaker 3: judge is relying upon, which says that it doesn't matter 49 00:02:48,760 --> 00:02:52,919 Speaker 3: whether you crossed legally or illegally, anybody inside the United 50 00:02:52,960 --> 00:02:56,920 Speaker 3: States is eligible to apply for asylum. It is essentially 51 00:02:56,960 --> 00:03:00,040 Speaker 3: written as clear as day that the fact that you 52 00:03:00,120 --> 00:03:04,720 Speaker 3: crossed illegally cannot be held against you for applying for asylum. 53 00:03:04,919 --> 00:03:08,720 Speaker 3: So people might think, well, that means case closed. You 54 00:03:08,760 --> 00:03:12,160 Speaker 3: shouldn't be able to have an administration ban asylum for 55 00:03:12,320 --> 00:03:16,240 Speaker 3: people who crossed illegally. But by the same token, there's 56 00:03:16,280 --> 00:03:21,720 Speaker 3: another statute that Congress also wrote, which says that the 57 00:03:21,800 --> 00:03:27,200 Speaker 3: administration can, as a matter of discretion, pick any factor 58 00:03:27,280 --> 00:03:30,400 Speaker 3: that it wants to add to the list of reasons 59 00:03:30,440 --> 00:03:32,920 Speaker 3: why you can be denied a sylum and it doesn't 60 00:03:32,919 --> 00:03:35,640 Speaker 3: limit it in any way. And so hence, both the 61 00:03:35,680 --> 00:03:39,400 Speaker 3: Trump administration and the Biden administration have said, well, we're 62 00:03:39,400 --> 00:03:42,760 Speaker 3: going to use the factor that you've crossed illegally after 63 00:03:42,800 --> 00:03:45,440 Speaker 3: being told not to do it, and in the Biden 64 00:03:45,480 --> 00:03:50,600 Speaker 3: administration's case, after being given numerous legal alternatives of how 65 00:03:50,640 --> 00:03:52,880 Speaker 3: to do it. So the point is, if you're choosing 66 00:03:52,920 --> 00:03:56,920 Speaker 3: to brazenly cross illegally anyway, when there's a legal way 67 00:03:57,000 --> 00:03:59,560 Speaker 3: to do it, we should be able to use this 68 00:03:59,600 --> 00:04:03,920 Speaker 3: as a discretionary factor to deny you asylum. And so 69 00:04:04,000 --> 00:04:08,480 Speaker 3: that was the Biden administration's argument. The judge here ruled, well, 70 00:04:08,680 --> 00:04:11,960 Speaker 3: it's not exactly clear that everybody's going to be able 71 00:04:12,000 --> 00:04:15,080 Speaker 3: to have an access point to asylum, and so because 72 00:04:15,120 --> 00:04:17,599 Speaker 3: of that, then we are going to say that the 73 00:04:17,720 --> 00:04:21,400 Speaker 3: statue where Congress says that you can't block asylum based 74 00:04:21,400 --> 00:04:25,000 Speaker 3: on illegal entry is the one that's the winner here, 75 00:04:25,520 --> 00:04:28,320 Speaker 3: and I'm going to prevent the Biden administration from having 76 00:04:28,360 --> 00:04:30,880 Speaker 3: this stick that says don't cross illegally. 77 00:04:31,400 --> 00:04:34,200 Speaker 1: The judge wrote that while they wait for an adjudication, 78 00:04:34,480 --> 00:04:38,279 Speaker 1: applicants for asylum must remain in Mexico, where migrants are 79 00:04:38,320 --> 00:04:41,440 Speaker 1: generally at heightened risk of violence by both state and 80 00:04:41,600 --> 00:04:45,400 Speaker 1: non state actors. Is that true, Well. 81 00:04:45,160 --> 00:04:48,400 Speaker 3: It depends how long it's going to take and under 82 00:04:48,440 --> 00:04:51,919 Speaker 3: what conditions the person is waiting. It is true that 83 00:04:52,040 --> 00:04:56,440 Speaker 3: the longer a person is waiting in Mexico and the 84 00:04:56,560 --> 00:05:00,479 Speaker 3: less resources that the person has, this means it is 85 00:05:00,520 --> 00:05:02,719 Speaker 3: more likely that something bad is going to happen to 86 00:05:02,720 --> 00:05:06,320 Speaker 3: them in Mexico while they're waiting, which can include having 87 00:05:06,440 --> 00:05:10,159 Speaker 3: just random street crime where the person's resources are taken 88 00:05:10,160 --> 00:05:13,279 Speaker 3: away from this. That is very common in Mexico and 89 00:05:13,440 --> 00:05:16,080 Speaker 3: is likely to occur to anybody who's just sitting around 90 00:05:16,080 --> 00:05:19,680 Speaker 3: there waiting for months. So that's the question. It's sort 91 00:05:19,680 --> 00:05:23,200 Speaker 3: of a really effectual question, which is the Biden administration 92 00:05:23,320 --> 00:05:25,839 Speaker 3: tries to say, no, one's going to be lingering in 93 00:05:25,960 --> 00:05:29,200 Speaker 3: Mexico waiting for an appointment at the port of entry, 94 00:05:29,520 --> 00:05:33,800 Speaker 3: because we have sufficient number of appointments through our CBP 95 00:05:33,920 --> 00:05:37,799 Speaker 3: one app and through the parole program. But the plane 96 00:05:37,800 --> 00:05:39,839 Speaker 3: has said no, there are still people waiting and they're 97 00:05:39,839 --> 00:05:44,160 Speaker 3: subject to danger. And so because they shouldn't be expected 98 00:05:44,200 --> 00:05:46,480 Speaker 3: to have to wait and have to subject themselves to 99 00:05:46,520 --> 00:05:50,840 Speaker 3: this danger, then again we're going to choose the part 100 00:05:50,839 --> 00:05:54,880 Speaker 3: where Congress says you don't have to wait outside the 101 00:05:54,960 --> 00:05:57,720 Speaker 3: United States. You can come in and apply for asylum, 102 00:05:58,160 --> 00:06:01,159 Speaker 3: as opposed to saying that this is a permissible discretionary 103 00:06:01,279 --> 00:06:05,520 Speaker 3: factor for an administration to use the ban people from 104 00:06:05,560 --> 00:06:08,400 Speaker 3: seeking a silo, which is, hey, there's a legal way 105 00:06:08,440 --> 00:06:11,680 Speaker 3: that we just created, use that. The only reason you 106 00:06:11,680 --> 00:06:14,360 Speaker 3: would use the illegal way is because you're trying to 107 00:06:14,360 --> 00:06:17,440 Speaker 3: cause problem for the US government. So the judge doesn't 108 00:06:17,440 --> 00:06:21,120 Speaker 3: believe that. The judge believe someone using the illegal way 109 00:06:21,240 --> 00:06:24,160 Speaker 3: might be just trying to protect their safety because they 110 00:06:24,160 --> 00:06:27,880 Speaker 3: don't have a sufficiently quick pathway to avoid having to 111 00:06:27,920 --> 00:06:32,039 Speaker 3: sit there in Mexico and potentially risk being in some 112 00:06:32,240 --> 00:06:34,600 Speaker 3: way harmed by gang members or others. 113 00:06:35,000 --> 00:06:39,000 Speaker 1: So leon is this Biden program similar to the Trump 114 00:06:39,040 --> 00:06:40,680 Speaker 1: Remain in Mexico program? 115 00:06:41,160 --> 00:06:44,039 Speaker 3: Well, it isn't it is. In this sense, Trump did 116 00:06:44,120 --> 00:06:49,520 Speaker 3: not have a mechanism in play like the CBP one 117 00:06:49,600 --> 00:06:54,920 Speaker 3: app and the parole program that was designed to legalize 118 00:06:54,960 --> 00:06:58,000 Speaker 3: the flow so that they could make the argument that 119 00:06:58,080 --> 00:07:02,279 Speaker 3: it would be a permissible discritiontionary reason to ban people 120 00:07:02,320 --> 00:07:05,400 Speaker 3: from asylum that they were crossing across the border illegally. 121 00:07:05,760 --> 00:07:09,039 Speaker 3: Meaning Trump just said stay out, and I'm allowed to 122 00:07:09,040 --> 00:07:11,280 Speaker 3: tell people to stay out, and if they don't want 123 00:07:11,320 --> 00:07:14,200 Speaker 3: to stay out and do it through Vexico. I'm allowed 124 00:07:14,200 --> 00:07:17,040 Speaker 3: to ban them from seeking asylum. So he was making 125 00:07:17,120 --> 00:07:22,520 Speaker 3: the A versus b one versus two binary analysis, and 126 00:07:22,640 --> 00:07:25,880 Speaker 3: I banned some poken, I got banned people from asylum. 127 00:07:25,920 --> 00:07:29,480 Speaker 3: He was trying to make that very binary analysis, whereas 128 00:07:29,600 --> 00:07:31,920 Speaker 3: the Biden administration was saying, no, no, no, this is 129 00:07:31,960 --> 00:07:35,040 Speaker 3: not a binary analysis. The reason ours is different is 130 00:07:35,080 --> 00:07:39,960 Speaker 3: because every person can legally access our asylum system, and 131 00:07:40,040 --> 00:07:42,640 Speaker 3: the only reason they would cross illegally is to cause 132 00:07:42,760 --> 00:07:46,360 Speaker 3: problems for our US government. And if they're doing that intentionally, 133 00:07:46,680 --> 00:07:49,880 Speaker 3: they should face the punishment of being banned from being 134 00:07:49,920 --> 00:07:52,640 Speaker 3: able to speak a sylum. So that's the difference the 135 00:07:52,640 --> 00:07:56,520 Speaker 3: Biden administration was trying to make. And the Biden administration 136 00:07:57,040 --> 00:08:00,840 Speaker 3: reasoning was not viewed as credible by the Federal court 137 00:08:00,920 --> 00:08:01,360 Speaker 3: judge here. 138 00:08:01,600 --> 00:08:05,520 Speaker 1: So the Biden administration immediately appealed. The appeal will go 139 00:08:05,600 --> 00:08:08,120 Speaker 1: to the Ninth Circuit, where would you say it may 140 00:08:08,160 --> 00:08:09,680 Speaker 1: not farewell well. 141 00:08:09,760 --> 00:08:12,160 Speaker 3: The Ninth Circuit is now a fifty to fifty court. 142 00:08:12,200 --> 00:08:15,080 Speaker 3: It used to be considered a liberal court because it was. 143 00:08:15,400 --> 00:08:18,840 Speaker 3: But President Trump actually was quite successful in putting in 144 00:08:18,960 --> 00:08:21,000 Speaker 3: judges in the Ninth Circuit. So now it's a fifty 145 00:08:21,040 --> 00:08:24,040 Speaker 3: to fifty court, it's a court with many judges, and 146 00:08:24,120 --> 00:08:27,320 Speaker 3: so you could easily get three Trump appointees on a panel, 147 00:08:27,720 --> 00:08:30,440 Speaker 3: or you could get three Biden appointees on a panel 148 00:08:30,480 --> 00:08:33,080 Speaker 3: now or three Obama appointees on a panel. So you 149 00:08:33,120 --> 00:08:35,520 Speaker 3: have no idea what kind of panel you're going to 150 00:08:35,600 --> 00:08:39,080 Speaker 3: be able to get. And so from that standpoint, that's 151 00:08:39,120 --> 00:08:42,280 Speaker 3: what's going to be complicated in terms of predicting the outcome. 152 00:08:42,360 --> 00:08:46,400 Speaker 3: But I will say this, the Trump administration had in 153 00:08:46,440 --> 00:08:49,320 Speaker 3: this litigation, been able to make some headway in the 154 00:08:49,400 --> 00:08:52,200 Speaker 3: Ninth Circuit. They were able to get this decision from 155 00:08:52,280 --> 00:08:55,800 Speaker 3: the same judge as Tigaer overturned, and it was working 156 00:08:55,880 --> 00:08:58,600 Speaker 3: its way up to the Supreme Court before the Trump 157 00:08:58,640 --> 00:09:01,240 Speaker 3: administration ended. I don't know how this case would have 158 00:09:01,240 --> 00:09:05,240 Speaker 3: been resolved, but what I imagine what happened here is 159 00:09:05,240 --> 00:09:07,880 Speaker 3: that the Supreme Court is probably going to allow the 160 00:09:07,920 --> 00:09:11,440 Speaker 3: Biden administration to have this policy. If I had to 161 00:09:11,440 --> 00:09:14,760 Speaker 3: make a prediction, you know, I would say that that 162 00:09:14,960 --> 00:09:17,960 Speaker 3: the Biden administration is going to be allowed to keep 163 00:09:17,960 --> 00:09:20,160 Speaker 3: this policy in place by the US Supreme Court. 164 00:09:20,200 --> 00:09:22,600 Speaker 1: At the end of the day, explain why you think 165 00:09:22,640 --> 00:09:24,880 Speaker 1: that the Supreme Court would allow it to remain in place. 166 00:09:25,400 --> 00:09:28,199 Speaker 3: First of all, what we've now seen for the last 167 00:09:28,200 --> 00:09:30,880 Speaker 3: three years of the Biden administration is that the Supreme 168 00:09:30,920 --> 00:09:36,000 Speaker 3: Court has been very deferential to the administration period writ large, 169 00:09:36,040 --> 00:09:38,960 Speaker 3: with regards to issues of immigration, and it's setting that 170 00:09:39,080 --> 00:09:41,360 Speaker 3: up not just for Biden, because I don't think they're 171 00:09:41,440 --> 00:09:45,120 Speaker 3: particularly fond of Biden, let's say, but just because they 172 00:09:45,160 --> 00:09:48,160 Speaker 3: want this to be the norm for immigration rid lards 173 00:09:48,160 --> 00:09:50,880 Speaker 3: moving forward, to return it to what had been the 174 00:09:51,000 --> 00:09:55,120 Speaker 3: traditional one hundred years of jurisprudence before the period let's 175 00:09:55,120 --> 00:09:59,679 Speaker 3: say between nineteen ninety and twenty sixteen, where there was 176 00:09:59,720 --> 00:10:02,959 Speaker 3: a lot of activism in this area of immigration in 177 00:10:03,040 --> 00:10:06,320 Speaker 3: the judiciary. Now they're trying to resort back to the 178 00:10:06,840 --> 00:10:10,240 Speaker 3: don't sue because the administration has a lot more authority 179 00:10:10,280 --> 00:10:12,480 Speaker 3: than you think. And I think that will be the 180 00:10:12,559 --> 00:10:15,520 Speaker 3: case here where I think the Supreme Court will be 181 00:10:15,559 --> 00:10:19,040 Speaker 3: sympathetic to all of the legal options that the Biden 182 00:10:19,120 --> 00:10:23,320 Speaker 3: administration is offering people in order to come here legally, 183 00:10:23,679 --> 00:10:27,120 Speaker 3: which is the parole program for the CDP one app 184 00:10:27,400 --> 00:10:30,480 Speaker 3: and saying to people if you want to come across 185 00:10:30,520 --> 00:10:36,480 Speaker 3: the border without using any offeasset mechanisms. Then you are 186 00:10:36,559 --> 00:10:40,080 Speaker 3: going to have to risk that you will be denied asylum. 187 00:10:40,080 --> 00:10:43,160 Speaker 3: And by the way, there isn't even then a complete 188 00:10:43,200 --> 00:10:46,360 Speaker 3: ban on asylum. If you could prove that your life 189 00:10:46,400 --> 00:10:49,720 Speaker 3: or safety were in danger in Mexico and that's why 190 00:10:49,760 --> 00:10:52,360 Speaker 3: you had to cross it, it's an imminent manner, then 191 00:10:52,400 --> 00:10:55,040 Speaker 3: you can even overcome this ban. So it's not even 192 00:10:55,080 --> 00:10:58,280 Speaker 3: a one hundred percent fan in that situation. And so 193 00:10:58,440 --> 00:11:00,360 Speaker 3: for that reason, I think the Supreme Court is going 194 00:11:00,440 --> 00:11:03,920 Speaker 3: to have sympathy about it. And for the same reason 195 00:11:03,960 --> 00:11:08,920 Speaker 3: they actually upheld the Trump travel ban back in the day, 196 00:11:09,400 --> 00:11:13,439 Speaker 3: they will use that same logic here and uphold the 197 00:11:13,600 --> 00:11:17,320 Speaker 3: Biden transit ban visa via pilumce Leon. 198 00:11:17,480 --> 00:11:20,240 Speaker 1: Let's turn now to the fight between the state of 199 00:11:20,360 --> 00:11:24,640 Speaker 1: Texas and the Biden administration over migrants crossing the border, 200 00:11:25,080 --> 00:11:28,720 Speaker 1: which is escalating and is now visually represented by a 201 00:11:28,840 --> 00:11:32,960 Speaker 1: thousand foot stretch of bright orange, wrecking ball sized tethered 202 00:11:33,000 --> 00:11:36,000 Speaker 1: buoys in the middle of the Rio Grande, the river 203 00:11:36,080 --> 00:11:39,160 Speaker 1: that serves as the border between the United States and Mexico. 204 00:11:39,840 --> 00:11:43,480 Speaker 1: Texas Governor Greg Abbott defended the state's right to install 205 00:11:43,559 --> 00:11:46,680 Speaker 1: the barrier, issuing his own demand on Fox News. 206 00:11:47,000 --> 00:11:49,559 Speaker 3: All about administration has to do is to enforce the 207 00:11:49,640 --> 00:11:52,920 Speaker 3: laws already on the books to prevent people from crossing 208 00:11:53,080 --> 00:11:54,720 Speaker 3: between the ports of entry. 209 00:11:55,200 --> 00:11:58,240 Speaker 1: Texas will see you in court, mister, President Abbott wrote 210 00:11:58,280 --> 00:12:01,640 Speaker 1: in a letter. White House Press Secretary Kareem Jean Pierre 211 00:12:01,760 --> 00:12:03,800 Speaker 1: called it another political stunt. 212 00:12:04,520 --> 00:12:07,000 Speaker 2: Let the Department of Justice speak to this. They've been 213 00:12:07,080 --> 00:12:12,000 Speaker 2: very clear last week that they also will see Governor 214 00:12:12,000 --> 00:12:15,079 Speaker 2: Abbott in court for his unlawful actions. We've been very 215 00:12:15,120 --> 00:12:15,720 Speaker 2: clear about that. 216 00:12:16,040 --> 00:12:20,439 Speaker 1: And so the administration sued Texas over the buoys, certainly 217 00:12:20,480 --> 00:12:23,280 Speaker 1: not its first lawsuit against the state. I've been talking 218 00:12:23,280 --> 00:12:26,440 Speaker 1: to Leon Fresco, a partner at Holland and Knight and 219 00:12:26,480 --> 00:12:30,120 Speaker 1: former director of the Justice Department's Office of Immigration Litigation. 220 00:12:30,679 --> 00:12:33,400 Speaker 1: Leon tell us about these booys that the federal government 221 00:12:33,520 --> 00:12:34,280 Speaker 1: is suing over. 222 00:12:34,800 --> 00:12:38,360 Speaker 3: Well. The federal government is complaining about the floating barrier, 223 00:12:38,520 --> 00:12:41,440 Speaker 3: which are about a string of buoys that are between 224 00:12:41,480 --> 00:12:45,640 Speaker 3: about four and six feet a diameter. The orange looking buoys, 225 00:12:45,679 --> 00:12:49,400 Speaker 3: which may streatch for at least one thousand feet between 226 00:12:49,520 --> 00:12:54,600 Speaker 3: the Eagle Path International Bridge and about a couple miles 227 00:12:54,679 --> 00:12:59,200 Speaker 3: south there, and they include some infrastructure designs to anchor 228 00:12:59,240 --> 00:13:01,960 Speaker 3: it or fix it in the middle of the Rio 229 00:13:02,000 --> 00:13:06,200 Speaker 3: Grand River separating Mexico and the United States there near 230 00:13:06,280 --> 00:13:09,480 Speaker 3: ego paths, And the idea is that these floating barriers 231 00:13:09,480 --> 00:13:12,360 Speaker 3: that people won't be able to walk across the river 232 00:13:13,000 --> 00:13:15,520 Speaker 3: in order to get to the United States and evade 233 00:13:15,840 --> 00:13:18,160 Speaker 3: the border patrol so that they can get their bodies 234 00:13:18,200 --> 00:13:22,120 Speaker 3: inside the United States and avoid the bands that the 235 00:13:22,240 --> 00:13:24,880 Speaker 3: Biden administration is trying to do, where they're trying to 236 00:13:24,880 --> 00:13:29,000 Speaker 3: basically push people back into Mexico and get them to 237 00:13:29,120 --> 00:13:32,040 Speaker 3: use the CBP one app so that they don't have 238 00:13:32,080 --> 00:13:35,800 Speaker 3: to do the whole expedited removal process for these people. 239 00:13:36,080 --> 00:13:38,600 Speaker 1: And what is the claim in this lawsuit? You know 240 00:13:38,640 --> 00:13:40,680 Speaker 1: what law do? They say Texas has broken? 241 00:13:41,840 --> 00:13:44,320 Speaker 3: Well, so what's very interesting is this is sort of 242 00:13:44,640 --> 00:13:48,000 Speaker 3: pretty obscure stuff for the immigration world. I'm sure for 243 00:13:48,080 --> 00:13:52,520 Speaker 3: the environmental and natural resources world, this is a very 244 00:13:52,559 --> 00:13:56,360 Speaker 3: common thing. But obviously, if you're a normal immigration lawyer, 245 00:13:56,520 --> 00:14:01,000 Speaker 3: you don't necessarily deal with everyday the Rivers an Harbor's Act. 246 00:14:01,040 --> 00:14:03,480 Speaker 3: But the law that's in play is called the Rivers 247 00:14:03,480 --> 00:14:07,400 Speaker 3: and Harbor's Appropriation Act. Of eighteen ninety nine, which unlike 248 00:14:07,480 --> 00:14:10,720 Speaker 3: the Immigration Code, which is in Title eight of the 249 00:14:10,840 --> 00:14:13,600 Speaker 3: US Code, this is entitled thirty three of the Code, 250 00:14:14,000 --> 00:14:17,160 Speaker 3: and basically what it says in plain English is, look, 251 00:14:17,200 --> 00:14:20,800 Speaker 3: there's navigable waters all around the United States, and the 252 00:14:20,840 --> 00:14:24,680 Speaker 3: whole point of these is that they're connecting interstates and 253 00:14:25,000 --> 00:14:29,760 Speaker 3: foreign state commerce. And if you want to build barriers 254 00:14:29,760 --> 00:14:34,480 Speaker 3: that prevent people from using these waterways, then you have 255 00:14:34,600 --> 00:14:37,320 Speaker 3: to get the Army Corps of Engineer's approval to do this. 256 00:14:37,520 --> 00:14:40,240 Speaker 3: You can't just be taking matters into your own hands 257 00:14:40,280 --> 00:14:43,280 Speaker 3: and whatever you want with the waterways of the United States. 258 00:14:43,360 --> 00:14:46,560 Speaker 3: That's the province of the federal government, and so it's 259 00:14:46,600 --> 00:14:49,440 Speaker 3: the position of the Department of Justice, the Environment and 260 00:14:49,440 --> 00:14:53,000 Speaker 3: the Natural Resources Division. And they told this to the 261 00:14:53,040 --> 00:14:55,280 Speaker 3: State of Texas before the laws that was filed. Look, 262 00:14:55,320 --> 00:14:58,800 Speaker 3: you have to get approval and a permit from the 263 00:14:58,960 --> 00:15:00,840 Speaker 3: Army Corps of Engineers. You didn't get it. You have 264 00:15:00,920 --> 00:15:03,800 Speaker 3: to take this down. And Texas said, we won't take 265 00:15:03,800 --> 00:15:07,160 Speaker 3: this down. We have sovereign authority to protect our border. 266 00:15:07,560 --> 00:15:10,320 Speaker 3: And so now this loss has been filed in Austin, 267 00:15:10,440 --> 00:15:13,920 Speaker 3: Texas in the federal court seeking injunctive release in the 268 00:15:13,960 --> 00:15:16,560 Speaker 3: form of a court order saying, Hey, Texas, take down 269 00:15:16,640 --> 00:15:19,960 Speaker 3: these bullies, these barriers, and you'll have to pay to 270 00:15:20,000 --> 00:15:20,240 Speaker 3: do this. 271 00:15:21,320 --> 00:15:26,000 Speaker 1: Governor Abbott was anticipating this lawsuit. He sent the President 272 00:15:26,000 --> 00:15:31,080 Speaker 1: a letter on Monday defending Texas's right to install the barrier. So, 273 00:15:31,160 --> 00:15:34,080 Speaker 1: as you said, he said that Texas has the sovereign 274 00:15:34,120 --> 00:15:37,320 Speaker 1: authority to defend its border, and they've been using the 275 00:15:37,400 --> 00:15:41,960 Speaker 1: Texas Disaster Act as the legal bedrock for some of 276 00:15:42,000 --> 00:15:42,840 Speaker 1: these measures. 277 00:15:43,760 --> 00:15:48,160 Speaker 3: Right, they believe that they have basically a natural disaster 278 00:15:48,880 --> 00:15:51,120 Speaker 3: that's going on on the border, which, by the way, 279 00:15:51,280 --> 00:15:56,080 Speaker 3: what's complicated about this is that the border numbers are 280 00:15:56,160 --> 00:15:58,960 Speaker 3: way down. All of the questions of what was going 281 00:15:59,000 --> 00:16:02,000 Speaker 3: to happen after Tayle forty two was listed have been 282 00:16:02,040 --> 00:16:04,800 Speaker 3: answered in quite a positive way by the Biden administration. 283 00:16:04,920 --> 00:16:08,640 Speaker 3: But nevertheless, the governor of Texas, Governor abbit is taking 284 00:16:08,680 --> 00:16:11,560 Speaker 3: the position that he's in a state of emergency, and 285 00:16:11,640 --> 00:16:16,280 Speaker 3: that state of emergency permits him under his authority to 286 00:16:16,320 --> 00:16:20,000 Speaker 3: deter the people coming into the United States because he 287 00:16:20,080 --> 00:16:23,800 Speaker 3: has the authority to do that. Now he's being sued 288 00:16:23,840 --> 00:16:26,920 Speaker 3: by private actors and now the Department of Justice saying 289 00:16:26,920 --> 00:16:30,520 Speaker 3: that the Texas disaster as of nineteen seventy five doesn't 290 00:16:30,560 --> 00:16:35,240 Speaker 3: give the authority defined here a lawful immigration was not 291 00:16:35,280 --> 00:16:38,840 Speaker 3: within the definition of disaster and was not intended to 292 00:16:38,880 --> 00:16:42,280 Speaker 3: be classified as such. So you know, it was meant 293 00:16:42,320 --> 00:16:46,360 Speaker 3: to basically protect human life and allow Texas to take 294 00:16:46,520 --> 00:16:50,400 Speaker 3: measures to do that, but not for the purposes of 295 00:16:50,760 --> 00:16:54,640 Speaker 3: basically using immigration as a quarte unquote disaster. 296 00:16:55,600 --> 00:16:57,800 Speaker 1: Does it sound like he has an arguable case. 297 00:16:58,440 --> 00:17:01,600 Speaker 3: Here's basically how this will work. It's one of these 298 00:17:01,600 --> 00:17:05,840 Speaker 3: things where had the case been brought in certain divisions 299 00:17:05,840 --> 00:17:09,399 Speaker 3: in Texas, probably Texas would have won. In the district 300 00:17:09,480 --> 00:17:12,400 Speaker 3: court in Austin. It's a little bit more likely that 301 00:17:12,480 --> 00:17:15,560 Speaker 3: the DOJ is going to get an injunction here. The 302 00:17:15,600 --> 00:17:19,560 Speaker 3: Fifth Circuit, depending on the panel, may say that State 303 00:17:19,600 --> 00:17:21,560 Speaker 3: of Texas can do it or it can't do it, 304 00:17:21,560 --> 00:17:24,320 Speaker 3: depending on which panel they get. I can see panels 305 00:17:24,359 --> 00:17:27,680 Speaker 3: going either way. But I do think once you get 306 00:17:27,720 --> 00:17:30,879 Speaker 3: to the Supreme Court, the Supreme Court has been getting 307 00:17:31,280 --> 00:17:35,480 Speaker 3: more and more frustrated with these state efforts to co 308 00:17:35,560 --> 00:17:39,760 Speaker 3: opt immigration law and essentially to say, look, we're tired 309 00:17:39,800 --> 00:17:41,800 Speaker 3: of what the Biden administration is doing. We're going to 310 00:17:41,880 --> 00:17:45,119 Speaker 3: take matters in our own hands. And if they didn't 311 00:17:45,320 --> 00:17:47,920 Speaker 3: like some of the other stuff, like to remain in 312 00:17:48,000 --> 00:17:52,080 Speaker 3: Mexico stuff and the Title forty two stuff and the 313 00:17:52,160 --> 00:17:57,520 Speaker 3: prosecutorial discretion stuff. I think that putting barriers in an 314 00:17:57,720 --> 00:18:02,520 Speaker 3: international waterway with Mexico is probably going to be deemed 315 00:18:03,200 --> 00:18:07,240 Speaker 3: to be a bridge too far. So to speak for 316 00:18:07,640 --> 00:18:09,359 Speaker 3: the Supreme Court, I don't think they're going to be 317 00:18:09,440 --> 00:18:12,720 Speaker 3: recessive to allowing Texas to do this because what is 318 00:18:12,760 --> 00:18:16,520 Speaker 3: basically the limiting principles then on what Texas can do 319 00:18:16,600 --> 00:18:18,920 Speaker 3: with the Rio grand And that's going to be the problem. 320 00:18:19,200 --> 00:18:23,199 Speaker 1: Mesco asked the Biden administration to remove the boys and 321 00:18:23,320 --> 00:18:27,400 Speaker 1: razor wire, saying it violates treaties. Does that play any 322 00:18:27,440 --> 00:18:32,920 Speaker 1: part in the Biden administration's lawsuit against Texas. 323 00:18:31,720 --> 00:18:34,359 Speaker 3: Well, it's not in the lawsuits. The lawsuit is just 324 00:18:34,600 --> 00:18:37,800 Speaker 3: talking about the principle that you need a permit from 325 00:18:37,880 --> 00:18:41,560 Speaker 3: the Army Corps of Engineers. But the larger question of 326 00:18:41,600 --> 00:18:44,080 Speaker 3: why you need a permit from the Army Corps of 327 00:18:44,119 --> 00:18:47,679 Speaker 3: Engineers is because Congress realized there the events like this, 328 00:18:47,880 --> 00:18:50,560 Speaker 3: and again, the Rio brand is covered by the famous 329 00:18:50,560 --> 00:18:54,639 Speaker 3: Treaty of Wataloupe Hidalgo and that's the water that is 330 00:18:54,880 --> 00:18:57,920 Speaker 3: part of both nations, and it's one of these things 331 00:18:57,960 --> 00:19:01,040 Speaker 3: that's a very sensitive issue about Mexico and the United 332 00:19:01,040 --> 00:19:05,000 Speaker 3: States having sort of joint sovereignty over that river. And 333 00:19:05,080 --> 00:19:08,520 Speaker 3: for that reason, that's just not something that the State 334 00:19:08,560 --> 00:19:11,000 Speaker 3: of Texas can just get in. Again, you would be 335 00:19:11,040 --> 00:19:14,479 Speaker 3: the point, what is the limiting principles about what Texas 336 00:19:14,600 --> 00:19:18,479 Speaker 3: can do there? Can they put in huge seal things 337 00:19:18,680 --> 00:19:22,040 Speaker 3: that are causing to injure people there? What is the 338 00:19:22,040 --> 00:19:24,160 Speaker 3: limit of what they can they put bombs in the river? 339 00:19:24,800 --> 00:19:27,639 Speaker 3: And so there's all these kinds of questions about where 340 00:19:27,680 --> 00:19:30,560 Speaker 3: the line is and why that's happening. And I don't 341 00:19:30,600 --> 00:19:32,640 Speaker 3: think again, the Supreme Court is going to be very 342 00:19:32,680 --> 00:19:36,560 Speaker 3: sacious if this case gets to the Supreme Court about 343 00:19:36,600 --> 00:19:39,000 Speaker 3: what Texas is doing with regards to the Rio brand. 344 00:19:39,680 --> 00:19:41,840 Speaker 3: And this is all part of a larger operation that 345 00:19:41,880 --> 00:19:44,960 Speaker 3: they have to cause, Operation Long Star that also has 346 00:19:44,960 --> 00:19:47,520 Speaker 3: to do with the bossing of people and have to 347 00:19:47,560 --> 00:19:51,520 Speaker 3: do with sort of this draconian tactics when Texas law 348 00:19:51,600 --> 00:19:54,840 Speaker 3: enforcement meet people up at the border to try to 349 00:19:54,880 --> 00:19:57,679 Speaker 3: push them back into Mexico. And so this is just 350 00:19:57,720 --> 00:20:02,480 Speaker 3: a larger operation basically designed to create havoc on the 351 00:20:02,560 --> 00:20:03,640 Speaker 3: southern borders. 352 00:20:03,520 --> 00:20:07,119 Speaker 1: And part of that operation includes that razor wire strung 353 00:20:07,119 --> 00:20:12,639 Speaker 1: across private property without permission, bulldozers changing the terrain. The 354 00:20:12,720 --> 00:20:17,120 Speaker 1: Texas Military Department cleared out kine, which should called invasive, 355 00:20:17,240 --> 00:20:22,639 Speaker 1: and change the landscape affecting the river's flow. So why 356 00:20:22,680 --> 00:20:26,760 Speaker 1: hasn't the Biden administration acted on those things as well? 357 00:20:27,440 --> 00:20:30,600 Speaker 3: I think the question is I think they thought that 358 00:20:30,760 --> 00:20:34,800 Speaker 3: perhaps Texas would make its points and move on, but 359 00:20:34,920 --> 00:20:36,960 Speaker 3: now they're seeing they're actually going to have to litigate 360 00:20:37,000 --> 00:20:39,800 Speaker 3: these things. I think depending on how this one goes, 361 00:20:40,280 --> 00:20:43,360 Speaker 3: you'll see more of this, And so I do think 362 00:20:43,400 --> 00:20:45,159 Speaker 3: you're gonna see more of this. I do think this 363 00:20:45,359 --> 00:20:48,520 Speaker 3: was just the first set, the one that's the largest problem, 364 00:20:49,080 --> 00:20:51,320 Speaker 3: and I do think guilty others. I don't think they 365 00:20:51,400 --> 00:20:55,359 Speaker 3: wanted to do a bunch of these lawsuits all at once, 366 00:20:55,440 --> 00:20:57,359 Speaker 3: but there are certainly others that have to do with 367 00:20:57,440 --> 00:21:00,880 Speaker 3: a trusting federal agent, from being a both to process 368 00:21:00,960 --> 00:21:06,199 Speaker 3: people and perhaps other environmental violations that they're causing that 369 00:21:06,320 --> 00:21:09,080 Speaker 3: you could see other lawsuits getting filed. But again, I 370 00:21:09,080 --> 00:21:12,280 Speaker 3: think that the larger problem is the Department of Justice 371 00:21:12,280 --> 00:21:14,960 Speaker 3: doesn't want to have ten twenty lawsuits against the State 372 00:21:15,000 --> 00:21:18,560 Speaker 3: of Texas. So Texas is properly, if you think about it, 373 00:21:18,560 --> 00:21:22,240 Speaker 3: in the political sphere, flooding the zone with as many 374 00:21:22,280 --> 00:21:25,800 Speaker 3: different things as they can do and then trying to 375 00:21:26,480 --> 00:21:29,399 Speaker 3: have the Department of Justice basically either sue them on 376 00:21:29,440 --> 00:21:32,399 Speaker 3: all of them or have the or just keep the 377 00:21:32,480 --> 00:21:36,240 Speaker 3: fight perpetuating, which is really the only interest of Texas 378 00:21:36,280 --> 00:21:38,320 Speaker 3: here at the end is to just have this fight 379 00:21:38,440 --> 00:21:41,040 Speaker 3: go on ad Infinaida. 380 00:21:41,119 --> 00:21:45,760 Speaker 1: Apparently, there is some blowback over the tactics, including from 381 00:21:45,800 --> 00:21:49,680 Speaker 1: within Texas, and especially in light of that state troopers 382 00:21:49,680 --> 00:21:55,639 Speaker 1: account of razor wire leaving asylum seekers bloodied, officers deny 383 00:21:55,800 --> 00:21:58,960 Speaker 1: migrants water in a one hundred degree heat. 384 00:22:00,000 --> 00:22:02,440 Speaker 3: I do think he's getting a lot more criticism about it, 385 00:22:02,600 --> 00:22:05,960 Speaker 3: that is true, from private folks, from people in the 386 00:22:06,000 --> 00:22:10,160 Speaker 3: Department of Public Safety, from people in the Mexican government, 387 00:22:10,880 --> 00:22:14,679 Speaker 3: and there's people that are starting to speak out against this. 388 00:22:15,000 --> 00:22:17,280 Speaker 3: But I think at the end of the day, the 389 00:22:17,280 --> 00:22:20,600 Speaker 3: political issue of immigration is just so hot right now 390 00:22:21,080 --> 00:22:26,040 Speaker 3: that I don't see a long term abandonment of this issue. 391 00:22:26,440 --> 00:22:28,679 Speaker 3: But I do think it will be very interesting to 392 00:22:28,760 --> 00:22:33,840 Speaker 3: see long term, the outcome of the parole case, which 393 00:22:33,880 --> 00:22:36,600 Speaker 3: is sort of the lynchpin of the entire Biden administration 394 00:22:36,680 --> 00:22:40,480 Speaker 3: border policy, if that's allowed to continue, it's going to 395 00:22:40,520 --> 00:22:42,800 Speaker 3: be very hard. The numbers are what they are, they're 396 00:22:42,840 --> 00:22:46,600 Speaker 3: weight down for the Governor of Texas to keep saying 397 00:22:46,640 --> 00:22:49,520 Speaker 3: there's a crisis compared to what compared to which month, 398 00:22:49,760 --> 00:22:52,359 Speaker 3: and it's going to be very hard to say. But 399 00:22:52,680 --> 00:22:55,800 Speaker 3: if the parole program goes away, then and then the weather, 400 00:22:55,920 --> 00:22:58,679 Speaker 3: which is the other big thing, changes from the record 401 00:22:58,720 --> 00:23:02,080 Speaker 3: heat that we have now to the falls, I do 402 00:23:02,200 --> 00:23:05,480 Speaker 3: think you'll start to see the numbers starts to go 403 00:23:05,600 --> 00:23:08,760 Speaker 3: off pretty dramatically, and then that's where you'll start to 404 00:23:08,800 --> 00:23:11,000 Speaker 3: see more of viztforst rather than less. 405 00:23:11,560 --> 00:23:14,560 Speaker 1: The Biden administration has been talking about how the numbers 406 00:23:14,560 --> 00:23:17,360 Speaker 1: at the border are so low. Do we know if 407 00:23:17,400 --> 00:23:20,320 Speaker 1: it's the parole program or is it the heat. 408 00:23:20,840 --> 00:23:23,280 Speaker 3: I think it's a combination of three things. It's the 409 00:23:23,320 --> 00:23:25,879 Speaker 3: combination of the record heat, no doubt, one hundred and 410 00:23:25,920 --> 00:23:30,160 Speaker 3: fifteen degrees on the border right now is absolutely unbearable 411 00:23:30,200 --> 00:23:34,040 Speaker 3: for anybody to try to make these very difficult tricks 412 00:23:34,320 --> 00:23:36,960 Speaker 3: all the way through the southern border. It's life threatening. 413 00:23:36,960 --> 00:23:40,439 Speaker 3: People know that. But then you take that and compare 414 00:23:40,480 --> 00:23:43,320 Speaker 3: it to the option of a CBP one app where 415 00:23:43,359 --> 00:23:46,479 Speaker 3: you can make this same claim without having to do 416 00:23:46,520 --> 00:23:48,080 Speaker 3: all of that. You just show up at the app 417 00:23:48,119 --> 00:23:51,080 Speaker 3: appointment at the Board of Entry, or you can get 418 00:23:51,119 --> 00:23:54,640 Speaker 3: parole for the parole program, or you know that if 419 00:23:54,640 --> 00:23:56,720 Speaker 3: you do cross the border illegally, you have to do 420 00:23:56,800 --> 00:23:59,560 Speaker 3: the record heat and you'll be put in this expedited 421 00:23:59,640 --> 00:24:03,040 Speaker 3: removal programs and you might not be able to qualify 422 00:24:03,080 --> 00:24:06,560 Speaker 3: for asylum anyway. All those things are being weighed at 423 00:24:06,560 --> 00:24:09,520 Speaker 3: a point where we're now talking about for the first 424 00:24:09,520 --> 00:24:12,320 Speaker 3: time in a long time, first time since I would 425 00:24:12,359 --> 00:24:17,400 Speaker 3: say twenty fifteen. That doesn't count the COVID months where 426 00:24:17,400 --> 00:24:22,080 Speaker 3: we're legitimately at eighty ninety thousand people per month, which 427 00:24:22,119 --> 00:24:25,080 Speaker 3: is a lot less than the two hundred thousand a 428 00:24:25,080 --> 00:24:27,920 Speaker 3: month we were seeing just you know recently, and so 429 00:24:28,359 --> 00:24:31,200 Speaker 3: we have some pretty dramatic reduction here. 430 00:24:31,880 --> 00:24:34,480 Speaker 1: There's certainly a lot of legal action about the southern 431 00:24:34,520 --> 00:24:37,480 Speaker 1: border lately. Thanks so much for being on the show, Leon, 432 00:24:37,640 --> 00:24:42,600 Speaker 1: As always, I appreciate your immigration expertise. That's Leon Fresco, 433 00:24:42,680 --> 00:24:44,840 Speaker 1: a partner at Holland and Knight, and that's it for 434 00:24:44,880 --> 00:24:47,479 Speaker 1: this edition of The Bloomberg Law Show. Remember you can 435 00:24:47,520 --> 00:24:50,760 Speaker 1: always get the latest legal news on our Bloomberg Law Podcast. 436 00:24:51,040 --> 00:24:54,080 Speaker 1: You can find them on Apple Podcasts, Spotify, and at 437 00:24:54,240 --> 00:24:59,280 Speaker 1: www dot bloomberg dot com slash podcast Slash Law, And 438 00:24:59,320 --> 00:25:02,399 Speaker 1: remember to to to The Bloomberg Law Show every weeknight 439 00:25:02,480 --> 00:25:05,919 Speaker 1: at ten pm Wall Street Time. I'm June Grosso and 440 00:25:06,000 --> 00:25:07,440 Speaker 1: you're listening to Bloomberg