Green Card Applicants Facing Uncertainty

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1:49This is Bloomberg Law with June Grosso from Bloomberg Radio. You may remember last spring, during the federal crackdown targeting pro-Palestinian campus activities, Secretary of State Marco Rubio pushed back against criticism over the administration revoking green cards and student visas. This is not about free speech. This is about people that don't have a right to be in the United States to begin with. No one has a right to a student visa. No one has a right to a green card, by the way. Now there is a new kind of focus on green cards by the Trump administration, one that affects immigrants when they're applying for permanent residency or a green card.

2:31Ten days ago, the Department of Homeland Security announced that immigrants seeking permanent residency would have to return to their home countries to wait for their green cards, a sweeping change in the policy of allowing them to remain in this country while waiting. But then a week later, DHS appeared to walk back the changes, causing whiplash among applicants and their attorneys. My guest is immigration law expert Leon Fresco, a partner at Holland & Knight. Leon, what was this latest policy change? Well, let's start with some basic immigration law. When a person wants lawful permanent residency in the United States, there's two ways for them to achieve that goal.

3:15One is to apply from abroad, which is called consular processing. And when you do that, you put whatever application you first have to put in with U.S. citizenship and immigration services that says you qualify for whatever green card it is. Let's say it's that you have a U.S. citizen spouse or a U.S. citizen parent or a U.S. citizen child or that you have an employer that's willing to pay you to come work in the United States or you're an extraordinary Einstein type of person or you've invested a million dollars into the U.S. economy and created 10 jobs. Those are the basic criteria for Green Card.

3:54And then the second part is if you're abroad, you go to an embassy appointment. Once that first part is approved by U.S. Citizenship and Immigration Services, the State Department makes a determination as to whether you're admissible into the country. And by admissible, that means you're not a terrorist, a drug dealer, a criminal, that kind of thing. Now, if you're inside the United States and you're here legally, you can do what's called adjustment of status, which is instead of leaving the country to apply for the green card, you can do both steps that I've described from inside the United States.

4:31You file them at the same time. You file first for the application that says, yes, I do qualify for whatever green card category I qualify for, and I'm also admissible to the United States. And that's called filing for adjustment of status. So what the new announcement by U.S. Citizenship and Immigration Services tried to say last week is, it said that because the adjustment of status statute, INA 245, is discretionary, saying that, you know, the Secretary of Homeland Security may adjust status. Well, we're just reminding everyone of that. and we're saying, well, we're not going to exercise that discretion unless it's an extreme, extraordinary circumstance case.

5:16Now, their memo itself didn't say that. Their press release said that because that would have been completely contrary to the intent of the statute, which says that you can do it. And there's actual statutory language with regard to high skilled immigration and investors and everything else that specifically says you can do it. But this for a week freaked out every, there's about a million people like this in the United States that are in the middle of their green card process. And every one of my clients, I would say hundreds, called me or emailed me or texted me, do I have to go home? What's going to happen, et cetera.

5:54And I told them, look, this memo is going to be walked back. It's illegal. There will be litigation on this probably. And so on Friday, May 30th, we had a situation where a press person, an unnamed press person said, no, no, no, this memo just reminds our adjudicators that they can use discretion, but it's not telling everybody to go home. So this thing is going to remain in flux. Are there certain groups of people applying for green cards that might be most affected? The couple of groups that concern me that really need to think about, you know, what's going to happen in their cases moving forward are, first of all, if you are someone who came here legally on a visa, but you overstayed your visa and you gave birth to a U.S.

6:48citizen child and that child is now over 21, so they can now petition for you for a green card. I especially imagine after the birthright citizenship case, whenever that's decided, assuming that's decided against the Trump administration's position, they're going to be very angry about that decision and they're going to try to crack down on that way of getting green cards. And there's going to have to be litigation on that. But that's one aspect of this. But I also think in general, people who overstay their visa and let's say they get married to a U.S. citizen like the Sandra Bullock, Ryan Reynolds green card movie, you know, where that happens or the Gerard Depardieu green card movie or any number of green card movies that you have.

7:32Those people are going to face a lot more scrutiny also when their green card applications go forward. And the reason for all of this is because there's been recent case law from the Supreme Court that's not been very helpful that said that because adjustment of status is a May statute, it's a discretionary statute, we're not going to review denials of adjustment of status. So as long as they can cabin these denials to individual cases, they can kind of try to create an environment where they create a blanket ban, which I think a blanket ban could be challenged. But if they're saying they're just doing this in individual cases, it's going to be much harder to challenge.

8:13And the courts are either going to have to change what they said or come up with some exception, or they will let all of these cases get denied individually. So that's where we stand. There's still a lot of flux and a lot of gray areas and something we can keep talking about as we do these podcasts. But a lot of people are still very nervous about this. What's the danger of going back to your home country and waiting for your green card? So there's two or three dangers. Number one, a lot of people can't leave because they have jobs here. And if they leave, they lose their job here, but they have no job abroad.

8:49And let's say you're married to a U.S. citizen. then your U.S. citizen spouse has to leave too, or you're separated from your U.S. citizen spouse. So there's a lot of that. But then the second and more cynical thing is once you're outside of the country, you have zero rights of any kind to make any challenges in any court, whatever. So if the Trump administration wants to do a travel ban or any other kind of ban, then you're never coming back in the country and joke is on you in that situation. whereas you're not subject to that ban if you're inside of the United States. Has that, let's call it a clarification, has that done anything to alleviate the concerns of green card applicants?

9:32People are very nervous about this because the memo is still saying, and even this press guidance from Friday is saying, look, we're just telling our adjudicators on a case-by-case basis to look at their discretionary authority and really take it seriously. and everyone says, well, gee, you know, is that going to be decided negatively in my particular case? And if it is, then just suddenly one day you're here legally, the next day you get that decision, you're here illegally and you have to leave immediately. So it's quite unsettling if you have a job, if you have a house, if you have a spouse, children, whatever else you have, it's not so great to suddenly be told you have 24 hours to leave the country.

10:11Or even the U.S. citizenship and immigration services will tell you, come in, get the decision, and then they place you in detention, which they could theoretically do. I don't know if I'm reading you wrong, but are they tougher on people who overstay their visas than on people who come here illegally or as people who come here illegally or not? If you enter illegally, you can't even get a green card through this process called adjustment of status. So that's one of the big misconceptions of immigration laws. People think anybody can just marry a U.S. citizen and fix their status. That's absolutely not true.

10:41You had to have entered here legally in the first place. That's why at the end of the Biden administration, they were doing a process where they were going to try to take people who were married to U.S. citizens or who had U.S. citizen children above the age of 21 and allow them to get a parole that would give them a legal entry into the United States such that they could apply for adjustment of status. That was happening right at the end of the Biden administration, but obviously that re-election did not occur. And so that got canceled immediately when President Trump took over. So it never happened.

11:17But if there were a Democratic administration, I'd imagine that that might come back in. But the point is, it's never been available to people who've crossed illegally, but it's always been available to people who've overstayed if they are either parents to U.S. citizen children over 21 or if they are spouses of a U.S. citizen. But I think the Trump administration is going to, quote unquote, carefully use its discretion. And a lot of these cases are probably going to be denied in the near future. Denied green cards? Yeah, they'll be denied green cards, but then they'll have no status and they could easily be detained at that point and placed into removal proceedings.

11:57So let's turn to Homeland Security Secretary Mark Wayne Mullen has threatened to halt or to delay immigration and customs processing at airports in sanctuary cities. He's trying to leverage this, but do you think all of a sudden these sanctuary cities are going to say, we're not going to be sanctuary cities anymore? So let's talk about how a lot of these things work, because the airports in a lot of these cities that are quote-unquote sanctuary cities, and again, what we mean by sanctuary cities is that they do not cooperate with ICE requests to let them into the jails or to report people who are arrested to ICE.

12:36So that's what's called the sanctuary city. A lot of these airports are run by independent airport authorities that are not necessarily feeding revenue into the city or local government that is a sanctuary city. These airport authorities are sort of self-operating entities that are funding themselves. And yes, they have some affiliation with the state and the locals, but a lot of times they're regional authorities, et cetera. So it's sort of like saying, you know, if you don't eat your vegetables, I'm going to hit your brother in the face or something. It's a tangential strike. And the other issue is this.

13:15So what's going on? So when people fly into an airport from abroad, they have to get processed by someone at U.S. Customs and Border Protection. If they're a U.S. citizen. They have a special line that just says, are you a U.S. citizen? And if you are, you get in unless you have some drugs or other contraband. And if you are not a U.S. citizen, then you have to prove that you can be admitted back into the United States. And so they have separate lines for those individuals. And what Secretary Mullen is saying is, look, we're going to take those CBP employees and move them out of the airports of the sanctuary cities and presumably move them to other airports like Miami or Houston or Dallas or Las Vegas or Orlando that are not sanctuary cities.

13:59But here's the problem. There are no more gates for any of those planes to come in. It's fine if you have a thousand more CBP agents in those airports, but for a plane to actually land, it's got to have runway space. It's got to have a gate. It's got to have all of those things. And every airport in America is at capacity. There's no more room for planes to land in any of these airports in terms of the timing or in terms of the gates or in terms of anything else and so from that component what you're really doing is cutting air travel by 50 percent and what's really a problem there is if you're cutting air travel by 50 percent that's one of our largest exports is foreign nationals coming in here and giving us free money paying hotels paying food etc there's no trade involved we're not sending any money over there they're just coming in and giving us money.

14:52So it's the number one foreign investment export that we have. And we would be cutting it by 50 % by moving our CBP agents out of those airports. And then the final point to say here is that a very small percentage of people who fly into these airports actually is staying in a sanctuary city. They're either going to some other city that's a suburb or an exurb, or they're connecting to another airport in another state. And so, again, like I said, it's really like, you know, punishing your brother because you didn't eat vegetables. It really is not the best way of going at it. There's many other ways that the Secretary of Homeland Security could go after these sanctuary cities.

15:38I won't suggest them here on the podcast, but there are. If they're interested, they can contact me. But, you know, this is not the correct way to do it, in my opinion. Coming up next, I'll continue this conversation with immigration law attorney Leon Fresco. An ICE officer has been arrested in Texas for the shooting of a Venezuelan man during the Trump administration's Minnesota crackdown. Will the case actually get to trial? Support for the show comes from Public. Public is an investing platform that offers access to stocks, options, bonds and crypto. And they've also integrated AI with tools that can assist investors in building customized portfolios.

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18:38I've been talking to immigration law attorney Leon Fresco of Holland and Knight about Homeland Security Secretary Mark Wayne Mullins' threats to halt immigration and customs processing at airports in sanctuary cities. The target of the threat right now appears to be Newark Airport because of the high-profile protests outside Delaney Hall, an immigrant detention center in Newark. And a coalition of groups representing airports, airlines, hotels, and other businesses are calling on DHS not to follow through on the threat. It would be very difficult, especially now during the World Cup, where the final is being played in the Meadowlands, which is in New Jersey, the closest airport to there is in Newark.

19:26They were especially to cut it off now. I think that that would be quite a difficult incident for the government on top of the fact that you have this issue. We have the South African national soccer team unable to get visas to come into the United States. There's too many blips in terms of you try to have this very stringent policy where you say, hey, we're going to be tough. And then you unintentionally create a ton of collateral damage that's creating serious problems for entities that the United States doesn't want. The United States doesn't want to reduce its travel exports by half, I don't think, because a lot of people would lose jobs.

20:08And people would say, hey, why did I lose my job? And they would, you know, it would eventually flow to that reason. Or they don't want to have stories that you tried to host the World Cup and teams couldn't come in because they couldn't get visas. But it becomes a reflection of you start going on autopilot with a lot of these policies that are meant to just say nobody gets to come in. America is closed. and you end up doing damage that you didn't intend to do because if you said America's closed, now it's closed to people you didn't even want it to be closed to. For DHS, the attention is on Newark and off Minnesota.

20:47But Minneapolis prosecutors are still going forward with investigations and things. And they charged an ICE officer with assault and falsely reporting a crime as a second federal agent to be charged over their conduct during that Minnesota crackdown. He's a federal agent. Can Minnesota charge him? Well, that's going to be the argument that's made. And it's the same argument we've been seeing in California, where the Ninth Circuit held that you cannot regulate what a federal agent does when a federal agent is performing their duties. Now, the difference here is one thing is external regulation, which is to say here's a set of policies you can't wear masks or you can't do this or you can't do that those sets of policies in advance are going to be very hard so like the new york law that just got passed that says they can't wear masks or the california law that just got stricken down those are going to be very hard to survive most likely those are going to be stricken under the supremacy clause which says or which has been interpreted to say that when a federal officers enforcing federal law, they benefit from the supremacy clause and you can't regulate how they do it.

22:01Now that's different than if a federal officer breaks the law acting outside of the scope of their employment, they can be prosecuted in that situation. So if an individual federal officer says, you know, oh yes, this person had a gun and was shooting at me and really there was no such thing and the person just started on a shooting rampage at a mall, that person can be prosecuted under state law. They were not acting in the scope of their employment. There was no reason that their employment mandated them to shoot up a mall. And so you could prosecute them for that. And so that's going to be the question in a prosecution here is going to be were the individuals acting within the lawful scope of their employment or were they so far outside the bounds of what their employment permits that they can be prosecuted.

22:52And Texas appears to have cooperated in this arrest. If another state's willing to cooperate with you, you can enforce the arrest warrant in another state and the other state can then, you know, implement the arrest. And then you have to have proceedings to, even though it's the same country, extradite the person back to Minnesota and try to have the trial of that individual. So that can be done. He'll probably want to remove it to federal court to immediately file a motion to quash that state proceeding, and the federal court will have to decide whether the person was acting inside or outside of the scope of their employment.

23:29Yeah, ICE called the Hennepin County Attorney's Action unlawful and nothing more than a political stunt. I mean, that's going to be proven by this proceeding that will most certainly be removed to federal court, where the ICE officer will challenge the legality of their indictment and the Hennepin County attorney is going to have to prove that the person was acting so far outside of the scope and bounds of their employment that they can be prosecuted and we will find out soon enough. It's hard with these very fact-intentive cases to predict what will happen but it will certainly be a federal court that gets to decide this, not a state court.

24:09So at least from the perspective of the ICE agent they can say it's somebody who's not part of the state machinery who's going to decide this. You know, I'm still surprised, I think stunned is a better word, that nothing has been done about the shootings, the killings of Alex Preddy and Renee Good. I mean, the federal government is not doing anything there? Well, I think they said there were investigations. I think it's going to be up to the Congress to push for a report on those investigations. and if those reports say that unlawful conduct was done, I mean, nothing is outside of the statute of limitations yet.

24:47So presumably a U.S. attorney in Minnesota could prosecute there or even if the Trump administration ends, the five-year statute of limitations would not have expired and a subsequent U.S. attorney could decide to prosecute there. So I don't think this story is over one way or the other here. Support for the show comes from Public. Public. Lately, it feels like there are two types of investing platforms. Some are traditional brokerages that haven't changed much in decades, and others feel less like investing and more like a game. Public is positioned differently. It's an investing platform for people who are serious about building their wealth.

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