This is Bloomberg Law, with June Grosseo from Bloomberg Radio.
Continuing clashes on the streets of Minneapolis between protesters and ICE agents. As tensions escalated following two shootings by agents, one of them deadly. Brooklyn Park Police Chief Mark Brooley says that his office has been fielding NonStop complaints about civil rights violations and that his own officers went off duty, have been stopped and racially profiled by federal officers.
Every one of these individuals is a person of color who has had this happen to them.
Border Patrol Commander Gregory Bavino, who was seen recently on a video tossing a smoke canister into a crowd, said the tactics employed by ICE are justified, but the Minnesota Attorney General, Keith Ellison, disagrees.
Our operations are lawful. They're targeted, and they're focused on individuals who pose a serious threat to this community. They are not random, and they are not political.
These tactics that we've seen from MICE are brutal, they are unfair, they are racial profiling, they are hurting our economy, and they're running up our costs in terms of policing and other public expenses. It is damaging to our state.
Joining me is immigration law expert Leon Fresco, a partner at Honda Knight Leo. Let's start with this order from a federal judge that the Eighth Circuit has put on hold.
Federal Judge Catherine Menendez had granted the ACLU's request and ruled that the federal agents are prohibited from arresting or detaining peaceful protesters in retaliation for their protected conduct and absent a showing of probable cause or reasonable suspicion that the person has committed a crime or obstructing or interfering with the activities. Is this order anything more than her basically saying follow the law eyes. Is there anything extraordinary about it?
Well, a couple of things. First of all, I suppose so to this extent that the Eighth Circuit on Wednesday issued an administrative stay temporarily lifting that injunction, which did block the federal agents from retaliating against her detaining peaceful
protesters without probable cause. I think the reason that the Eighth Circuit did stay the district court order is that perhaps there was some confusion about how you would implement this order in the sense of if an ICE agent does something illegal against a peaceful protester, then the recourse
would be a civil lawsuit or a criminal action. So adding an injunction that does it change the law, but just says enforced the law doesn't really add anything except it adds confusion as to whether the injunction does anything more.
So the issue would be, are you adding additional requirements that other than those that exist in the law, And then what so now you sue for a violation of this injunction as opposed to a civil lawsuit, because perhaps what you're saying is that you're worried that the federal government won't prosecute an ICE agent who violates the law. This is sort of the complex issues there, and so I think the Eighth Circuit said, we're going to need
more time to consider this. Let's pause this for a while, because it seemed like it was going to be too complicated. That every use of potentially, for instance, chemical agents, or every arrest of a protester, or every discussion about a protester perhaps following to close and perhaps potentially obstructing, were they obstructing or were they peacefully protesting? Perhaps every single instance of that could have led to a contempt of
court injunction violation hearing. And the question was from the Eighth Circuits perspective, I suppose did they want to have that granular hearing every single time in front of this district cord or did they just think, look at the end, that there's something really wrong. People can file civil suit or criminal actions can be filed.
The problem is it's hard to deny what you can see on the videos. I saw one video where a man was already restrained and on the ground and an ice officer was spraying some kind of yellow chemical into his face while he's on the ground. So the ice officers don't seem to be exhibiting any kind of restraint, and there are multiple reports of US citizens getting arrested.
Well, this is what becomes complicated from the standpoint of in a normal course of action, when you have an agent that you believe violates the federal laws, then you can have a prosecution of that agent by a US Attorney's office who says that that agent acted in correctly, or you can of course obviously file a civil lawsuit
in that situation. But I think what motivated this injunction was all of that would take far too long or might not even occur at all, and so you needed to have something in place that was faster in order to try to tamp down any actions that might violate the law. But the problem was how do you do that and who sets the line for when one of those uses of chemical agents did cross the line or
when it was necessary to protect the agents. This situation in Minnesota has become so intense and so high octane that you may have in fifty percent of this situations the ice agents acting completely correctly, and in fifty percent of the time, perhaps they do not completely correctly. And now you're having a debate every single day in the federal court who did what when? What does that mean? And I think that this is just a situation that
needs to be handled, perhaps in a new manner. Irrespective of either this injunction or anything else where, the targeted operations happen in a way that are not intersecting with all of these protests and not causing all of these city skirmishes, and so I think that's a matter for
everybody involved to try to figure out. But I think this injunction, the reason it was stayed is because the Eighth Circuit may have believed that it just wasn't the right approach to have a district judge basically trying to be a referee for every single thing that was happening in Minneapolis at that point.
The problem is one of perception. You have the FEDS refusing to open a civil rights investigation into the killing of Renee Good by an ICE officer, with the Vice President again declaring today that it was her own fault. At the same time, they're serving the governor of Minnesota and the mayor of Minneapolis with subpoenas over their refusal to cooperate with federal law enforcement. It doesn't help to quell the protests.
Absolutely. I understand why the injunction was sought and why the injunction was issued to the extent that people believe that any actions that are taken would not be dealt with in a normal course of action where there would be an investigation and a prosecution, So you needed to do something else so that you could have a content order.
But at the end of the day, even that, let's say you have a content order from a court saying this person is held in content, then what at the end of the day, the federal agents aren't going to put anyone in detention. We end up just back where
we were, which is with a constitutional crisis. So it's not like this injunction at the end of the day would avoid the constitutional crisis, because you could still have an injunction from a court that says this ICE agent acted incorrectly, they are now in contempt of court and put them in jail, and the administration will just say, well, no, sorry, too bad. And then what is the actual judge going to start picking up ICE agents and you know, putting
them in detention. No, they require federal agents to implement these orders, and so we're back at square one. And so I think that's what makes this complicated.
According to reports, hundreds of soldiers are on standby to enter Minneapolis, and the preparations are tied to the possibility that Trump could invoke the Insurrection Act. He's threatened that before. How would that go.
Well, the way the Insurrection Act works, there's two main ways. One is not going to happen, which is that the state actually requests the assistance of the federal government through the governor or the state legislature. That's the opposite of what's happening here. Here you have the state governor and the local officials and everyone else saying that they don't want the federal authorities. So then the second way is what's called the federal authority standard, which allows the president
to act unilaterally to enforce the federal law. And there the president has to say that there's been some sort of unlawful obstruction or rebellion against the authority of the United States and makes it impracticable to enforce the laws
of the United States. And here the president would say, I'm trying to just enforce immigration law, and I have a number of individuals that are causing me problems because they're basically like the Civil War, it's refusing certain things to happen that the federal government wants to happen in particular states. And so I have to come in and protect the ICE agents who are being followed around by protesters and everywhere they go, they're being followed around or obstructed.
I need to be able to come in and solve that problem. And then what would happen is the president access to the issue of proclamations, saying I'm going to be invoking the Insurrection Act unless you disperse, give people time to disperse, and if they don't, then insert the Insurrection Act. And then we're back to if there's a lawsuit, Okay, well, who has the authority? Is this reviewable? Is their judicial review? If there is judicial review? How much different? And we're
back to all of that again. And those are going to be the issues that would then need to be decided ultimately by the Supreme Court. I mean, yes, there'll be lower courts that way in, but the Supreme Court would ultimately need to decide is this reviewable? If so, how much deference is given to the president, and who can challenge it, etc. So we'd be back to all of those ar givens.
Again, seemingly back to square one. Coming up next on the Bloomberg Lawn Show, more with immigration expert Leon Fresco. Vice President JD Vance visits Minneapolis and defends the Trump Administration's aggressive deportation raids. I'm June Grosso and you're listening
to Bloomberg. Vice President JD Vance visited Minneapolis today, where he sought to defend the Trump Administration's aggressive deportation raids, which have set off street confrontations between demonstrators and immigration agents. ICE operations turned deadly earlier this month when agent Jonathan Ross shot and killed Renee Good, something the federal government is not investigating and refuses to allow the state access
to the evidence. Here's what Van said about his previous statement that ICE officers have absolute immunity.
When federal law enforcement officers violate the law, that is typically something that federal officials would look into. We don't want these guys to have kangaroo courts. We want them to actually have real due process, real investigation.
Of course that's not happening in the case of Renee Good shooting. I've been talking to immigration expertly on Fresco of Holland and Knight back to the beginning. So, immigration advocates and legal aid groups have warned people or urged them not to open their doors to immigration agents to ICE agents unless they're shown a warrant signed by a judge.
But according to an internal ICE memo obtained by the Associated Press, the federal immigration officers are asserting power to forcibly enter people's homes without a judge's warrant to do it based on an administrative warrant. Isn't that on constitutional?
So let's give you both of the arguments, and let's give you some facts. What is an administrative warrant. It's a form document. You can look at the ICE administrative warrant. It's called an I two five. You can google it and see the blank warrant. But basically, an ICE agent could fill out that warrant and then get their supervisor to sign it, and on that basis, ICE is arguing that it can then enter the home. Now, to be very clear, because they're important that we get all the
facts right. ICE is not currently taking the position now. It may it may evolve and take this position if its first position become successful, but let's just go with what the facts are. They're not currently taking the position that they can go into any home they want with an administrative warrant and knock things down and go around
and grab people. What they're currently saying is if someone has a final order of removal, meaning that they were already served with what's called a notice to appear, which is saying, look, you're in deportation proceedings, and then they've gone to immigration court and then they've lost, then all of that due process was already done. So it's not like barging into your house in the first place and taking your computer and then convicting you of a crime
based on that. It's not any's. They would say, it's not anything like that. They would say, this is the equivalent of somebody escaped from jail, and now we're just trying to find them, and so we don't need to go through the whole judicial warrant process to do this.
Are they relying on any case law or precedent.
The case they rely on for that is very interesting because it's if you've seen the movie The Bridge of Spies with Tom Hanks and the Academy Award winning Supporting actor Mark Rylands, that Rudolph Abel case, whereas the Russian spy from the nineteen sixties, he was taken pursue it to an administrative warrant for immigration. Originally that's what it's
also searched for. And so there's some dicta in that case that says that because immigration is a civil matter, it's not a criminal matter, the concerns of the administrative warrant aren't necessarily valid in that instance, and so that's dick that wasn't necessary for the able case. But the point is ice wants to build off of that precedent and say, look, immigration is a civil matter. There's a final order of removal. We're just now trying to execute
this civil removal that is not a criminal matter. There's already been the due process of the notice to appear and the hearing, and we should be allowed to do that. From the perspective obviously of the opponents of this, they say, when you're going into someone's home, that's literally if you're talking about rock scissors paper, someone's home is nuclear war. You know, it beats everything. It's the Fourth Amendment most sanctity location that there is. And so you can't go
into anyone's home without a judicial warrant. Why because maybe you're gonna go into the wrong home. And now what you've just barged into somebody's home, there wasn't any judicial oversight to make sure that everything was correct before you started barging into people's homes. You're going to cause collateral damage. There's a lot of untrained people being deployed out onto the field, and so that's why you need this judicial warrant to sort of make sure that these untrained people
are doing what they're doing. And of course, if people have unfettered anything in any aspect of the government, there's always going to be more mistakes than if they have to answer to independent authorities before they do things. And so from that perspective, this is where you have the tension.
But it is possible that if they're allowed to do this, if the courts don't join this, then they may expand this to other immigration actions or the person doesn't currently have a final order of removal, but at the moment they're saying that they're limiting it to people who have a final order of removal.
But there's also the point that perhaps most likely there are other people in the house, correct, and they're violating their constitutional rights. I mean they have a constitutional right absolutely.
I think you know they have constitutional rights to the sanctity of their home. And especially if ICE is going to start engaging in what are called collateral operations once they're in there and say who else is undocumented here, or this is very interesting what we've uncovered, then that is going to weaken their argument for being able to come in with an administrative warrant as opposed to a
judicial warrant. But we're going to have to wait and see what the courts say, and also in what procedural posture this ends up getting challenged. Does it only end up getting challenged in the context of a final order of removal or do the people who challenge it have better facts like you've talked about, where there are collateral cases that they're also challenging, and then that'll make the government's defense much more complicated.
So, speaking of procedural issues, former Columbia grad student Mood Khalil, who was one of the first to be rounded up during the government's crackdown on anti Israel campus protests, is set to be deported to Algeria, according to a Homeland Security official. So it seemed as if Khalil was on a winning streak he was released from ice to attention. Tell us what happened with this third circuit decision.
Mister Khalil was out of detention because a district judge at held that he should be released from detention because his deportation violated potentially the First Amendment because of concerns that he was just being penalized for his views on Middle Eastern conflicts. The Third Circuit comes in and says, wait, a second district court you shouldn't have been looking at any of this. All of this needed to go in
the following mode. The government apprehends Khalil, places him in detention proceeding and removal proceedings, places him in detention and places him in removal proceedings. The removal proceedings go until the end, and then at the end of those administrative removal proceedings, you then make an appeal of every legal and constitutional claim you have directly to the Court of Appeals. The district judge should never have any view of any of this, because that's the way the statute is written,
and so it was a two to one decision. There was assent saying, look, we don't have time for all of that. That could take years, and you unjustly are holding people in detention who are nice people for years while you're doing this. They'll never be able to make these claims if you don't let them file a habeas and you could just have unfettered chaos where administration just start putting people in jail and what are they supposed
to do. And that's certainly very very sympathetic, but you can also take a view that the statutes don't care about any of that, and the statutes understand that all of these things may happen, but nevertheless they still say
it doesn't matter. You've got to go first go to the Immigration judge, then go to the Board of Immigration Appeals, and then if you actually have these constitutional claims to make about the First Amendment or retaliation or anything else, you've then make it in what's called the petition for review in a final order of removal to the appropriate circuit Court of Appeals. And so that's what the Third
Circuit said. It didn't say that the government was right or Khalil was wrong, or that Khalil was rightment didn't say any of that. It just said these all of these proceedings are just canceled because they shouldn't have happened in the first place. And when there's a final order of removal, the circuit court will deal with that. Now, the issue there is that that findal order of removal would be in the Fifth Circuit, and so it would be the Fifth Circuit, who's known as a conservative court,
who would actually end up dealing with that. And then the other specific problem in the Khalil case is he doesn't just have this Middle Eastern speech issue. He also has a lying on his green card application issue, which I think he probably understands is fatal to his case, because even if he wins his constitutional argument, he still may be deported on this lying on his green card part of it.
Despite what the Trump administration says. He hasn't agreed to go to Algeria yet. His lawyers are still fighting, right.
I mean, he's still trying to fight the third Circuit order and take it on bank on appeal and try to make sure he can't be put in detention. But he may soon be forced to make this calculation, do I want to go to Algeria or do I want to fight this even if I'm in detention this whole time. And so he does have Algerian citizenship through his mother's family, which is why Algeria was designated as the country for removal.
He's not saying I'm leaving today, but I think the reason they've settled on Algeria is because he does have that citizenship, and perhaps they think if he's put to this choice, he may end up taking it instead of having to fight two three years more in detention.
The panel was composed of two Republican appointed judges who voted for the government and a Democratic appointee who voted against the government. If he goes to the Third Circuit, the balance there is still seven judges appointed by Democrats, but eight appointed by Republicans, including six Trump appointees. Is he going to have a better chance at an on bank hearing.
Here's the problem with this. If the judge in this case, I mean, I might be biased. People can accuse me on either side of being biased. I really tried to give it as down the middle as I can. So I try to use this if the judge was a robot standard, and I would say it is my belief that if the judge was a robot, unmotivated in any way by human concerns, but only looking at language patterns, you would have to rule that the Third Circuit two
to one decision is correct. That the statute says that where you make these arguments is in a petition for review in the Court of Appeals. The statue couldn't be any clearer about that. The problem is that that basically denies you due process for any random, arbitrary thing that the government wants to do. Now we're not talking about
this specific case. This is anything. If you really take that statute to its logical conclusion, the government can impose all sorts of harm on foreign nationals without any checker
balance for the entire time it's doing it. It could be a year, two year, three years, and who knows, they could potentially delay the proceedings for many years so that you never even get to the end of the proceedings, in which case you'd have to file what's called an unapplied challenge to your due process rights being taken away from you. So you would file, you would file this as applied challenge and say the Constitution is not being applied correctly in my case. But how long would that be?
After eighteen months, twenty four months? The courts have had all kinds of deadlines in these immigration cases, but certainly not two months, three months, six months. They never say that that short of a period allows you to get back into court. So then the problem is how many people are you essentially coercing over two months or six months of detention to leave and not pursue their rights
and everything else. And so that's the sort of challenge, is that the human side of this, it seems obvious you wouldn't want to have a system that was vulnerable to this level of hardship. But on the linguistic side, that seems to be absolutely what Congress road. And so this is what the courts are going to have.
To wrestle with leon you know, on the ground, if this Third Circuit decision is affirmed, et cetera, et cetera, I mean, what implications would that have for immigration lawyers using habeas to.
Get very well? I mean if it gets to the Supreme Court and the Supreme Court agrees that there's just no habeas anymore for any reason, because that's what they'd have to decide, because this is honestly one of the most compelled If you're going to say, what's one of the most compelling reasons you would ever need a habeas, it would be because a lawful permanent resident was being placed in detention for a nebulous, vague situation where it's
unclear whether something applied to that Green card holder or not. I'm not saying Khalil is a good person or a bad person. I'm not talking about that he baby Khalil did some horrible things and should be deported. So I'm not taking any position there I'm just saying, you have a statute which says, if the Secretary of State deems you to be contrary to the interests of the foreign policy interests of the United States, they can deport you, even if you're a Green card holder. So the point is,
what does that mean? How can I govern my conduct in order to avoid the Secretary of State thinking that about me? And so that's not exactly clear. It's different than a statute which says if I commit a felony, I can be deported. Okay, well, I know, don't commit a felony. Fine, But how do I govern my conduct so as to not have the Secretary of State mad
at me? Hard to know in that situation. And so from that standpoint, if in that situation the court says there's no habeas, that's going to mean there's no habeas for anyone because this is going to be very much a sensitive case and that they're saying, Look, I could be held for detention for one year two years on the basis of a statute I don't even know to follow. When I'm a lawful permanent resident and I have a US it is in child, and I have a US
citizens spouse, what are we doing here? And so I do think this is it. This is the test case. And if the Supreme Court says there's no habs here, that's going to mean there's no habeas for anyone.
Finally, I want to talk about in the Massachusetts case by university professors that accuse the administration of having an unconstitutional policy of deporting people based on their political views. The trial focused on the targeting of five non citizen students, including Khalil and Judge William Young, a Reagan appointee, has criticized what he said, we're breathtaking constitutional violations by senior Trump administration officials and call the president an authoritarian who
expects everyone in the executive branch to tow the line. Absolutely. So he's going to come out with a decision. First of all, what's your reaction to the judge's sort of astonishment at what he saw?
Well, yes, the judge is clearly upset by Again, we're talking about the same statute here, which is a very difficult statue to comply with, because you're saying that anybody can be deported. If the Secretary of State thinks that your speech is running a file of US foreign policy interests. So how do people comply, how do people voice their opinions, et cetera, if they're not actually engaging any any illegal action.
And so Judge Young didn't want that and said, basically, very clearly, this is something authoritarians do, and in order to implement this, you have to be engaging in a conspiracy and you have to have people writing you out like in the Fugitive Slave Act. And so he was saying all of these very strong words. But at the end of the day, we're going to be back to what I just said a few minutes ago, which is, does Judge Young have any authority to be doing any
of this? Or do these challenges have to be brought by individual foreign nationals who are going through their proceedings and suffering these these arms, as opposed to it a separate proceeding a district judge being able to deal with this. So this is literally part and parcel again of the exact same argument. And here this will be decided by the first Circuit, and so we'll have a first circuit and a third circuit situation, and then it'll again go
back to the Supreme Court. Maybe if they break in a way where it needs to, and the Supreme Court would have to decide can these kinds of claims be brought in the district courts or is the only solution for an individual foreign national in deportation proceedings to bring these claims administratively where first of all these judges can't do anything about that, lose, and then a year later, two years later, bring it to a Court of Appeals as part of a petition for review of a final
order removal. And so I think that's the issue is people are saying, man, that's going to take a long time, what are we doing here? But this is this is potentially what might need to be done under the law.
And then the question is whether you're in detention or not. That makes a huge difference. Thanks so much, Leon, I've been talking to immigration expert lyon Fresco of Holland and Knight. 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, 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, all right,