Is the Iran War Legal & the $100,000 H1-B Visas

16:03Kal Raustiala:So there are reports that Iran may be planning to retaliate against the U.S. with drone strikes in California. How would international law view that?

16:15June Grasso:Yeah, we got an email at UCLA about that possibility. So that's circulated widely. I have to say it seems, you know, maybe a bit farfetched, but Iran has shown that it has power to take actions either through itself or its proxies in other places. So it's not to be dismissed completely. You know, it would all depend under the laws of war. If we are in fact in a conflict, then Iran can attack us as we are attacking them. But you can't attack civilians. You can't deliberately attack target civilians. And so those same rules would apply on either side. Deliberate targeting of civilians is not permitted.

16:53June Grasso:You know, there's a bunch of rules about proportionality and distinction and so forth. Complicated set of rules that sometimes can seem academic when you actually apply them to real cases. But either way, drone strikes against a school or hospital or something like that, randomly in California, no, that would be a violation. But against a military target, if we are in fact in an armed conflict, then that's part of war as you do attack military installations. And for example, the ship that was targeted by the United States, thousands of miles from Iran and sunk would be an example of an attack like that.

17:24June Grasso:It wasn't a drone, but it's the same idea.

17:27Kal Raustiala:So then how would you characterize the strike on the girls' elementary school in southern Iran that killed 165 children and teachers?

17:36June Grasso:So that appears to have been the United States. The evidence seems pretty strong on that. If it's true that it was deliberately targeted, obviously a violation, sometimes schools have been attacked. This is an ongoing issue in, for example, Gaza and other conflicts where there are fighters embedded in a school or hospital or something like that, which can make it a legitimate target, but it's subject still to some special protections. That does not appear to be the case here. As I understand it, again, it's a fast-moving issue. There's a lot we don't know. But if there was no military value to that target and it was simply hit, that would be impermissible.

18:13June Grasso:Absolutely. Broadening this out, there's been a string of

18:17Kal Raustiala:unilateral military actions taken by the Trump administration since December of 2025. The U.S. bombed Nigeria, shot and killed drug smugglers in the Caribbean and the Pacific, attacked Venezuela and kidnapped its president, and now attacked Iran. Would those strikes be considered a violation of international law?

18:44June Grasso:Yeah, I mean, it's an amazing string of events, disturbing string. Some of them are really blatant violations of international law. So for example, the boat strikes would maybe be the most blatant in the sense that really they haven't even offered a very coherent argument about it. But taking out those are civilians by almost all accounts. Again, it's not like we're not actually in a conflict with cartels. So that's maybe the most extreme kind of clear case. And then maybe Iran might be at the other end if you buy the argument that we're in some kind of longstanding conflict that's continuing on.

19:19June Grasso:But when you put them all together, stepping out of the law for a second, obviously the political pattern is really striking and disturbing for a number of reasons. One, because the United States is increasingly using force abroad in ways that are, I think, upsetting to many states, violating many rules of international law and violating just many norms of behavior, whether they're legal or not. A good example would be threatening Greenland, even if that was not a serious threat, sort of an offhand threat or something like that. First of all, you're not allowed to threaten to use force under the UN charter.

19:52June Grasso:That's also a violation. But regardless of whether the threat was really a serious one or not, just the very idea that a NATO ally would be subjected to some kind of threat is really shocking and was shocking to many of our closest allies. So when you put all of these things together, it does seem sort of incredible the amount of intervention that's taking place, the amount of military force. Why is it happening? I cannot answer that question. I think no one really knows. There are so many different theories of various conspiratorial levels about whether there's a pattern here. It does seem like the Trump administration often acts without any of the elaborate process that would go on normally in an administration and maybe even occurred in the first Trump administration with regard to the use of force, meaning lots of process through the National Security Council, through the State Department, through DOD, etc., thinking these things through, elaborating a strategy, examining risks.

20:47June Grasso:That all seems to be short-circuited in a lot of these cases. And so it's not clear that there is a strategy. In fact, I sort of doubt it.

20:56Kal Raustiala:It's hard to see a strategy in all this. Cal, thanks so much for joining me on the show. That's Professor Cal Rostiala of UCLA Law School. The Trump administration is making an emergency application to the Supreme Court to allow it to end legal protections from deportation for 350 ,000 Haitians. It mirrors a similar emergency request made two weeks ago to end protections for Syrians. The administration is also asking the justices to take the unusual step of granting full review in the cases with arguments and potentially a far-reaching ruling in the nine-month term that starts in October. My guest is immigration law expert Leon Fresco, a partner at Holland and Knight.

21:45Kal Raustiala:Leon, the Trump administration has been moving aggressively to terminate temporary protected status since taking power last year and has done so for about a dozen countries. Give us the background here.

21:59Leon Fresco:What happens is there's a status called temporary protected status that the Congress created out of statute. And they said that the president has authority to declare 18-month periods of time where it might be too dangerous to deport people to a particular country because of either a pandemic or a war or a natural disaster or anything of that element. And so over the course of the Biden administration, many, many countries ended up with temporary protected status. And so the Trump administration said, when these statuses start to get close to expiration, we're going to let them all expire. We're not going to renew any of these statuses.

22:40Leon Fresco:And so you've seen that over the course of these last 18 months, whether it's been Venezuela or whether it's been Haiti or whether it's been Syria or many, many other countries, every country has had their temporary protected status not renewed. And so it started with Venezuela, and there's litigation that's going on with Venezuela, but the Supreme Court in that litigation stayed a determination that would have required the temporary protected status to remain while the injunction was in place. So there was a lower court injunction, and then the Supreme Court stated. So now with Haiti, there was a similar claim.

23:21Leon Fresco:So the Trump administration tries to stop temporary protected status from being renewed for Haitians. And then the Haitian community challenges in the D.C. District Court that determination and said it's not based on any conditions in Haiti. It's based instead on a discriminatory animus that the Trump administration has toward Haiti. and they provided a bunch of comments that had been made by both President Trump and Christine Noem about Haiti. And so the court issued an injunction saying you can't terminate the status of the Haitians under temporary protected status. That gets appealed to the D.C.

24:01Leon Fresco:Circuit. The D.C. Circuit 2-1 preserves that injunction saying that the Haitians can't have their TPS status, their temporary protected status taken away. And so now the Solicitor General's Office of the Department of Justice is trying to get the Supreme Court to basically do exactly what it did in the Venezuelan cases and say, absolutely not. You have to put a stay on this and allow us to take away the temporary protected status for the Haitians.

24:30Kal Raustiala:And they're also asking the court to take this unusual step of not just dealing with it on the emergency docket, but granting full review in the case. Do they have a good argument for that? Because this keeps coming up.

24:45Leon Fresco:Well, I think that's correct. I think at this point, given that you have the Venezuelan cases floating around in the Ninth Circuit, you have the Haitian case here in the D.C. Circuit, you have several decisions that have been made by the Supreme Court already granting stay, saying that these cases shouldn't be subject to injunctions at the moment. And then you have lower courts sort of saying here's a loophole reason why those Supreme Court decisions don't actually apply to this particular case. What the Justice Department is trying to do is to get sort of a global 360 degree ruling that can be applied to all of these various TPS revocations so that they have an understanding of what the answer is, whether the answer is they can or can't do it.

25:34Leon Fresco:Whatever the answer may be, they just want an answer. So I do think the Supreme Court is going to be sympathetic to giving an answer as to what is actually permissible or not permissible in the temporary protected status context.

25:47Kal Raustiala:As we've discussed before, in the name itself, it's temporary protected status. I mean, are the Haitians, Syrians and Venezuelans before them trying to get this TPS status changed to a permanent status?

26:03Leon Fresco:The best way to describe it is as follows. The people with this status definitely don't want to lose this status because this is a status that allows them to be here legally and allows them to work. And they probably would make any argument that they could make in order to keep this status. But here they're trying to advance an argument that does have some interesting relevance to it in terms of the court having to decide whether this kind of argument is reviewable or not. And that is that the administration isn't actually doing a detailed look at the conditions that led to temporary protected status in the first place and deciding that those conditions had changed sufficiently in order to remove the temporary protected status.

26:53Leon Fresco:Instead, they've already decided they're just getting rid of all of these statuses. And in fact, the plaintiffs don't just say that. So they don't just say that there's an insufficient analysis of the country conditions on the ground, but they're also saying that there's an actual discriminatory animus toward whichever country they're suing about. So they'll give, in the Venezuelan context, comments that the administration had made about Venezuela, or in the Haitian context, the comments that people in the administration had made about Haiti. And so they're trying to say that because of those two issues, the lack of analysis as the country conditions and the discriminatory animus, that the courts have a role in analyzing whether in that scenario it's sufficient to revoke temporary protective status.

27:42Leon Fresco:And the government says, absolutely not. This is temporary protective status. Congress gives the discretion to the president to grant it or not to grant it. And you can't have the courts forcing the president to renew temporary protected status. That's way outside the bounds of anything that courts are allowed to do when Congress says this is up to the president to determine. And so that's a very strong argument as well. And we're going to have to see where the courts want to go.

28:11Kal Raustiala:The first appellate test of the lawfulness of President Trump's toughest restrictions so far on high-skilled immigration took place at the D.C. Court of Appeals. The Chamber of Commerce and other groups are challenging the$100 ,000 fee Trump put on H-1B worker petitions. Tell us a little bit about this$100 ,000 fee.

28:34Leon Fresco:So let's start with just the H-1B program in general. The H-1B program in general is a statutory program that the Congress created where there's 85 ,000 visas permitted per year, where if a company has a job opening in an occupation that requires a degree, whether it be a bachelor's or a master's or a PhD, then that employer can petition for an H-1B visa for someone that has that exact degree that's required by that exact job title. So the demand is often much higher than the$85 ,000. There are congressionally created fees that are there for the administration of the program, meaning to fund the adjudicators that adjudicate the petitions and the fraud adjudicators that are there to make sure that the companies aren't using these visas improperly, but are actually paying their workers and are actually employing the workers in the locations they said they were going to be employing their workers.

29:37Leon Fresco:And so those fees on average are about six to seven thousand per year. Now, what has the Trump administration done? The Trump administration has said that we have this authority called INA Section 212F. And that authority, everybody might recognize because it's the same thing as the travel ban. So when Trump did the travel ban in his first term, and that travel ban was upheld by the Supreme Court that said that Iran, Iraq, etc. Those individuals couldn't enter the United States. Now Trump has extended that ban in this presidency. So what the Trump administration has said is that statute doesn't just permit or authorize bans.

30:19Leon Fresco:It authorizes any restrictions that the president thinks are in the national interest. And so here the president said, well, let's try a different type of restriction. Let's try instead of a ban on people coming in on H-1Bs, let's charge$100 ,000 of fees for people on H-1B visas. Now, the problem with using the ban statute is that fee is only going to be applicable to people applying from abroad. And so the idea is they will have to pay a$100 ,000 fee if they want one of these visas. And the reason for that would be, hey, to the extent that you think that these visas are undercutting American workers, that the only reason companies are using this is not because these are the best workers for the job, but instead because what they're trying to do is undercut the wages of American workers.

31:14Leon Fresco:Well, now we know that's not going to be true. If a company's willing to spend$100 ,000, then they clearly value this worker. That's the theory. Let's cut to the district court. The district court says, hey, that's fine. The Trump administration has this authority to charge the$100 ,000. And end of story. So then there's an appeal. And in the middle of the appeal, there is the case involving the use of taxation with regard to tariffs, and whether the president exceeded the limits of the presidency, and when the president issued these tariffs in the form of taxes. And in those cases, what the court said was, only Congress can authorize these taxes.

31:58Leon Fresco:You can't have the administration basically passing new taxes without congressional authorities. So now the people who've been challenging this $100 ,000 fee came and sort of transitioned their argument into the same argument as the tariffs, which is that this$100 ,000 fee isn't an immigration restriction, it's a tax. And if it's a tax, then the president can't do it. It has to be done by Congress. And so the oral argument in this case that just happened on March 9th really focused on this issue as to what is this$100 ,000? Is it a de facto ban, in which case we would analyze it sort of under the same travel ban, free features we've been analyzing other cases under?

32:43Leon Fresco:Or is this a tax that's designed to raise revenue because in the end, we expect that people are going to pay it. And so it's not going to ban anybody. People will pay the fee. Now, in practice, very few people are going to pay the fee. The administration has claimed that 70 people have paid this fee, which I find fascinating. I couldn't imagine that that would even be true, although I have no reason to disbelieve this. I'm just shocked that anybody paid this$100 ,000 fee. But they claimed that 70 people did. And so it's going to be interesting to see whether if it's a tax, it's much more likely to be stricken down.

33:20Leon Fresco:But if it's a ban, it's a lot less likely to be stricken down.

33:23Kal Raustiala:So during the oral arguments, Judge Michelle Childs asked counsel for the Trump administration, kept pressing on how it was classifying. What are you calling this? Is it a fee? Is it a tax? Is it a penalty? And the Department of Justice attorney said the label doesn't really matter. But doesn't the label really matter? Well, yes.

33:44Leon Fresco:The whole point is the label matters here because if they want to call it an immigration restriction, they're going to be in much better shape in terms of the deference the Supreme Court has already given this as an immigration restriction. And I would have advised them that that was the best argument to make, that the$100 ,000 fee is an immigration restriction designed to prevent the undercutting of American workers. It's not designed to raise revenue for the government. But they didn't make that argument. They just said it's irrelevant. And so from that standpoint, now they are having to see what the court is going to call this thing.

34:24Leon Fresco:And if the court calls it a tax, they're going to strike it down. But if the court calls it an immigration restriction that's designed to be in the national interest by preventing the H-1B program from being used to undercut the American workforce, then that's going to be potentially a restriction they can do. Now, that's going to run into its own potential statutory problem because there's a whole bunch of statutes about the wage itself that you have to charge on H-1Bs. And so the point being, if you really didn't think that was sufficient to protect American workers, then you're running afoul of what Congress said.

35:01Leon Fresco:And so these are tough questions. It's ban authority versus other statutes. That's something that's happening in asylum right now. And it's something that's happening in H-1B, where the argument is there's two statutes that easily are plausible for a court to choose. One is the version that the Trump administration wants. One is the version that the foreign nationals suing the Trump administration wants. And in both cases, the courts are being asked to determine which statute actually is the applicable statute here.

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38:39Kal Raustiala:My guest is immigration law expert Leon Fresco, a partner at Holland & Knight. In recent weeks, immigration agents have sort of scaled back aggressive enforcement and, you know, the street sweep. They're focusing on conducting more targeted enforcement operations So we haven't seen those violent clashes. So that's led to a drop in immigration arrests.

39:06Leon Fresco:Well, I think this is complicated because I think what's really happening right now is the Trump administration was trying to, the famous expression goes, build the plane while they were flying the plane. And I think they realized that as well-intentioned as their goals may have been in the sense that they had made a campaign promise to have mass deportations and they wanted to carry out mass deportations. The point is, is if you wanted to actually build an infrastructure around that, then you needed to do certain things. You needed to have more immigration courts. You needed to have more ICE attorneys.

39:45Leon Fresco:You needed to have more attorneys in the Justice Department. who would then do the appeals that went into the federal courts. You needed to have more detention space. And so all of that needed to be built out. And it needed to be built out within a framework where a lot of people were resigning from all of these positions because not everybody agrees with the mass deportation mission. So whatever you think about it, these are just the challenges of building a mass deportation infrastructure is you have to build all these things. And then you have to do it with a supply of lawyers that might be less because, again, like I said, not so many lawyers go into law thinking that the reason they're going to have a legal career is to create a mass deportation framework.

40:33Leon Fresco:I mean, this wasn't even a thing a few years ago. So very few people who went to law school who would be eligible to take these jobs are people who went to law school with this mindset. And so all of these create challenges for the administration. And so what I think they've decided to do is let's, for the moment, while we have an election coming up in November, focus on the initial mission of detaining people who are people with criminal convictions or final orders of removal and getting as much of that population removed as possible while we build out this infrastructure. but they're still building it out.

41:14Leon Fresco:They're building more detention facilities all over the country. They're trying to end what's called the Board of Immigration Appeals, which was a second layer of review of a deportation order. So now they just want to have an immigration judge, one judge who makes a decision. And then if the federal courts want to get involved, then the federal courts. But they want to take away the administrative appeal that existed. And so that's in litigation right now. And then they want to have this framework of mandatory detention that whenever you put someone in deportation proceedings, they're going to have to fight it from detention, which the way to do that is to win these cases that are challenging that right now and then build out the mandatory detention space.

42:01Leon Fresco:So what they're trying to do now is have this consolidation period where they get all of these ducks in a row so that maybe by January of 2027, they can actually start really heightening the mass deportation machine because the infrastructure has been built. So I would not call this pause a permanent pause. I would call this a temporary pause so that A, the conflagrations that we saw on the street don't happen before November, but B, to allow this detention deportation infrastructure to be built so that then it can really operate in 2027 and 2028.

42:45Kal Raustiala:In light of that, you know, the tension on Wednesday, a federal judge scolded the Department of Homeland Security for detaining immigrants for a month or longer without bond hearings, calling the practice shocking and a huge whopping statutory violation. Judge Beryl Howell said that people accused of committing crimes get such bond hearings sooner than immigrants accused of civil offenses. So this is also part of the Trump administration's plan, right?

43:18Leon Fresco:Well, what happens is this. So let's remember, first of all, why is any immigrant in detention? Because remember that in America, we don't put people who are not criminals in detention. So the only reason immigrants are in detention is in order to secure their removal. So the Supreme Court has said, we will make a minor constitutional loophole for detention in the civil context, which is what immigration is. It's not considered criminal. It's considered the civil context. And by the way, that's a designation that benefits the government. It doesn't harm the government because if it was in the criminal context, then deportation cases would require jury trials and you couldn't have ex post facto deportations or any of that.

44:03Leon Fresco:But all of that's permitted in civil. So the government can do almost anything it wants in the immigration context because it's considered a civil punishment, not a criminal punishment. But the one caveat to that is that detention is supposed to be limited only to the bare minimum that is required in order to execute a deportation. And the flip side of that is that if you're not someone who is considered dangerous or a flight risk, constitutionally, the basis to detain you really starts to become very light in this context because it's the civil context and you're not a flight risk and you're not dangerous.

44:48Leon Fresco:And so that's what Judge Howell is saying is how are you detaining these individuals? The Trump administration is saying we're detaining them because we believe there's a statute that says that if you cross the border illegally and we find you, we can detain you until the day we deport you. And that's in litigation. The problem is Judge Howell has a different case she's dealing with, which has to do with can you arrest people in D.C. without a warrant for immigration? Because people were suing saying there was racial profiling going on and that there should be warrants so that, again, ICE has to look for people that it knows are undocumented instead of just grabbing people in the middle of the street.

45:33Leon Fresco:And so she had agreed with that. And this was a contempt hearing to determine what is happening now. And in that, she found out that people are being detained for a month without bond hearings. And that's because of the backlog in the immigration courts. The immigration courts, again, when you're building this infrastructure out where you're trying to do mass deportations and mass detentions, if you have many, many, many more people detained than you used to have, which is what we have, we used to have 30 ,000 to 40 ,000 people detained every day for immigration violations. Now we have something like 70 to 80 ,000 and you don't double the size of the immigration court, then what you're going to end up having is this exact situation where the bond hearings take longer.

46:22Leon Fresco:And it's not even necessarily a strategy, hey, let's have the bond hearings take longer. It's just inevitable because you've doubled the number of people who need bond hearings, and you haven't doubled the amount of courts or prosecutors or anything else that would need to deal with that. And so those are, again, issues that are going to end up being litigated. I'm sure there will be a class action that talks about this. and all of this is going to come to play. But I think the main decision that's going to really impact this is when the Supreme Court ultimately decides this issue of whether the Trump administration has authority to mandatorily detain any individual who's in America who not overstayed their visa but illegally crossed the border.

47:13Leon Fresco:Because that's a new position that the Trump administration has taken And that's currently working its way up different circuits. The Fifth Circuit has said, yes, they do have this authority. Other circuits are ruling that they don't have the authority or they're about to rule that. And so it's going to get to the Supreme Court. And that's ultimately going to address millions of people that are here, whether those millions of people can be detained and put into a mass deportation framework, or whether the Trump administration has to give bond hearings to those people once they're apprehended.

47:48Kal Raustiala:Thanks so much. That's Leon Fresco of Holland and Knight. 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.bloomberg.com slash podcast slash law. And remember to tune into the Bloomberg Law Show every weeknight at 10 p.m. Wall Street time. I'm June Grosso, and you're listening to Bloomberg.

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