This is Bloomberg Law with June Grosseo from Bloomberg Radio.
A shooter with a rifle opened fire from a nearby roof onto a US Immigration and Customs Enforcement field office in Dallas today, killing one detainee and injuring two others before taking his own life. The head of the FBI, Cash Patel, released a photo on social media that shows a bullet found at the scene with the words anti ICE written in what appears to be marker. The acting Director of ICE, Todd Lyons, said, there's been a rise in threats against ICE agents.
All of our officers have an increased presence now with security from Federal Protective Services just because, like I said, assaults in a threats on officer of one thousand percent.
This was the third shooting this year at a Department of Homeland Security facility in Texas. Joining me is Immigrat attorney Leon Fresco, a partner at Hound and Knight. Leon I says it's officers are facing a more than one
thousand percent increase in threats and assaults against them. Leon I says that it's officers are facing more than a thousand percent increase in assaults against them, including vehicles being used as weapons toward them, and doxing campaigns targeting officers and their families.
These situations are terrible. The violence obviously has to stop against the ICE officers that are just there trying to do their job.
In this particular.
Instance, the individuals who ended up actually being shot were detainees, and so it's not clear what the shooter's intent is.
But it's just a tough situation because it seems like, just in general, in every aspect of things, the default becomes, if I don't get my way through the police process or through some other manner, violence is the next mode of settling one's dispute, and everybody involved everywhere needs to end that ethos because you see, it's in all facets, it denies, it's in the detention facilities, it's in society generally.
I think everybody on all side just needs to say violence is not the next stept of dispute resolution, for instance, like litigation. Litigation is another way people used to resolve disputes. It's not violent, and that just has to be taken up the table by everyone involved.
Immigration advocates and others have called out aggressive tactics by ICE agents and on Saturday, California Governor Gavin Newsom signed a set of bills meant to check the Trump administration's aggressive immigration crackdown in California, including a first in the nation measure to prohibit officers from wearing masks and other is that limit their access to schools and hospitals. The question is whether a state law can be enforced on
federal agents. Is that easily challengeable by the Trump administration?
Well, absolutely, This is going to set up a preemption situation where there's sort of two preemption issues. One that'll just be in the court, which is, if this law presented, does the state government ever have the ability to tell the federal government how or where it can enforce federal
law within the context of a state. So that will be an issue that will be squarely and clearly tied up for the courts, which is different than the sanctuary city issue, because the sanctuary city issue is about whether a state or a city can be compelled to enforce federal law. That's different than the state or a city actually limiting the manner in which the federal government enforces
its laws. So, for instance, could you amine a state or a local government saying in our state, we're not going to let the federal government come into somebody's house who committed federal tax violations. You're not allowed to do it. You have to follow this other procedure. So where would that end? And so you start asking those questions. But
obviously the concern is a serious one. You want the police to identify themselves at all times, or ICE in this case, to identify themselves at all times, then not have a situation where ICE can can easily be impersonated
by other bad actors who will aren't Ice. So everybody has some interest in coming into a more transparent process where it's clear that it is actual immigration enforcement officers who they are, and that when someone is apprehended, that person can be identified and known where they're being housed and where they're being stationed so that the attorneys can get to them. So all of that is important. So the courts one will decide what is the level of
pre empsion. But the other thing I was going to say is to the extent that it's not preempted at the moment. The next question would be, well, what does someone do. Let's say you're at some state university and ICE shows up on campus. Do you literally call the university police? And what does the university police do? Do they actually arrest the ICE agents for violating the rules? This is where I think this gets very dicey, and I probably would say that that's not going to end
up happening. That there's going to be state and local police that end up getting into confrontations with ICE or they start trying to arrest ICE agents. But theoretically that is contemplated under the statute, and so I think sooner rather than later, this is going to have to be addressed by the court so that you never even get close to an unfortunate situation like this.
And in twenty eighteen, California had passed a law to restrict immigration arrest at superior court buildings, but that hasn't stopped the Trump administration from detaining people at those courts this year. It's the question of whether there's an ability to enforce or not.
Right, That's the point is, whenever you write a law, that's only half of the game.
The other half of the game is can.
You enforce the law?
And if you cannot enforce.
Whatever law you've written, and that law's meaningless and so there's two levels of enforcement. So the first is will the courts allow it to be enforced? But the second is, even if the courts allow it to be enforced, what actual human beings in California are actually going to try to enforce this law? And I think until both of those issues are addressed, I think you would say it's highly unlikely that the state would be able to take matters into its own hands, as has been attempted here.
President Donald Trump signed a proclamation on Friday that will require a one hundred thousand dollars annual fee for H one B visas, which enables skilled workers from overseas to temporarily work in the United States. Commerce Secretary Howard Lutnick said all big companies are on board.
So the whole idea is no more with these big tech companies or other big companies train foreign workers. They have to pay the government one hundred thousand dollars, then they have to pay the employee. So it's just non economic. If you're going to train somebody, you're going to train one of the recent graduates from one of the great universities across our land. Train Americans. Stop bringing in people
to take our jobs. That's the policy here, one hundred thousand dollars a year for H one B visas, and all of the big companies are on board. We've spoken to them about the Golden Card.
They love us, they love it, they really love it. They need it.
I've been talking to immigration attorney Leon Fresco of Holland and Knight. An immigration issue that's gotten a lot of attention is President Trump signing a proclamation on frey that will require one hundred thousand dollars annual fee for H one B visas, which allows skilled workers from overseas to temporarily work in the United States. I mean, what's the fee like now at.
The moment if an employer wins the lottery, Because that's the first step of this is that there are more people who want, more businesses that want H one B employees than there are slots. And there's eighty five thousand slots per year, and there's usually a demand of between four hundred and five hundred thousand people that employers want to hire for these slots. And that's just on day
one of the programs. Over the rest of the year, there'd be people who would apply, but they can't because the slots are all gone.
But the point is.
That if you then win the lottery and you get one of those slots.
It costs about five thousand.
Dollars in fees to take that worker into your employee. So there's fees for the application. There's fees to get a decision in fifteen days that most employers use because they don't want to wait a year or two to get an answer. So they said they get what's called premium processing. And there's two other fees. One that's a fee to fight fraud in the system, so the money literally goes toward fraud investigators to make sure that nobody's
gaming the system. And then there's another fee that actually goes toward the Department of Labor to train American workers to do high skill jobs. And so all of those fees aed up to five thousand dollars, and the idea would be that this proclamation, if enacted, would raise that fee to one hundred thousand, but it's not clear where that money would go to. It would just go to the treasury, and then within the treasury it can be allocated just I suppose for deficit reduction.
Besides bringing that money into the treasury, what's the underlying purpose of this.
The purpose of that fee is ostensibly to say that if an employer is using the H one B program not to hire a super skilled, highly talented employee where money isn't an object, but as instead trying to hire an employee for the purposes of undercutting the wage of a US national that it otherwise would have hired. This takes that off the table because you would never do this. You would never pay an extra one hundred thousand dollars
to undercut the wages of an American. So the only reason you would pay one hundred thousand dollars is because you were hiring the best of the best, and money is no object. You really need this individual.
The problem is the.
Language of that proclamation is under the travel ban authority. We've talked about this many times on the show. There's a statute called IA Immigration Nationality Act, Section two twelve that basically gives the president almost unfettered authority to ban the entry of anyone the president thinks it's not in the interests of the United States to allow their entry. But the problem with that statute is it applies to
banning entry. So the question is if you are a foreign student who's now attending Harvard or who's attending Stanford or MIT or cal Tech or something, and you now want to after you graduate, get an H one B because you've been hired by Nvidia or you've been hired by Facebook or Intel or Google or something. You've already entered the country, so this doesn't apply to you.
And so the.
Question is, does everybody know that here, does the administration think that those people are going to have to pay the one hundred thousand dollars fee or does it know that, Look, those people have entered, so they're not subject to one
hundred thousand fee. If the people already here, it's understood and everybody gets it, and it's clear that if the people already here as students in US universities are not subject to the one hundred thousand feet then this is going to apply to a lot fewer people than what I think the people who are initially cheering this proposal on on the restriction AST side would have thought it's going to apply to significantly fewer people and what it
actually will turn out. The most likely scenario is that this will basically only lead to a de facto ban on the ability of what are these famous Indian contractors like Whipro, Tata, Infoss, etc. Who hire more people from India directly than they do from US universities. Those people will end up being effectively banned because they will not pay one hundred thousand for those workers. And so if this survives litigation, that's probably who's going to be banned here, leon does.
The Trump administration have the authority, the statutory authority to impose this one hundred thousand dollars fee because isn't the fee supposed to cover the costs of processing the application?
So this is very interesting because there's a very similar type of litigation with regard to asylum, where there's a whole set of asylum statutes and then there's another one that says, yeah, but you can deny asylum for any discretionary reason, and that the courts have been fighting this out and they're still fighting it out. Which card Trump's the other card? Does the eight trump the joker? Does
the joker trump the eight? Same situation here, you have a large exhaustive set of H one B statutory regime that's very clear and that you cannot change by regulation or presidential proclamation or anything else. So you would think that that would win. But you also have another statute, which is the IA two twelve F that says that the president can ban anyone that the president wants for issues of public interest, and can set any conditions upon entry.
That the president wants. So the president is.
Saying, well, here's a condition I'm setting upon entry.
So, for instance, in twenty twenty, twenty twenty.
One, there actually was a ban on these H one be holders under the COVID protocol. Those folks were banned and they couldn't come in the country. And so this is just the same thing. It's a ban, but rather than being a complete and total ban, it's a ban which you can circumvent by paying one hundred thousand dollars fee. And so when the courts analyze this, which card will
be the Trump card? Will it be the banning statute that says, no matter who you are, if you're any foreign national of any kind, the president can set these conditions and terms for letting you in the country. Or will it be the large H one B statutory scheme under the idea that you can't have an exception that swallows the entire rule of immigration law so that the president can just rewrite the entire immigration code with the
INA to twelve authority. So that's really the question for the course is can the president basically use INA two twelve F authority to rewrite the entire immigration code in the way the president wants to?
Or is that overdoing it?
And when there's a statutory regime like the H one B which is very extensive and lays out how many days the government has to make a decision, et cetera, et cetera, it's very detailed, unlike most statutes, does that actually win the debate?
And we're gonna have to wait and see.
The President also wants to change the lottery system. Can you explain what he's trying.
To do there?
Yes, this is very simple. What happens is every March, there's four hundred thousand people that want to get an H one B visa. There's eighty five thousand slots. They have a lottery. It's a blind lottery. Eighty five thousand people win three hundred and twenty five thousand loose. They want to change that to basically weight the system.
So what they want to do is they.
Want to find out what kind of job are you coming to do, where are you coming to do the job, and how much are you going to be paid? Because the Department of Labor has surveys and they'll say, oh, the average, the average lawyer in San Francisco makes two hundred and fifty thousand dollars a year, but in the top twenty five percent, that lawyer will make three hundred and fifty thousand, or the bottom twenty five percent that lawyer will make one hundred thousand, and so they put
those as levels. Level four is the top level, Level one is the bottom level. So what they want to do is to say, if you will agree upfront that you will pay your worker the level four wage for that occupation in that location, your worker will get four lottery balls essentially instead of one. And if you pay the level three ways, your worker will get three lottery bus And if you pay the level two wage, your
worker will get two lottery balls. And if you only want to pay the initial level one wage, which is the bottom twenty five percent, your worker will get one lottery ball. And that's how they'll allocate the lottery with the hope and the intention that the eighty five thousand plus will be allocated towards the highest paid individuals as
opposed to just a random allocation. Now that obviously there's going to be companies who pay level one wages who will try to sue and make the same types of arguments here again it's going to be the fifty to fifty argument. Is there regulatory authority under and here there's another catch all provision in what's called IMA Section two fourteen that says that in non immigrant visas, which is what H one B is, the president by regulation can set the terms and conditions. And so that's what the
president is trying to do here. But there's also, again as I indicated, pre this very long statutory authority for H one B. What you can do what you can't do, which every time somebody tries the thinker with it, they lose in court. So the question is who wins there? Does the president win under the catch all authority or does the companies that are going to sue win because they say, no, this has to be done by Congress, it cannot be done by regulation.
Let's turn out to what's happening in immigration courts with bonds. For decades, immigration judges have granted bonds to immigrants and detention who the court determined would show up for future hearings and were not public safety threats. But now the Trump administration, specifically the Board of Immigration Appeals, which has a majority of Trump appointees on it, has made a new policy binding on all immigration judges that they can't
grant bonds to people who cross the border unlawfully. See is being challenged in federal court by civil rights and immigration advocacy groups. What do you think their chances are?
So, here's what's complicated about this case. You have a situation where previously, if someone was placed in deportation proceedings after being here for some amount of time, then they could make an argument that they could be released on bond while those proceedings were pending. Because the whole point of the immigration system is it's not a criminal system, it's a civil system, and so typically the law does not favor detention for civil anything. It's detension is meant
for criminal proceedings. And even most criminals when they're going through criminal proceedings have bond that they can either apply for or not. Now what's complicated here is the law was that Again, like I said, everybody used to be able to apply for bond, with two exception if you had certain criminal convictions. The Supreme Court has said you're not eligible for bond, because the statutory authority says you're not.
And secondly, if you just arrived into the US, meaning you were apprehended at the airport, or you were apprehended trying to cross the border right at that moment, then the idea was, look, we detain you. We keep you in detention at least subject to having enough beds. We don't reward this effort across the border by letting you out. We keep you in detention until we decide if you have a case to remain or if you don't have
a case to remain, you get booted out. But the question is what happens with people who crossed the border illegally, but we didn't realize it until five years later, ten years later, et cetera. And so historically those people were allowed to get bond hearings because the idea was they were already here, they were circulating.
In the United States.
They presumably hadn't committed any criminal offenses other than the initial offense of crossing illegally. But now the administration is saying, look, this original thing that says that if we apprehend you crossing the border, we have to keep you detained forever, while where the proceedings are pending, there's no bond that applies whether it took us one minute or whether it took us five years to cut you. So that's the change in the interpretation. So this doesn't apply to someone
who came legally and overstated their visa. They can still get a bond during their removal hearing. But this applies to the person who crossed illegally and they were never apprehended. And so this is really going to come down to more I think of a constitutional due process argument rather than a statutory argument, because the statute, interestingly, I think it's fifty to fifty. But what happened was it was always interpreted in the way that you get bond because people were worried.
About the fact that how could someone.
Have been here five years or ten years and circulating amongst the United States, not committing any crimes, etc. And then for a civil proceeding you would deny them bond, when if this were a criminal proceeding, they would be
eligible for bond. What would be the constitutional authority to keep someone mandatorily detained like that, And so they always interpreted the statute in a cautious manner to say, no, no, no, give those people a bond hearing, and if they are dangerous or if some other reason exist, been fine, you can deny them bond. But if they're not dangerous, you have to let them out because they had already been
out for such a long time. So ultimately the courts are going to have to struggle with not what the statute means, because the statute actually probably supports the argument that if someone processes the border illegally, whenever they're found, you have to detain them, but really the constitutionality of that concept, because the issue is that someone's really been
here for that long. Is it constitutional to have them detained with no bonds for a civil proceeding when the constitution ab whores any kind of civil detention period, And so I think that's going to be the main question here.
Always a lot of questions and not that many clear answers in our immigration law system. Thanks so much, Leon. That's Leon 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