Jailing Immigrants Without Bond & ICE Plays Whack-a-Mole

19:55Leon Fresco:And so that's going to be a debate because now what's interesting is that the federal statutes never say that there needs to be something called the Board of Immigration Appeals. They don't say anything like that. They just say the attorney general has to establish something. And whatever that is, that's the system. So the system that the attorney general established had an immigration court and a board of immigration appeals. So now by regulation, they're trying to say you don't need this Board of Immigration Appeals anymore unless the entire board decides on Bonk. We're going to listen to a case only then in those situations.

20:33Leon Fresco:So they're saying in that situation, we'll have that. But otherwise, we won't have it. And so there'll be a lawsuit. But I don't know how likely it is to be successful. Now, they may not have followed the correct formalities because they're not doing notice and comment. And I don't know why. I think if you're doing something this substantive, I think you'd want to dot all the I's and cross all the T's, even if it takes six months longer, because it's a very large substantive change here. but nevertheless it might get dinged for the lack of formalities but if it doesn't get dinged on the lack of formalities I'm not so optimistic for the challengers that they would actually win here because there's nothing in the statute that actually requires this board of immigration appeals to exist.

21:18June Grasso:So the chief judge of the Minnesota courts U.S. District Judge Patrick Schiltz found that ICE had violated court orders almost 100 times in 74 cases brought by immigrants so far this year. And many other federal judges have found that ICE is not complying with their orders or they're being threatened by judges with contempt. And so then they comply with court orders, but they're slow walking. I mean, many federal judges are finding that ICE is not complying with court orders or they're being threatened by judges with contempt. And so then they comply with court orders, but they're slow walking.

22:01June Grasso:I mean, what's going on in the courts?

22:04Leon Fresco:I think there are many different issues. And so it's not one clear issue. It's many different issues. Number one, there is the issue of the amount of litigation that's happening now because of this new policy that says that if you've crossed the border illegally, there is no bond hearing for you. So that's a change from the past. The system didn't align itself. So it's this expression of building the airplane while you're trying to fly it. There was a system in place where when you got detained by ICE, you filed for a bond hearing, and that bond hearing was done in an immigration court by an immigration judge.

22:48Leon Fresco:and the government was represented by an ICE attorney, and the foreign national either represented themselves or had an attorney. Now, if your client is detained and they're not allowed to have bond because of this new policy, then what people are doing is they're filing habeas petitions. And the habeas petition doesn't have ICE as the attorney. It has a USDOJ attorney, and those attorneys are understaffed. And in fact, the U.S. DOJ attorneys, many of them are resigning. And so all of these offices are understaffed. And now they're having this surge of cases. So they have this surge of cases. And they're having to deal with not the immigration courts, but the federal courts.

23:36Leon Fresco:And ICE is having to respond to all of these various court orders. At the same time, it's trying to have a record number of people in detention. There's currently something like 73 ,000 foreign nationals in detention. That number normally is something like 40 ,000, 35 ,000. But now we're up to about 73 ,000 per day. And so you have the government lawyers. with something like 80 or 90 of these cases that they're trying to handle all at the exact same time. And the ICE agents who are dealing with the fact that these foreign nationals may have been in that location when the habeas was filed, but they might have gotten moved because they needed to move the person to a different facility, either because of real reasons or procedural machinations.

24:30Leon Fresco:I mean, there could have been measles at a facility and they needed to move them, or there could have been a glut of people that were in one facility, an overpopulation, so you needed to move them. And so the point is, a lot of things conspire together when you don't build out this infrastructure proportionally all at the same time, such that there's a lot of ignoring of these orders by necessity and also by choice. I'm not going to discount that there's by choice as well, but it's not all by choice. Some of it is by necessity in terms of the way they're doing it. And so it's tough and it's tough for the courts to unwind all of that.

25:12Leon Fresco:And the judges are getting frustrated and especially if they feel like their orders are being completely ignored. Unless the Supreme Court steps in very quickly and does something, It's going to end one of three ways. Either it will end with all of this being enjoined and restoring back to the original system where the bond situation exists again and it goes back to the immigration court and everybody remembers the old system. That's one way. It could end with nobody getting bond of any kind if they've crossed illegally, and then that's just the law of the land. And then the problem subsides because there won't be contempt of court because the federal courts won't be involved in this anymore.

25:53Leon Fresco:That's the second solution. Or the third solution will be the Supreme Court doesn't do anything, and we just end up with a constitutional crisis. And that would be the worst of all worlds. And so hopefully the Supreme Court will step in and bring some order into this process as soon as possible so that we don't end up with this constitutional crisis.

26:16June Grasso:And attorneys across the country are struggling to find their detained clients who are often being moved to out-of-state facilities and bounced around by ICE. An ACLU lawyer called it a game of whack-a-mole. From the beginning, you can't find your clients. If you find them, you can't access them because there are no phones or visitation rooms. And if you do find them, it takes weeks to contact them. And sometimes they're just moved and deported.

26:48Leon Fresco:Absolutely. If you are a representative of a person, a foreign national who's in immigration detention, it's the most challenging time it's ever been to do that. And as I said, it's really for the foreign national to say that they have a process that is meaningful in the sense that when you're a criminal, let's say, when you're a criminal and you're in detention, you're usually in detention within some reasonable space from your attorney. And a criminal defense can be planned and a criminal defense can be implemented in a court of law. Here, if you lived in, I don't know, Houston or you lived in Atlanta or you lived in New York, you could be detained in Kansas or in Louisiana or something.

27:36Leon Fresco:And then whatever lawyer you would have procured wouldn't have done you any good because that lawyer is not going to travel to Louisiana or Mississippi or somewhere else in order to be able to reach you. And then even if they did, you might be moved the next day. And so the question of how you actually conduct a defense when you can't speak to a lawyer is very, very complicated. And this is yet another issue that is going to have to come to some resolution because people are going to start saying that they've had due process violations within these contexts. And the courts are going to have to decide what is the process that you're due in these situations.

28:16June Grasso:Even when ICE does release detainees, judges are finding that they're releasing them in other states without their papers or phones and with just the clothes on their back. So some judges have been issuing very detailed orders. For example, one Minnesota judge said ICE had to release a detainee, one in Minnesota, two with all personal documents and belongings such as driver's license, cell phone, Three, without conditions such as ankle monitors or tracking devices. And four, with all clothing and outerwear he was wearing at the time of detention or other proper winter attire.

28:57Leon Fresco:It is very complicated, no doubt. And this is something I remember from the very first case that I won with a client in detention a long, long time ago. I won't date myself. I remember speaking to a senior lawyer and I said, what do I do now? And they said, no, when you win a case and your client is in detention, what ICE does is they just open the door of the facility. And so you better go get them because my client was in the middle of the Everglades. And so it was just a matter of that they either are going to walk from the middle of the Everglades into civilization or somebody has to go get them.

29:29Leon Fresco:This is not new. This has always been that way, that all ICE does is open the door of the detention facility and say, OK, walk out of here. And so as more and more people are detained and they're detained in more remote locations, people are saying, well, I can't just drive to go get this person. That's not a thing anymore because I'm an attorney in Minneapolis and my client is in Louisiana. So what do I do now? And so this is why you're seeing some of these orders now.

30:02June Grasso:You got a trip to the Everglades out of that case, Leon. Thanks so much, as always. That's Leon Fresco of Holland and Knight. Coming up next, an appeals court is weighing undoing a block on federal grant freezes. I'm June Grosso, and you're listening to Bloomberg. The D.C. federal appeals court seems skeptical that a court order blocking the Trump administration from freezing trillions of dollars in grant funds was still needed. That was after a Justice Department lawyer said the government would have, quote, no conceivable reason to do it again. The three-judge panel heard arguments in a challenge by nonprofit organizations to the administration's pause last year on financial assistance programs, the move that prompted widespread confusion across agencies.

30:57June Grasso:Joining me is Bloomberg Law Reporter Suzanne Moniak. Suzanne, tell us about the underlying dispute. Explain what was at issue here. I mean, the original court order.

31:11Suzanne Monyak:So the D.C. Circuit, the Federal Appeals Court here in Washington, is considering what to do with a lower court ruling from really about a year ago that had barred the Trump administration from freezing federal assistance funds nationwide. And these federal assistance funds were grants that would go to nonprofits or small businesses. And shortly after we saw President Donald Trump return to office, they issued a memo that ended up sparking quite a bit of chaos and confusion to federal agencies that these funds, federal assistance programs, needed to be reviewed for alignment with other executive orders.

31:41Suzanne Monyak:It resulted in a pause to trillions of dollars worth of funding, really at the expense of quite a few companies or nonprofits that rely on those funds.

31:50June Grasso:So a lower court judge had issued a temporary injunction to stop the government from freezing the funds.

31:58Suzanne Monyak:That's correct. So we saw a lower court judge, which was Judge Lauren Ali Khan of the D.C. District Court, had specifically prohibited the government from implementing any, quote, unilateral, non-individualized directives, end quote, with respect to federal funds. So that really applied to like a broad based freeze on federal funding as opposed to individual freezes of certain funds. And so that was really what was that issue or largely part of what was that issue during this appeals court hearing that we had last week. And what the D.C. Circuit is now considering is whether such a broad order has a place today.

32:33June Grasso:There were hearings around the country about these freezes of federal funds. How is this freeze different from some of the other ones we heard about?

32:42Suzanne Monyak:Of course, we saw a lot of litigation that was prompted when this funding freeze happened, largely just because there was so much confusion. I mean, the judge herself described chaos in this funding freeze. The Trump administration did seek to walk it back shortly after they issued the initial memo that caused so much confusion by issuing a Q &A that sat to clarify that this was not intended to be a full funding freeze, but rather something for individual agencies to only freeze funds that were potentially in conflict with executive orders. So there was just confusion really about the scope initially.

33:17Suzanne Monyak:But yes, of course, we saw a lot of litigation across courts. This is specifically the D.C. case. And that one was about the funding freeze overall, as opposed to a specific grant freeze.

33:26June Grasso:What was the main issue that the D.C. appellate judges were concerned with?

33:32Suzanne Monyak:The Trump administration is now on appeal seeking to have this lower court order lifted. They're arguing that essentially it's not needed anymore, that it's relevant and that it's causing problems at their agency. Specifically, they've said, you know, this funding freeze that we did was really specific to the fact that the new administration had just come into office. We wanted to do a full review of the money that was going out. This wouldn't apply again. Like this just would never happen again. And they claimed that we saw the government lawyer tell the court that it's led to some confusion about what the White House's budget office is allowed to do.

34:03Suzanne Monyak:Are they allowed to freeze what funds, what other funds? And so they said to the court, even if you don't choose to fully order this lower court ruling to be lifted, that perhaps you would order it to be clarified so that we could have clarity that it really only applies to a full 100 percent funding freeze as opposed to more tailored funding pauses that they may be interested in doing. and the court seemed somewhat I would say receptive to that argument that perhaps this preliminary injunction from a year ago just really doesn't apply anymore it was you know at in its time and we saw the appeals court judges even say you know we understand why the lower court did this given the information it had before it but now you know given what we're hearing from the government it's been a year we're not sure that it makes sense that this would still be in place it was a temporary order after all.

34:48June Grasso:So if the government says we're not going to do a funding freeze like that anymore, then why do they need the lower court order to be specific about what they can and cannot freeze?

35:00Suzanne Monyak:That's a great question. And that was something that we really saw the attorney for the nonprofits, who's with Democracy Forward Foundation Press, at the hearing. Well, she said, if the government is saying that we don't plan to freeze anything fully, then why do they care about this injunction being lifted? I think where I kind of saw the the government lawyer tried to make that explanation was that they were arguing it was causing confusion at the office of management and budget. And so just the way that the lower court order was phrased, it was seeming to be interpreted as a full funding freeze.

35:31Suzanne Monyak:But I guess there was some confusion about whether or not it would always be interpreted that way. And so they were asking for at a minimum more clarity from the appeals court. But that's correct. And that was really also one thing that Judge Bradley Garcia, who's one of the judges on the panel, specifically raised that if we were to see the Trump administration try to freeze a specific, you know, grant fund, something that, say, didn't align with executive orders on DEI initiatives or environmental issues, that kind of thing, that it wouldn't even be covered under the current injunction because the current injunction only applies to a full federal freeze as he interpreted it and wouldn't apply to a more narrow function.

36:05Suzanne Monyak:And he said, you know, it's hard to see what maintaining this injunction would do to protect your clients, the nonprofits. So that was, you know, something that we saw discussed as well. So it was just this idea that this injunction, as it was issued might have made sense at the time, but perhaps doesn't anymore. But then, of course, we did see the attorney with Democracy Forward say, you know, feel that the government had not given enough assurances that this wasn't going to be repeated. The government said, government's lawyer said things like, you know, there's no reason why we would do this again, but did stop somewhat short of saying specifically, I promise we will not do this again.

36:38Suzanne Monyak:And that's really what the nonprofit's attorney wanted to hear.

36:41June Grasso:In order for the judges to declare this moot, do they have to believe that that the Trump administration is true to its word and it's not going to initiate any of these freezes?

36:52Suzanne Monyak:Not necessarily. And that's one thing that it sounds like the judges did consider was they said, you know, if we take them at their word and we, you know, go ahead and order that this injunction be lifted and then the government were to go turn around and do the exact thing, there would be a legal remedy for that. And so I think in a way they were that was part of their thinking was, you know, even if we did lift this injunction, there's still recourse for you to come back to court if the government turns around and says, never mind, we're doing exactly the thing that we did a year ago. So there would still be legal recourse there.

37:23Suzanne Monyak:So it almost seems that it doesn't matter, at least in the view of the appeals court judges, you know, because there might be legal resource either way, whether the injunction were still in effect or not.

37:32June Grasso:So did it seem like they were leaning toward the government in the hearing?

37:36Suzanne Monyak:It seemed to me that my read of that panel was that they were leaning to the government, at least, you know, really seemed to be receptive to the argument that this injunction, you know, this many months later, and given how much the situation has changed on the ground, that perhaps this isn't the one that makes sense to have anymore. But certainly we'll see. There's always a risk to trying to read the tea leaves in court.

37:59June Grasso:Let's turn now to the Federal Judiciary's Research Office removing part of a climate section from an updated manual on scientific evidence after backlash from Republican appointed attorneys general. So they've had this manual and they're just updating it.

38:21Suzanne Monyak:That's right. This is a manual they've issued before. This is the fourth edition. The third, though, was back in 2011. So it's been a while since we've seen an update. And of course, when it comes to scientific evidence, these things move quickly. So we see topics in this fourth edition manual that include, for example, artificial intelligence. And the idea is to provide judges with a little bit more information when they're considering what evidence might be allowed to be included in litigation, just to kind of help them handle that evidence to know what would be an expert, what are good expert qualifications, just to give them an overview of some of the issues that might be coming before them.

38:53June Grasso:More than two dozen Republican appointed attorneys general objected to this?

38:59Suzanne Monyak:That's correct. They specifically objected to a section within the scientific manual that was focused on climate science written by two professors affiliated with Columbia University who wrote, you know, 80 plus, 90 plus pages about climate science, greenhouse gases, you know, just various concepts, overview of climate science. And also and really what I think the attorney general took issue with a bit on the role of humans in climate change.

39:24June Grasso:So by doing this, by taking this out, then the federal judiciary is bowing to the climate deniers who think that humans don't have anything to do with climate change?

39:35Suzanne Monyak:It would appear that way. The attorneys general argued that this was a disputed area of science and that they didn't feel that the researchers had done a good enough job to include maybe more climate skeptics, had acted like a human role in climate change was a given, and that they were concerned that this would sway or favor, say, environmental advocates in climate-related litigation, where they may be seeking to hold a government, local government, or a company accountable for their knowledge. environmental impact. And I think that's where they felt like this would maybe put a thumb on the scale, I think, as they said, in those types of cases.

40:12Suzanne Monyak:I spoke to one of the researchers, and she said that her section had gone through all of the same rigorous peer review as the other chapters that were left in.

40:21June Grasso:And who is it that makes the final decision on this?

40:24Suzanne Monyak:The decision came from, at least as it was publicized, the Federal Judicial Center, which is the research arm of the federal judiciary. So we saw really a one-sentence letter from Judge Robin Rosenberg, who's the chair of the FJC, notifying the leader of the attorney's general group that this section had been omitted as she phrased it. There was not any detail about what discussion had gone on or what considerations were taken into account. We really just have that one page letter and the FJC declined to comment further.

40:51June Grasso:Seems like they folded pretty quickly. Thanks so much, Suzanne. Always interesting to talk to you. That's Bloomberg Law Reporter Suzanne Moniak. 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.