Asylum Limitations and Soaring Cryptocurrency Cases

two doesn't need to go away. Um, we just need to be prepared for it. And I asked nine months ago from d HS, hey, what are we doing? What's the plan because we all know what's going away. Joining me is Leon Fresco, a partner at Hollanden Night Lenn explain why the judge said the Biden administration can't resind

Title forty two. Well, the ud had a few babies for saying that the Title forty two recision could not be put in place, and basically the first and the main rationals that the judge said that the CDC needed to use the a p A Notice and comment process in order to revoke Title forty two, which is interesting because you didn't need to actually use the notice and

common process to implement Title forty two. So it's a strange sort of logic that would say you would need to actually use notice and comments to resent Title forty two,

But that's one sort of logic. And then secondly, the judge said that the CDCNS rationale is overbroad in that it would apply to every rule issued under Title forty two, regardless of the circumstances, and that that shouldn't be happening and it needed to be a much more carefully narrowly tailored rule in the way it is resent the Title forty two so that it would keep certain threats that are based on COVID nineteens from coming into the United States.

And then it also says that an agency to responds to a dangerous and largely unknown disease may justify emergency actions. The dispense with the rulemaking process, but they haven't explained how now the princess circumstances prevented from now that things are calmer, using the required dotors and comment process to resent it rules. So basically it's mostly about notice and comments here, that is the main reason why the decision

was to keep tital forty to what he placed. The White House says it's going to comply with the court's order, but it's going to appeal the decision. Does this indicate a prolonged legal battle that will most likely end up at the Supreme Court? Well, yes. And what's very interesting about what's occurred, sort of the unreported nugget for whatever reason out of all of this is that even though the Biden administration has appealed, they appear not to have

asked for us say, of the District Court's ruling. And for what that means is they're not taking the fast track on a field, they're taking the slow track on appeal, which means that theoretically speaking, Title forty two could be in place until well into three, maybe the middle of or at least at the bare minimum, until a notice and comments rulemaking can take place, or perhaps the COVID National Emergency is rescinded as a whole, to which point,

then if the entire COVID National Emergency is resented, perhaps it's easier to then move forward. But the Biden administration hasn't said that they are committed to removing the COVID National Emergency Declaration any time in the foreseeable future. Well, this brings me to a question I believe I've asked you before. Is the Biden administration secretly happy or relieved

that this judge save Title forty two. Well, the only implications that one can draw from the fact that they're not moving for a stay of the District judge disorder is that they want Title forty two to remain in plight. And I'm surprised they're not getting more pushback from the immigration right side because the community on this side, because at the end of the day, if you were really intent on eliminating Title forty two as a policy, you'd

be pushing for a stay of this. But apparently there's just no desire to to boot for a stay, which means you'd go through the normal Fifth Circuit process, which could take six months to a year, and then the Supreme Court process, which could take another six months to a year. And so maybe if you expedite in those cases, and you ask for expedited briefing at the court, granted it,

you could get this into early. But we are talking now about three time frame for the decision of side of forty two when it gets to the Supreme Court, when not if is there any indication how the justices would rule based on prior rulings. Well, I think it's going to be very interesting whether the judges think at the end of the day that this c d C declaration as to who can come across the border is reviewable by the courts. And I don't think in the

end they will find that it's reviewable. But I think it's going to be a long time until they get there. And the question is will this be mooted out by the time of decision is going to happen on side of forty two? And I think that's what we don't know. We don't know what the world is going to look like by the time the Supreme Court would get to

a decision, and could this end up becoming moose. But I don't think that the Supreme Court is going to want to have a decision in place saying that it can overrule the Director of the CDC with regards to declarations on when do these require frictions on the border and when they don't. But you know, I've been surprised before Leon there are three things the Biden administration is

doing or saying that seemed to conflict with each other. So, first of all, on Tuesday, the Homeland Security Secretary Alejandro Majorchis said will be increasing the number of criminal prosecutions to meet the challenge because the fact of the matter is there are more cases that warn't criminal prosecution than

cases that are being brought. Yet, an ICE memo last month encouraged its prosecutors to use their discretion to focus on deporting migrants who pose a public safety or national security threat while not initiating, we're dismissing cases against those who are not. And third, a new rule breaks away from the framework governing the credible fear screening process with a lower bar for asylum seekers to eire. Those things seem to contradict his statement. What actually is happening? What

are they doing? So here's the basic issue, and I'll take you through the sets to explain what is meant by all of it. Right now, if a person arrives at the border and they are a single adults and that's still to this day people talk about all these things Cubans, Ukrainians, the families, minors, but still to this day something continues to hold true that has held true for many, many years, which is that the majority of people who try to come across the suther border remains

that continues to remain single adults from Mexico. So the question is, when single adults from Mexico try to cross the southern border into the United States, what Secretary Majorkis is saying is that right now they're being excluded under Title forty two for the most part and sent back to Mexico. So they're not being allowed to make their claim. But what's happening is you do that, but people continue to try crossing a second time, a third time before siding,

et cetera. And so that cycle is going to continue unless you actually start to prosecute of individuals. But say, if you're going to cross the border multiple time, there's gonna be jail time associated with this, which serves two purposes. One can imagine. The first purpose is well, if a person is in jail, then they can't continue crossing of

their bodies in the jail. That's number one obviously, But second, conceivably, it also serves as the surrence for other people who would do this if they find out that people who have tried this recently are now in jail for six months or a year or a year and a half or whatever. I mean. Technically, the penalty for illegal re entry a second time can be up to ten years in prison. So this is serious prison time you could

actually spend. I don't know that judge is ever going to get some weeks been years in prison, but theoretically that's the possible presence. And so if you do that, people were getting ten years at prison, for instance, for coming over a second or a third time, then that would certainly serve this ard for people from doing that.

That is a different issue than what's done as prosecutorial discretion in the removal context, which is what do you do with people already year who've been here with some amount of time already invested in the United States. But the question is what do you consider that a year, two years, three years, four years, five years, and year.

Is where the Secretary is saying to the ice attorneys used prosecutorial discretion to only remove those people who've been now in the United States for a while if they are people with criminal issues or some other public faithy or dangerousness or something like that, or some violation of

the inseegrity of the immigration system. That that's what those memos talk about, so that even though they're called prosecutorial discretion, what they mean is who gets tacked to be put into deportation proceedings as opposed to this first issue, as is who's getting picked to actually be thrown in jail for breaking criminal laws regarding crossing the border illegally. So

that's the person of the second thing. And then the third thing has to do with if you're not just a border cross or who's trying to cross the border, but you're actually someone who's trying to seek asylum and it's actually credibly coming forward with some asylum claims that could be reasonably understood in the law that's cognizable, then what the administration is trying to do is to streamline that process to get as many narritorious cases out of

the pool as possible so that the immigration courts can focus on the questionable cases and try to get those that judicated much more quickly, because now there's a four or five year backlog on those cases, and the people who are ultimately going to lose are either in America for four or five years before they lose, which is not ideal, or they never even show up the court and then we never find out if they win or lose. But that's that's also how the system is supposed to work.

So the idea is, if you could identify very quickly up front, hey, this person is, for instance, someone fleeing from the Ukraine who has you know, basically already been injured by Russian soldiers and have been told we're gonna kill you if you come back, etcetera. That might be someone who's case is so simple that you can just give them asylum. That up very quickly, and you don't have to put that person in the five year two, which makes the line shorter for these more difficult cases.

So that's the three questions you're talking about, how they work in tandem. So then in fact the government is lowering the standard though to significant possibility in the credible fear process, well that has always been the standard needing. What happens is if you show up to the border and you don't have a viva, you don't have any predisitions to be here, You're just showing up on your own, and the government then said why are you here, and you say I'm here because I'm afraid of going back

to my country. I'm going to be persecuted. Then the government does the three to the process. The first step of the process is they say, well, that's fine, but we're gonna put you in removal proceedings. So that's that's called expedited removal, meaning the government says you don't get to be here, you're out. But then there's a defense sex pedit a removal, which is, hey, don't do this because I'm gonna be persecuted. So then how do you

put that defense forward. You have to make your claim and you have to prove that of a credible fear of persecution. And so the question then is, well, what is the standard for determining whether one has a credible fear? And that standard is this significant possibility of removal. The Trump administration had tried significant possibility of persecution in your own country on the basis of one of the protected grounds, which is ray religion, national origin, social group, or political opinion.

And so the Trump administration tried to increase that. But really this idea that that standard has been increased or decrease isn't true. It's always been this significant possibility standard,

because that's what the standard was, is the regulation. But what the Trump administration I tried to do is to basically keep issuing memos repeatedly think, hey, this significant possibility standard doesn't mean this, it means this, and basically tried by sort of implo occasion to raise the standard, which did work in the sense that many more cases were

denied at that front stage. But the point is, if at the front stage you get a credible fear determination, then what that means is you get a hearing that's supposed to decide whether you get to say or not. And that is a difference sagre ull do you have a well founded fear of persecution in the future in your own country on the basis of a protective ground? And so what the Biden administration is changing here is

they're saying, you don't start an immigration court anymore. You start with a NAAD for serial interview, and if your case is territorious enough to win in this non adversarial interview, that we're gonna take you out of the backlog of the immigration court and you're just gonna win up front. Whereas if your case isn't strong enough to win up front, then you will go like normal to the immigration court.

So that's what's changing in the current viire. Is it the case that almost all migrants who come to this country claim credible fears? Something involved ninety percent of people when they get apprehended. I think that they have a credible fear. But is it all? It's not all nine percent? Rather than rather than saying that the number is end by the way, by I of non Mexican crossers, some decent number of Mexican crossers don't end up asserting a credible fear. I haven't seen the sets on this most

recent crops of Mexican crossers. But the people not from Mexico, it is over that actually claims that they are going to be persecuted in their home country because what other reasons can they give that would allow them to stay. No, there are no other reasons. Unless you come with a visa, you're going to be deported unless you complain you have a credible fear of being persecuted in your whole country.

Sexis file the motion on one day asking a federal court to stop the Biden administration from implementing this latest rule at the border. So what do they want to happen. So the Biden administration is implementing this rule by the end of the month. That would then change the adjudication from an immigration court judge to an immigration asylum officer, and they could move it from an adversarial to a

non adversarial process. And basically the State of Texas saying don't do that because that's going to lead to many more asylum cases getting granted, and that's gonna put a strain on the State of Texas. And the toughest part about the State of Texas and plaim is well, why is that a problem? And more asylum cases get granted as long as they actually meet the standard of asylum. I think they're current why that these asylum officers won't actually do a good job of setting and a island playing.

But that seeks very strained because these asylum officers already do this every day. The only difference is their current role is to adjudicate asylum playing for people who entered legally. Thanks so much, Leon, that's Leon Fresco of Holland and Knight. Cryptocurrencies have been suffering through some challenging times, but one

area is continuing to surge. Cryptocurrency litigation is soaring up more than fifty since the start of Joining me is Sam Skolnick of Bloomberg Law who has written about this start by telling us about the number of lawsuits over crypto Yeah. So, currently there are roughly four hundred actions, be they private lawsuits government suits, that are are current

in this space. Um that number has grown consistently over the years, according to at least one guy at a firm called Morrison and Cohen and size firm in New York that keeps track of these lawsuits regarding crypto companies, about half of the four hundred, though he said that there's been a real explosion in one portion of this that has to do with class action lawsuits, other private litigation. About half of that four hundred numbers roughly two hundred.

That number has grown exponentially over just the last few years, and interestingly, June, just a quick search of this litigation, of this private litigation shows some pretty big names attached to some of these suits, and you don't have to follow legal news specifically to know some of these names. For example, in January, there was a class action I think it's still awaiting certification, but a putative class action against Kim Kardashian, the celebutante, as well as former boxing

champ of Floyd Mayweather Jr. And others. And what that suit alleged is that the defendants had made misleading statements in Twitter and other social media posts. Two investors of one specific cryptocurrency token called Ethereum Max. And then there have been lots of other big companies including I'm not sure from pronouncing this right, but the fancy French scarf and bag maker air Mess International. They also have been involved in litigation of a different type, where a patent

trademark infringement litigation. Also, I believe in January they sued a company called Mason Rothschild in the Federal court in Manhattan basically claiming that that this other company had sold a non fungible token these are non replicable digital collectible items, and that they were doing so illegal that they were infringing one trademark from this French fashion house. The lawsuits

really run the gamut. Is the litigation growing because of cryptocurrency, you know, people investing in it because it's a confusing area, or because it's a tomor truous time for crypto or all three, you know, it really is all the above. June and at one common refrain that I heard to this question was much of this stems from new regulation, and for example, the SEC just within the last few months announced new regulations to try to protect crypto investors.

That's going to be happening more and more as both the SEC and the CFTC Commodity Futures Trading Commission sort of squabble as to which agency has primacy over this space or whether they should share in both set up different regulatory structures and schemes. But what happens is once these new regulations come into play, then all sorts of different types of legal issues lawsuits can stem off of them. For example, companies themselves can be targeted by these agencies.

So that's one formably glad, but then often there are these private suits where the parties are flipped and you have sort of startup crypto companies that are taking issue with the regulations and saying we're being unfairly targeted um, and our investors are doing just fine, and we need to have more free reign as to how we go

about our business. UM. So that also comprises some of these suits and then you have private matters where one business is suing another over alleged crypto related types of violations, whether it has to do payments or using crypto coins or other related issues. The rules for crypto are they

fairly clear? Are they fuzzy? They're They're fuzzy. And that's why lawyers, also especially in the regulatory and litigation portions of their law firms, are especially looking forward frankly to the next several years when a lot of these new regulations are going to be hashed out, and a lot of these firms, including some of the biggest in the country by gross revenue, on behalf of their clients, they're going to be doing things like writing letters to agencies,

attending here public hearings, and really inserting themselves in the process to try to make these regulations basically as client friendly, meaning as company incorporation friendly as they can get them.

I will say at the same time June, one interesting thing is that I had several attorneys who are in this space, some at prompting by me, but others sort of unbidden brought up the notion that what they're trying to do with a lot of these companies that because it's kind of like this wild West atmosphere out there, and because it's relatively unregulated space is there pushing these companies to try to be the good guys. I mean that That was an exact quote from one of these

attorneys who heads up a practice at camale Gates. She said, you know, she's telling them, you want to be the good guy in this and what that means is she gave me a couple of examples pushing them to make sure or for example, on their websites they have very lengthy question and answer pages, in other words, to make it very customer or investor friendly. Also for those who have investments or who those who are some sort of subscriber service who are looking to get out, to make

it easy for them to do so. A lot of companies, and frankly we all know this as consumers in this day and age the Internet and internet commerce, it's often very difficult to end these kinds of business relationships companies to make it intentionally so, but they're advising in the crypto spaces. They're saying, look, regulations are coming down the pipe.

It's possible you might be targeted. Let's avoid it and let's be on the better side of it now, even if it means you make slightly less profit in the in the shorter term, it's going to be a much healthier strategy and much fairer to those enlist as clients in the longer term. How many law firms are bolstering their crypto practices, So it's a great question. I've had

other asking this in the core of my reporting. It's difficult to know without without doing an account by looking at each web page from each stay of the top law firms by revenues, But I do believe that it's the majority for sure are in the space because what's happening June is more and more clients are asking their firms be they not traditional. They don't necessarily need to

be like startup crypto focused companies. They could be banks, they could be other institutions that much more traditional institutions that for the first time are themselves getting questions from their own customers as to how can we incorporate crypto into it? Can we make payments for various goods or

services through the use of crypto? And other not just crypto but blockchain related questions come up, and so a lot of these clients are asking their firms so more that the answer is, I don't have a solid number, but I do know that more and more law firms

are getting involved, number one. And the second portion of it is is those that have already been involved are sort of trying to are bulking up their practices what they call interdisciplinary practices, where they hold like weekly or monthly calls just to try to simply get a handle of the workflow that's coming in. One lawyer told you, we have content coming out of our ears. Yeah, he was.

He was kind of blunt, and I loved it. I mean, obviously his story and he was a very friendly lawyer, and and and so he described a little bit about this is Joe Cutler from Prinkin's Cooey talking about how they have weekly calls and they have folks from all different types of traditional practice groups that are involved in them to try to get a handle them in types of work, to sign it out if necessary, to try to gin up new work in other types of fields

at that's in question. And then I didn't get into work with him about you know, if ethics issues related issues come up on those calls specifically, But he was one of several that that pointed out that you know, a part of how to go about this and dealing crypto clients is to try to be a vuncular in the best possible sense, to give the wisest advice, especially for younger startup type companies or those that are new in this space, generally that it behooves them to act

as leased, more and responsible as possible, especially when you see you know, different types of charges come down that it makes the news all the time that you've seen I've seen regarding how crypto is sometimes used to defraud

people or money laundering schemes or the like. And that's why, for example, I might be a little off point with what you were just asking, but the Justice Department and the essence recently bulked up their respective units to target crypto related fraud and to try to protect investors in the space. That means more lawyers working in the private

from the crypt to practices. Do they draw from other departments and do those lawyers then become part of the crypto practice for example, a tax lawyer, does that tax lawyer just then work in crypto And this goes to the notion of these firms setting up these um kind of hybrid interdisciplinary shops or practice or groups. I think they call them as supposed to dedicated practices, but you

you hit it on the head um basically. So you have tax lawyers who have patent and intellectual property lawyers, and those are from very traditional, longstanding revenue generating practice groups at big law firms who stay within their fields, but who also then simultaneously become part of these crypto groups within the firms because they have lost to contribute

and work is coming into them. They need to know how to play it, um, what best practices are, what the safest and best ways to go batter or etcetera.

So you know, that's why when I spoke to folks that these firms like you know, Gates Link Laters, Perkins, Coolly and Poliss goes on Latham with Watkins, etcetera, that they're forming these in interdisciplinary groups that they can involve folks from almost virtually every branch of the firm, every practice within it prom is now becoming involved in your story. You talk about how it's it's a buyer's market for these lawyers at this point. Besides law firms, where are

they getting offers from? I had one lawyer a joke with me. She said, you know, well, we all get calls from head hunters, don't And you know she laughed at her own job. And what that means is For example, the Wall Street Journal came out with a good story about I don't Know three four weeks ago, which sort of detailed the specific phenomenon which I mentioned in my story.

Also which has to do with the notion that some of these smaller and mid sized cryptocurrency companies and exchanges, they're trying trying to figure out, where can you find the best we don't tell, And oftentimes that means poaching folks, star players, and they don't necessarily need to be at

the partner level from some outside firms. Sometimes that means from their own outside law firm, which can present a bit of a sticky ethical situation, but it happens a whole time, or they find other law firm attorneys sometimes star associates, um younger lawyers and in their thirties day or possibly even younger than that, but who are really known from developing a strong expertise in the legal side

of crypto and who really want to branch out. And there's also the profit motive not to be you know, skeptical or cynical. But it's lawyers making money. Oh how could you think that? Right? And and look, many of them have very happy you know, financial should they stayed at the firm, If they make if and when they make equity partner, they make a whole lot of money.

But that said, it's not of the same level oftentimes as the top general council can make, especially if these if they make the right choice in other ways, if they pick the right company to move to to to go to an in house job, become general counsel, to lead their own team. Sometimes these product companies and definitely not always others go bust some of the company, but those that really succeed over the long haul can find

enough investors in support. But they eventually go public and then folks who are in them the beginning um often become you know, they kind of strike it rich. While has happened. When this happens, I mean, it's not like the old days where once you went to a corporation that was it. Now you know, you can go back and forth, You can go back to a law firm. In fact, you know, you have certain expertise that law firm partners don't have. Absolutely. Now, you touched on a

great point, and it happens. I think in peach Sheet, where I am right at Washington, it's known as the revolving door, and a usually involves the sort of revolving door between private law firms and government jobs. And a lot of folks move into government, especially if they're more comfortable with the administration that's in power, and sometimes they get asked to read to join or even rejoin the

government in different agency capacities legal jobs. But you're right in the in the notion that it sometimes jumps sometimes to involve folks going from private law firms to general council operations and then back to firms. I will say I haven't heard of that happening as often, but I do believe it definitely is a phenomenon. Yeah, we folks trying to position themselves. Crypto is young yet, um, we'll see. But considering the recent downturning Crypto, are any law firms

rethinking how many attorneys they have dedicated to this? So I appreciate the question, especially given the most recent news. I mean, I will say I started reporting my story just before this recent mass somewhat massive downturn in the crypto space days where like Bitcoin lost half its value and um lots of other cryptocurrency coins or exchanges really lost a ton of what they were worth in very

speedy fashion. I started talking to folks even before that happened, but I talked to simple after and now if anything, they're doubling down. They They're strong sense is that it is becoming more and more enmeshed in the way that finances conducted, the way that goods and services are purchased, et cetera, through the use of the blockchain, and that

these it behooves them to stay strong in this space. Plus, there's an historical precedent for this back and like I believe it was late two eighteen early two nineteen was when this crypto so called bubble first the first time, and that's when prices that have been going up, up up, crashed very suddenly. I talked to attorneys for a story I did, and they said the same thing that I'm hearing now, which is, no, see, this is a long

term play. And if you look at the long term trajectory of these prices, they're correctly rising and you know regulators take a polly different view, and but that said, um, in terms of the firms and their long term business prospects, I think they're all in. That will be a whole another story if and when's who major firms really decided to sort of try to even quietly exit out of this, But I don't see that happening on anytime soon. Thanks Sam.

That's Sam Skolnick of Bloomberg Law, and that's it for this edition of the Bloomberg Law Show. Remember you can always get the latest legal news on our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, and at www dot Bloomberg dot com, slash podcast, Slash Law. I'm June Grosso, and you're listening to Bloomberg