This is Bloomberg Law with June Grossel from Bloomberg Radio. Abolish I Abolish, I Abolish, Ilish.
I protests over ICE's arrest of Newark's mayor outside a new federal immigration detention center on Friday. The arrest came after Mayor Ross Baraka tried to join three members of New Jersey's congressional delegation in an oversight visit. Democratic Congresswoman Lamonica McIver said that I started pushing them as they went to arrest Baraka.
Would shoved everything. Literally the aggression that would just ruughy handled. Literally.
I mean nobody picked up a fence to punch us, but literally they pushed us.
They actually ended and removed us out of the way to get to the mayor to arrest him.
The mayor, who said he did nothing wrong, was arrested on federal trespass charges in the public area outside the facility.
I didn't climb a fence. I didn't kick the door out. I didn't bust the window like their friends did at the Capitol.
I didn't hurt people joining me is immigration law expertly on Fresco, a partner at Honden Night Leon on the three New Jersey representatives said that they have the right to conduct oversight without prior notice, and they've done it three times this year. Is that unusual.
It is a very common thing in the history of this framework where there are ice attention facilities, which is about a thirty year phenomenon, that Congress people go into these ice attention facilities and view them and monitor them.
There is usually some coordination so that there can actually be a time and a date where the inspection takes place, or if there's not a coordination, there's usually some sort of event that takes place outside of the facility where you know, there's a press conference and they're using the facility essentially as a background to complain about something or other.
Or the third way is they'll arrive at the facility and they'll say, basically like if you would walk into an emergency room, Hey, I need to come in, and then thirty minutes later maybe they'll be let in. The problem is when you're trying to combine all of these things into one event, which is we're trying to do the emergency walk in and we're trying to do a
media event. That's where I think the people at the facility didn't manage it particularly well, and so there was this brew haha about whether there was trespassing and assault and pushing, and then there was a question as to what the mayor of Newark, New Jersey was doing. Was he trying to keep the peace or was he trying
to escalate things and assault officers. And so that's where he got arrested because at least ICE is claiming that he was not part of the solution, but he was of the problem in terms of actually pushing his way through and trespassing and disregarding the commands of the ICE
officers with regard to the movements within the facility. So from that perspective, that's going to be quite fascinating, to the extent that now the DHS spokesperson is threatening the arrests of the House Democratic Congress members because they are protected under something called the Speech of the Bay Clause, which is if they are trying to basically show that they can engage in functions that are pursued to their duties in Congress, which they would say this falls within that,
they're allowed to do that. But the Speech of the Bay clause also has an exception for if you are committing this kind of assault and battery on someone, you're not covered by the speech of the Bay clause. So this is actually going to be yet another interesting convergence of law, which is was there really an assault and battery or was this a prevention of the congress people doing their job.
A Homeland Security spokeswoman said members of Congress assaulted ICE agents and body slammed a female ICE officer. I just want to note that one of the New Jersey representatives is eighty years old. ICE claims it has video, but the only video they've released so far is from the body cams of the ICE officers outside the facility, and it just looks like chaos and confusion.
I mean, all of those facilities, every inch of them, are under video and sound, so they would have it and we would know the answer to that question. And secondly, all of those facilities, I've been to dozens of them, both when I was in the government and in representing foreign nationals who are Unfortunately in those facilities, you can't move six feet without getting through some door or some gate or something. There's nothing to storm. You'd be storming
a metal door. That would be very painful to you. And so from that perspective it does seem unlikely. But because I haven't seen a video, I would need to reserve judgment on that. But nobody here has clean hands, because certainly there's a wait for a congress member to go into an ice facility that one hundred percent of the time has to happen and has to be allowed.
But by the same token, there is probably an escalation that occurred there when they didn't get exactly what they wanted when they wanted it, and this is what leads to these unfortunate conflagrations.
So the mayor said he was there along with the New Jersey representatives, but does he have a right to be there as the mayor well.
So this is actually an interesting part of what is currently subject to a lot of federal litigation which hasn't been decided in the Supreme Court yet, which is what rights do states and localities have over these detention facilities in their states and local For instance, California has passed laws in the past that say you can't have these ice attention facilities in California, and the courts, at least the Ninth Circuit is held that that's preempted and that
the federal government is allowed to function even in a state or a locality that says that the federal government can't have these kinds of ice facilities in their city. But then their question is, well, what about licensing requirements? What about environmental requirements? Are all of those preempted? And yet again, these are issues that aren't fully decided in the courts. Is what jurisdiction or what guidance or supervision of any kind would a mayor of a town have
over an immigration detention facility in their city. Can they do anything at all? Or is it one hundred percent preempted such that when they arrive at such a facility, they are no different than you or I, just a private citizen, and whatever they do, if they try to desert, additional pressure could lead them to being arrested.
The mayor's office is claiming that the facility is operating without a valid certificate of occupancy, but more than a dozen federal agents arrested him on federal trespassing charges in a public area outside of facility that's owned by a private prison company.
Is that a problem, Well, it would be a problem if he didn't actually engage in a crime. Then arresting him is going to be a huge problem. And obviously any time that happened, the person could file a lawsuit and tried to get damages under the Federal Toward Claims Act. So there's definitely possibilities of that if that's really what happened.
But again this is going to have to be subject to the video and the recordings to see what happened, and also then subject to these legal conclusions about what jurisdiction does a mayor have, what was the mayor doing, was the mayor inside when the mayor shouldn't have been, or was the mayor arrested for absolutely no reason? So we will just have to wait and see. But definitely a very fascinating sequence of events that occurred last week.
I mean, if Ice actually had a video showing this, wouldn't they have released it to back up their point? We would already have.
Seen it many times. I would have seen the video, I agree. I agree scenes most likely if you have a video, it would have been seen, especially since the mayor has specifically called on them to produce a video. The fact that they have not produced a video, you know, I think what the mayor should probably want to do now is to try to poia the video to file a freedom of information I requise and or the media can do this, and if there are no videos, then that's going to be the end of the story there.
When you take the mayor's arrest with the arrest of the judge in Wisconsin, do you think this is the federal authorities warning local officials stay out of our business.
Well, I think the arrest of the judge is far more justified than the arrest of the Newark mayor, and that the judge was openly impeding a request from ICE to be able to actually pick someone up in the courtroom. Now, the judge is going to have her explanation that she's trying to manage her courtroom and the safety of the facility and the ability to have a docket because she won't have a docket if ICE is operating in her court.
So fine, there's defenses for that. But the Newark mayor, at least if one believes his account, he's saying he was just there supporting his members of Congress and just making sure that the facility was up to code, so to speak, and as soon as he was told to VAK he did so. This is the question. Now, maybe he didn't, but again, like we discussed, and the video
is going to answer all of those questions. But if there's no video showing him basically trying to barge into a facility where he's been told to leave and he's not used physical force to do that, I think an arrest there is going to be very difficult to justify.
I've been talking to Leon Fresco, the former head of the Office of Immigration Litigation in the Obama administration and a partner at Honden Knight.
Leon.
Let's turn to the very high profile arrests of several foreign graduate students. A couple have been released from custody. A doctoral student at Toughs was released after six weeks in detention. What happened there?
So she is one of the three sort of big students in terms of there was the original Columbia student, Madmud Khalil, then there was an additional student who was also a Columbia student, and there is ur the tough student Rubsaya os third who all are under that same guys where Secretary of State Rubio said that this individual had to lead the United States because they were that ttrumental to the foreign policy interests of the United States.
So it's not even the typical student visa cases that are happening, which is that a student visa is being revolved, and when the student visa is being revolved, then the student is just in flux. No, this is sort of the nuclear bomb version of this, which is we are saying that you are basically no different than a foreign dictator. You're that bad. You being here hurts America's foreign policy. We have to keep you in detention, and we have to remove you once we can, as soon as we can.
But in the meantime, you're in detention. So all three of these individuals have filed federal habeas claims, and two of them, so one of the Columbia students, most in Madawi, and now this tough student, have been released because these judges are finding they're not making the final judgment with regard to some rejudgment on the statute being unconstitutional, but seems to be where they're headed because they're saying, as a matter of injunctive relief, we're going to do two
things that are quite stunning as legal conclusion. You know, it's not clear that the Supreme Court ultimately will allow this.
We'll have to wait and see. But they said, first of all, we're going to accept jurisdiction of these claims, and that's very remarkable because we don't know that that's actually going to be the way the law plays out at the end of this, because the Department of Justice is saying, no, you have to have the deportation proceeding first, and then if there's a deportation ordered, only then can
you make these constitutional claims. So you have to be in attention the whole time to challenge the constitutionality of the statute and then you can do it. So the court is saying no, no, no, no, you can do this upfront in a habeas position. So a there's that, And then secondly, we find that there's sort of this injunction standard, a likelihood of success that you will be able to actually show that there's a problem with this statute such that we're going to release you from the tension.
And so you now have that in two of the three cases. We're waiting for what the judge is going to do in the third case. But it seems like the courts aren't concerned about what is the limiting principle for the Secretary of State to be able to say that someone is harmful to the foreign policy interests of the United States and just kick them out without any
sort of limiting principle as to what that means. And I think if the government doesn't do a better job of articulating a limiting principle, it's going to have a much tougher time defending these types of deportations in the court.
Is this without precedent to have the Secretary of State use this provision in this way or is there law on this.
Well, they use it all the time for things like, you know, a dictator seeks in the country, or some terrorists or something. They've used it for that. But to use it in a situation where it's a foreign student who with you know, maybe articulating things that are very unseemly an unclear, you know, we'll have to have that debate as to each of these students, what they did,
what they didn't do. But the point is there are already grounds of deportation for giving material supports to terrorist organizations, and those would be much more within the compatibility of
how the immigration system usually works. If you could say, hey, look, this person openly advocated for hamas or this person said to donate, or this person said to do this, you know whatever, it may be, okay, But this issue of saying that by engaging in this protest, they are engaging in conduct that is outside of the foreign policy interests of the United States, then the question is, well, okay, how does that determination get made? What are the limiting principles?
And what prevents any Secretary of State from doing that for any reason whatsoever. So, for instance, let's say you called on to stop fleeing the American public. Could Secretary of State say, well, maybe we like that, but we don't want you particularly upsetting China because we're insensitive trade negotiations, and so you couldn't do that either. You know, you get supported for saying China is fleeing the American public on trade. So this is the question what is the
limiting principle? And I think if that's not articulated, the courts are going to say, look, there's a vagueness problem with this statue. That becomes quite concerning to So suppose.
She wins this round, what happens when her student visa expires?
Well, so this is what's bizarre about a student visa unless and until the administration does new regulations to change this. A student visa actually, once you're in the US doesn't expire ever if you want to remain a student for the rest of your life here, So if you keep doing programs, they can keep keeping you here as a student. Now, the question is how much money do you have to
be able to do this over and over again. But it is fair to say if they tried to change their status to anything else, they may have a tough time doing it, no doubt about it.
It's about due process. And you know, we had the President last week saying he's not sure about due process, and different people in the administration saying that due process rights are not accorded to immigrants, although we had Justice Scalia in an important opinion saying yes, due process is accorded to immigrants. So, I mean, tell us about this whole due process argument.
Well, we start with the words of the Constitution, as the Great Justice Kullia used to say, but it is a very fair point. Well why not actually start with the words of the Constitution. And if you were to do what's called a control f or you know, a word find in the Constitution. You would see that sometimes the Constitution uses the words citizen, and sometimes it doesn't use the words citizen. And so for the due process clause of the Constitution, and it does not use the
word citizen. It uses the word person. And so there's a lot of case saw that it said that because the due process clause uses the word person and that citizen, it doesn't only apply to citizens. It applies to person. Now that's a separate question to Okay, So everybody has
a right to do process. And I think you wouldn't find one justice who would say that that's not true, because I think the reason we know this is because we already had the nine to nothing decision in the cases involving the alien enemies at where the Supreme Court. You know, there was a debate about whether Trump one or the plaintiffs won. But in any case, what the Supreme Court said is everybody gets a chance to come into court and say, I'm not an alien enemy. Are
you out of your mind? I'm built from Cleveland. Why why am I being said to El Savador? I sell vacuum cleaners and I was born in Cleveland. I don't I don't get it. And so everybody gets that right to go to court, and so everybody has that due process, But the question is what process is due to you?
And I think this is where there's a debate here about the Trump administration saying, look, we can't give all of the people who entered the United States and set the moment from everything that you hear, and they say, they claim at the moment that they're really concerned with just a group of people who entered between twenty twenty
one and twenty twenty four. They're saying, we'll get to the people from before twenty twenty one later, but what they feel is the sort of bad act that they need to remedy is to remove the people who came from twenty twenty one to twenty twenty four. And they're saying that that's millions of people, which it is. It's unclear how many millions, but it certainly is some number
of millions of people. And what they're saying is there's no way we can have a trial for each one of these people in immigration court, which is probably going to be what ends up happening because a lot of these folks are from Venezuela, Cuba, Nicaragua, Haiti, China at other places where they can ask for asylum. And so when these folks are asking for asylum, they will have to have a trial about whether they're going to be persecuted when you send them back. And so this is
the problem. The administration is saying, there's no way we can do this. How are we going to be able to get all of these people out? So you have some understanding of what they're saying. But by the same token, the other side says, but if you don't do this on a case by case basis, you're going to remove people who our law say you can't remove. And so there's no other way to do this. You know, it might be nice to be able to have some sort of group thing going on, but that's not how it works.
Everybody has to make their case and that's what the current law is. And so this is the question. It's definitely not practical. There's no dispute to what Trump is saying is that it it's not practical to have a trial for every single person. But in the end, the trial is not for the evil gang members benefit. It's for build from Cleveland's benefit to be able to say, hey,
I'm built from Cleveland. Why did you arrest me I'm a US citizen or somebody who already won asylum, or somebody who actually is a dissident from Venezuela and was you know, trying to get this Maduro out of power and actually use theirs TV and YouTube clips of them doing it, et cetera. So for those kind of people, you need to do process. And the only way to figure out which kind of person you're talking about is to allow each person to make their claim.
So I mean, there are fast trials, and couldn't they do each of these and you know a few.
Hours, Well you can, and they are done. I mean, no asylum claim other than maybe a couple of cases I've been involved with, But that's because I wonder why, yes, yes, yes, I mean I've been in once take two three days, and that's considered like a record amount of time to have an asylum case. But most of them take four hours,
six hours. But here's the problem. I mean, even if you had a thousand immigration court judges, and those thousand immigration court judges worked three hundred and sixty five days, which they do not. But let's say they work three hundred and sixty five days, we would still be talking about at the end of the day, you know, three hundred and sixty five thousand cases or something. And so if you're trying to deport what they claim is ten million people, you're not going to make a vent there.
And so that's the problem that they're coming across here.
I've been talking immigration law expert Leon Fresco of Honden Night Stephen Miller. Over the weekend, the White House Chief of Staff said that they're thinking about trying to suspend Habeas corpus, which has been done I think four times in the nation's.
History, right, and so the Habeas corpus clause says that it can be suspended during times of rebellion and invasion. And so the question is is this considered a type of invasion that they were talking about, especially when Congress hasn't declared war. We've already seen that the courts at the moment are not very excited about this invasion language because they're not allowing it to be used in the
alien Enemies at context. So far, there's not a judge who's reviewed any of these alien Enemies at case as yet who has said yes, by the way, we are under an invasion, and so the Trump administration is correct to allow folks to be detained and deported without due
process because we're under an invasion. They haven't been successful with that argument yet, and so if they're not successful there in that context, it's going to be hard to say, well, how can you suspend habeas corpus, which is a much
much larger list in the courts. I mean, that's a monumental thing to do because it's literally the founding of the republic is about these rights as you have for habeas corpus, and so to suspend it, if they're not going to say there's an invasion for the purposes of the Alien Enemies Act, it's going to be difficult. But what they're trying to do is they're trying to avoid literally what we've just talked about with regard to the
foreign students. Those foreign students are in court filing habeas petitions, and the people under the Alien Enemies Act are in federal court filing habeas petition. That's their only jurisdiction that they have to get into court. So if you suspend abeas corpus, then they can't file those petitions. And so the idea is you can keep them detained, give them their removal process, and then maybe at the end they'll
be able to file something. But at least maybe a lot more people will be discouraged because they won't be able to see a quick way to get relief, which is what Habeas does, and so they'll just try to self support or give up or never come into country the first place, etc. Et cetera. And so we'll see
if they end up doing it. But I think the reason that even you see some hesitation from Stephen Miller is because at the end of the day, if they don't win any of these cases on the alien Enemies odds, then whether we are under an invasion for the purposes of that, it will be very hard to say why we are under an invasion for the purposes of suspending Habeas corpus.
And speaking of Habeas corpus petitions Kilmar Abrigo Garcia, which I don't know where that case is now. But Christy Nome, the DHS secretary, said in Congress last week he's not coming back.
He's not coming back restrained. I have no doubt about it. Why the plaints that are still holding off on doing anything here when they hear the Secretary of Homeland Security thing they're not going to bring him back, but perhaps there's some other arrangement that's interesting to both sides. I don't know what it is. I do think the plaintiffs definitely wanted him back. That was why they had filed
the litigation. And so if they hadn't pushed the tieline and they're sort of still on this Flower timeline and you have the second Tary of Land Security say he's not going to come back, something is going to have to give soon. And so either you're going to see the announcement of some settlement that works for both sides, or you're going to see the litigation come back again.
And I don't know where this is going now. Having said that, there was a case that just got decided on Friday with regards to the Biden administration's asylum ban, not the Trump administration's asylum ban, but the Biden administration asylum ban. The Biden administration banned asylum by saying you had to use the CBP one app if you tried to come in the country illegally, you wouldn't be able to get asylum. And the court held that that violates
the statutes. You can't do that or Interestingly, the plaintiffs in that case said that there had been some wrongly deported people under the Biden Asylum band and they asked the judge to force the administration to bring them back, and the judge there, who's known as quite a progressive judge, that absolutely not. I can't bring them back. There's nothing I can do about this. All I can do is
take away their deportation order. And they want to come back and try again to apply for asylum, that's certainly something they can do. But I can't order anybody to bring anybody back. And so perhaps there's some belief system here that's starting to take place that really the courts can't do this and they and they can't order anybody to be brought back. So that's what's going to be very interesting to see.
Thanks so much, Leon. That's Leon Fresco of Honda Night, and that's it for this edition of the Bloomberg Law Show. Remember you can always get the latest legal news on our Bloomberg Glaw podcasts. You can find them on Apple Podcasts, Spotify, and at www dot Bloomberg dot com. Slash podcast slash Law, and remember to tune into the Bloomberg Law Show every weeknight at ten pm Wall Street Time. I'm June Grosso and you're listening to Bloomberg