This is Bloomberg Law with June Brossel from Bloomberg Radio.
We have a right, like every country in the world has a right to remove you from our country. So it's just that simple.
And Secretary of State Marco Rubio said that under his direction, at least three hundred visas, primarily student visas and some visitor visas have been revoked.
Why would any country in the world allow people to come and disrupt We gave you a visa to come and study and get a degree, not to become a social activist that tears up our university campuses.
Rubio acknowledge that he revoked the student visa of a toughs PhD student due to her views on the Israel Hamas War. My guest is immigration law expertly on Fresco, a partner at Hollanden Knight. Leon Rubio said, if they're taking activities that our counter to our national interest, to our foreign policy, will revoke the visa. Are most of the student arrests that we've been here about due to revoking their visas due to a revocation of their visas well?
Yes, So there's two steps in the visa revocation process. There's a first step, where what can happen is you have a visa, you enter the United States, you're here legally, and you get an email from the State Department. And this actually is quite common. It's not just about this issue. It happens if someone gets arrested or for other issues. You'll get an email from the State Department that says
your visa has been canceled. And what that means is that if you leave the United States, even though you have this thing in your passport which says you can travel let's say through twenty twenty eight or twenty twenty nine, when it actually gets sweite, it won't work. It's canceled. That doesn't mean just because your visa has been canceled that you have to leave at that moment. It just means that you are subject to being told you have
to leave. So then there's a second step, which is if the government actually wants you to leave, then ICE has to actually come and place you in deportation proceedings to say, because your visa was canceled and we don't think you have a right to remain in the United States, we're going to place you in deportation proceedings. That's the new one that's happening more often now than ever happened before. Before you were just told if you left, you couldn't
come back. But now people are actually being affirmatively placed into removal proceedings that are trying to get an outcome where they actually are forced to leave the United States.
Now, the Palestinian student at Columbia who was arrested had a Green card. Do we know if there are a lot of arrests involving green card holders?
We now know of a handful of those of students who have green cards. There was a South Korean student who also was at Columbia who also had a green card, and there are a couple others where what's happened is for those individos that have green cards, it's much harder. You can't just give them an email canceling their visa because there is nothing to cancel. At that point. You actually have to say that one of the grounds of removal in section two thirty seven of the Immigration and
Nationality Act actually applies to this person. And so usually what you would want to say is that they did something where they supported terrorist organizations and that's why they were going to be placed in removal proceedings, but here they're trying to skip that step because they don't want to actually have a trial in immigration court about whether
you supported terrorists or not. They want to try to rely on the provision that says that if Secretary Rubio says that your very existence and presence here in the United States is bad for American foreign policy, then he can just order you deported. He doesn't actually need to prove anything in that situation. And so that was the ground that was originally used for Mahmoud Khalia, the Colombian student, and supposedly they've added some others. Now we'll have to
wait and see how that plays out. And it's unclear because all of these are private documents. Unless the foreign nationals want to release them to the press, then nobody sees them. So it's unclear with some of these other
students are being given. But if they are being given this category where Secretary Rubio is saying that it's against the foreign policy interests of the United States, well in that situation, then theoretically there's going to be a lot of litigation about whether you even get a trial here or not. And that's where the courts have really not
given us any idea yet. I mean, there was a case where when President Trump's sister was alive, she said that was an unconstitutional provision that couldn't be applied, but that ultimately didn't make its way into an appellate court legal president, and so we just don't know how that's going to be resolved when it gets to the courts.
Well, let's talk about Khalil for a minute. The New York federal judge ordered that his case be transferred to New Jersey, but it hasn't been transferred yet.
Well, what happened was the New York judge, Jesse Furman, said, I'm ordering the case be transferred to New Jersey, and he actually, oddly enough, still claims to have an injunction even though he's transferred the case. So unclear who enforces this injunction that prevents the removal of mister Khalil while his case is pending. So he put that injunction in and then transferred the case. But then there was a
hearing in the New Jersey courts. And so there's a judge there, Michael Farbiars, who had a hearing in New Jersey, and there there was a dispute between the Department of Justice and mister Khalil's attorneys. Mister Khalil's attorneys want him to have that jurisdiction in New Jersey, and the federal government wants them to have that jersey in Louisiana, and so that issue has not yet been decided by Judge Farbars in New Jersey.
It seems like in a lot of these cases where students are being detained by ice, there's very little or no information about why they're being detained. So, for example, in the case of a University of Minnesota graduate student being detained, officials in Minnesota, including the governor, are asking why.
So here's what happens. So the foreign national who's detained is supposed to be served at that moment with a warrant and with a document called a Notice to Appear that explains why they're being apprehended and what the ground is that they're being placed in removal proceedings for now.
How that document then gets transmitted to the rest of the world becomes a problem because if the person then gets put in a detention facility, they would need to have access to a fax machine or a lawyer would need to come down and make copy of that document in order for anyone else to find out what is
in it. And so that's why people don't know because until finally that person who is detained ends up making human contact with an attorney or someone else, no one will know anything about this person's case.
And can a person even get a hearing for cancelation of a visa.
It's going to depend what the grounds were for removals. There's a thing called INA section two fourteen B. It's like a catch all provision that says, if we don't think you're doing the things you're supposed to be doing here on your visa, you can cancel your visa. So if the Secretary Ruvio is canceling visas, pursue it to two fourteen B, then what can happen in those visitor visa cases is that the reason for the removal is just that you have a canceled visa and that's it.
So then you would just have a case about whether your visa was canceled in the entry would be yes. So in those situations, there's not really anything to have a hearing about for those people, and they will lose. But that cannot be done to the Green card holders.
So for the Green card holders, an actual ground of removability is going to need to be asserted, and so for that, if it's terrorism, then there will need to be a trial and immigration court about terrorism, or if it's some other ground of crime, and there will need
to be a trial inst of that. The only one where there will be an argument about whether a trial is valid is this issue of whether the Secretary thinks your presence is contrary to the interest of US foreign policy, And that's where there are these habeases being filed saying, Look, they're trying to pre ent this argument, say you can't put me in a process where I don't get to have some sort of due process and trial, or that that statue in and of itself is unconstitutional because it
can be used without any guard rails of any kind, meaning it could just be used on anybody for any reason. And if that's true, is that really what Congress intended there?
And so their best bet is then challenging the constitutionality of a statute.
Because really, at the end of the day, it's hard to have a trial on whether the Secretary of State should think or shouldn't think that your presence is contrary to the interest of foreign policy. That's a tougher one, because how are the courts going to substitute their judgment
for the secretary. It seems like the more promising argument there is just that that statute is unconstitutional because it's too vague and it's basically a violation of someone's due process right because there's no way to get yourself out from under such a thing. The only thing there will be hot is one challenge that can one challenge that prehmptively, like the people are trying to challenge, which I think they're finding sympathetic judges right now, but most likely that's
going to be viewed as not valid. What's probably going to have to happen is they're going to have to go through the removal process and then challenge it at the end as what's called the petition for review of a final Order of removal, and then the courts will get to these cases and decide whether those statutes are constitutional or not.
There's been a lot of litigation over the hundreds of Venezuelan's alleged gang members deported to prison in El Salvador. Where does that stand?
So there's currently an injunction that was issued by the District Court in DC Judge Bozburg, and that's actually been affirmed two to one by the Court of Appeals of the DC Circuits that says that you can't deport anyone
using the Alien Enemies Act. And there's actually a different injunction issued by a different court which says you can't do these third country deportations, meaning you can't send people to a third country just willy nilly without giving them some ability and due process to challenge that removal to
a different country. Those two injunctions should operate theoretically to prevent deportations to Alsovodor right now, Venezuelan, But there was just a deportation today of seventeen people to Alsavodor who were claimed to be Venezuelan gang members. The interesting question would be whether those people all had findal orders of removal and were not Alien Enemies Act deportations, whether they were people who could have been deported.
And then the.
Question also is did this deportation violate this third country removal injunction that was issued, And so that's going to be an issue that's going to be scrutinized as Well, but we're gonna have to see where these new seventeen people who were deported fit into this puzzle and whether an injunction was actually violated.
There coming up panic about traveling among Green card holders. This is Bloomberg. There's a lot of litigation concerning the deportations of alleged Venezuelan gang members to prison in El Salvador. A federal district court judge has put a temporary halt on the deportations, and a federal appeals court has upheld that order. And now the Trump administration is asking the Supreme Court to allow it to resume deportations of the alleged gang members without hearings. I've been talking to Leon
Fresco of Honda Knight. So Judge Bosburg ruled that the Trump administration can't deport the five Venezuelan plaintiffs in the case. What about the Venezuelans who are already.
There, Well, that's going to be an issue for later this week. The court is going to have to decide the fate of those individuals and whether those individuals can be brought back to the United States. And also the Supreme Court is also being oustd the way in on this injunction, and they're being asked to say his injunctions
so that more deportations can happen in El Salvador. So we're going to have court rule ins coming from both directions, both from the Supreme Court and from the District Court. The District Court on whether it's injunction means that it should bring people back to the United States, and the Supreme Court on whether all of this was improvidently done and the Trump administration can continue just as it started, the porting whoever it says is an alien enemy into these prisons in El Salvador.
And also attorneys hired by the Venezuelan government have filed an action in El Salvador to get the imprisoned Venezuelans released or transferred and repatriated. The question is whether there's a basis for holding them even under El Salvador law.
The issue here is the following. Both Al Salvador and the United States have similar laws which say that at the end of the day, you can't have people in detention if they didn't actually commit a crime and were punished for detention, unless the purpose is to create some sort of very minimal backstop in order to secure the
removal of individuals. And so the question is for Alsavador, why are these individuals being detained in Alsavador If they can be moved quickly to Venezuela, then the point from the Venezuelan standpoint is these individuals should be moved because there's no basis for Alsavador to be detaining these individuals. They were not punished for any crimes they committed in Alsavador,
and they did not actually commit any crimes. There's no reason legally that the Asavador government would be detaining them, and so that's the issue that the Venezuelan government is going to try to get to. But then the issue is does that mean that Venezuela is going to agree to start taking these individuals. And if it does, then
it'll have a much stronger case. But if it doesn't agree to start taking these individ visuals, then what Alsavador would say is we can't have these violent gang members free in Alsavador. They will create instability in Alsavador. So we have no choice that they're going to be deported here. We have to have them detained until Nzuela agreed to accept them.
There are about twelve point eight million Green card holders living in the United States, and there are a lot of concerns with these high profile arrests of some Green card holders, including at least one who was returning to the United States and arrested at Logan International. And there are reports of shall we say, stepped up activity at the airports by customs and border patrol.
There is much more press scrutiny, for sure, being given to airport actions. Statistically, the numbers are still pretty low, just because there's only so much capacity at these airports to be doing this. The airports aren't taking in tens of thousands of people a day on these flights, and they're debating at the end of the day a handful
maybe ten or twenty individuals per day. But these ten or twenty individuals per day, some of them have become very high profile cases recently French scientists coming for conventions, British tourists, Canadian tourists, German tourists who aren't people typically detained at these facilities and moreover, the problem is it's very typical for the border patrol when they detain someone to take their phone and to basically find what's in their phone and see if there's something in their phone
that's incriminating. And so there's much more this sort of stuff coming out in the news where they say that the CBP found something on the phone, and this is creating a lot of nervousness from people traveling into the United States. What I would say is this, which is statistically traveling into the United States is still ninety nine percent of the time not going to be a problem
for most people. But if you are traveling in, for instance, one of these visa waiver program situations, which is that you don't need a visa, many people have used these programs who may have done something slightly questionable. They've worn't or they're married and they're traveling they're married to a
US citizen. If there's anything questionable like that, and it's not a truly normal visit where someone is just going to Disney World, or they're going for a brief trip of a business convention or conference or something like that, if there's something more to it, where there's a work component involved, or the person is somehow trying to skirt just the normal travel, those are the people that need to start being a little bit more careful about what
they're doing, because the CBP is letting a lot less of that slide than previously.
Residents are they questioning them at the airports too.
If you're a lawful permanent resident of the United States, you are entitled to be admitted into the United States. The only times where this gets a little bit tricky is there are people who have had convictions from maybe twenty or thirty years ago that don't realize that those convictions are deportable offenses, and when they're traveling in they're now being told, hey, you have this deportable offense in your background, we're going to be placed into deportation proceedings.
There's some of that, but also, look, if you are one of these people that's subject to a random inspection and then they find on your phone all kinds of stuff that's very questionable for the purposes of what the government is finding questionable these days, then they could potentially say, look, this is a person who is someone that Secretary Rubio wants to then say is subject to the foreign policy
Exception and be deported. Now, that person might be detained for a while before such an exemption is made, and so that is theoretically possible in those situations, And so what does that mean. It means that it's a different environment for travelers now, and travelers need to start assessing are they at high risk based on things they've said or done in terms of the priorities of this administration. And that's definitely a new frontier that didn't exist previously.
It's a lot to take in. Thanks so much. Leon. That's Leon Fresco, a partner at Holland and Knightay with me and.
I had a premission with them with the.
Pop singer Dua Lipa has won a second copyright infringement lawsuit over her mega hit Levitating, which became a viral sensation used on millions of TikTok videos. The plaintiffs accused her of copying two disco songs, their nineteen seventy nine song Wiggle and Giggle All Night and their nineteen eighty song Don Diablo, but a judge tossed the lawsuit, granting summary judgment after finding that the plaintiffs failed to back up their allegations that Levitating was substantially similar to the
protectable aspects of their works. Joining me is entertainment attorney Ronald Beinstock, a partner at Scarrency hollinbeck Ron start by telling us about the first copyright infringement lawsuit Dua LiPo one involving a reggae group.
Always my favorite topics, because you know, these are relatives calling you, sending you texts, hey man, what do you think about this kind of stuff. Everybody has all the layman's versions of these things, but there's some you know, there's some deep dive on some law and also fast there's a twenty seventeen song by a relatively and I don't want to result anybody, it's relatively unknown reggae group in Florida. And this first case of person fingering case
was that you got to prove access. As you know on all of these cases, two step process. The giant hurdle is access. Then you've got substantial similarity. If you don't have access and you can't really prove it, you can't say somebody heard of this, or it was a hit, someone should have heard of it, or you're on touris them, or you shared the same manager, or you shared the same producers or all those different check the box for access.
Then you've got to have some striking similarity to go further, and that's where the subtle chords usually go. Okay, there's your bar right, and this doesn't strike similar So back to our reggae claim. So you've got effectively a four chord pattern that is in minor key. The song levitatings and B minor and the chord sort of match up. But that's not how this works musically. If you don't mind me singing, I hope I don't ruin. Everybody's still ahead. But there are two things that are very clear in
both cases involving the song levitating. It's this pattern data da da da da da da da da da da da da data descending chromatic across the four chords. Here you go da da da da da da da da da da da da da da. And that's going to be what somebody's got to hang their legal hat on and say that is not a common element. You don't hear that very often. And these things match up when you do this analysis the way we do with courts.
When we take these melodies and we put them into the TSC or you match them up in the relative key, those notes are in a match up, and then they talk about harmonic you know, styling and all these well, that's staying alive. Dada da da da da da da da da da da da da da da. Right, we've heard that before. So immediately when you start seeing the judge saying Mozart and Gilbert and Sullivan, Gilbert and Sullivan and mentions the begs, you know, starting with both starts,
that's a pretty common element. So when people say, hey, I've heard that before, Sure you did. You heard it probably six centuries ago. And the dgs da da da da da da da da da da statalized, you know, these are sort of common elements. So the first part is that the planets in the first case involving the reggae event couldn't prove access. And then it really fell apart once you start talking about common elements. These two things sounds so much alike and they're strikingly similar, and
it got dismissed and that was the end. And if I'm going to give you one more pop culture reference, the chords are the same things to ELO's Evil Women. These are common and four chord patterns and songs. We could be here all day. I mean, they're really common. So the first case really rested upon if you will and dismissal rested upon the idea that you had no access and they're not strikingly similar.
So we go from reggae to the second case, which involves two disco songs.
The second case is interesting because I think this was a slightly more sophisticated approach to it, right they still it kind of didn't work on the first matter that they that precedence, So now you can kind of roll into what what should we do that's different? Here, still the same issues. It's in B minor, and now you have this nineteen seventy nine wiggle and giggle in E flat major, and then this Don Diablo only in Spanish, stung in Spanish, also in a major case B flat major.
So you already start with some variations right right. Getting started. The other thing that the lay person generally, and they discussed this with me, and I'm sure discussed this with you, is it's about publishers. This is not about dualalipa. This is about the publishers, the lawsuits involved, who controls the copyright. So these are major publishers, you know, Warners, Sony, Universal Music. So they're going to get some really powerful teams of
really experienced copyright lawyers. I know some of these people. They're great at what they do. They've enters before. So you start already with the concept of all right, where's our access. Where's that giant hurdle you've got to get over a nineteen seventy nine disco tunes called Wiggle and Giggle. And then you have the Spanish only Don Diablo. When would these writers which is for writers, it's not just Stu Aliva, when would these people have access to that song?
So that's a huge hurtle. If you don't prove fa, you're right back to this, what's strikingly similar? So the plaintiff said the opening melody was duplicated throughout the song and gave a retro field. Well, okay, that doesn't count. Retro feel is not substantive. Again, we're not talking about the copyright and the sound recording. This is where the
average lay person pulls off the cliff on this. We're talking only about the composition, the idea that things may sound similar because they are of the same beat and
other elements not controlling here, it's the song. So you had this claim that the opening melody was duplicated, and then the defense was well, wait a second, these are non copyrightable elements, just like our last case, right, common elements, common flour chords and that common descent pattern of da da da da da da da da da da da da da da da da, And so these are not enough to prove it strikingly similar. And the judge dismissed and said, no, I'm giving you some rejudgment to defendant.
And I took a look at the experts, and we had the delbert claims about whether they were acting as experts in their opinion. You know, all the infighting will go on in federal court about experts and copyright. But ultimately the judge said, hey, these are common elements. I can't let this case proceed and using some rejudgment.
Some are saying that this case benefited from the precedent set in the ed Seering case.
All right, So the ed Scheering case it went a verdict, right, It was not decided in a summary rejudgment or dismissal. The jury got to hear Ed Sheeran play his song in his version live. That to me was an error by the plinker because then he got to interpret any way he wanted in front of this court how he would present that song. So that's a problem with just
the presentation of evidence in control of that. The second part was throughout his case they said there are some common elements in music, right, there are common patterns and common things. You don't own an idea for a song, and that runs two ways. One it's the sound recording, which is the problematic. Cases always have the idea that someone got to hear it. That's not what we're talking about,
big X through that only talking about the songs. So if you have a song that has common elements, we're not talking about other audio similarities. We're just talking about the common elements in the composition. And yet you can't prove that these common elements are listed right, they're not protectable. Then that you get the same results that you had with as Sharon right, they're not protectable. He has his own he has his own interpretation of that does not
match up to your claims. And so eventually that case went its way. An element scene comes to play in all free of these to some extent. The first one really is just based upon no access at all. So we kind of get that running through all these cases. Those are all Southern districts are all here in New York season you can get the same circus decisions to get some unanimity as to the decision making.
What does it say about the song if you have two different copyright suits.
It says that the song made a lot of money, and no one would care unless it's made a lot of money. So this is a popular artist, and everybody wants a piece of what is to be a hit. And you know, all we got to do is talk about the Mariah Carry lawsuit and we're right into rolling right into that series. But everybody wants a piece of something that's been popular or stay popular or has some type of longevity as a hit. I don't know if the song stays in the world of longevity it hits
or not. That magic a ball answer I don't have. But these lawsites just don't happen unless there's money, and real money involved. And every time there's a hit, you're gonna have a couple of different issues here in incomes in music, publishers still be performance for OLP income to the writers and publishers. You're gonna have synchronization licenses for a successful song that gets onto TV and film. You can have sect, so you start with radio. Now you're
down to film and TV. You're gonna have that song placed in songs in movies and TV shows. There's mechanical income from downloading, if you sell the physical vinyl or if they're still selling TVs. I don't know if he does that anymore, but if they did, you have mechanical incomes, and then you could get the covers for a successful song. The party payments of their mechanical income. If there's a sheet music world here that still buys sheet songbooks for
dua lipa, that means money. And if it makes its way to a Broadway production, that's a grand right. That's why people still oversease.
Let's turn to Mariah Carey, who beat a twenty million dollar copyright case over her Christmas hit All I Want for Christmas Is You? Was this lawsuit not based on the music but on the words of the songs?
Probably the best question anyone's asked about that, because everybody kind of lifts the wrong page in that result. So let's go back to your question, because it's just right on point. First. I don't often get to say someone's taking a hit, had an evergreen hit? Evergreen hit my pun there meets me. It's a Christmas it's and you can't protect the title. First level of analysis. I'm not sure what people were thinking. We have the same title. Okay,
that's not protectable. So they were to really start and then the common element melody and other, we're not here back to your lyric question. Want to hear it's the common lyrics flurry at the bust out laugh and on this. I'm sorry, I'm insulting any attorneys on this, but get ready, here the common lyrics this wiletoe, Santa Stocking, snow and Christmas. Oh ooh when you put it like that, ooh, that's not going very far. That is just just not going
to carry the day. You can't protect the title. You've got common elements and lyrics. You've got no question that you're claiming with the melodies are exactly the same. And here's sort of a sidebar moment. They claimed access and got the case rolling through the process in the closest because they claimed access that it had been a big
hit in the country chart, a kid or not. Their song called Well I Went for Christmas View was a country hit roughly the same time, so their access was based upon yeah, it was a charting song, whether a country hit yet listened to by a pop star and her co writer, whilst says and don't know, but this one fell down the stairs pretty quickly in the ninth
circuits in California because it wasn't provable. And I want to add also get sanctions and partial attorney fees were granted against the flankiffs on.
The back to do Aleapa from for a minute. It sort of always surprises me that that judges, and I don't know if this judge has any musical background or not, are able to come to these decisions, you know, to figure out really the musical notes.
You're going to rely on. You're going to rely on the musicologists, right because the judges are going to make the decision based upon their own Even though judges in the past, go back to the George Harrison case with Pisa find my Street Lord, way way way way back, the judge kind of said, hey, I'm a musician, I get this. That is actually a little bit of that case. And I've had judges in federal court who, you know, kind of made reference to the fact that they played
an instrument. Me as a musician, I don't get to testify. I'm the lawyer, so I can only use my musicologist, which I hope never gets that far and it seldom does, should say even more than seldom does rarely if it ever does, to get that far. Because there's always this idea that what the judge is listening to are battling experts, right, and the judge gave in this particular case, the judge gave credence to both sides and waited and said, look, I don't really find the access here, so it's got
to be strikingly similar your your plaintiffs experts. They're making some good points here, but not carrying the day that they didn't get over the common elements of these two things. And the expert on the other side has said, look, these are really common and with pointing because most are going forward, and I have in my amazing singing voice for you that it's data da da da da da
da da da da da data data, right. And you know that's ultimately what it came down to, is that these of common elements and thank you for playing, but no, I'm going to dismiss it. You get to somebody judgment
and they rely on the musicologists to get there. But between you and I and anyone who might be listening to this, I think some of the judges quietly don't stay it out loud, but they say, you know, I have an opinion on this, you know, I think there's something I want to probably I have a position I'm going to take, maybe on some of my own knowledge, if but they generally don't say that.
I expected more singing. Ron you did da da da da da da. That's not singing, you know.
But you and that's that's the melody, right and right. The do a leaf apart. And this is the thing about any time they're sort of hip hop oriented or spoken work things, because the melodies can be you know, just the rhythmic. So in here a lot of what the issues were. We're rhythmics, right da da da. The lyrics, the lyrics really were not matching up. I mean that you just didn't have these common elements of lyrics like and and then it fell really short on the Mariah carry.
I mean, they just didn't mind up. And I think that's that judge clearly said, wait a second, you're not You should never approbably a broster. Maybe one day will have professional juries like they do in some other countries with commercial works like this where they are earning income, and there'll be a professional jury where we have not had that proposed yet. So here we are going to be generally in jurisdiction where these cases pop up more
often than others. Southern District of New York, you know, Middle District, California, and the ninth speak of judges that have seen these, heard these experience in them, and I think you're getting a reasoned opinion on all of these capes.
Thanks so much for your analysis and your singing. That's entertainment. Attorney Ron Beanstock, Obscurency Hollindbeck, 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 m