Biden Administration's New Border Rules

sanctuary cities. New York City Mayor Eric Adams had some harsh words for people criticizing the city's decision to house thousands of migrants in hotels.

And I think people are waiting to see how people are being treated who cross the border. Are they being thrown into detention? Are they being allowed to be released? And I think as people start to see to the extent possible that there's not enough detention space to put everyone in the tension, I think you'll see an uptick on the numbers there. And I think people are also trying to see what this thing means that you're not eligible for asylum, and I think they don't really understand

it quite yet. But what they figure out what that means is that many years down the road, your court case is going to be harder, but there's not really a bar per se on bringing you into the country. I think you'll see these numbers increase. But for what you're seeing right now for the moment is sort of a feeling out process because people don't really understand the incentive structure and what is the best way to operate within this current incentive structure.

asylum at the port of entry. And the reason for that is because if you cross in between the ports illegally, you create much more strain on the system. You have to have border patrol people come and get you and put you in a detention facility, and they don't know how many people are coming and they can't plan for it. Whereas if you access the system legally, we know on any given day there's going to be this many people

that come through per day. They're going to be coming in through these ports, and then they can be planned for. So the idea is, do that and you'll be able to access the asylum system if you actually have a credible fear of person secution in your home country. Alternatively, you can apply at least for so long as it exists, which might be another month or so, or maybe the

court will rule that Bison can do this. But for these thirty thousand parole slots per month from Venezuela, let you buy Nicaragua and Haiti, and if you apply for those parole slots, then you can actually access the system

legally without even needing an asylum plane. You just get into one of the slots and you can come into the United States, or you can make an asilent claim at one of these two processing sensors that's opening up either in Colombia or in Central America, and in those sensors, you can make your claim, and if you have a legitimate asylum plane, you can be brought into the United States as a refugee. You automatically win your case. You don't even need to go into court in that situation.

And so those are the ideas and as opposed to that, if you cross illegally without any announcement or any permission, then what the Biden administration will do is theoretically, the threat of the terrence that they're putting is they're saying you won't be able to access the asylum system, which doesn't mean you can't say it just means you have a harder evidentiary burden to get this thing called withholding of removal, which doesn't give you a past to citizenship.

It just allows you to stay temporarily while the conditions in your country remain dangerous to you. And that's all you're going to be able to get, which means you can't position for any family members, you won't ever be able to access a green card or be able to get any of the benefits that come with a green

card or citizenship. And the question is how much of a long term deterrent is going to be versus if people don't have access to these other carrots, either because they get taken away from the courts or what happens is that there's too few carrots and too many people. They may just say, you know what, the fact that I could just come into America and wait six years for a coordinate is good enough for me. If six years later I can't get asylum, we'll deal with that then.

And so that's the question. I think everybody's waiting to see how that shakes out on the border for the next few weeks.

to get you through the credible fear screening. For Haiti, it's a little bit tougher because the idea is that the political persecution is not necessarily the problem there. So you'd have to say that there were some gang or rebel paramilitary force or something like that that was trying to persecute you for some reasons. And so those are

harder claims to make on the Haitian side. But the problem is on the Haitian side, even if you can't make that claim, there's only so few people that were being allowed to remove the Haiti right now, and so that's an issue of still people potentially being released just because there's not enough life and plots to remove people to Haiti.

our problem, because we're not good at this. We can't figure out all the court systems and what date and what times and what cities because half of the folks don't even know where they're going to end up. And so from that perspective, what we want to do is give them an opportunity to get their bearings and then come back and report and get their date and time

for their hearing. Now, of course, the problem is how many people are going to do that, get their bearing and voluntarily go to an ice second sixty years later at the city they end up in. I mean, it's a credible point to say that only the best intention

the people are going to actually do that. And so it's really a damned if you do, damns if you don't situation, because yes, you can release people with a hearing notice, and that hearing notice ninety nine out of one hundred times is going to be worthless because it's going to be for a city that the people aren't even living in, and one day they're going to be

in assentia in the court. They're not going to show up for their hearing, and many years later they'll be apprehended and strike to be deported and they'll say, I never got notice of my hearing. I didn't live in Toledo. I lived in Chicago, did Why did they assign me for Toledo. So the point is it's really about what is most effective to get people through the system, and Florida has taken the position at least get people a hearing date and a notice, and ICE is saying this

is taking us too long. People are in detention. Sells huge overcrowd itself with fifty people in one toilet, while we're trying to figure this out, and it's not really, in the end, any more effective at creating the terrens than having the people show up to the ICE situations, because if these notices are useless, then they're just as useless as people not showing up to the ICE checkert. And so this is the tension on both sides of the argument.

of Homeland Security encounters a person without status. They must detain the person, the statue says, must must detain the person and play them in removal proceedings, and then after that can make a decision about releasing them while the proceedings are pending. But they can't just ignore the person who's an undocumented status or parole the person in a documented status. Here's the question that's going to be the one that goes to the Supreme Court is can they

parole the person? The Supreme Court hasn't said. The federal government thinks they can. This judge thinks that that's arbitrary and capricious, that you can't use parole as a way to enmas circumvent the requirement that's in the statute that when the government encounters an undocumented person, they have to

detain them and place them in removal proceeding. You know, you could do parole on an individual, case by case basis, but when you do a whole system that's designed to circumvent this requirement, that that's arbitrary and capricious under the Administrative Procedure Act. So you can't do that. You can't just have an entire workaround for administrative convenience. And so that's what the judge in Florida said. The judge was going to save his own decision, but didn't in the end,

now has kept it going. The Eleventh Circuit hasn't overturned it yet. So for the moment, the Biden administration is going to have to when it detains these individuals, keep them in the CDP holding cells until it can figure out what time and date to put on the hearing notice, to give them the hearing notice to have them go on to the next step of the process, which is the removal preceding process.

for asylum. And so the idea is because the statue specifically says that, the ACLU is saying you can't ban someone from accessing the asylum system because they came here in between the ports of entry illegally. The whole point is the statue specifically said that they can do that, and so why would you ban that? And then there's another part of the statute that says, here are all the reasons you can be banned from getting asylum, and it lays out that you committed a significant crime, that

you persecuted other people. There's a whole list. But then there's a catchall that says the Secretary of Homeland Security can add by regulation additional factors. And so the question is can this factor be added as an additional factor or can it not be added as an additional factor banning p perform asylum. And that's really the question.

go and no money. And so that's the talent. And so from the New York City perspective, they have two places they can go. They can either house people until they figure out Plan B, or they can create a much more robust logistics network to figure out where the final destinations of these individuals was. Because very few people don't have someplace somebody who told them when you get to America, contacts this person, and then they'd have to pay for the transportation logistics to get the person to

that location. Now, people may say, well that's expensive getting a person get another flight or a bus or something else, but it's far more expensive to house people for weeks

and weeks at hotels. So I think if the Adams administration wants to get out from under housing people, then the way to do this is to have a very robust transportation logistics framework immediately where people the second they get off the bus are basically asked where is the address you're trying to get to and get people as

close to that address as possible. I mean, you don't have to take people door to door, but get people closer to those locations, whether it be by bus or train or a plane, and at least that way you're

not paying for housing in that situation. If you built with city employees, basically what the equivalent would be of some sort of rapid response travel task force that would get the logistics of where the people wanted to go, and you would say, look, there's no way you came into the United States with literally zero people that you know. You have to know somebody, and in fact, everybody knows

who's coming to the United States. That one of the factors in whether you will say in detention or not is if you don't have an address of a place where you say you're going to go. So almost everybody knows they have to have an address of some contact person, and so the question is what is that contact address that's been given Get people to that contact address.

of address. So it's hard to know exactly what the statistic how many people are filing them or not filing them. But there is an address that people are giving to get out from under detention, and so the question is if you're giving an address, then you should have to be prepared to be transported to that address.

get much more involved in the logistics of this. So I have to not let Texas and Florida and others put people on buses, or the cities are going to have to themselves get involved in the transportation logistics of this. You know, there are some issues in the immigration sphere where all of your solutions are bad. So I'll give you an example of this. Everybody who talks about well, the way you solve the immigration problem is, you know,

attack the root causes of immigration. People keep saying this. Every time I tuck to you June, for the last few years, I said the same thing to you, which is, how do you do that? There's like twenty country sending people right now, what does that even mean? You know, attack the root causes. From that standpoint, that's nonsense. That's an unsolvable problem that people are sending people here. But it's definitely a solvable problem that people are showing up

to New York City and have nowhere to go. So the question is do you solve that at the Texas border or do you solve that somewhere else. That's going to be up to the federal government working with these cities to figure out who they want to be responsible for getting people to the address that they said was

their address. I mean, what the federal government appears to have done is to up the SIMA emergency shelter brands to the cities by three hundred million dollars, which leads me to belief that they want the cities solving it on their end rather than having the federal government get involved in this.

The Justice has said they'd review a lower court ruling that found a coastal district running from Charleston to Hilton Head was intentionally redrawn to reduce the number of black voters and to make it more like that Republican candidates would win. Joining me is elections law expert Richard Brofald, a professor at Columbia Law School. A federal three judge panel said the strategies in drawing this South Carolina district's

boundaries had unconstitutionally exiled thirty thousand black voters. Tell us what the federal panel found.

Although the district I think presumably satisfies the standard requirements of it being contiguous to presuming you can go from one part to any other part of the district, but it could also be the easier way to go from one part to the other is to go through the neighboring district.

black voters. And that is what the court found, and the plaintiffs basically said, if you ran alternative maps simulations, as a standard technique today in dealing with districting claims is to generate alternative maps that satisfy the other legal requirements of contiguity of equal population of maintaining neighborhoods. Intact, that running a string of like a thousand alternative maps, this one removed more black voters than any other map.

can't be challenged in court. Yet, race and party are very closely intertwined, and so in many of the redistricting case is particularly those coming out of the South, where you've seen Republican legislatures moving black voters out of districts in order to make them more Republican. But their art argument has been, well, it wasn't because of their race, was because of their party, So that this was partisan jerry mannering, which is okay, but not racial jerry mentoring,

which is not okay. Even though it's very hard to tell the to a part.

at the existence of alternative maps. So this will be yet another challenge for the court to try and disentangle racial motivation from part of the motivation, which is really the problem they've set up for themselves by saying that racially motivated districting is unconstitutional, but part of in districting is not challengeable, and yet the two are also identical.

run alternative maps. I mean that is another standard form of litigation now because of the availability of high power computers with massive amounts of data, is that you can basically put in an algorithm which says equal population maintaining communities of interest maintaining the contiguity of the district and wrong like a thousand other maps, and they say they did that, and this one actually what the legislature did remove more black voters than any other or almost any

other map that you could show, and so therefore what was going on he was the removable black voters.

that argument. In the Ruco decision in twenty nineteen, Spring Court basically said, we don't have a standard for reviewing districting that allows us to tell what's a permissible use of party and what's a nonconstitutional one, and so we're not going to do it. That was the court's reasoning in that case.

There are seven congressional districts. Only one has had a black majority. The plaintiffs said that you could easily have drawn two, and they basically came up with a map that showed that, and they were able to persuade the lower court. That's being challenged by the legislature, which says you didn't show that our failure to draw two districts

was racially motivated. The plaintiff's claim is based under the Voting Rights Act, which relies on effects rather than intent, and in the Alabama case, what the legislature is defending by saying is that there was no evidence that what we did was racially motivated. The plaintiffs is saying that's

not important. What we can do is show that there was an equal population, contiguous district which doesn't too much depart from county lines, although in Italy it's different from the prior districts that have been drawn in this state, but which we think would give better representation to black voters.

and the state or a community that's making the change has to prove it has no discriminatory intent to effect. That was called preclearance, and that operated to prevent a lot of discriminatory measures, particularly but not only in the South. The Supreme Court struck that down in twenty fourteen, saying that the problem was that Congress continued to adhere to the formula for deciding what was a community that had to go through preclearance, and that formula hadn't been reviewed

and reconsidered it with the nineteen seventies. So the Court said, it just can't be right that it's still the same formula. So that was a major blow that eliminated the ability of plaintiffs to challenge changes before they took effect and to put the burden of defending the changes on the state or city making the change. So that was a very important decision and one that I think it's been a much harder for platiffs and voting rights cases to win.

The other case, a case in coming out of Arizona about two years ago called Burnovitch, was less of a roll back but more of a creation of the barriers to challenging voting laws that make it harder for people to actually cast a vote was going on in the section five case. The preclearance case was essentially about districting, which is also what this case is about. The cases

both in Alabama and South Carolina. But in recent years we've seen a lot of states adopting rules that make it harder to be able to vote, including things dealings stay with the voter id or rules governing early voting or absentee ballots. And the one question was, you know, under the voting right sack a claim is often made that these burden voters of color more heavily than white voters.

And then the Bernovich case in Arizona, the Serreme Court essentially we're going to really increase the burden of proof on plaintiffs challenging these rules to show that, in fact, these rules have a discriminatory effect.

and that case, the North Carolina Supreme Court struck down the Congressional distrestingc Plan for North Carolina, finding that it was a partisan Republican jerry mander, and the North Carolina Legislature challenged that, saying North Carolina Supreme Court didn't have the authority under the North Carolina Constitution, that this is a matter solely for the legislature as a matter of the US Constitution. Supreme Court agreed to hear that case and actually heard oral argument for like two and a

half hours back in the fall. Three Court hasn't decided this case yet. In the meantime, as a result of the twenty twenty two elections, the composition of the North Carolina Supreme Court changed hands, and the court very recently basically reversed its decision and said that the legislature's plan is not a jerrymander on the North Carolina Constitution, that

the North Carolina Constitution does not prohibit jerrymanders. So the US Supreme Court asked for briefing on the question whether they still have jurisdiction whether they should go ahead and decide this case or not. I think those priests are submitted only recently. Well, imagine we'll get a decision one way or the other. Either court was saying we don't jurisdiction dismissing the case or report We'll hold onto the case and decide it, but we may not know until the end of June. Possibly.