Immigration Issues from ICE in Minneapolis to Mahmoud Khalil

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1:00You need to make a huge presentation in an hour. Adobe Acrobat uses AI to take all your documents and generate a presentation with a single click. Build slides quickly and streamline the process. Need a last-minute pitch deck? Do that with Acrobat. Need to level up your presentation design? Do that with Acrobat. You have 30-plus documents that need to be simplified into a proposal. Do that. Do that. Do that with Acrobat. Learn more at adobe.com slash do that with Acrobat. This is Bloomberg Law with June Grosso from Bloomberg Radio. Continuing clashes on the streets of Minneapolis between protesters and ICE agents as tensions escalated following two shootings by agents, one of them deadly.

1:53Brooklyn Park Police Chief Mark Bruley says that his office has been fielding nonstop complaints about civil rights violations and that his own officers, when off duty, have been stopped and racially profiled by federal officers. Every one of these individuals is a person of color who has had this happen to them. Border Patrol Commander Gregory Bovino, who was seen recently on a video tossing a smoke canister into a crowd, said the tactics employed by ICE are justified. But the Minnesota Attorney General Keith Ellison disagrees. Our operations are lawful. They're targeted and they're focused on individuals who pose a serious threat to this community.

2:40They are not random and they are not political. These tactics that we've seen from ICE are brutal. They are unfair. They are racial profiling. They are hurting our economy and they're running up our costs in terms of policing and other public expenses. It is damaging to our state. Joining me is immigration law expert Leon Fresco, a partner at Holland and Knight. Leon, let's start with this order from a federal judge that the Eighth Circuit has put on hold. Federal Judge Catherine Menendez had granted the ACLU's request and ruled that the federal agents are prohibited from arresting or detaining peaceful protesters in retaliation for their protected conduct and absent a showing of probable cause or reasonable suspicion that the person has committed a crime or is obstructing or interfering with the activities.

3:35Is this order anything more than her basically saying follow the law, ICE? Is there anything extraordinary about it? Well, a couple of things. First of all, I suppose so to this extent that the Eighth Circuit on Wednesday issued an administrative stay temporarily lifting that injunction, which did block the federal agents from retaliating against or detaining peaceful protesters without probable cause. I think the reason that the Eighth Circuit did stay the district court order is that perhaps there was some confusion about how you would implement this order in the sense of if an ICE agent does something illegal against a peaceful protester, then the recourse would be a civil lawsuit or a criminal action.

4:29so adding an injunction that doesn't change the law but just says enforce the law doesn't really add anything except it adds confusion as to whether the injunction does anything more so the issue would be are you adding additional requirements that other than those that exist in the law. And then what? So now you sue for a violation of this injunction as opposed to a civil lawsuit, because perhaps what you're saying is that you're worried that the federal government won't prosecute an ICE agent who violates the law. This is sort of the complex issues there. And so I think the Eighth Circuit said, we're going to need more time to consider this.

5:14Let's pause this for a while because it seemed like it was going to be too complicated that every use of potentially, for instance, chemical agents or every arrest of a protester or every discussion about a protester perhaps following too closely and perhaps potentially obstructing, were they obstructing or were they peacefully protesting, perhaps every single instance of that could have led to a contempt of court injunction violation hearing. And the question was from the Eighth Circuit's perspective, I suppose, did they want to have that granular hearing every single time in front of this district court?

5:57Or did they just think, look, at the end, if there's something really wrong, people can file civil suits or criminal actions can be filed. The problem is, it's hard to deny what you can see on the videos. I saw one video where a man was already restrained and on the ground and an ICE officer was spraying some kind of yellow chemical into his face while he's on the ground. So the ICE officers don't seem to be exhibiting any kind of restraint. And there are multiple reports of U.S. citizens getting arrested. Well, this is what becomes complicated from the standpoint of in a normal course of action, when you have an agent that you believe violates the federal laws, then you can have a prosecution of that agent by a U.S.

6:46attorney's office who says that that agent acted incorrectly. Or you could, of course, obviously file a civil lawsuit in that situation. But I think what motivated this injunction was all of that would take far too long or might not even occur at all until you needed to have something in place that was faster in order to try to tamp down any actions that might violate the law. But the problem was, how do you do that? And who sets the line for when one of those uses of chemical agents did cross the line or when it was necessary to protect the agents? This situation in Minnesota has become so intense and so high octane that you may have in 50 % of the situations the ICE agents acting completely correctly and in 50 % of the time perhaps they don't act completely correctly and now you're having a debate every single day in the federal court who did what when what what does that mean and I think that this is just a situation that needs to be handled perhaps in a new manner, irrespective of either this injunction or anything else, where the targeted operations happen in a way that are not intersecting with all of these protests and not causing all of these city skirmishes.

8:10And so I think that's a matter for everybody involved to try to figure out. But I think this injunction, the reason it was stayed is because the Eighth Circuit may have believed that it just wasn't the right approach to have a district judge basically trying to be a referee for every single thing that was happening in Minneapolis at that point. Another problem is one of perception. You have the feds refusing to open a civil rights investigation into the killing of Renee Good by an ICE officer, with the vice president again declaring today that it was her own fault. At the same time, they're serving the governor of Minnesota and the mayor of Minneapolis with subpoenas over their refusal to cooperate with federal law enforcement.

8:59It doesn't help to quell the protests. Absolutely. I understand why the injunction was sought and why the injunction was issued to the extent that people believe that any actions that are taken would not be dealt with in a normal course of action where there would be an investigation and a prosecution. So you needed to do something else so that you could have a contempt order. But at the end of the day, even that, let's say you have a contempt order from a court saying this person is held in contempt, then what? At the end of the day, if the federal agents aren't going to put anyone in detention, we end up just back where we were, which is with a constitutional crisis.

9:40So it's not like this injunction at the end of the day would avoid the constitutional crisis because you could still have an injunction from a court that says this ICE agent acted incorrectly. They are now in contempt of court and put them in jail and the administration will just say, well, no, sorry, too bad. And then what? Is the actual judge going to start picking up ICE agents and, you know, putting them in detention. No, they require federal agents to implement these orders. And so we're back at square one. And so I think that's what makes this complicated. According to reports, hundreds of soldiers are on standby to enter Minneapolis.

10:23And the preparations are tied to the possibility that Trump could invoke the Insurrection Act. He's threatened that before. How would that go? Well, the way the Insurrection Act works, there's two main ways. One is not going to happen, which is that the state actually requests the assistance of the federal government through the governor or the state legislature. That's the opposite of what's happening here. Here you have the state governor and the local officials and everyone else saying that they don't want the federal authorities. So then the second way is what's called the federal authority standard, which allows the president to act unilaterally to enforce the federal law.

11:05And there the president has to say that there's been some sort of unlawful obstruction or rebellion against the authority of the United States that makes it impracticable to enforce the laws of the United States. And here the president would say, I'm trying to just enforce immigration law, and I have a number of individuals that are causing me problems because they're basically, just like the Civil War, refusing certain things to happen that the federal government wants to happen in particular states. And so I have to come in and protect the ICE agents who are being followed around by protesters.

11:45And everywhere they go, they're being followed around or obstructed. I need to be able to come in and solve that problem. And then what would happen is the president actually has to issue a proclamation saying, I'm going to be invoking the Insurrection Act unless you disperse, give people time to disperse. And if they don't, then insert the Insurrection Act. And then we're back to if there's a lawsuit, okay, well, who has the authority? Is this reviewable? Is there judicial review? If there is judicial review, how much deference? And we're back to all of that again. And those are going to be the issues that would then need to be decided ultimately by the Supreme Court.

12:26I mean, yes, there'll be lower courts that weigh in, but the Supreme Court would ultimately need to decide, is this reviewable? If so, how much deference is given to the president and who can challenge it, et cetera. So we'd be back to all of those arguments again. Seemingly back to square one. Coming up next on the Bloomberg Law Show, more with immigration expert Leon Fresco. Vice President J.D. Vance visits Minneapolis and defends the Trump administration's aggressive deportation raids. I'm June Grosso, and you're listening to Bloomberg. Support for the show comes from Public. Public is an investing platform that offers access to stocks, options, bonds, and crypto.

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15:24But 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. Let's create smarter business, IBM. Vice President J.D. Vance visited Minneapolis today, where he sought to defend the Trump administration's aggressive deportation raids, which have set off street confrontations between demonstrators and immigration agents. Ice operations turned deadly earlier this month when agent Jonathan Ross shot and killed Renee Good, something the federal government is not investigating and refuses to allow the state access to the evidence.

16:16Here's what Vance said about his previous statement that ICE officers have absolute immunity. When federal law enforcement officers violate the law, that is typically something that federal officials would look into. We don't want these guys to have kangaroo courts. We want them to actually have real due process, real investigation. Of course, that's not happening in the case of Renee Good's shooting. I've been talking to immigration expert Leon Fresco of Holland and Knight. Back to the beginning. So immigration advocates and legal aid groups have warned people or urged them not to open their doors to immigration agents, agents, to ICE agents, unless they're shown a warrant signed by a judge.

16:57But according to an internal ICE memo obtained by the Associated Press, the federal immigration officers are asserting power to forcibly enter people's homes without a judge's warrant, to do it based on an administrative warrant. Isn't that unconstitutional? So let's give you both of the arguments and let's give you some facts. What is an administrative warrant? It's a form document. You can look at the ICE administrative warrant. It's called an I-205. You can Google it and see the blank warrant. But basically, an ICE agent could fill out that warrant and then get their supervisor to sign it. And on that basis, ICE is arguing that it can then enter the home.

17:42Now, to be very clear, because it's very important that we get all the facts right, ICE is not currently taking the position. Now, it may evolve and take this position if its first position becomes successful, but let's just go with what the facts are. They're not currently taking the position that they can go into any home they want with an administrative warrant and knock things down and go around and grab people. What they're currently saying is if someone has a final order of removal, meaning that they were already served with what's called a notice to appear, which is saying, look, you're in deportation proceedings, and then they've gone to immigration court and then they've lost, then all of that due process was already done.

18:30So it's not like barging into your house in the first place and taking your computer and then convicting you of a crime based on that. They would say it's not anything like that. They would say this is the equivalent of somebody escaped from jail and now we're just trying to find them. And so we don't need to go through the whole judicial warrant process to do this. Are they relying on any case law or precedent? The case they rely on for that is very interesting because it's, if you've seen the movie The Bridge of Spies with Tom Hanks and the Academy Award winning supporting actor Mark Rylands, that Rudolf Abel case, where it was the Russian spy from the 1960s, he was taken pursuant to an administrative warrant for immigration.

19:19Originally, that's what his house was searched for. And so there's some dicta in that case that says that because immigration is a civil matter, it's not a criminal matter, the concerns of the administrative warrant aren't necessarily valid in that instance. And so that's dicta. Wasn't necessary for the ABLE case. But the point is, ICE wants to build off of that precedent and say, look, immigration is a civil matter. There's a final order of removal. We're just now trying to execute this civil removal that is not a criminal matter. There's already been the due process of the notice to appear and the hearing, and we should be allowed to do that.

20:01From the perspective, obviously, of the opponents of this, they say, when you're going into someone's home, that's literally, if you're talking about rock, scissors, paper, someone's home is nuclear war. It beats everything. It's the Fourth Amendment most sanctity location that there is. And so you can't go into anyone's home without a judicial warrant. Why? Because maybe you're going to go into the wrong home. And now what? You've just barged into somebody's home. There wasn't any judicial oversight to make sure that everything was correct before you started barging into people's homes. You're going to cause collateral damage.

20:40There's a lot of untrained people being deployed out onto the field. And so that's why you need this judicial warrant to sort of make sure that these untrained people are doing what they're doing. And of course, if people have unfettered anything in any aspect of the government, There's always going to be more mistakes than if they have to answer to independent authorities before they do things. And so from that perspective, this is where you have the tension. But it is possible that if they're allowed to do this, if the courts don't join this, then they may expand this to other immigration actions where the person doesn't currently have a final order of removal.

21:19But at the moment, they're saying that they're limiting it to people who have a final order of removal. But there's also the point that perhaps most likely there are other people in the House. Correct. And they're violating their constitutional rights. I mean, they have a constitutional right. Absolutely. I think, you know, they have constitutional right to the sanctity of their home. And especially if ICE is going to start engaging in what are called collateral operations once they're in there and say, who else is undocumented here? or this is very interesting what we've uncovered, then that is going to weaken their argument for being able to come in with an administrative warrant as opposed to a judicial warrant.

21:59But we're going to have to wait and see what the courts say and also in what procedural posture this ends up getting challenged. Does it only end up getting challenged in the context of a final order of removal or do the people who challenge it have better facts like you've talked about where there are collateral cases that they're also challenging. And then that'll make the government's defense much more complicated. So speaking of procedural issues, former Columbia grad student Mahmoud Khalil, who was one of the first to be rounded up during the government's crackdown on anti-Israel campus protests, is set to be deported to Algeria, according to a Homeland Security official.

22:42So it had seemed as if Khalil was on a winning streak. he was released from ICE detention. Tell us what happened with this Third Circuit decision. Mr. Khalil was out of detention because a district judge had held that he should be released from detention because his deportation violated potentially the First Amendment because of concerns that he was just being penalized for his views on Middle Eastern conflicts. The Third Circuit comes in and says, wait a second, District Court, You shouldn't have been looking at any of this. All of this needed to go in the following mode. The government apprehends Khalil, places him in detention and removal proceedings, places him in detention and places him in removal proceedings.

23:29The removal proceedings go until the end. And then at the end of those administrative removal proceedings, you then make an appeal of every legal and constitutional claim you have directly to the Court of Appeals. The district judge should never have any view of any of this because that's the way the statute is written. And so it was a 2-1 decision. There was a dissent saying, look, we don't have time for all of that. That could take years, and you unjustly are holding people in detention who are nice people. For years while you're doing this, they'll never be able to make these claims if you don't let them file a habeas.

24:05And you could just have unfettered chaos where administrations just start putting people in jail. and what are they supposed to do? And that's certainly very, very sympathetic, but you can also take a view that the statutes don't care about any of that and the statutes understand that all of these things may happen, but nevertheless, they still say it doesn't matter. You've got to first go to the immigration judge, then go to the Board of Immigration Appeals, and then if you actually have these constitutional claims to make about the First Amendment or retaliation or anything else, you then make it in what's called the petition for review in a final order of removal to the appropriate circuit court of appeals.

24:49And so that's what the Third Circuit said. It didn't say that the government was right or Khalil was wrong or that Khalil was right. It didn't say any of that. It just said all of these proceedings are just canceled because they shouldn't have happened in the first place. And when there's a final order of removal, the circuit court will deal with that. Now, the issue there is that that final order of removal would be in the Fifth Circuit, and so it would be the Fifth Circuit, who's known as a more conservative court, who would actually end up dealing with that. And then the other specific problem in the Khalil case is he doesn't just have this Middle Eastern speech issue.

25:27He also has a lying on his green card application issue, which I think he probably understands is fatal to his case because even if he wins his constitutional argument, he still may be deported on this lying on his green card part of it. Despite what the Trump administration says, he hasn't agreed to go to Algeria yet. His lawyers are still fighting. Right. I mean, he's still trying to fight the Third Circuit order and take it on banque on appeal and try to make sure he can't be put in detention, but he may soon be forced to make this calculation. Do I want to go to Algeria or do I want to fight this even if I'm in detention this whole time?

26:13And so he does have Algerian citizenship through his mother's family, which is why Algeria was designated as the country for removal. He's not saying I'm leaving today, but I think the reason they've settled on Algeria is because he does have that citizenship. And perhaps they think if he's put to this choice, he may end up taking it instead of having to fight two, three years more in detention. The panel was composed of two Republican appointed judges who voted for the government and a Democratic appointee who voted against the government. If he goes to the Third Circuit, the balance there is still seven judges appointed by Democrats, but eight appointed by Republicans, including six Trump appointees.

26:56Is he going to have a better chance at an on-bank hearing? Here's the problem with this. If the judge in this case, I mean, I might be biased. People can accuse me on either side of being biased. I really tried to give it as down the middle as I can. So I try to use this if the judge was a robot standard. And I would say it is my belief that if the judge was a robot, unmotivated in any way by human concerns, but only looking at language patterns, you would have to rule that the Third Circuit two to one decision is correct, that the statute says that where you make these arguments is in a petition for review in the Court of Appeals.

27:40The statute couldn't be any clearer about that. The problem is that that basically denies you due process for any random arbitrary thing that the government wants to do. Now, we're not talking about this specific case. This is anything. If you really take that statute to its logical conclusion, the government can impose all sorts of harm on foreign nationals without any check or balance for the entire time it's doing it. It could be a year, two years, three years, and who knows? They could potentially delay the proceedings for many years so that you never even get to the end of the proceedings.

28:17in which case you'd have to file what's called an unapplied challenge to your due process rights being taken away from you. So you would file this as applied challenge and say the Constitution is not being applied correctly in my case. But how long would that be? After 18 months, 24 months, the courts have had all kinds of deadlines in these immigration cases, But certainly not two months, three months, six months. They never say that that's short of a period allows you to get back into court. So then the problem is, how many people are you essentially coercing over two months or six months of detention to leave and not pursue their rights and everything else?

28:59And so that's the sort of challenge is that the human side of this, it seems obvious you wouldn't want to have a system that was vulnerable to this level of hardship. But on the linguistic side, that seems to be absolutely what Congress wrote. And so this is what the courts are going to have to wrestle with. Support for the show comes from 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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