No More Racial Profiling by ICE in Los Angeles

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1:19With our unified Team Michigan approach, businesses scale faster and compete at the highest level. Michigan, pure opportunity. Seize your opportunity at michiganbusiness.org. This is Bloomberg Law with June Grosso from Bloomberg Radio. Los Angeles has been a hotspot for the Trump administration's immigration efforts, with accusations that ICE agents were using racial profiling and other illegal tactics. The masked men in unmarked cars, no license plate, no real uniforms, jumping out of cars with rifles and snatching people off the street, leading a lot of people to think maybe kidnappings were taking place.

2:06That was Mayor Karen Bass on ABC's This Week. A federal judge found last month that there was a, quote, mountain of evidence that ICE agents' tactics were violating the Constitution. She issued an order barring agents in L.A. from stopping and questioning people on the basis of race or ethnicity, speaking Spanish or English with an accent, the type of work they do, or their presence at a particular location, like a car wash, a tow yard, or an agricultural site. And the Ninth Circuit Court of Appeals has unanimously backed that order, leaving the ball in the administration's court. My guest is an expert in immigration law, Leon Fresco, a partner at Holland and Knight.

2:53Leon, explain what the district judge ordered in the L.A. case. Well, the original case involved the challenge to something that was called Operation at Large, which was a federal immigration enforcement initiative in Los Angeles. There were these ICE contact teams targeting locations such as car washes and Home Depots and other places believed to employ undocumented workers. And there was a lawsuit claiming that these roving patrols detained individuals without reasonable suspicion, violating the Fourth Amendment. And the district court had held on July 11th that the plaintiffs were likely to succeed in proving unconstitutional seizures.

3:36So the judge restricted federal agents from conducting these ICE raids and stops without a reasonable suspicion. So what that means is that instead of walking around and trying to say this person looks like somebody that's not here legally, which has a sort of dubious application that people get worried about because they say, well, how are you making those decisions? What they're trying to do is convert ICE back into a list sort of agency where it says, we know today we're going to go after person one person, two person, three person, four person, five. And then they go and they look for these people because they know they're here undocumented rather than just grabbing people in the middle of the street.

4:23And so that's really the end goal of this lawsuit. And so, yes, there are times where they will still be able to pick people up because they'll have a reasonable suspicion for another reason other than they're on a list. But mostly this limits ice to the sort of list based enforcement. And what was the government's argument at the Ninth Circuit? When the government appealed, they said two things. They said, first of all, that the organizational plaintiffs in the case didn't even have standing to bring the case because organizational plaintiffs were the ones bringing the case. You know, because if you have an individual plaintiff, it's hard because you say, well, what are the odds that you particularly are going to be grabbed by ICE?

5:06So you don't really have standing to make the claim. So instead, there were these organizational plaintiffs who brought the case. And they also said that in general, they weren't violating the Fourth Amendment because they have the ability and the right to enforce immigration law. They have the right to question anybody about their lawful presence in the United States at any time. That's what the statute permits them to do. the Ninth Circuit said two things. First, that the organizational plaintiffs had standing because they showed that these kind of roving patrols forced them to divert their resources from, instead of carrying out other missions of supporting immigrants' rights in the community, they had to move to divert the resources into dealing with these enforcement actions.

5:53So that was the standing issue, and they said there was standing. But they also said that with regard to these claims about reasonable suspicion and Fourth Amendment violations caused by ICE officers roving around looking for people, they said that, yes, that does also seem to have a likelihood of success enough that they would not say the district court's ruling. It was a 3-0 decision. And so the court basically allowed almost all of the ruling to take place, except there was one line in the injunction that prevented ICE from even asking individuals about their immigration status absent reasonable suspicion.

6:32That was they. They were allowed to still do that. That was considered overbroad and problematic in terms of enforcement and constitutional interpretation. But the rest of the injunction was allowed to continue. So the judge ruled that ICE can't detain people based on their apparent race or ethnicity. So speaking Spanish or accented English or being at locations such as Home Depot parking lots, what does constitute reasonable suspicion then? The main thing that people who file this lawsuit basically are trying to limit ICE is to say, you have to have some sort of knowledge of the person you're looking for and of their immigration status before you go looking for those individuals.

7:23So for instance, if you're at an immigration court, then you'll know if somebody has that status or not. So then you can pick them up after. Or if again, you're working off a list of people who have lost their status that you know from the Department of Homeland Security databases, and you're going to pick up those people at their work or at their home, you then have reasonable suspicion and you can do that. And what the decision also allows is, so for instance, let's say there's 20 undocumented people at a work site that they know about because they have it in their database, then they can ask, okay, well, what about the other people at this work site?

8:00I want to see the paperwork for them, because then there's a reasonable suspicion, because you've already established that there's 20 undocumented people at that work site, that the employer hires undocumented people. But in terms of just randomly generating leads by going to places and making these sort of facial decisions, I am concerned about how this person looks or how they present themselves, et cetera, that's the kind of thing that is enjoined under this injunction. How much of a hindrance is this order to ICE? Well, it depends if you say how much of a hindrance is it to their deterrent operations as opposed to their removal operations.

8:46It's not really a deterrent at all to their removal operations in the sense of ICE has pretty sophisticated databases where it knows where most of the undocumented people in this country are and where they live. And ICE, if they want to, can go and pick up as many people as it has detention space to detain. And so there's never a shortage of people that ICE can pick up on any given day to place in detention, given the limited detention space it has. But what it does limit is ISIS ability to engage in the kind of patrols that are designed to create a deterrent effect, meaning people are nervous to remain here in the United States because they think, if I take a city bus or if I just go shopping or if I'm taking my child to school, I could be apprehended at any moment.

9:38The design of those operations isn't to meet the quota, so to speak. It's to instead create a deterrent effect that tells people if you stay here, you never know what day is going to be the day you're apprehended. So you should just return home. And so that's where it's limiting the operation is in that deterrent effect. So the government has two options. It can ask for an en banc hearing to reconsider the panel's decision or it could ask the Supreme Court to stay the order. Do you think it will do either of those things?

10:41they've been getting better results in the Supreme Court with saying some of these injunctions. And I could foresee the Supreme Court lifting or saying parts of the injunction that limit ICE's hands. I mean, I don't see them potentially taking away the whole injunction, but I could see them giving ICE a little bit more wiggle room here. And so I do think they're going to try their hand there to see if they can continue, because I think they view these city roving operations as a important part of their deterrent force. And so they really want to be engaging in these. And I don't think they'll give it up that easily.

11:22So during this hearing, the Ninth Circuit hearing, the judges asked the government lawyer repeatedly whether the Trump administration has set a quota of 3 ,000 immigration arrests a day. That number has been bandied about, and it started with, I believe, Stephen Miller, White House advisor. The government lawyer Yakov Roth said he didn't know, and the judges said, OK, submit a letter. And in the letter, he said that was incorrect, that there wasn't a goal of 3 ,000. I mean, do you think there's a goal? I think the way they're trying to basically square the circle is to say that there's not a memo or a policy or anything in place where if they don't hit 3 ,000 in a day, something bad happens to somebody at ICE or somebody's pay gets docked or anything like that.

12:14So they recognize, yes, people have said 3 ,000 a day. That is something that's been said in the media. But there's not any operational context that actually requires 3 ,000 people to be arrested a day. And the truth is, their goal is to detain as many people as they can each day. I think 3 ,000 is probably not a policy in the sense that it has to hit 3 ,000 or something happens legally where somebody's held responsible for not hitting 3 ,000. So I think that's probably an accurate statement. But the intent or the goal is to detain as many people as possible. If that was 6 ,000, they'd be happier than if it was 4 ,000 or if it was 2 ,000.

12:58And so if the idea behind this lawsuit is that these roving patrols are being done to generate as many removals as possible or as many detentions as possible, I don't think the administration would dispute that. But the issue is, do they have this quota? And I think the quota would only bother them from the standpoint that any law enforcement operation that's not geared toward enforcing the law in that individual case, but that's geared toward a larger quota, creates trouble with regard to sort of the motives of the government in how it's operating and how it's conducting law enforcement. Those have been problematic cases in other contexts in the court.

13:42But I think it's just fair to say there's not a quota that is operationalized, but rather just a goal. Hey, get as many people as you can in detention and in deportation proceedings as humanly possible. And so the number 3 ,000 was a goal in terms of you should be able to do this. But again, I think it's fair enough to say that there's no legal consequences for not hitting that number. Coming up next, ICE agrees that agents in Los Angeles won't impersonate police officers to make arrests in homes. You're listening to Bloomberg. This is the Bloomberg Tech Minute brought to you by ChatGPT. Now with ChatGPT Work, I'm Carol Masser.

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17:15Well, in another lawsuit challenging the constitutionality of ICE agents in L.A., impersonating police officers or using other ruses to make home arrests. ICE has reached a court-approved settlement. Under the agreement, ICE officers can't claim to be state or local law enforcement or misrepresent the nature of their visit in order to enter a home or persuade a resident to come outside. I've been talking to immigration attorney Leon Fresco of Holland & Knight. Leon, explain what ICE officers were doing. This is sort of a larger issue, which is that as the people in the immigration rights movement have become very, very successful in communicating messages of know your rights, a lot of people in the immigration community have understood that ICE can be refused entry into a home unless they have a judicial warrant.

18:12So if they have an administrative warrant or if they just say, can you let me in, you're totally within your right to say, no, I don't want to let you in, and ICE can't go in. If ICE goes in, then whatever operation they did is invalid under the law once it eventually gets to a court. And so a lot of individuals know this now. So ICE has had to operate in this sort of, and this has been happening for many years, this is not a recent thing, but the settlement is recent, where they try to find ways around these limitations. So they try to get people to come outside. They say, hey, your car is broken, or hey, I need some direction.

18:48Can you come outside or whatever? And then once they're outside, then they can conduct their legal action. Or they say they're police, can they be let inside? And if people think they're police but not ICE, then they let them inside. And so the idea of this lawsuit was to say ICE has to not do those tactics of giving some sort of not whole truth or potential deviation from the truth in what their operations are. They have to say that they're ICE, both in their clothing and in their verbiage, and so that when they are engaging in those operations now under the settlement, then the individuals will know this is ICE.

19:27ICE is trying to enter the home. I can refuse it unless they have a judicial warrant. Yeah, so they have to have a warrant that's signed by a judge. And those are hard to get? It's not that they're hard to get, but it's time consuming because judges only have so many things they can do on a given day. And if ICE is trying to get one of those warrants, they have to set up the paperwork that says, here's this person, here's how we know they entered illegally, or they entered legally, but they've overstayed their status. And then you wait for the judge to issue the warrant and then the judge issues the warrant.

20:01So all of this takes time and it's time that ICE doesn't want to be spending when it can just write up an administrative warrant on their word processing document. And so they try to do that, but if they're not successful, then they have to go and get a warrant from a judge, meaning also they have to get the Department of Justice lawyer involved and those lawyers want to be doing other things. They don't necessarily want to be doing this, although they're being ordered to do more of this. And so that's the sort of barrier to entry to get those warrants. So it's not hard legally, but you just have to get a lot of people interested in terms of the judge and the Department of Justice and others in issuing the warrant.

20:40And so that takes time and resources. And so you mentioned clothing, identifying them as ICE. Do ICE agents often have clothing that says police instead of ICE? They, for a number of years, have been engaging in these operations where what the front of their shirt would say was the word police. And that's it. And they said, well, police has this sort of general meaning of a person who enforces law. So we are correct to be able to say police. We don't have to say ICE. We just have to say we are people who enforce the law. But now in this settlement, ICE can't do that. It actually has to say it is ICE, not just that it's police.

21:23One more question on clothing. ICE agents, whenever you see video of them or photos, they're wearing masks. Is there a problem with them wearing masks as well? I mean, I take it they're wearing masks to conceal their identity. Right. At the moment, this mask issue is one that's being hotly debated in the Congress for this upcoming appropriation bill. They're trying to see if they can actually get some language in there that maybe the Republicans will agree to with regard to people being able to identify themselves so that people aren't worried whether these are fake ICE officers who are actually criminals trying to take advantage.

22:00But at the moment, there isn't any court order or anything that says that the agents can't wear masks. The agents wear masks because they don't want people coming to their homes. now in this social media era, you could say, oh, that's ICE agent Fred Smith, who lives on 111 Smith Lane. And so go to their house and yell at them. They're trying to avoid that scenario. That is a scenario that whether you agree with immigration enforcement or not, the people at ICE don't deserve to have their houses raided by angry people in the community. And so it's one of those terrible situations all the way around.

22:36But the wearing of masks, there's going to need to be I think most people agree some sort of limiting principle here where there has to be some identification that's done and shown that says I'm an ICE agent. So maybe the person wears a mask, but during the immediate apprehension says, here's my badge and I'm an ICE agent, and they show it and then that solves the problem. But I think the current way where someone just is completely unidentified wearing a mask and putting someone in a van, I think if that continues, you will see courts getting involved. And I think you'll even see Congress getting involved because those are not the kind of images that one typically associates with normal law enforcement.

23:23You want law enforcement to be more transparent than that. And so we will see. But the concerns are well understood. They're well justified. But there has to be some principle where at least I think a badge is shown or something happens so that people can know, okay, this is an ICE agent doing this operation. Let's turn now to visas to get into the country. The State Department is proposing requiring applicants for business and tourist visas, some applicants, to post bonds up to$15 ,000. Who are they targeting here? So this is a pilot program, and what they're trying to do is They are worried that there are certain countries that have very high overstay rates.

24:06That means that a visa gets issued and the person doesn't go home and they instead stay in the United States. And so what they're trying to do is to create a financial disincentive for people to do that, which is a bond, meaning you put up this money and you don't get it back if you don't go home. And so right now they're doing about two dozen countries that have a 10 percent or higher overstay rate. Most of these are African countries. And what they're going to say to the State Department is, charge these bonds, and only if they can put up the bond will they get the visa. Now, this is an interesting concept.

24:41This is actually a concept that even when I was a staffer back on the Hill, you know, a long, long time ago, many, many, many, many years ago, I actually was in favor of this concept, but in a slightly different way, meaning that a lot of what the State Department does is guesswork. trying to guess is someone going to overstay or not. They really don't have any idea. They're just trying to do the best they can under some challenging circumstances. And so I had pushed the State Department personally as a staff director of the Immigration Subcommittee to do these bonds, but in a way where basically what would happen was if someone would refuse the visa, they could overcome the refusal by putting up a bond and say, hey, if you really think I'm going to overstay, here's$50 ,000 saying I'm not going to overstay.

25:31And the State Department had traditionally, and by traditionally, I mean at least the last two, three decades, taken the view there was no bond you could make people pay that would substitute from their desire to overstay. So if you made the bond$20 ,000,$50 ,000, they just put up the money and overstay and they don't care. And so it appears the Trump administration does not agree with that. So they're putting up the bond. But the issue is, who's going to get charged this bond? So is this bond, and this is more going to have to wait and see, is this bond going to get charged to people who would otherwise have already been approved, and now they have to pay a bond?

26:12Or is this going to be the way I wanted it, which was someone whose case was iffy, who you thought could be approved, but you're a little nervous so you deny it, now you can put a bond in and you can approve the visa because now they can pay and show that they're serious about going back. And so if it's this second concept, I think that's actually an improvement from where we were before. But if it's the first concept, then it's useful for your listeners to know that getting a visa from any of these countries in Africa is very, very hard. You have to be extraordinarily wealthy in order to get a visa so that your overstay risk is almost zero in that context.

26:56And so just to make those people have to pay a bond when it was clear they were already going to go home seems excessive and unnecessary. So that's what we're going to wait and see is what context is it still going to be optional for the individual consular officials to decide whether the bond would be zero, 5 ,000, $10 ,000 or up to$15 ,000. That's the highest they can charge. And who they will give the bonds to. So we'll have to wait and see. But I do think if there was a scenario where this could be applied to people who otherwise wouldn't have been permitted to travel, I'm not so against it.

27:32But I think we'll have to wait and see there. Does it involve a lot of paperwork? Does this put additional burdens on? Well, this is going to be a brand new thing for the State Department. Absolutely. They don't have the infrastructure in place to A, collect the money, B, hold the money, C, pay back the money, D, determine if you actually earned your bond, meaning you came back. And then the question also is, what does this mean? So, for instance, a visitor visa, sometimes it's a 10-year visa, and it allows you to go back and forth as many times as you want during those 10 years. So the question is, do you have to keep putting up the$15 ,000 every single time you enter, or do you only have to do it the first time and show that you went back the first time?

28:15Because if you only have to do it the first time, then somebody can become very creative and say, let me just, you know, come back the first time. But then the second time I enter is the time I can overstay. So I don't know what they're going to do about all of that. I don't think they quite know either, but they're going to have to work out all of those issues. The administration is also tightening visa requirements for certain people. We talked about them denying a visa to the Venezuelan Little League team. So now they're going to deny female transgender athletes petitions for extraordinary ability visas.