1 00:00:03,480 --> 00:00:07,560 Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every 2 00:00:07,640 --> 00:00:10,440 Speaker 1: day we bring you insight and analysis into the most 3 00:00:10,480 --> 00:00:13,399 Speaker 1: important legal news of the day. You can find more 4 00:00:13,440 --> 00:00:18,040 Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud 5 00:00:18,320 --> 00:00:22,639 Speaker 1: and on Bloomberg dot com slash podcasts. President Trump has 6 00:00:22,680 --> 00:00:25,880 Speaker 1: threatened to close our border with Mexico several times. The 7 00:00:26,000 --> 00:00:29,480 Speaker 1: question is whether he'll actually carry out that threat this time. 8 00:00:30,000 --> 00:00:33,120 Speaker 1: Last Thursday, Trump said, Mexico has to stop the flow 9 00:00:33,159 --> 00:00:37,479 Speaker 1: of undocumented immigrants into the US or else and if 10 00:00:37,479 --> 00:00:41,000 Speaker 1: they don't stop them, we're closing the border. They'll close 11 00:00:41,040 --> 00:00:43,080 Speaker 1: it and we'll keep it close for a long time. 12 00:00:43,120 --> 00:00:47,120 Speaker 1: I'm not playing games. Mexico has to stop it. Joining 13 00:00:47,120 --> 00:00:49,920 Speaker 1: MEAs Leon Fresco of Hollanden Night, he was the Assistant 14 00:00:49,920 --> 00:00:52,920 Speaker 1: a G for the Office of Immigration Litigation at the 15 00:00:52,960 --> 00:00:56,520 Speaker 1: Department of Justice. Leon, let's start with the legality before 16 00:00:56,560 --> 00:00:59,760 Speaker 1: we get to the potential lawsuits. US presidents have closed 17 00:00:59,760 --> 00:01:02,800 Speaker 1: the order or parts of it four times in our history. 18 00:01:02,960 --> 00:01:06,000 Speaker 1: The last time was by President George W. Bush after 19 00:01:06,120 --> 00:01:10,360 Speaker 1: nine eleven. Are there specific laws Trump could do this 20 00:01:10,560 --> 00:01:15,520 Speaker 1: under or is it just an aggressive use of executive powers? Well, 21 00:01:15,560 --> 00:01:17,920 Speaker 1: there are two different ways he could do it. One, 22 00:01:18,000 --> 00:01:21,200 Speaker 1: he can use the same authority he used in the 23 00:01:21,240 --> 00:01:23,640 Speaker 1: travel band Statute, but to use it in a broader 24 00:01:23,680 --> 00:01:26,520 Speaker 1: way so as to say, I'm not going to allow 25 00:01:27,040 --> 00:01:31,479 Speaker 1: non citizens who are trying to enter through the southern 26 00:01:31,520 --> 00:01:35,639 Speaker 1: border to enter. Or he could do what he's kind 27 00:01:35,640 --> 00:01:39,640 Speaker 1: of saying that they're doing anyway because of the staffing issues, 28 00:01:39,959 --> 00:01:43,080 Speaker 1: which is just to sort of the facto closed ports 29 00:01:43,080 --> 00:01:48,120 Speaker 1: of entry along the southern border by rerouting people who 30 00:01:48,160 --> 00:01:52,120 Speaker 1: are allocated to work at the ports of call to 31 00:01:52,280 --> 00:01:56,280 Speaker 1: quote unquote responding to the border surge at the border. 32 00:01:56,680 --> 00:01:59,520 Speaker 1: And so then you necessarily need to close those ports 33 00:01:59,520 --> 00:02:02,280 Speaker 1: of entry because they have no one left to staff them. 34 00:02:02,480 --> 00:02:04,639 Speaker 1: And it seems like they're sort of trying to create 35 00:02:04,680 --> 00:02:08,040 Speaker 1: that second the facto approach right now in terms of 36 00:02:08,040 --> 00:02:10,440 Speaker 1: being able to say, well, this is why these lines 37 00:02:10,480 --> 00:02:13,680 Speaker 1: are extremely long and or closed at some of our 38 00:02:13,800 --> 00:02:19,400 Speaker 1: ports of entry. Might that push more migrants who might 39 00:02:19,440 --> 00:02:21,919 Speaker 1: have come across legally at the border post to coming 40 00:02:21,919 --> 00:02:25,880 Speaker 1: across illegally? And is that the point? Perhaps? Well, so, 41 00:02:26,040 --> 00:02:30,000 Speaker 1: this is the problem is the administration has tried to 42 00:02:30,160 --> 00:02:33,880 Speaker 1: say that the way people should apply for asylum is 43 00:02:33,919 --> 00:02:35,880 Speaker 1: to come through the ports of entry and not to 44 00:02:35,960 --> 00:02:39,639 Speaker 1: come illegally. But at the same time, the administration has 45 00:02:39,800 --> 00:02:44,120 Speaker 1: also shrank the capacity for people to apply at the 46 00:02:44,160 --> 00:02:47,639 Speaker 1: ports of entry, and so if you do that, then 47 00:02:47,720 --> 00:02:51,280 Speaker 1: people have no other choice than to cross the border 48 00:02:51,360 --> 00:02:55,680 Speaker 1: illegally and to apprehend themselves, essentially to to say I'm 49 00:02:55,680 --> 00:02:58,160 Speaker 1: going to turn myself over to the border patrol so 50 00:02:58,200 --> 00:03:00,480 Speaker 1: I can begin the process of applying for asylum. And 51 00:03:00,760 --> 00:03:04,200 Speaker 1: that's how this crisis is different from everything we've seen 52 00:03:04,280 --> 00:03:07,200 Speaker 1: in the last thirty forty years. Is it used to 53 00:03:07,200 --> 00:03:10,079 Speaker 1: be that the border patrol would apprehend that people crossing. 54 00:03:10,120 --> 00:03:13,160 Speaker 1: Now the people crossing apprehend the border patrol and they say, 55 00:03:13,200 --> 00:03:16,639 Speaker 1: I'd like to enter the system to apply for asylum. 56 00:03:16,800 --> 00:03:20,680 Speaker 1: So there will be lawsuits, perhaps from asylum seekers, green 57 00:03:20,760 --> 00:03:25,560 Speaker 1: card holders, US citizens, US automakers. Which lawsuits would be 58 00:03:25,600 --> 00:03:29,520 Speaker 1: the most viable, Well, first of all, if a US 59 00:03:29,560 --> 00:03:32,000 Speaker 1: citizen attempts to cross the border and a port of 60 00:03:32,120 --> 00:03:35,000 Speaker 1: entry and is prohibited from doing that, that's a slam 61 00:03:35,080 --> 00:03:37,840 Speaker 1: dunk case, as it is for the most part for 62 00:03:37,880 --> 00:03:41,280 Speaker 1: a lawful permanent resident, which is why the administration went 63 00:03:41,320 --> 00:03:44,520 Speaker 1: through three iterations of the travel ban is because they 64 00:03:44,560 --> 00:03:48,480 Speaker 1: knew they couldn't actually block uh people with lawful permanent 65 00:03:48,520 --> 00:03:51,920 Speaker 1: residency or even the you know, it turned out they 66 00:03:51,920 --> 00:03:54,760 Speaker 1: didn't even try to block people with visitor visas or 67 00:03:54,760 --> 00:03:57,760 Speaker 1: any other kind of nonimmigrant visas, so all of those 68 00:03:57,800 --> 00:04:01,960 Speaker 1: status ees would most likely in especially because the point 69 00:04:02,120 --> 00:04:05,160 Speaker 1: is that the closure of the port of entries does 70 00:04:05,240 --> 00:04:08,440 Speaker 1: nothing to stop people crossing between the port of entries. 71 00:04:08,480 --> 00:04:11,600 Speaker 1: The idea is that you'd form some sort of a 72 00:04:11,640 --> 00:04:15,280 Speaker 1: bank shot where you would tank the Mexican economy to 73 00:04:15,360 --> 00:04:18,640 Speaker 1: such a level that maybe Mexico would take more seriously 74 00:04:18,760 --> 00:04:22,479 Speaker 1: the need to enforce immigration law. But it's likely that 75 00:04:22,560 --> 00:04:25,120 Speaker 1: at least until you got to the Supreme Court, that 76 00:04:25,200 --> 00:04:28,080 Speaker 1: the courts would view that as to attenuated a reason 77 00:04:28,560 --> 00:04:30,960 Speaker 1: to close the ports of entry, because what you're doing 78 00:04:31,080 --> 00:04:33,160 Speaker 1: is you're not closing the ports of entry like at 79 00:04:33,200 --> 00:04:37,120 Speaker 1: nine eleven, to stop a potential threat. You're closing it 80 00:04:37,200 --> 00:04:41,040 Speaker 1: to create a response that you hope will come from Mexico, 81 00:04:41,400 --> 00:04:43,640 Speaker 1: but you have no idea whether it will or will not. 82 00:04:44,360 --> 00:04:46,760 Speaker 1: And what happens when you get to the Supreme Court 83 00:04:47,000 --> 00:04:51,400 Speaker 1: where the justices upheld the second version or the third 84 00:04:51,520 --> 00:04:55,600 Speaker 1: version of the muslim Ban. I think that even in 85 00:04:55,640 --> 00:04:58,839 Speaker 1: that context, if it's a band that actually prevents people 86 00:04:58,880 --> 00:05:02,120 Speaker 1: who have legitimate trade, aid and commerce at that point 87 00:05:02,200 --> 00:05:04,960 Speaker 1: from coming through. First of all, if we've gotten all 88 00:05:05,000 --> 00:05:06,920 Speaker 1: the way to the Supreme Court, that means that there's 89 00:05:06,960 --> 00:05:09,520 Speaker 1: been a closure for such a long time that I 90 00:05:09,520 --> 00:05:12,520 Speaker 1: would find that incredibly unlikely that we'd have a closure 91 00:05:12,560 --> 00:05:14,520 Speaker 1: like that for such a long time because of the 92 00:05:14,640 --> 00:05:17,880 Speaker 1: disruption that would be massive to the economy. But if 93 00:05:17,920 --> 00:05:20,880 Speaker 1: theoretically we got to that point, I don't see that 94 00:05:21,000 --> 00:05:25,280 Speaker 1: surviving for the legal reason that you simply don't have 95 00:05:25,839 --> 00:05:30,680 Speaker 1: the compelling circumstance that would justify such an action, especially 96 00:05:30,880 --> 00:05:33,360 Speaker 1: if so much time has passed and it's not triggered 97 00:05:33,360 --> 00:05:36,080 Speaker 1: a response from Mexico, Then at that point, why are 98 00:05:36,080 --> 00:05:39,239 Speaker 1: you still doing it? So leon, How would this work 99 00:05:39,520 --> 00:05:42,800 Speaker 1: on the ground, so to speak? Would the President just say, Okay, 100 00:05:42,800 --> 00:05:46,880 Speaker 1: we're closing the border patrols this you know today, we're 101 00:05:46,920 --> 00:05:51,039 Speaker 1: closing the border posts. Well, I think you're gonna see 102 00:05:51,040 --> 00:05:54,640 Speaker 1: this incrementally. So I think you're gonna see some ports 103 00:05:54,680 --> 00:05:58,359 Speaker 1: already this week be announced that they're closed. Because what 104 00:05:58,400 --> 00:06:00,000 Speaker 1: they're gonna say is, look, we just don't have any 105 00:06:00,040 --> 00:06:02,960 Speaker 1: staffing for these ports, and these will be smaller ports 106 00:06:03,000 --> 00:06:05,760 Speaker 1: that don't have a lot of traffic, and they'll just say, look, 107 00:06:05,760 --> 00:06:07,920 Speaker 1: we needed to divert these folks to come to the 108 00:06:08,600 --> 00:06:12,240 Speaker 1: situation on the ground to process people entering. And then 109 00:06:12,279 --> 00:06:14,080 Speaker 1: the question is whether you will start to see some 110 00:06:14,120 --> 00:06:17,400 Speaker 1: of the bigger ports actually closed down. I think you'll 111 00:06:17,400 --> 00:06:20,960 Speaker 1: start to see along longer lines as they take staff 112 00:06:21,080 --> 00:06:23,440 Speaker 1: out of some of these ports, and I think the 113 00:06:23,480 --> 00:06:28,080 Speaker 1: hope will be that these longer lines trigger some action. 114 00:06:28,800 --> 00:06:31,279 Speaker 1: If you were to see actual closure, then what you 115 00:06:31,279 --> 00:06:33,560 Speaker 1: would see is, you know, let's take San Diego as 116 00:06:33,600 --> 00:06:36,200 Speaker 1: an example. You have a very very very very large 117 00:06:36,240 --> 00:06:40,320 Speaker 1: port of entry there that connects Tijuana and San Diego. 118 00:06:40,800 --> 00:06:43,280 Speaker 1: If you close down that port, I mean you're talking 119 00:06:43,320 --> 00:06:47,400 Speaker 1: about hundreds of thousands of crossers who would suddenly have 120 00:06:47,520 --> 00:06:49,799 Speaker 1: no way of going back and forth between the United 121 00:06:49,839 --> 00:06:53,240 Speaker 1: States and Mexico. And I mean that's that's people, that 122 00:06:53,520 --> 00:06:58,120 Speaker 1: commercial trade, that's tourism, that's all kinds of things that 123 00:06:58,120 --> 00:07:01,200 Speaker 1: would just come to a standstill. Could they cure some 124 00:07:01,320 --> 00:07:05,880 Speaker 1: of this by putting sort of emergency numbers of legal 125 00:07:05,920 --> 00:07:10,520 Speaker 1: officials and judges and others to work to quickly process claims. 126 00:07:11,680 --> 00:07:14,400 Speaker 1: Sure to some extent, so some of this can be 127 00:07:14,440 --> 00:07:18,000 Speaker 1: solved from an appropriation standpoint of just funding more of 128 00:07:18,040 --> 00:07:21,880 Speaker 1: these individuals. But quite frankly, where the president has some 129 00:07:22,320 --> 00:07:25,360 Speaker 1: you know point here is that there will need to 130 00:07:25,400 --> 00:07:31,240 Speaker 1: be congressional action to actually speed up the process of 131 00:07:31,280 --> 00:07:34,040 Speaker 1: what it takes for someone who's applying for asylum to 132 00:07:34,120 --> 00:07:37,920 Speaker 1: get a final decision in their case. Right now, all 133 00:07:37,960 --> 00:07:43,040 Speaker 1: of the judicial proceedings than the presidents require basically three 134 00:07:43,080 --> 00:07:47,640 Speaker 1: modes of review, two administrative and one judicial, and those 135 00:07:47,720 --> 00:07:51,160 Speaker 1: modes of review can take up to years to happen. 136 00:07:51,520 --> 00:07:53,920 Speaker 1: And so yes, you can reduce some of the backlog, 137 00:07:54,320 --> 00:07:56,280 Speaker 1: but even if you reduce some of the backlog with 138 00:07:56,360 --> 00:07:59,400 Speaker 1: more officials, you you might still have to take some 139 00:07:59,600 --> 00:08:02,920 Speaker 1: further action to allow some group of these folks to 140 00:08:03,000 --> 00:08:06,880 Speaker 1: be removed if they show basically no chance of winning 141 00:08:06,920 --> 00:08:09,360 Speaker 1: an asylum claim. And we don't have that right now. 142 00:08:09,400 --> 00:08:14,360 Speaker 1: We have this standard called credible fear, which basically people win. 143 00:08:15,120 --> 00:08:19,080 Speaker 1: And so because people can win right up front with 144 00:08:19,120 --> 00:08:24,040 Speaker 1: this credible fear standard, that means that they they articulate 145 00:08:24,160 --> 00:08:27,080 Speaker 1: something some somehe have to leave it there. Leon it's 146 00:08:27,160 --> 00:08:30,080 Speaker 1: it's a topic that deserves a lot of discussions, certainly, 147 00:08:30,280 --> 00:08:34,559 Speaker 1: and legislation, but that hasn't happened. So that's Leon Fresco. 148 00:08:34,720 --> 00:08:38,960 Speaker 1: He is a partner at Hollanden Knight. Thanks for listening 149 00:08:38,960 --> 00:08:42,240 Speaker 1: to the Bloomberg Law Podcast. You can subscribe and listen 150 00:08:42,240 --> 00:08:45,840 Speaker 1: to the show on Apple Podcasts, SoundCloud, and on bloomberg 151 00:08:45,880 --> 00:08:53,160 Speaker 1: dot com slash podcast. I'm June Brosso. This is Bloomberg Ye.