Asylum, ICE in Charlotte & Michael Flynn $50 Million Claim

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2:00This is Bloomberg Law with June Grosso from Bloomberg Radio.

2:12Protests after masked ICE agents descended on Charlotte, North Carolina over the weekend. in the latest federal immigration crackdown in a democratic city. Governor Josh Stein encouraged residents to stay peaceful and to record any unusual interactions with ICE. Everyone wants to be safe in their communities, but the actions of too many federal agents are doing the exact opposite in Charlotte. We've seen masked, heavily armed agents in paramilitary garb driving unmarked cars, targeting American citizens based on their skin color, racially profiling and picking up random people in parking lots and off of our sidewalks, going after landscapers simply decorating a Christmas tree in someone's front yard, and entering churches and stores to grab people.

3:04This is not making us safer. It's stoking fear and dividing our community. My guest is immigration law expert Leon Fresco, a partner at Holland & Knight. Leon, why the federal immigration crackdown in Charlotte? Well, basically what's happened is that the administration has decided that the pace of immigration enforcement is moving way too slowly for its liking. And so it's going to try to move its operations to cities where it can still yield large numbers of people without status. but nevertheless does not get the kind of friction that it had been getting in cities where there is both United States government and local government that is against the ICE immigration operation.

3:53So one of the places that ICE has decided to move operations to is Charlotte, North Carolina, because, again, even though there is a lot of Democratic local government there in the city, nevertheless, it's still a more conservative area of the country. The courts are in a more conservative circuit, the Fourth Circuit. And so the idea is that ICE would move its operation there to try to, again, begin trying to establish precedent that it can use reasonable suspicion to apprehend people and, if necessary, place people into deportation proceedings. Meanwhile, actually having large numbers of people going in and doing fugitive operations as well.

4:39And so you have that, but then you do have a Democratic governor there in North Carolina and you have a Democratic mayor. And so from that standpoint, it's going to be very interesting to see how this plays out. If it'll play out where they try to operate with the same script as Chicago, or will it play out because the courts in Charlotte are not as progressive as the courts in Chicago were, that this would be a great place to establish precedent for the Trump administration, that they can use their reasonable suspicion and start apprehending people just who are generally walking or at suspicious locations around Charlotte.

5:24In a case that went to the Supreme Court on the emergency docket, the contention was that ICE was making stops based on racial profiling. and the Supreme Court didn't stop them from doing that. So what are they trying to prove here? Well, the difference is that in Chicago, there was an order of operations that had been established by the district court that basically was still having ICE reporting to the district court with regard to having the use of body cameras and having transparency with regard to each of its interactions with people and trying to figure out if there really was reasonable suspicion for stops or was it really all just racial profiling.

6:13And from that perspective, I believe that even though the daily check-ins with the district judge were not allowed any further, I do believe that perhaps there was this feeling that there had been too much resistance in Chicago, that it wasn't worth it to continue there. And so I think the idea is try to go to a jurisdiction that has similar yields of population in order to be able to apprehend people, get the numbers of deportation up, but that if that gets challenged, you would be in the Fourth Circuit, and the Fourth Circuit is just demonstrably more conservative than the Seventh Circuit, and also the district judges in Chicago.

6:53And so the idea would be that potentially good precedent for the Trump administration could be established there with regard to how the apprehensions are to be done, how people are to be detained once they are apprehended, and the deportation of these people once they are both apprehended and detained. And so I believe that's what they're trying to accomplish here in Charlotte, but we're going to have to wait to see how this actually operates in practice. The Border Protection Commander, Gregory Bivino, who is the face of Border Patrol and has led the operations in L.A., Chicago, and now Charlotte.

7:31Well, he admitted in a deposition that he'd lied when he said he was hit by a rock before he threw a canister of tear gas. Did it seem like he'd sort of left Chicago because a district judge was on to him? Again, this is all part of they're going to try to yield success in operations where they feel they can yield success. And I do think it looks like the operational crew that had started the operation in Chicago has moved indeed to Charlotte for this operation that they're calling Charlotte's Web. And they're trying to basically operate with these reasonable suspicion-based stops where they can say, we're using the criteria given by Supreme Court Justice Kavanaugh, you know, that as long as they are brief and they are contextual and they're not 100 percent race based, but that they have other factors in them, such as potentially known presence in certain locations and known types of jobs that people are congregating in where large yields of population of people without status might be done, that those might be considered reasonable suspicion.

8:46And so as long as they follow that guidance, it appears that they'll be able to engage in these operations. And then the question will be, would the attorney general in North Carolina file anything that would actually challenge this? Would they end up getting similar results from Chicago, where these operations ended up being very closely scrutinized by the courts, basically every single apprehension? Or are they going to be allowed to establish a precedent in Charlotte, which they can then take to other locations along the south, such as Memphis and New Orleans and other places, Atlanta, where they might be able to try to get different results than what had been yielded in Chicago and Los Angeles.

9:29Let me ask you this. Are there any Republican cities with large numbers of immigrants who are possibly there illegally? Are there any Republican cities that the Trump administration can go into, or is it only Democratic cities? Well, I mean, this is the issue is many of the largest cities in America do not have Republican mayors. So that's one of the problems. They may have Republican governors. They may have Republican attorney generals. So you're thinking of, for instance, in Texas, there's a lot of cities where, you know, you have Democratic mayors, but you have the Republican governor of Texas.

10:08you have the Republican Attorney General. But in terms of big cities, I mean, maybe you have Dallas, might be one, or Fort Worth, might be another, Oklahoma City, might be another. But it's not really a large group of big cities that have Republican mayors. And so I think there's some stat that says maybe eight out of the largest 50 cities have Republican mayors. And the three biggest ones are Fort Worth, Dallas, and Oklahoma City. So maybe they will go there. But the truth is ICE is already operating pretty heavily in Texas. And so there's not really much more that ICE can be doing in Texas with regard to Oklahoma City.

10:46I don't know. Maybe they will try to go there. But that hasn't been on the list of places they're attempting to go to at the moment. There was a story that, you know, they're looking into having an ICE facility on Staten Island. That's led to speculation that after Zora Mandami takes office as mayor of New York, that the administration is going to send ICE agents into New York City the way it has in Chicago and L.A. and Charlotte. Charlotte. I'm not saying this as part of any inside knowledge. I'm just saying this is part of just knowledge generally of how this system works, is you would never try to use a Coast Guard facility on Staten Island to hold detainees unless they 100 % happen to be from New York City.

11:34And the reason for that is because previously the detainees from New York used to get sent to New Jersey. And the reason they would get sent to New Jersey, one, it was obviously cheaper to Two, logistically, there was more capacity. And three, the Second Circuit is considered normally more liberal than the Third Circuit. Even though Third Circuit had been liberal in some instances, normally the Third Circuit is considered a more conservative court than the Second Circuit. so that once you detain people in New York City and you move them over to the Third Circuit, you're much more likely to get a conservative opinion in whether it's a detention case, a removal case, or anything else.

12:18Putting them in Staten Island then subjects you not just to the Second Circuit, but also to the Southern District of New York. And the Southern District of New York is a very, very progressive court. It's not at all like almost any other court in America, because you've had two Democratic senators in New York for decades, and they have had great influence over the judges that have been appointed in New York. And so it's very, very unlikely that any good case law would come out of detaining people in Staten Island. And so the only reason you would do it is to say, we are going to have a major crackdown in New York City, and this is space that we want in order to engage in that crackdown.

13:05Well, I hope you're right about that, Leon. Coming up next on the Bloomberg Law Show, the Supreme Court agreed today to review an immigrant's right to seek asylum at the border. I'm June Grosso, and you're listening to Bloomberg. The thing about AI for business, it may not automatically fit the way your business works. At IBM, we've seen this firsthand. But by embedding AI across HR, IT, and procurement processes, we've reduced costs by millions, slash repetitive tasks, and freed thousands of hours for strategic work. Now we're helping companies get smarter by putting AI where it actually pays off, deep in the work that moves the business.

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14:19Support for this show comes from Public.com. If you're actively involved in your portfolio, you probably catch yourself repeating the same actions. Buying the dip, manually sweeping idle cash, putting on a hedge. On public, you can now create AI agents that handle all these tasks on your behalf. Just describe what you want to do in plain English. Like, if the VIX hits 25, buy a put option on the S &P 500. Or, if my cash balance goes above$20 ,000, move the excess into my direct index. You approve the workflow and your agent handles the rest. Monitoring the market, watching for your conditions, and executing your strategies exactly as defined.

14:58An investing platform driven by your intent, not just your clicks. You can also get full read and write access to your account via the public API. Go to public.com slash market and fund your account in five minutes or less. That's public.com slash market. Paid for by Public Investing. Brokered services by Open to the Public Investing, Inc., Member FINRA and SIPC. Advisory services by Public Advisors, LLC, SEC Registered Advisor. Complete disclosures available at public.com slash disclosures. The Supreme Court has agreed to review the policy of denying migrants the chance to apply for asylum if they haven't set foot on American soil.

15:40In the practice known as metering, border agents turned back potential asylum seekers before they crossed into the U.S. to limit the number seeking asylum. The Ninth Circuit ruled that metering violates the migrants' constitutional rights and a federal law requiring officials to screen anyone who shows up at ports of entry seeking asylum. The Trump administration appealed that decision to the Supreme Court. I've been talking to immigration attorney Leon Fresco of Holland and Knight. Leon, there are a couple of legal fights going on over asylum. There's a lot of different parts of the asylum system that are all eventually going to work their way up to the Supreme Court.

16:28The most important one, not being this case, but just being generally the case that will discuss whether by executive fiat, the president has the authority to basically end asylum in the United States for people who cross the border illegally. that case is working its way up and there's dc case law talking about that the trump administration may not have the authority to unilaterally do that to just say if you cross the border illegally you can't get asylum this is slightly different this then would say because when you have that discussion that we just talked about can you get asylum if you cross the border illegally there's a talking point that then gets offered by the people who don't want individuals crossing the border illegally to get asylum they say why don't you do it the right way and go to a port of entry so everybody says well gee that certainly makes a lot of sense do it the right way go to a port of entry don't just run across the border and cause chaos you know present yourself to someone who's there, who's prepared, ready to examine the case, etc.

17:41So far, so good. But there have been policies in both the Trump administration and the Biden administration that say, hold on, we're not going to let you go in through the port of entry either, because whether it was COVID or just they don't want people going through the port of entry, we don't want that either. We don't want anybody coming in from the southern border asking for asylum. So here then comes the question. If that human being had come across the port of entry and entered in the U.S. side of the port of entry, we'd be in the same situation we were in when we're talking about the person who illegally crosses.

18:19Then we're just in that Supreme Court land that we don't know where it's going to end up, which is can be executive by fiat, ban people from coming in for asylum. Okay, there's that one. But this is different. This is what if the U.S. gets to you physically while you're on the Mexican side of the port of entry, so your body never makes it to the U.S. Are you still eligible to apply for asylum, or has the U.S. basically made it impossible for you to go into court because it would be the same thing as if you were saying, why can't I apply for asylum from New Zealand or from Australia. I don't get it.

18:59I should just be allowed to just announce that I have an asylum claim to some American at an embassy in Australia or in New Zealand. I should be allowed to do that. And if I'm not allowed to do that, I should be able to sue in court. That's not allowed. You can't, if you live in New Zealand, just go to a U.S. embassy and ask for asylum. Or you can't, if you live in Australia, go to a U.S. embassy and ask for asylum. And if they say no, go to a federal court. But the Ninth Circuit said that if you get stopped on the Mexican side of the U.S. port of entry, if you're trying to arrive in the United States, and the only reason you don't arrive is because the U.S.

19:38stops you from arriving, that that would still be considered an arrival in the United States for the purpose of triggering all of these asylum questions about whether you're eligible to apply for asylum, whether the U.S. can't let you stay in Mexico. They have to bring you in. If you have a credible fear, they have to let you make your case in the United States. And so that's really the issue now. They're not using this metering process. So why is the Trump administration bothering to appeal it to the Supreme Court? The Trump administration decided, because I think what happens is they're concerned that the current administrative ban that they have on asylum might be taken away.

20:25And if that happens, then they're going to try to say, well, you know, go in through the port of entry, but again, limiting who can come in through the port of entry. So they're going to want the discretion to be able to say, look, we're letting in some people through the port of entry to apply for asylum each day. But if you're not one of the 50 people, let's say, because they're going to try to make the number low, if you're not one of the 50 people that's letting them in, just because we apprehend you on the Mexican side of the border doesn't mean you've now succeeded in being able to make an asylum claim.

21:00And so the Ninth Circuit had said, yes, that person should be given the right to apply for asylum. But what subsequently happened is the Biden administration took away that policy. And so the immigrants' rights advocates are saying, this is moot. This is not a thing anymore because the Trump administration really isn't relying on this. They're relying on the nobody gets asylum in the southern border period executive fiat. They're not relying on this argument anymore about we've apprehended you at the port of entry. So it's moot. You shouldn't decide this. But the Trump administration is trying to say it's not moot.

21:37And it looks like the Supreme Court has agreed that it's not moot, that they want to actually come to a decision, which I believe if they've taken cert, means they're very likely to overturn the Ninth Circuit's decision that says that if you are in Mexico and trying to arrive in the U.S., you have basically succeeded in presenting yourself for an asylum claim. I think they will overturn that, it seems like, and they will say, no, no, no, your body actually has to make it into the U.S. in order to trigger your rights to apply for asylum. Otherwise, where do we draw the line? Again, can you do this in Australia?

22:15Can you do this in New Zealand, et cetera, et cetera? I don't think there are too many people in Australia or New Zealand right now trying to get asylum in the United States. Or the ocean, period. You know, if you're coming in and you're two miles out from the U.S. and we interdict you, does that mean you've succeeded and now you can apply for asylum? And so those are the tough questions here. So let's turn to this en banc ruling from the D.C. Circuit Court of Appeals. It's a little confusing. So this goes back to the situation where Judge Boesberg was trying to figure out whether or not the Trump administration was sending Venezuelans to El Salvador, to that prison in El Salvador.

22:58And he asked them to turn around whatever flights are on their way. And the question is whether they lied to him? Correct. This is sort of two separate cases. The first case is about the substance of whether a habeas petition could be used to challenge the fact that a law from 1798 called the Alien Enemies Act allowed the government to basically identify anyone it thought was a foreign national and send them to El Salvador, so long as they thought that person was an enumerated gang member from Trenda, Aragua, Venezuela, because they said that that was an alien enemy. So there was a lot of things to review, conceivably.

23:41Are you an American or not? Are you Trenda, Aragua or not? Does this allow you to get sent to El Salvador? All of these things. And that's still working its way through the courts about the constitutionality of all of this. But what the Supreme Court ultimately said is a habeas in D.C. is the wrong place to do this. Or an Administrative Procedure Act case in D.C. is also the wrong place to do this. You've got to do it in the district in which the person was detained. And so they sent those cases to Texas and other places where the people who were going to be sent to Venezuela were actually detained.

24:18And, you know, there's a lot of debate about how much time you have to file one of these cases, etc. So that's case number one, the substance. But case number two, the sort of what I would call the ancillary part of the case, would be that the judge was upset with how the substance was argued, even though the judge apparently doesn't have jurisdiction to view any of the substance anymore of this case. The judge said, when I thought I did and when everybody thought I did, you, the government, engaged in actions that I'm worried violated contempt of court. And so then there was an appeal about, well, can the court continue along these lines of trying to hold the government in criminal content and to identify the officials who the court is concerned may or may not have made misrepresentations to the court about flights to El Salvador that were or weren't happening or should or shouldn't have been happening.

25:17And then they were potentially stonewalling the court about not wanting to give information about who did what, who said what, etc. And so what happened was, was there was a appeal where the government said, look, we're done with the district court judge, Judge Bozberg here. And we're trying to get what's called a writ of mandamus saying we don't want to be part of this anymore. We don't want to have to talk to Judge Boesberg about identifying responsible officials, naming them, saying what they did, etc. What happened was there was a 2-1 decision from the Court of Appeals in D.C. saying that, okay, fine, Judge Boesberg, we're going to grant what's called a writ of mandamus, which is very, very rare, where the court basically stops another judge from doing something.

26:09and what the dc circuit said two to one is we're going to just stop the judge from trying to identify responsible officials in order to maybe hold them in criminal content so then the plaintiffs in the case who are the people representing the the el salvadoran deportees who are venezuelan they petitioned for rehearing and banque saying that's not fair that the court should be able to hold the government in contend. And so the issue again in this case was, well, was the panel correct to issue this writ of mandamus against the judge? And the en banc panel did say, yes, the panel was correct in issuing mandamus against the judge, but there were several judges in the D.C.

26:55Circuit who expressed serious concerns about what they felt was government misconduct. And so they said, look, let Judge Boesburg continue on with his contempt inquiry. And yes, he can't go and start trying to go through every single part of who knows what and who did what. But at the end of the day, if specific lawyers that were in front of him did lie to him, he can and should be able to move forward with a contempt proceeding. And so we're going to have to wait and see if that actually ends up being the case or not. But he's going to have a hearing, and they're going to go back and look at that specific issue.

27:36So maybe not go through and start sanctioning all of the government officials that may have been involved in the deportation itself, but at least the lawyers who went in, if there were any that actually made misrepresentations to Judge Boesberg, those might actually still end up being in contempt unless a future order comes from either the D.C. Circuit or the Supreme Court that says, no, no, no, we're done with all of this. But they didn't issue a we're done with all of this order. And so the issue still continues, oddly enough, in this bizarre context. It is a long and winding case. Thanks as always, Leon.