Ukrainian Refugees Cannot Get Into U.S. Easily

taking in Ukrainian refugees. Speak so loudly about your principles, and it's amazing, and I want to public recompliment you for it. But what about the Ukrainians who want to come to the United States to join family here? The Biden administration has done nothing to help those refugees get into the country, a process that's far from easy. My guest is Leon Fresco, a partner at Holland and Knight and a immigration official in the Obama administration. Clean are

many Ukrainians trying to get into the country. Many Ukrainians are trying to get into the United States. I'm getting calls in my law as you know, I'm a private attorney when I'm not on Bloomberg, and I'm getting called all the time from people all over our country. You'd be shocked how many people seem to have connections to people in Ukraine and they all want to figure out what can be done. And so what's complicated is there are some well meaning pieces of information that are not

exactly accurate. So you'll hear in all the United States is letting in Ukrainian refugees as we speak. But those Ukrainian refugees are people that have been vetted for many years, who are refugees from the Russian annexation of Primea. So they're not people who are refugees from last week. There

are people who are refugees from many years ago. And so the problem with saying we will welcome refugees is refugee process could take a year or two years, and then the question is we don't know what the state of affairs in Ukraine will be at that point. Maybe there will be no refugee issue in Ukraine a year or two from now, and so the question is what,

if anything, the Biden administration can do now. And so here is where you have a doctrinal issue versus sort of what I would call a compacion issue, which is plenty of people are seeking to come here on student visas,

now on visitor visa, humanitarian parole applications. And it's just gonna come down to whether the Biden administration provides guidance saying that that's okay to let people come here and say during the duration of the crisis, essentially knowing that hopefully some large segment of those individuals would go back

if the war word is subsided. Or are they going to take a more doctrinal, dogmatic approach and say, look, you can't come on a visitor visa if you're from Ukraine because we have no evidence you're gonna come back. We can't give you a student visa you're from Ukraine because we have no evidence you're gonna come back, etcetera. The more of those pathways that they cut off, the

harder it's gonna be. And what you'll see, and you're starting to see some batterings of this is actually Ukrainians appearing on the southern border and just applying for asylum

on the southern border. And if that's the only way you're gonna let Ukrainians in, that's the way that Ukrainians are gonna use if and I repeat, if they have an American family member that's arranging this for them, and that's usually what you would see if the American family member would say, Okay, fly to Mexico and then we'll work it so that you can apply for asylum at support of entry between the United States and Mexico. Let's say someone calls you up and says, my family's in

Ukraine now or went from Ukraine to Poland. I want to get them into this country. Besides flying to Mexico.

What else can you do? Well, the most compelling legal options in terms of what you would do doctrinally, is something called the humanitarian parole, and you would ask them to put together a pocket that you would assist that baking with their information and why they can't say where they are and why as a humanitarian nature, the United States should give them a one year parole to sort of weather the storm here, and then after that one year they can leave and showing that they have sufficient

family ties here, that they have an economic sponsor here who can take care of them while they're here, which would usually be some very close family member with a pretty decent income, and you would let the chips fall where they may. We're at the beginning stages of this process. U s c i S endeavors to give decisions in ninety days of these parole applications, but we'll know in a few weeks whether U s c i S is

treating these claims compassionately or not. And quite frankly, the state of affairs may be completely different in the next few weeks than it is right now. So we don't know. A lot of this is going to be wait and see, but that's the main way, and the U s CIS being the United States Citizenship and Immigration Services leon. What about getting in with a student visa or a tourist visa. People can come in very quickly if they could get admitted it to a university, but you'd have to find

some open embassy of ours. It would either be our embassy in Poland, our embassy in Moldova, embassy in Romania, or if you could even get further with you know, Germany or wherever you could get to in order to

get yourself an appointment for a student visa. But in that situation, you're gonna need an adjudicator who's going to not take so seriously the fact that you're from Ukraine and might not be able to return because one of the criteria for students visa if you have to be a person who can show that you would leave the United States after your studies are over. And so the question is are they going to say that Ukraine gives us a facto matter, aren't going to return? So those

are the questions that are being wrestled with. And then a lot of people want to just come on visitor visas, which would give you six months of the United States. But there's two problems there. One, the embassies all over the world have about two year wait time for visitor visa applications because of COVID. But even if you could get yourself in for a visitor visa appointment, will the embassy say you're not gonna truly visit. You're gonna say you're never going back, so we're not going to give

you a visitor visa. And so that's the challenge with the visitor visa and the student visa. The Bonding administration has given Ukrainians who are already here temporary protected status, right right, But you can't come here now and get temporary protective status. But for the people who are already here on the first day of the commencement of the how facilities in Ukraine. Those individuals can stay now until

that temporary protective status is one day taken away. And I don't know if and when that would ever happen, but for the moment, those people, even if their visa has expired, can take advantage of this temporary protective status in order to remain here and work lawfully in the United States. And so bottom line is the Biden administration hasn't done anything so far to open our country's doors

to Ukrainian refugees. Correct, There's been no policy change that has said how it would be easier for a Ukrainian to access the United States. They haven't said, hey, apply for humanitarian parole if you have a US citizen foused parents, child, or sibling. You know, if as an example, and we'll give a one year humanitarian parole. They have an issued

a memmo like that. They have an issued a memo that says here's how you can act that's the refugee program if you're in Poland or in Moldova or Romania. They haven't done anything like that. So everybody's just trying to figure out a way to kind of go through this roof Goldberg divice that is our immigration system to

get their body into the US. The problem that happens with all of these issues is if you don't take the trouble to plan something out and issue something, then what you will inevitably see with some number of people is well, then I'm just going to take the most direct round. I'm appearing at the southern border, and I'm making an asylum play lee, and I want to turn

to another immigration topic. Now, migrants have been expelled more than one point six million times under Title forty two, which was introduced in March of to prevent the spread of COVID nineteen. However, the Binding Administration now says unaccompanied migrant children trying to enter the United States will not

be denied a chance to seek asylum. The same as not true for adults and families traveling with children joining me is Leon Fresco, a partner at Hollandon Knight, just review what the broader policy has been since known as titled Well, at the same time that the COVID national emergency was declared, and the Trump administration was the administration that was in power at the time of the COVID

national emergency. The administration also decided to at the same time have two different kinds of health related travel bans. The first kind of health related travel bans were the very similar types of travel bands that had been put into place because of the the Middle Eastern countries and things of that nature, and that was the travel band authority under I n A Section to twelve F. But then secondly, the administration needed to put a travel ban

on the border. Because the I n A Section to twelve F travel bands only covered entry from foreign countries in terms of legal immigration, they needed to do something that would permit them to expel even asylum speakers from the United States. And so that's something called Title forty two authority under the US Code, and that's in the Public Health section of the Code, is actually not in

the Immigration section of the Code. And what that says is that during an emergency involving a communicable disease, the CDC Director can instruct the Department of Homeland Security to exclude any foreign nationals trying to enter the United States. And so that's been the state of affairs since March of till this day. Leon Why did the CDC come

out with this new guidance for migrant children traveling alone. Well, there's been litigation in the DC Circuit, and this litigation actually in disregard for unaccount any children, actually didn't change much practically on the ground. The DC circule litigation is called we Shall, we Shall versus Majorkis, and it's trying to offend all of the use of the Title forty

two for everyone. It's a southern border. But they did not get a victory in the DC Circuit fully, But what they did get is this understanding that for unaccompanied children, there's a separate statutory regime that's been played for what happens when an unaccompanied child reaches the border, and that statutory regime is that they have to go to the Department of Health and Human Services, they have to get inspected,

they get chops. If they don't have the shops, they then get put into the custody of either a shelter or of an adult in the United States who can

take custody of that child. And then they're put in removal proceedings while they're in that person of custody, and sometimes they can win their proceedings, sometimes they don't win, and so the idea was you could not operate Title forty two on those other company children because the Congress I've said very clearly what it wanted to be done, and Title forty two didn't supersede those statutory provisions with regard to what he did for un accompanied children. So

then why the CDC announcement. Well, the CDC then solidified the guidance from the court, which is to stay, fine, you don't need to give us an injunction. We're not gonna do this, So we can move out this part of the case by letting you know that we are not going to put on accompany children into Title forty two expulsion. But quite frankly, the administration wasn't doing that because it's very hard. What are you gonna do with a seventeen year old or sixteen year old or even

god perbided, they're much younger children. If you use this Title forty two authority, then you're just expelling them into the middle of Mexico and they have no place to go. No, for isn't none of that. And so as a practical matter, this was only being done in the rarest of cases. But nevertheless, nilence is not going to be done at all personally to this memo. Now, you were talking about a case in the d C circuit in March of t there's a conflicting case in Texas just recently tell

us about that. So in March fourth, the District Court for the Northern District of Texas issued a preliminary injunction enjoining the CDC from using this title forty two expulsion authority against unaccompanied children. And their their decision was that they hadn't adequately explained why they would treat unaccompanied children differently than other people under the CDC order, and so that decision was made, and then it was up to the CDC to decide what were they going to do.

Were they going to challenge that in appeal or were they just gonna trying to mood out the injunctions? And so what the CDC decided to do in conjunction with the Department of Homeland Securities to say, look, this is such a rare thing that we're using this title forty

to authority for unaccompanied children. We're just going to make a public health reassessment and say we're not going to be using this title forty to authority to expel unaccompanied children from the United States, but they're still going to use Title forty two to expel migrant adults and families

with children. Correct, So for migrant adults, such the simplest case, which is that the courts of health still so far that you can use this authority for cases involving adults because adults don't pose any issues with regard to children

being present. The trickier issue is this litigation as it's going to proceed, and what's going to happen with families meaning adults and drin that traveled together, and so far the courts offense that that can be used for family because again this becomes the stain problems as the problem we face with regard to detaining families, which is that when the court said you couldn't detained families, then that led to a very tricky situation where you have to

decide whether to separate families or let them all in. And so the court don't want to get involved with that so far under Title forty two, and what they are instead doing is saying that you can exclude still entire families under Title forty two. So, now is this complicated because the d C Appellate Court said last week that officials couldn't expel families to places where they could be persecuted or harmed. So correct. So so this is

again I'm not are one of those decisions. That's an interesting decision, but it's not a deviation from the practical authority. And so what is what do I mean by that? What I mean by that is the Department of Homeland Security, at least under the Biden administration, not so much under the Trump administration, but under the Biden administration was already issuing credible fear determinations to try to figure out if it was going to expel someone to a country that

they were going to fear persecution from. As a practical matter of these expulsions are going to be to Mexico. The only time they wouldn't be to Mexico would be if someone was coming on a flight and for some reason they were going to be expelled under Title forty two, which would be very very very very rare, or if there was some very quick ability to expel someone after very brief detention back to trill American country. But that's very very rare. And so the real question that they

asked is do you fear persecution in Mexico. And only a very small number of people are going to actually be able to articulate claims of why they fear persecution in Mexico. But nevertheless, what the court has said is if someone is going to say, incredibly show that they fear persecution in Mexico, then you cannot use Title forty

to authority to expel them to Mexico. And again, this is the same theory as the kid, which is that there's a statutory framework in the Statute for what we're supposed to do with people that fear persecution, and Title forty two again does not supersed that framework. So if someone comes from Mexico and says I fear persecution, they'll

have to be given an asylum hearing. No, what they're given is a credible fear screening, and that's a very brief screening by employee of the Department of Homeland Security where they're at I understand, let's say you're from Central America. Here's my question to you. Do you fear that you will be harmed in Mexico on the basis of your raised religion, national origin, political opinion, or social group and if they say no, then they can be expelled into Mexico.

But if they say yes, then they'll be yes, why do you fear you'll be persecuted in Mexico? And only if they have a credible answer to that can they if they the title forty to authority. Now, that doesn't mean that the bid administration apply Title forty two to everyone. It actually doesn't. It's very sort of hodgepodge, and that on any given day you may see one family get applied and so one doesn't get applied. Adults and it

apply and other adults don't get it applied. There's no right or reason to it a lot of times, but just the sheer numbers of how many people are getting tited forty two like to then, is why this continues to be an esue. Immigration advocates are saying that it isn't about COVID, the Biden administration is just using this as a way to curtail immigration. Well, the question is, and WoT does that become true? Because that would certainly be true at some point if there is very little

concern about COVID. There there are no restrictions anywhere else in the state but for the southern border. At that point, that argument is onefect iron clad. In the world we lived in, let's say months ago, we were in a very huge state of pendicant concerns or the amicon variant, that argument was not very strong. And so the question is when did you get to a point where the court can actually say that the justification for Title forty two is now so flipsy that you're only doing it

as a way to a a the immigration Code. And I don't know when will be there, but I think the best proxim will be, Hey, when there's international dribical that's taking place where people won't have to do anything related to COVID. At that point, you can't have fital party to anymore. That's Leon Fresco, a partnered Hollandon Knight.

Billionaire Leon Black, the co founder of Apollo Global Management, sued Gazelle Ganiyeva and her lawyers last year, claiming they violated civil racketeering laws by conspiring to destroy him personally and professionally. This was after Ganieva had sued Black for defamation, intentional infliction of emotional distress, gender motivated violence, and retaliation at a federal court hearing, none of the seven lawyers present gave the judge an indication that there was a

prospect for settling the case. Joining me is Bloomberg Legal reporter Bob Van Voris Bob tell us about these dueling lawsuits. Sure Ganieva, who is a former model and a former girlfriend of Leon Black, claims that he raped her and that he defamed her in the press. She's suing over in state court. He has countered by filing a suit

in federal court claiming violations of federal racketeering law. Basically, he's claiming that Ganieva conspired with PR representatives and used her lawyers to defame him and to try to ruin his life and his reputation. He claims that the suit is basically concocted by Josh Harris, the person who co founded Apollo Global with Black, in response to being passed

over for the role of CEO after him. This is basically an internal coup with and Apollo claims Leon Black, and that the entire thing was orchestrated by Josh Harris. The federal case is a defamation lawsuit based on RICO allegations. The federal case is RICO a racketeering suit claiming that people conspired to violate federal laws to try to ruin black life, and to to de pay them in the press.

Is that an unusual claim for private citizen to be making. Well, it's difficult to make civil claims under the Rico Act. There are a whole lot of legal hoops that you have to jump through. The people on the other side of the suit, Rubenstein, the PR Agency and Josh Harris claimed that this complaint comes nowhere close to stating the things that they have to state to be able to recover against them, so they are moving to dismiss the suit.

Judge the other day ruled in favor of Black. Black has said that Ganiyeva he gave her millions of dollars in exchange for her agreement not to talk about their relationship. Is that involved in any of this? Yeah, that's one of the claims in the state court lawsuit that basically she violated this contract. He paid her, and she took the money and is out there talking dirt about him, and he claims that, you know, he ought to recover for that as well. So, now, why were there seven

attorneys in the hearing in federal court? There were a couple of each representing black In Ganieva. There were others in representing the other parties in the lawsuits, including Josh Harris and the PR Agency. At one point, the judge asked if there was any prospect of settlement anytime soon, and he said, you know, if you've kind an answer other than slim to none, raise your hand. Everyone said

there's stone still, and no hand were raised. Blacks lawyer filed a letter with the judge claiming that her team had received WhatsApp messages between Ganieva and a New York Times reporter showing that she was working with her lawyer months before Ganieva officially retained him. What does that have to do with anything, Well, it's it's hard to figure out exactly what that has to do anything, if not all that unusual to be talking to lawyers before you

formally retain them. Um, but the other side is saying the black side is saying, hey, look, uh, you know these lawyers claimed in papers that made a big deal out of being retained at a certain point, But it turns out they appear to have been talking to Ganieva months before that. So if you believe the allegation that there's a conspiracy. The conspiracy goes back further than you know,

than we knew, and and here's evidence of it. One of Ganieva's lawyers said, for now, Black's billions have bought him access to our court system in a way that most people do not have. What was she referring to. I think she was referring to the suit itself. That he has high priced lawyers pursuing Ganieva in the suit that they claim has absolutely no UH basis to be in court and that ought to be dismissed. What's the

next step here? The next step the judge in the federal case is going to hear motions to dismiss They've kind a file briefs on that, and the judge will hear arguments and decide whether that case belongs in court at all. The state case is on a separate track that will go forward with discovery, and presumably that will at some point also come to motions where the independants trying to get the case kicked out. Thanks Bob. That's Bob Van Boris, Bloomberg Legal Reporter. And that's it for

this edition of The bloom A Glaw 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 week night at ten pm Wall Street Time. I'm June Grosso and you're listening to Bloomberg