This is Bloomberg Law with June Brusso from Bloomberg Radio.
As we have said multiple times, our border enforcement plan works. It is deterrence, a diplomacy and enforcement. We have seen that plan working on lawful border crossing have come down to the lowest that we have seen in the past two years.
The Biden Administration's new enforcement plan to reduce illegal crossings on the US Mexico border does seem to be working, just as White House Press Secretary Kareem Jean Pierre said. However, that success played no part in a federal judge's decision on Tuesday to block the rule that denies asylum to migrants who arrive at the border without first applying online or seeking protection in a country they passed through. The Biden administration immediately appealed the judge's order, which is on
hold for two weeks. Joining me is immigration law expert Leon Fresco, partner at Holland and Knight. How big a blow is Judge Tiger's decision to the Biden administration and its efforts to control the border.
Well. If the decision is allowed to stand, it would be a significant blow to the Biden administration's ability to control the border, because right now the Biden administration is using what's called a carrots and six approach along the border, which is to say, here are the carrots. Either come in legally through one of our parole programs, or at least apply it to the ports of entry with an appointment at one of our ports so that we know
you're coming and complain on it. But don't just walk in between the ports through the border illegally where we don't know how many people are coming on what date, We can't plan for it, and it creates chaos. And what it's saying is is if you do do that, we're going to ban you from getting asylum and place you in the expedited removal process. So most people so far have acted in accordance with this charts and stay approach and use the carrots space approach because they know
that the sticks are there. If the sticks aren't taken away, it's unclear whether the benefits of the cats will still be sufficient to dissuade people from coming across the border illegally, and so if the decision is allowed to stand, it will be a big problem for the Biden administration. As soon as the weather becomes a little less hot on the southern border.
The judge said that the rules were not lawful because they imposed conditions on asylum seekers that Congress did not intend.
How So, there's actually two congressional statues and they're in one hundred percent tension with one another. There's a congressional statue which is pretty clear and is the one the judge is relying upon, which says that it doesn't matter whether you crossed legally or illegally, anybody inside the United States is eligible to apply for asylum. It is essentially written as clear as day that the fact that you crossed illegally cannot be held against you for applying for asylum.
So people might think, well, that means case closed. You shouldn't be able to have an administration ban asylum for people who crossed illegally. But by the same token, there's another statute that Congress also wrote, which says that the administration can, as a matter of discretion, pick any factor that it wants to add to the list of reasons why you can be denied a sylum and it doesn't
limit it in any way. And so hence, both the Trump administration and the Biden administration have said, well, we're going to use the factor that you've crossed illegally after being told not to do it, and in the Biden administration's case, after being given numerous legal alternatives of how to do it. So the point is, if you're choosing to brazenly cross illegally anyway, when there's a legal way to do it, we should be able to use this as a discretionary factor to deny you asylum. And so
that was the Biden administration's argument. The judge here ruled, well, it's not exactly clear that everybody's going to be able to have an access point to asylum, and so because of that, then we are going to say that the statue where Congress says that you can't block asylum based on illegal entry is the one that's the winner here, and I'm going to prevent the Biden administration from having this stick that says don't cross illegally.
The judge wrote that while they wait for an adjudication, applicants for asylum must remain in Mexico, where migrants are generally at heightened risk of violence by both state and non state actors. Is that true, Well.
It depends how long it's going to take and under what conditions the person is waiting. It is true that the longer a person is waiting in Mexico and the less resources that the person has, this means it is more likely that something bad is going to happen to them in Mexico while they're waiting, which can include having just random street crime where the person's resources are taken away from this. That is very common in Mexico and is likely to occur to anybody who's just sitting around
there waiting for months. So that's the question. It's sort of a really effectual question, which is the Biden administration tries to say, no, one's going to be lingering in Mexico waiting for an appointment at the port of entry, because we have sufficient number of appointments through our CBP one app and through the parole program. But the plane has said no, there are still people waiting and they're
subject to danger. And so because they shouldn't be expected to have to wait and have to subject themselves to this danger, then again we're going to choose the part where Congress says you don't have to wait outside the United States. You can come in and apply for asylum, as opposed to saying that this is a permissible discretionary factor for an administration to use the ban people from seeking a silo, which is, hey, there's a legal way
that we just created, use that. The only reason you would use the illegal way is because you're trying to cause problem for the US government. So the judge doesn't believe that. The judge believe someone using the illegal way might be just trying to protect their safety because they don't have a sufficiently quick pathway to avoid having to sit there in Mexico and potentially risk being in some way harmed by gang members or others.
So leon is this Biden program similar to the Trump Remain in Mexico program?
Well, it isn't it is. In this sense, Trump did not have a mechanism in play like the CBP one app and the parole program that was designed to legalize the flow so that they could make the argument that it would be a permissible discritiontionary reason to ban people from asylum that they were crossing across the border illegally. Meaning Trump just said stay out, and I'm allowed to tell people to stay out, and if they don't want to stay out and do it through Vexico. I'm allowed
to ban them from seeking asylum. So he was making the A versus b one versus two binary analysis, and I banned some poken, I got banned people from asylum. He was trying to make that very binary analysis, whereas the Biden administration was saying, no, no, no, this is not a binary analysis. The reason ours is different is because every person can legally access our asylum system, and the only reason they would cross illegally is to cause
problems for our US government. And if they're doing that intentionally, they should face the punishment of being banned from being able to speak a sylum. So that's the difference the Biden administration was trying to make. And the Biden administration reasoning was not viewed as credible by the Federal court judge here.
So the Biden administration immediately appealed. The appeal will go to the Ninth Circuit, where would you say it may not farewell well.
The Ninth Circuit is now a fifty to fifty court. It used to be considered a liberal court because it was. But President Trump actually was quite successful in putting in judges in the Ninth Circuit. So now it's a fifty to fifty court, it's a court with many judges, and so you could easily get three Trump appointees on a panel, or you could get three Biden appointees on a panel now or three Obama appointees on a panel. So you have no idea what kind of panel you're going to
be able to get. And so from that standpoint, that's what's going to be complicated in terms of predicting the outcome. But I will say this, the Trump administration had in this litigation, been able to make some headway in the Ninth Circuit. They were able to get this decision from the same judge as Tigaer overturned, and it was working its way up to the Supreme Court before the Trump
administration ended. I don't know how this case would have been resolved, but what I imagine what happened here is that the Supreme Court is probably going to allow the Biden administration to have this policy. If I had to make a prediction, you know, I would say that that the Biden administration is going to be allowed to keep this policy in place by the US Supreme Court.
At the end of the day, explain why you think that the Supreme Court would allow it to remain in place.
First of all, what we've now seen for the last three years of the Biden administration is that the Supreme Court has been very deferential to the administration period writ large, with regards to issues of immigration, and it's setting that up not just for Biden, because I don't think they're particularly fond of Biden, let's say, but just because they want this to be the norm for immigration rid lards moving forward, to return it to what had been the
traditional one hundred years of jurisprudence before the period let's say between nineteen ninety and twenty sixteen, where there was a lot of activism in this area of immigration in the judiciary. Now they're trying to resort back to the don't sue because the administration has a lot more authority
than you think. And I think that will be the case here where I think the Supreme Court will be sympathetic to all of the legal options that the Biden administration is offering people in order to come here legally, which is the parole program for the CDP one app and saying to people if you want to come across the border without using any offeasset mechanisms. Then you are going to have to risk that you will be denied asylum. And by the way, there isn't even then a complete
ban on asylum. If you could prove that your life or safety were in danger in Mexico and that's why you had to cross it, it's an imminent manner, then you can even overcome this ban. So it's not even a one hundred percent fan in that situation. And so for that reason, I think the Supreme Court is going
to have sympathy about it. And for the same reason they actually upheld the Trump travel ban back in the day, they will use that same logic here and uphold the Biden transit ban visa via pilumce Leon.
Let's turn now to the fight between the state of Texas and the Biden administration over migrants crossing the border, which is escalating and is now visually represented by a thousand foot stretch of bright orange, wrecking ball sized tethered buoys in the middle of the Rio Grande, the river that serves as the border between the United States and Mexico. Texas Governor Greg Abbott defended the state's right to install the barrier, issuing his own demand on Fox News.
All about administration has to do is to enforce the laws already on the books to prevent people from crossing between the ports of entry.
Texas will see you in court, mister, President Abbott wrote in a letter. White House Press Secretary Kareem Jean Pierre called it another political stunt.
Let the Department of Justice speak to this. They've been very clear last week that they also will see Governor Abbott in court for his unlawful actions. We've been very clear about that.
And so the administration sued Texas over the buoys, certainly not its first lawsuit against the state. I've been talking to Leon Fresco, a partner at Holland and Knight and former director of the Justice Department's Office of Immigration Litigation. Leon tell us about these booys that the federal government is suing over.
Well. The federal government is complaining about the floating barrier, which are about a string of buoys that are between
about four and six feet a diameter. The orange looking buoys, which may streatch for at least one thousand feet between the Eagle Path International Bridge and about a couple miles south there, and they include some infrastructure designs to anchor it or fix it in the middle of the Rio Grand River separating Mexico and the United States there near ego paths, And the idea is that these floating barriers that people won't be able to walk across the river
in order to get to the United States and evade the border patrol so that they can get their bodies inside the United States and avoid the bands that the Biden administration is trying to do, where they're trying to basically push people back into Mexico and get them to use the CBP one app so that they don't have to do the whole expedited removal process for these people.
And what is the claim in this lawsuit? You know what law do? They say Texas has broken?
Well, so what's very interesting is this is sort of pretty obscure stuff for the immigration world. I'm sure for the environmental and natural resources world, this is a very common thing. But obviously, if you're a normal immigration lawyer, you don't necessarily deal with everyday the Rivers an Harbor's Act. But the law that's in play is called the Rivers
and Harbor's Appropriation Act. Of eighteen ninety nine, which unlike the Immigration Code, which is in Title eight of the US Code, this is entitled thirty three of the Code, and basically what it says in plain English is, look, there's navigable waters all around the United States, and the whole point of these is that they're connecting interstates and
foreign state commerce. And if you want to build barriers that prevent people from using these waterways, then you have to get the Army Corps of Engineer's approval to do this. You can't just be taking matters into your own hands and whatever you want with the waterways of the United States. That's the province of the federal government, and so it's the position of the Department of Justice, the Environment and the Natural Resources Division. And they told this to the
State of Texas before the laws that was filed. Look, you have to get approval and a permit from the Army Corps of Engineers. You didn't get it. You have to take this down. And Texas said, we won't take this down. We have sovereign authority to protect our border. And so now this loss has been filed in Austin, Texas in the federal court seeking injunctive release in the form of a court order saying, Hey, Texas, take down these bullies, these barriers, and you'll have to pay to do this.
Governor Abbott was anticipating this lawsuit. He sent the President a letter on Monday defending Texas's right to install the barrier. So, as you said, he said that Texas has the sovereign authority to defend its border, and they've been using the Texas Disaster Act as the legal bedrock for some of these measures.
Right, they believe that they have basically a natural disaster that's going on on the border, which, by the way, what's complicated about this is that the border numbers are way down. All of the questions of what was going to happen after Tayle forty two was listed have been answered in quite a positive way by the Biden administration.
But nevertheless, the governor of Texas, Governor abbit is taking the position that he's in a state of emergency, and that state of emergency permits him under his authority to deter the people coming into the United States because he
has the authority to do that. Now he's being sued by private actors and now the Department of Justice saying that the Texas disaster as of nineteen seventy five doesn't give the authority defined here a lawful immigration was not within the definition of disaster and was not intended to be classified as such. So you know, it was meant to basically protect human life and allow Texas to take measures to do that, but not for the purposes of basically using immigration as a quarte unquote disaster.
Does it sound like he has an arguable case.
Here's basically how this will work. It's one of these things where had the case been brought in certain divisions in Texas, probably Texas would have won. In the district court in Austin. It's a little bit more likely that the DOJ is going to get an injunction here. The Fifth Circuit, depending on the panel, may say that State of Texas can do it or it can't do it, depending on which panel they get. I can see panels
going either way. But I do think once you get to the Supreme Court, the Supreme Court has been getting more and more frustrated with these state efforts to co opt immigration law and essentially to say, look, we're tired of what the Biden administration is doing. We're going to take matters in our own hands. And if they didn't like some of the other stuff, like to remain in Mexico stuff and the Title forty two stuff and the
prosecutorial discretion stuff. I think that putting barriers in an international waterway with Mexico is probably going to be deemed to be a bridge too far. So to speak for the Supreme Court, I don't think they're going to be recessive to allowing Texas to do this because what is basically the limiting principles then on what Texas can do with the Rio grand And that's going to be the problem.
Mesco asked the Biden administration to remove the boys and razor wire, saying it violates treaties. Does that play any part in the Biden administration's lawsuit against Texas.
Well, it's not in the lawsuits. The lawsuit is just talking about the principle that you need a permit from the Army Corps of Engineers. But the larger question of why you need a permit from the Army Corps of Engineers is because Congress realized there the events like this, and again, the Rio brand is covered by the famous Treaty of Wataloupe Hidalgo and that's the water that is part of both nations, and it's one of these things that's a very sensitive issue about Mexico and the United
States having sort of joint sovereignty over that river. And for that reason, that's just not something that the State of Texas can just get in. Again, you would be the point, what is the limiting principles about what Texas can do there? Can they put in huge seal things that are causing to injure people there? What is the limit of what they can they put bombs in the river? And so there's all these kinds of questions about where
the line is and why that's happening. And I don't think again, the Supreme Court is going to be very sacious if this case gets to the Supreme Court about what Texas is doing with regards to the Rio brand. And this is all part of a larger operation that they have to cause, Operation Long Star that also has to do with the bossing of people and have to do with sort of this draconian tactics when Texas law enforcement meet people up at the border to try to
push them back into Mexico. And so this is just a larger operation basically designed to create havoc on the southern borders.
And part of that operation includes that razor wire strung across private property without permission, bulldozers changing the terrain. The Texas Military Department cleared out kine, which should called invasive, and change the landscape affecting the river's flow. So why hasn't the Biden administration acted on those things as well?
I think the question is I think they thought that perhaps Texas would make its points and move on, but now they're seeing they're actually going to have to litigate these things. I think depending on how this one goes, you'll see more of this, And so I do think you're gonna see more of this. I do think this was just the first set, the one that's the largest problem,
and I do think guilty others. I don't think they wanted to do a bunch of these lawsuits all at once, but there are certainly others that have to do with a trusting federal agent, from being a both to process people and perhaps other environmental violations that they're causing that you could see other lawsuits getting filed. But again, I think that the larger problem is the Department of Justice doesn't want to have ten twenty lawsuits against the State
of Texas. So Texas is properly, if you think about it, in the political sphere, flooding the zone with as many different things as they can do and then trying to have the Department of Justice basically either sue them on all of them or have the or just keep the fight perpetuating, which is really the only interest of Texas here at the end is to just have this fight go on ad Infinaida.
Apparently, there is some blowback over the tactics, including from within Texas, and especially in light of that state troopers account of razor wire leaving asylum seekers bloodied, officers deny migrants water in a one hundred degree heat.
I do think he's getting a lot more criticism about it, that is true, from private folks, from people in the Department of Public Safety, from people in the Mexican government, and there's people that are starting to speak out against this. But I think at the end of the day, the political issue of immigration is just so hot right now that I don't see a long term abandonment of this issue.
But I do think it will be very interesting to see long term, the outcome of the parole case, which is sort of the lynchpin of the entire Biden administration border policy, if that's allowed to continue, it's going to be very hard. The numbers are what they are, they're weight down for the Governor of Texas to keep saying there's a crisis compared to what compared to which month,
and it's going to be very hard to say. But if the parole program goes away, then and then the weather, which is the other big thing, changes from the record heat that we have now to the falls, I do think you'll start to see the numbers starts to go off pretty dramatically, and then that's where you'll start to see more of viztforst rather than less.
The Biden administration has been talking about how the numbers at the border are so low. Do we know if it's the parole program or is it the heat.
I think it's a combination of three things. It's the combination of the record heat, no doubt, one hundred and fifteen degrees on the border right now is absolutely unbearable for anybody to try to make these very difficult tricks all the way through the southern border. It's life threatening. People know that. But then you take that and compare it to the option of a CBP one app where you can make this same claim without having to do
all of that. You just show up at the app appointment at the Board of Entry, or you can get parole for the parole program, or you know that if you do cross the border illegally, you have to do the record heat and you'll be put in this expedited removal programs and you might not be able to qualify for asylum anyway. All those things are being weighed at a point where we're now talking about for the first time in a long time, first time since I would
say twenty fifteen. That doesn't count the COVID months where we're legitimately at eighty ninety thousand people per month, which is a lot less than the two hundred thousand a month we were seeing just you know recently, and so we have some pretty dramatic reduction here.
There's certainly a lot of legal action about the southern border lately. Thanks so much for being on the show, Leon, As always, I appreciate your immigration expertise. That's Leon Fresco, a partner at 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 to to The Bloomberg Law Show every weeknight at ten pm Wall Street Time. I'm June Grosso and you're listening to Bloomberg