SCOTUS Rebukes Trump & Student Visas Revoked - podcast episode cover

SCOTUS Rebukes Trump & Student Visas Revoked

Apr 22, 202540 min
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Episode description

Constitutional law expert Michael Dorf, a professor at Cornell Law School, discusses the Supreme Court’s rebuke of President Trump with an emergency order. Immigration law expert Leon Fresco, a partner at Holland & Knight, discusses the Trump administration revoking student visas and moving to fast-track asylum cases. June Grasso hosts.

See omnystudio.com/listener for privacy information.

Transcript

Speaker 1

This is Bloomberg Law with June Grossel from Bloomberg Radio.

Speaker 2

The answer is, I always abide by the courts, always abide by it, and will appeal. I never did deify a court owner. Well, I always abide by the courts, and then I'll have to appeal it.

Speaker 3

President Trump has said several times that he always obeys court orders. But there's evidence that his administration has not been obeying the courts, even the Supreme Court, and it

appears that justices have had enough. Thus, the Court issued an emergency order with incredible speed in extraordinary circumstances on Saturday at one in the morning, within just eight hours of getting an application, before the government could even file its response, before the Fifth Circuit could issue its decision, and before Justice Samuel Alito could write his dissent, the justices directed the government not to remove a group of

Venezuelan detainees from the United States until further order of the Court. Only the two most conservative justices dissented. Joining me is constitutional law expert Michael Dorf, a professor at Cornell Law School, Mike disorder in the middle of the night, without waiting for the government's response, without waiting for the Fifth Circuit's decision and without waiting for Justice Alito to

write his dissent. Does this show that the Justices don't trust the Trump administration to obey their orders?

Speaker 1

Absolutely. The Court had in an earlier case said that the government should not remove any of the Venezuelans without first giving them notice and an opportunity to file a habeas corpus petition. Here, the Venezuelans who are being held in Texas received notices in English, which most of them don't speak or read, saying that they would be removed imminitely.

There was no mention of the right to file a havieas petition, and so when somebody got in touch with the ACLU, the lawyers moved as quickly as they could. When the Federal District Judd didn't act within just over two hours, they realized that the government might move the case by taking these people out of the country sending them Tel Salvador, and so they went to the Supreme

Court seeking emergency relief. And the fact that the Justices acted when they did in the middle of the night so quickly without the response, as you say, I think clearly indicates at least said injustice is felt the same way as the lawyers did for these.

Speaker 4

Venezuelans, namely, the government couldn't.

Speaker 1

Be trusted to abide by the justice's previous command.

Speaker 3

Would you think things were happening behind the scenes that they didn't wait for Alito's dissent to be written, which they usually do.

Speaker 5

But behind the scenes, if you mean, were the justices consulting with one another about whether to release the order and then have a descent published the next day. I'm sure there was discussion of that. I don't think that's in any way, you know, suspicious.

Speaker 1

Or not that unusual. If you have something in a cruly emergency posture and someone who is going to descend from the Court's disposition needs time to write, then you say, okay, well write later. There have been occasions when the Court as a whole has acted and then the opinion for the majority comes out a few hours or a few days later, because they recognized the need to act quickly.

Speaker 3

It was a short order, eleven lines, no explanation, but Justice Alito's scathing descent was five pages. He objected to granting unprecedented and legally questionable relief because we had no good reason to think that under the circumstances, issue in order at midnight was necessary or appropriate. Does this mean he still believes that the Trump administration is listening to orders of courts.

Speaker 1

Well, it either means that he believes that or he doesn't care, right, I mean, he might think that whether or not the administration is going to comply, we meaning the court, have to abide by our prescedural rules, and got every eye across every t In fact, what he said at the end of his opinion was his descent, was you know, the executive branch needs to apply to the law, but so do we. What he didn't say, of course, was well, what happens if the executive branch

isn't complying with judicial orders? Does that mean, as the majority clearly thought, that you take extraordinary measures.

Speaker 3

For quite some time now, courts have been listening to DOJ lawyers either not give them answers or just blatantly lie about what's happening. The DOJ lawyers multiple courts that they didn't intend to deport the migrants on Friday or Saturday.

Speaker 1

And what is this?

Speaker 3

Due to the credibility of the DOJ in federal courts, I.

Speaker 1

Think it's a serious blow to that credibility that was already quite weak. You know, there's some evidence that the lawyers who are appearing in court are not fully informed about what the decision makers and the Trump administration plan to do or have done already. So you know, it's possible to have some sympathy for some of those lawyers, although, of course, when one of the lawyers frankly admitted that

he was soon thereafter removed by Attorney General Bondi. So it's clear that at the highest level of the Justice Department there is no disagreement with what President Trump and other actors in the administration are doing. So you know, as I say, you configured perhaps some of the statements that turn out to be false by Department lawyers to their ignorance, but you know, not all of it.

Speaker 3

President Trump and the administration continue to say that they'll follow court orders. They're obeying court orders, although Trump did complain Monday on being stymied at every turn by the courts and argue that the administration can't hold trial for migrants it plans to deport because it would hold them up too much. I mean, so there's still this facade of we're listening to court orders.

Speaker 1

Yeah, so there's a lot there. First, I think it's inarguable that they are not fully complying with orders of the lower courts, and there is pretty good evidence that they are not complying in good faith with the Supreme Court. So, in addition to not giving the Venezuelans the notice to which they are entitled, the administration in the Abrago Garcia case has flatly refused us to comply with its obligation

said by the Supreme Court to facilitate his return. With respect to the President's claim that, you know, giving these migrants due process would be a too onerous burden that assumes that what they're entitled to is a kind of full dress criminal trial. But that's not true. There are statutory guidelines that allow for very much expedited hearings, but

they do require some kind of a hearing. You can't just, you know, have people in unmarked than scooping people up off the street and then shipping them off to a foreign country that's not even their home country, when there are, as an Abregio Garcia's case, court orders forbidding that, or, as in some of these other cases, no real evidence that they are subject to deportation at this point, right, it's simply not true that you have to have a

full dress trial before you can room with somebody. Now, having said that, President Trump is right that if he were to attempt the kind of massive deportation of everybody in the United States who entered undocumented, that it would be difficult to do that in a timely manner because there are procedures that have to be followed. But he also doesn't have the manpower, he doesn't have the budget do anything like that anyway.

Speaker 3

With the Brigo Garcia, Trump and other administration officials seem to be making it clear that they have no plans to return him to the United States, and they're instead playing this game of blaming it on the l Salvador President.

Speaker 1

Yeah, I mean, I think that is a game. I think that is in pretty clear defiance of at least the federal district judges order. Now, you can say that in the earlier case that all the Supreme Court did was to ask the federal district judge to clarify what

she meant by facilitate. But you know, the court pretty clearly approved of the obligation for facilitation, and you know, there was a remarkable decision by a unanimous re judge panel of the Fourth Circuit last week in which Judge J. Harvey Wilkinson, the third who's a very conservative appointee of Ronald Reagan, really called the administration to task for doing literally nothing to facilitate a Brego Garcia's return and warned in pretty ominous terms of the potential death of the

law here. So you know, in the face of that, the Trump administration is continuing nonetheless to you know, simply not do anything for Abrego Garcia. And what's so remarkable about this is that, you know, they could say, well, we're going to comply, and then ask the president of Ilseal, hey can we have Abregiol Garcia back, and he might then say, well, no, I'd really rather keep him because after all, he is at El Salvador in national Now.

It's true we sent him back there by a mistake, and there was a judicial order forbidding that, but that order doesn't bind the government of El Salvador. But the coup administration isn't even willing to ask, and they could they could ask. This wouldn't be good faith compliance, but they could ask while winking and then they could go back to the judge and said, well, we asked and he said no. But they're not even willing to do that because they see this as a matter of power politics.

Speaker 3

I mean, until now, the Conservatives have been giving Trump narrow procedural wins that have allowed him to, for the most part, run his agenda. Does this mark a turning point in the majority's approach to the administration, I hope so.

Speaker 1

I have been highly critical of the Roberts Court for some time now for treating Donald Trump as an visual and his administration in their official capacity, as normal, right, treating them the way you would treat any president who you know, occasionally pushes the edge of the envelope of their authority, but then when subject to a ruling, complies, which has been proof of every Democratic and Republican president, you know, for as long as we can remember, accepting

you know, extraordinary circumstances like Lincoln during the Civil War, something like that. But you see this the sort of treating him as normal and thinking about you know, presidents in general in a lot of circumstances. The one that was sort of most disturbing to me was the immunity ruling.

Speaker 4

Last year, which.

Speaker 1

The Course said, well, you know, we don't want to hamstring the president because in the future there might be you know, sort of tit for tab retaliation against former presidents back to lead to all sorts of trouble, sort of thinking about the long term and ignoring what is essentially an emergency right in front of them. And I was a little concerned that that was what was going on in the last few months, as this second job administration proved to be much more radical than the first.

But it looks like and I'm hopeful that you know, the Court is beginning to realize that they're not dealing with.

Speaker 6

A normal, law abiding president and administration, but a you know, a person who's seriously threatening constitutional democracy, and that they need to stand up to him.

Speaker 3

Last Thursday, the Court announced a special session on May fifteenth to hear arguments on Trump's executive order upending birthright citizenship. Why would the Court agree to hear a case like that when Trump's executive order seems to obviously violate the Constitution.

Speaker 5

Well, you know, the Court.

Speaker 1

Did not take the case to decide the substantive issue, but the Solicitor General didn't even ask the Court to decide a substantive issue. All of the court is deciding is the authority of a federal district judge to give a so called nationwide injunction. That has been a long running source of controversy actually in both Democratic and Republican administrations. It's been frustrating to presidents of either party when a single federal district judge, often selected by the plaintiffs because

they know their ideological leanings. You can do a little bit of forum shopping or even judge shopping by deciding where to file. But a single district judge sort of sets nationwide policy, at least for the short run, and so some of the justices have for a long time been concerned about this phenomenon. I think that it's extremely unlikely that the Court will in this case rule on

the birthright citizenship issue as a substantive matter. Now, that doesn't stop the media or actually even President Pump from portraying this as something else entirely. You know, as soon as the Court announced that it was going to hear argument, Trump said something like, well, you know, this is very misunderstood. That's about slavery. He said by that he was referring

to the birthright citizenship clause of the fourteenth Amendment. So he seems to think, or at least he's saying that this case is about the substance, but it really isn't.

Speaker 3

This goes along with the Trump administration's misinterpretation of even the Supreme Court ruling on a Brigo Garcia. I mean, you heard the Attorney General misinterpret the ruling and another Trump deputy, Stephen Miller, say that they won that case.

Speaker 1

So misinterpret is a very generous way to describe it.

Speaker 5

I would say, lie about I.

Speaker 1

Do think that, you know, in the case of Trump himself, it is sometimes misinterpretation. He's not a lawyer, you know, he never admits that he's wrong about anything, and so in his case there's a kind of combination of ignorance

and willfulness. I think some of these other people clearly know better, but they're counting on the you know, social media and echo chambers and sort of Trump friendly media to amplify their points without pointing out the way in which they're you know, just simple lying.

Speaker 3

So he's great to get your insights, Mike, thanks so much. That's Professor Michael Dorff of Cornell Law School. Coming up next, Foreign students are fighting back in court as the Trump administration revokes Visa's I'm June Gross when you're listening to Bloomberg. President Donald Trump and his administration are resisting a court order to bring Kilmore Albrego Garcia, who was wrongly deported to l Salvador, back to the US, claiming he's a member of the MS thirteen gang.

Speaker 2

They want this man to be brought back into our country where he can be free, and to say as a happily Maryland you know, happily they call him the Maryland demand. He's a Maryland father. Now here's a violent person.

Speaker 3

And Trump's borders are Tom Homan stands by the deportation of hundreds of venezuel And in salvadornment to the maximum security prison there.

Speaker 4

I believe removing public safety tress and terras designated terrass to that prison al Salvador.

Speaker 3

My guest is immigration law expert Leon Fresco, a partner at Holland and Knight. We've seen pictures of him with a US senator. Supposedly he's been moved to a different prison. What's happening in his case is the government making any move to bring him back.

Speaker 4

Well, the government is saying that they will never bring him back. And what becomes complicated about that is what if one day there actually is a court order that orders him to come back. And the way that would materialize would be as followed.

Speaker 1

You have.

Speaker 4

The District Court is engaging in discovery to find out what, when, where, or how who would regard the compliance to the Supreme Court's order to facilitate the reimportation of mister Abrago Garcia back into the United States. The District Court doesn't think at the moment that the government has done anything visa VI that and the government is saying that it's not doing anything visa VI trying to reimport mister Abrago Garcia back into the United States. So they actually appeal this

determination to the Fourth Circuit. The Fourth Circuit in a very strongly worded decision by Judge Harvey Wilkinson, the conservative judge, said that he was not going to micromanage the District Court and that it was very important that the government actually follow the rule of law here and not try

to circumvent the rule of law. Is what is happening, and so now the government hasn't taken that opinion and tried to appeal it again to the Supreme Court because I think they understand that it would be feudal until there's some sort of feeing up as to what facilitates means.

The government is currently trying to argue that facilitation means that if a brago Garcia actually can arrive at a port of entry, that he'd be readmitted in knowing that he's not going to be released from a detention facility in Elsavador, so that that would not be possible.

Speaker 3

And Leon, what's the main legal question going to be in the case.

Speaker 4

Here's the crux of it is the district court, then followed by the appellate court, followed by the Supreme Court going to rule that a brago Garcia is in the constructive custody of the United States, meaning that but for the United States paying for a Brego Garcia to be in custody and having this arrangement with Alsavador to keep a brago Garcia in custody, that he wouldn't be in custody.

And so that's going to be the question. And if the court rules that a brago Garcia is in the constructive custody of the United States, then they will say that he needs to be released from that custody, and by not doing that, the people who do not release him from that custody will be held in contempt of court. And that's where if the Trump administration doesn't comply with that order, you get to your quote unquote potential constitutional crisis.

We're not there yet, and I think jud Cenis in the District Court in Maryland is doing a very careful job to try to develop the most fulsome record possible of who, what, when, where, so that that determination when it gets to the Supreme Court, everybody can know every detail about how this arrangement was made with Elsavador, who's paying for it, who's making the decisions, et cetera. But if those facts are ultimately not shared, then it contempt

may happen from not sharing those facts. But that's what this is really going to come down to. Is Abrego Garcia in the constructive custody of the United States. If he's not, then I I think it's going to be very hard because the court is going to say, look, if El Salvador has its own reason for detaining Abrego Garcia, and that's the end of it. It's going to be very hard for a court to do anything about that.

But if the court determines that he's in the constructive custody of the United States, then they may hold the people who refuse to release him from that custody in contempt of court.

Speaker 3

So this is sort of besides the point. But I wanted to get your opinion on this. Do you think that that picture of him sitting there in you know, everyday close with a senator, you know, in a restaurant of some kind, do you think that did more harm than good to his cause?

Speaker 1

Well?

Speaker 4

I think the problem is regardless of what you think about the picture, the truth remains the same, which is he's in detention. And so the question is how long is he supposed to be in detention for and what is the reason for his detention. Even if he was deported to al Savador, if he was walking around Elsavador, presumably that would still be less compelling than the fact

that he's actually in detention for the foreseeable future. It's not clear what he's in detention for and how long he's supposed to be in there, and so those are the determinations the courts are going to have to ultimately make because one of the interesting facts here is it's fair enough for the Trump administration to say, look, even if you send him back, we're going to just send him back again, which would be true because the reason he was given deportation relief in the first place was

because he feared gang violence in al Savador. That actually, Alsavador has done a very good job of reducing to a very high extent, and they certainly have shown that they're no longer unwilling or unable or incapable of preventing gang violence in Alsavador. So that reason the government will likely be able to show in a court is no

longer valid. But now if they have a new reason, which is that he's going to be viewed as a terrorist, which is what the president of al Savador said, he said, why would I release a terrorist from my facility, then that will be its own reason for relief from deportation, which would have to then lead the administration to then either send them to a non Alsavador country or withhold his deportation again. So this is the problem that is being faced by this case. It's presenting all sorts of

new challenges literally on a daily basis. So yes, the picture is not helpful as a political matter, but the courts are going to be looking at this prospectively and asking what is his future in Al Savador if we don't act, and then they will make determinations based off of that.

Speaker 3

So let's turn out to student visas, because over fifteen hundred students foreign students have had their visas revoked, according to Inside Higher Ed. Why are these visas being revoked.

Speaker 4

Visas are being revoked for several reasons. The main and initial reason that was in the news was because the students had participated in violent protests on campus, whether it was pro Hamas or other violent protests on campus, and so the idea was that those students would have their visas revoked. And when you revoke a visa, all that means in principle is the person is in a limbo where they are actually allowed to stay in the United States,

but if they leave, they can't come back. They have to ask for new permission to re enter, which they won't get, and so they're stuck. And that's normally what happens when a visa's revoked. But what the administration is trying to do now is it's actually trying to say in addition to revoking your visa for some segment of these students, and by the way, not all of them are protesters. Some of them will be people who've had arrests for things that college kids get arrested for all

the time. So they'll go to a bar and they'll have a drunken disorderly This is a big one that I'm seeing from many people reaching out to my law practice to actually talk to me. You'll see things like that, like drunk and disorderly conduct. You know, rowdy college students being college students is not unique to just Americans that

you know, foreign nationals will do this too. But if you have any interaction with law enforcement, then they're evoking your visa and sometimes terminating your status in the student Visa database. And that's where the litigation is coming from because if your student Visa database status is terminated, it

creates two problems. One from the student's perspective, the student is worry now that they're any legal status, and unlike other populations of people in this country that may or may not have concern about illegal status because what they're trying to do is earn enough money in the US to just survive and stay alive. This student visa population that doesn't have that concern of trying to survive and stay alive. They're trying to be here legally and study.

So having a concern that they're here illegally is quite grave for them, and they don't want to be here illegally, and so many of them are suing in the court. But it also as a concern for the school. The schools are often asking me, well, should I allow this student to keep studying now that the government has terminated the status, because will I be considered as someone who's harboring a fugitive or inducing a person here without status to remain in the United States. And the last thing

I want to do is be prosecuted for this. So it's creating all of those problems, and students are now suing on us, many of them in all different courts across the United States, saying that the government can revoke my visa, that's fine, But even when they do that, I'm allowed to stay. They can't revoke my existence in the student database. All the government can do is put me in deportation proceeedings, which from the government's persone is

very onerous. This is the whole point of everything they're trying to do. They're not trying to increase the number of people in deportation proceedings. They're trying to decrease it because there's millions of people in the backlog. So what they're trying to do is terminate these students existence in

the database so that the students leave. But if the students are successful, which they've currently been in a lot of district courts in saying that the government doesn't have that authority, the only authority they have is to play students in removal proceedings and let them defend themselves, then the students are going to be allowed to stay because the government probably isn't going to want to place thousands of students and deportation proceedings to add to the already

large number of people in deportation proceedings.

Speaker 3

Leon do these student visas have expiration dates, so they would expire without the government doing anything.

Speaker 4

Well, what happens is the visa is actually a stamp that is placed in your passport that says how many days do you have to enter the United States? So if I get a student visa place in my passport that expires on May first of twenty twenty seven. The only significance of that date May first, twenty twenty seven is that's the last date I'm allowed to fly into the United States and enter as a student.

Speaker 1

That's it.

Speaker 4

Once I've entered as a student. The way the system works is you are admitted as a student for however long it takes to finish your degree. It has nothing to do with the stamp. And so you just have to show that you're working in due diligence towards your degree and as long as you show that you can exceed that May first, twenty twenty seven deadline. And so from that perspective, if the visa is revoked, the only thing that is revoked is the stamp, the ability to

re enter the country. The status of the student isn't revoked unless the student is placed in removal proceedings. Now, what the government is trying to do is it trying to get students to leave by saying we're not going to put you in deportation proceedings. We're going to try this novel move, which is to say that we are terminating you from the student visa database, which means that the school can't allow you to enroll because the school is only by regulation allowed to enroll people who are

in the student visa database. And so that's what students are suing about, saying, there's nothing in the regulations that mentions this, that allows this, that permits this. If you don't want me in the country, this isn't the way to do it. You have to place me in removal proceeedings in order to do it. You can't just terminate

me from the student visa database. But again, the reason they're doing this is to one create the apprehension in the student so that the student leaves voluntarily, but number two, to create the apprehension in the school because the school knows very clearly in the regulations it shouldn't be allowing foreign students to study there if they're not actively on

the student visa database. And so the schools are very concerned about the ramifications for them visa the harboring or inducement of undocumented foreign nationals if they allow those students to remain studying in the school.

Speaker 3

So let's say you have a student visa and it takes you fifteen years to get through school. That's okay.

Speaker 4

You're allowed to do that. Within this perspective. You have to take a certain amount of courses per year. And so if you fall under that number of courses you're taking per year, then you're not needing your student visa status and you can be terminated. But for instance, I'll give you an example of where fifteen years would make sense. There are some students who come in here to study it, let's say and over Exeter fancy high schools, if you

know what I mean. They have these fancy private high schools. So you come on a student visa to study on that student visa expires, let's say May first of twenty twenty seven. Let's say you never leave. So you finish high school, you get accepted into Harvard, you go to Harvard, you get accepted into Yale Law School, you go to Yale Law School, and then maybe you want to get a PhD in economics. You could have done all of

that without getting a new visa. You could have just stayed in America the fifteen years and done that.

Speaker 3

Coming up next on the Bloomberg Law Show, I'll continue this conversation with immigration law expert Leon Fresco of Honda Knight. The Trump administration is moving to fast track asylum cases. I'm June Grosso and you're listening to Bloomberg. Let's turn to asylum now and the Trump Administration's efforts to fast

track asylum cases. The Executive Office for Immigration Review had more than four million pending cases in the last quarter of twenty twenty four, including one point five million pending asylum cases. How is the Trump administration trying to fast track?

Speaker 4

What is happening is the following. Normally, when you apply for asylum, the way an asylum case gets decided is you go to the court, you testify, You say why you're afraid to be in the country. The government cross examined you, the judge might ask a few questions, the attorneys will have an argument, and the judge will make

a decision. And those cases can take anywhere from four hours to two three days, depending on how much intensity there is to the case, how contentious it is, how many witnesses there are, if a translator is needed, because the translator obviously doubles the length of the preceding because everything needs to be said twice, and so those are very intensive. In terms of time, and so you have, like you said, four million cases, how do you do

all of those cases? Impossible. There's only three hundred and sixty five days in the year, so a judge could only conceivably do one judge three hundred and sixty five asylum cases, say at most for years. They don't even get close to that. But I'm just saying as a theoretical that's if you were the most committed judge who never wanted to go home and keep the immigration for it open all day, you could do three hundred and

sixty five cases a year. And so obviously we're never going to bring down the dent of the four million. So what the Trump administration wants to do is basically introduce the concept of summary judgment or emotion to dismiss whatever you would call it in civil court, which is that if a person is presenting an asylum claim that even if everything they are saying is true, you still

wouldn't legally add up to an asylum clane. Then they want the judges to dismiss those, to look for those and dismiss those so that you don't have the need of doing what I just described testimony, cross examination, argument, questions, et cetera. The problem is with this concept that many people who don't have lawyers don't know how to phrase

their asylum cling. So what happens is you get to the court, you start asking questions, and you may determine that a person indeed as a valid asylum claim because you're asking them the question, they're answering them. They're not tailoring their experience to the laws, so they don't know what they need to do to qualify to get asylum. They can only tell you why they're afraid and what

happened to them. And so the fear is that if you allow this summary judgment flash motion to this misconcept to enter into immigration court, you may get denials in cases like that.

Speaker 3

So let's be frank about asylum. People just automatically file for asylum to prevent being deported. For example, the Trump administration is removing temporary protected status for Venezuelan, Haitians, Cubans, and Nicer Roguin's. The vast majority are going to automatically file for asylum. I mean, that's why you have so many asylum claims.

Speaker 4

That's the protective final feature, that is the one thing that can delay your deportation for as long as possible is asylum. Now, the problem is it will depend what

country you're coming from. If you're from Venezuela, then to make a claim that you fear the dictator, et cetera, becomes a much more complicated case because there is a dictator and you can say you fear the dictator, Whereas if you're from a country that is just economically depressed, then it's perhaps more difficult because then what are you

saying is your fear there? And people try to make claims of various natures, but those are always denied, you know, eight eighty five percent, ninety percent denial rates for all of those kinds of asylum cases, and so really it's

just going to depend. Many times. You'll see you if you go on a website called track drac, they actually will list the judges and their grant rates on asylum claims, and you will see that even within courts, because you could say, well, in one court it's different than another because different populations present themselves in different courts. But if you're within the same court, then the judges will see

the same types of cases. You'll see that there are courts where there are judges that deny ninety percent of cases, and there are judges that grant ninety percent of cases, and so from that perspective, it really is sort of a look of the draw that decides whether you get asylum or not.

Speaker 3

So, putting aside the problem that some migrants may not have attorneys, if the facts are clear, as you said, can an immigration court judge make a decision quickly?

Speaker 4

Oh, absolutely, no doubt about it. And I think they could, And I think there's a scenario where a motion to dismiss or summary judgment type of scenario is appropriate if you can show that even if everything the person said

is true, they don't meet the asylum claim. So, for instance, I'll give you an absurd example, but just to put it out there, let's say somebody said that they were coming from Norway and they are going to be killed in Norway, and it could be one hundred percent true, but the person who's going to kill them is their bookie for gambling debts. Then you have a one hundred percent true plane that you will be killed in Norway.

I have no doubt. But that is not a claim that's protected by asylum law, because we don't protect people from their bookie for gambling debts, and so that's one that you could dismiss, and if you saw that written somewhere, you could dismiss it, no doubt about it. But the question is if you're going to set up a situation where that can be abused. And this is always what

people worry about. Either through the person didn't have counsel, so they couldn't really write the claim with any kind of sophistication, and you need to actually ask them about it. So that's one concern. But secondly, if the denials are just denied just because that's what they're going to do, is they're going to just deny them on mass and force people to take appeals and force people to go to the courts of appeals just because they want to

engender as many orders of removal as possible. That's sort of the larger fear. Now, will that happen, will that not happen? Unclear? You know, we always want to presume that the rule of law will be followed and they won't just start denying cases for no reason. But the fear from I think some in the immigration bar would be that this would be used for that reason that you would just get a one line order. Your asylum case is denied, and you weren't given any indication of why that was so.

Speaker 3

During Trump's first administration, didn't immigration officials issue directives limiting asylum approvals and impose quotas for judges?

Speaker 4

Well, they imposed quotas for case management, and they certainly made a lot of judicial decisions from the Attorney General's Office that talked about things like how you establish a social group based asylum claim. That definitely tightened up who could qualify for asylum. That is true, but there was not then and there currently isn't for to summarily deny hundreds of thousands of asylum planes. Let's say, if that's what ends up happening, unclear, that will happen and just

give them all one line in orders. We will see if that happens. If that happens, that will certainly be something that goes through a lot of scrutiny. Unclear if that's what this is going to lead to. But that's the question that some have on their mind. You know, one would presume that the rule of law will be followed, that that's not what's going to happen. If it happens, people will have to take appeals from that and we will have to wait and see.

Speaker 3

Well, I appreciate your taking the time to talk to me, Lean, I know you're very busy now.

Speaker 4

It was very funny. I saw some podcasts from Alan Dershowitz where he said, if I was a young lawyer right now, I'd be doing immigration law because that's where all the accent is. And like, you know, what's weird is people always sort of clown on me. Why did you have all things go into immigration law? And now look at that. It's springtime for lea. So there you go.

Speaker 3

I'll let you get back to it. Thanks so much, Leon. That's Leon Fresco, a partner at Hollanden 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 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

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