# SCOTUS on Geofence Warrants & Migrant Protected Status

An episode of [Bloomberg Law](https://invisiblenetwork.ai/podcast/277975394), 1 May 2026, 38 min.

Audio: https://podtrac.com/pts/redirect.mp3/traffic.omny.fm/d/clips/e73c998e-6e60-432f-8610-ae210140c5b1/7c892d84-801f-4c0b-b0e9-ae2b0012ff5f/2c27e4b3-a9cf-40e7-a034-b43d0030250c/audio.mp3?utm_source=Podcast&in_playlist=91224201-26a6-429d-ac3c-ae2b0012ff6d

Former federal prosecutor George Newhouse of Richards Carrington, discusses Supreme Court oral arguments over geofence warrants. Then immigration law expert Leon Fresco of Holland & Knight, discusses Supreme Court oral arguments over the Trump administration revoking Temporary Protected Status for Haitian and Syrian immigrants. June Grasso hosts. See omnystudio.com/listener for privacy information.

## Transcript

[0:02] Speaker 1: This is Bloomberg Law, with June Grossel from Bloomberg Radio.
[0:10] Speaker 2: During oral arguments this week, the Supreme Court justices struggle
[0:15] Speaker 2: with the question of whether a geofence warrant that compelled
[0:19] Speaker 2: Google to share location data from cell phones New York
[0:22] Speaker 2: crime scene is an unlawful search that violates the Fourth Amendment.
[0:28] Speaker 2: Justice has ran through hypotheticals trying to compare the process
[0:32] Speaker 2: to a traditional physical search of a hotel or storage locker. Some,
[0:37] Speaker 2: like Chief Justice John Roberts, expressed concerns about the surveillance
[0:42] Speaker 2: of locations like churches or political rallies.
[0:45] Speaker 3: One of the central concerns that's been voiced, of course,
[0:48] Speaker 3: is what's to prevent the government from using this to
[0:51] Speaker 3: find out the identities of everybody at a particular church,
[0:55] Speaker 3: a particular political organization. What are the restraints that would
[1:00] Speaker 3: prevent that from becoming a problem.
[1:02] Speaker 2: Others were concerned that the government's position on publicly visible
[1:06] Speaker 2: movements would extend to private residences. Here's Justice Amy Coney Barrett.
[1:12] Speaker 4: Now you're telling Justice Kagan really that if you go
[1:14] Speaker 4: into a private home, it wouldn't be a search. I mean,
[1:17] Speaker 4: if you trace location services, I mean I understand in
[1:20] Speaker 4: this case, and is that true that in this case
[1:23] Speaker 4: you're saying you didn't pick him up in any home.
[1:26] Speaker 3: Well, your honor, he eventually stopped at the end of
[1:30] Speaker 3: his journey away from the bank at a group of homes.
[1:33] Speaker 5: But there's testimonies his page one.
[1:34] Speaker 4: Twent not inside the home.
[1:36] Speaker 5: We couldn't tell which home he was even in.
[1:39] Speaker 4: Okay, but you really are saying that you could track
[1:42] Speaker 4: someone going inside a home. Justice Soda Mayor asked mister
[1:46] Speaker 4: Yunikowski about movements inside of home, movements to the bathroom,
[1:49] Speaker 4: movements to the bedroom, all of that.
[1:52] Speaker 2: My guest his former federal prosecutor, George Newhouse of Richard's Carrington. George,
[1:58] Speaker 2: will you explain what geofence warrant is and how police
[2:02] Speaker 2: use them.
[2:04] Speaker 1: Geofans warrants are the latest technology innovation that's raising some
[2:08] Speaker 1: very interesting Fourth Amendment issues. So essentially, Google, which is
[2:13] Speaker 1: everywhere ubiquitous, collects and a massive amount of data location
[2:17] Speaker 1: data from you and me and people with phones who
[2:20] Speaker 1: walk around. And they have to agree to allow this,
[2:23] Speaker 1: by the way, so you can turn your location services off,
[2:26] Speaker 1: but most people don't, and Google collects information about millions
[2:30] Speaker 1: of its customers. But what's amazing about the geofence is
[2:33] Speaker 1: it's able to sort through this massive amount of data
[2:37] Speaker 1: and here are all the people that were within one
[2:39] Speaker 1: hundred and fifty yards at a particular time and date.
[2:42] Speaker 1: So it's very useful and was used in this case
[2:45] Speaker 1: to identify the suspect. So it's like a search warrant
[2:48] Speaker 1: in reverse. Normally, they know who the suspect is and
[2:51] Speaker 1: they want to search for physical evidence. In this case,
[2:54] Speaker 1: the geofence warrants allow law enforcement to locate the suspect
[2:58] Speaker 1: they otherwise don't know. It's ingenius and of course in
[3:02] Speaker 1: very novel technology.
[3:03] Speaker 2: In this case is about a bank robber who actually
[3:06] Speaker 2: eluded police until they turned to the geofence warrant.
[3:11] Speaker 1: Correct His name is Shatri. He robbed a Virginia bank.
[3:14] Speaker 1: Probably walked in with a demand note and no one
[3:17] Speaker 1: knew who he was, and he walked out by the
[3:19] Speaker 1: way with one hundred thousand dollars in cash. So it
[3:21] Speaker 1: was a very successful bank robber. He got away. He
[3:24] Speaker 1: was on surveillance video, but otherwise no one knew who
[3:28] Speaker 1: he was. The police didn't know he was, but they
[3:30] Speaker 1: saw something interesting on the surveillance they saw him talking
[3:33] Speaker 1: on his phone, so they knew he had a cell phone,
[3:37] Speaker 1: and of course most of us, wherever you go, your
[3:40] Speaker 1: cell phone is with you. And oh, by the way,
[3:42] Speaker 1: that means that your cell phone is pinging towers and
[3:44] Speaker 1: Google and telling people what your location is. So knowing
[3:48] Speaker 1: that he had a phone, they prepared the search Worm,
[3:51] Speaker 1: which is literally a judicially signed document that required Google
[3:56] Speaker 1: to search through all this data and produce They did
[3:58] Speaker 1: actually a three products. Was the first one was animized,
[4:02] Speaker 1: meaning they didn't identify who the customers were, but they
[4:05] Speaker 1: identified how many and location, and then they did several
[4:08] Speaker 1: different tiers until they got to the third tier with
[4:11] Speaker 1: more information, and then Google was able to give them
[4:14] Speaker 1: the names and phone numbers of three suspects, one of
[4:17] Speaker 1: whom was Shatrey, and that led to a real search
[4:20] Speaker 1: warrant for his house where guess what, they found one
[4:23] Speaker 1: hundred thousand dollars in cash, easily incriminating him.
[4:26] Speaker 2: So, now what's the question before the Supreme Court?
[4:29] Speaker 1: So typically in these cases, the first question is was
[4:33] Speaker 1: the application to Google? It's a warrant? But was that
[4:37] Speaker 1: a search under the Fourth Amendment? Because typically if it's
[4:40] Speaker 1: a search, it has to pass the reasonableness question. And
[4:44] Speaker 1: of course, one of the things that Justice has talked
[4:46] Speaker 1: about in the argument was, you know, normally, if you
[4:50] Speaker 1: have a warrant, you're in good shape. A lot of
[4:52] Speaker 1: these test cases where they're acting without a warrant. Here
[4:55] Speaker 1: they had a warrant, and the question was did the
[4:58] Speaker 1: warrant then have probable cause sufficient to allow the judge
[5:02] Speaker 1: to sign the magistrate to sign the warrant. And of
[5:05] Speaker 1: course they didn't have probable casts as to any specific individual.
[5:08] Speaker 1: That's the twist in this case. So they weren't looking
[5:12] Speaker 1: for evidence. They were looking to see who did it
[5:14] Speaker 1: the identification, and that's novel.
[5:17] Speaker 2: There was a lot of concern about the broadness of
[5:21] Speaker 2: the Trump administration's position here, and you had justices like
[5:25] Speaker 2: the Chief Justice saying, what's to prevent the government from
[5:29] Speaker 2: using this to find out the identities of everybody at
[5:32] Speaker 2: a particular church, a particular political organization. Justice Amy Cony
[5:36] Speaker 2: Barrett said, so you could track someone going inside a home,
[5:39] Speaker 2: movements to the bathroom, movements to the bedroom, all of that.
[5:43] Speaker 1: Well, first of all, I think they're overstating the preciseness
[5:46] Speaker 1: of the technology. It's not that precise. Really, it's a geocircle.
[5:50] Speaker 1: It's one hundred yards. They don't necessarily know where you're
[5:53] Speaker 1: going or what you're doing, but they can see where
[5:55] Speaker 1: you are. And yes, those concerns were raised. I think
[5:58] Speaker 1: the response of that is, well, first of all, it
[6:01] Speaker 1: can't be used for general surveillance. You have to be
[6:04] Speaker 1: investigating a criminal action, bank robbery, or national security ors.
[6:09] Speaker 1: You know, they were worried about identifying murderers and other
[6:12] Speaker 1: people who committed crimes. So I don't think it be
[6:15] Speaker 1: used that far. But the concern is that some of
[6:18] Speaker 1: the people talking about this said, this case is unique
[6:20] Speaker 1: because the principle of government seems to be search first
[6:25] Speaker 1: and develop suspicion or evidence later, and normally it's the
[6:28] Speaker 1: other way around. They get the evidence first and then
[6:30] Speaker 1: they use that to further identify the individuals responsible. So
[6:35] Speaker 1: I think that's probably less of a concern. But the
[6:38] Speaker 1: breadth of this particular tool in the hands of law
[6:41] Speaker 1: enforcement is staggering.
[6:43] Speaker 2: And any other concerns that you heard from the justices.
[6:46] Speaker 1: Well, again they're always concerned now when they deal with
[6:49] Speaker 1: these cases. Because the way technology develops so fast, it
[6:53] Speaker 1: quickly outstrips prior cases. I mean, the last time we
[6:56] Speaker 1: had a significant Fourth Amendment search of this nature, it
[7:00] Speaker 1: would be Carpenter at the California case where the police
[7:04] Speaker 1: seized and then searched a cell phone incident to arrest.
[7:08] Speaker 1: And of course the courts are concerned about protecting the
[7:11] Speaker 1: privacy of individuals. The argument that the government made in
[7:15] Speaker 1: this case, which I think is a pretty strong argument, is,
[7:18] Speaker 1: in a sense, everyone who carries a cell phone, they
[7:22] Speaker 1: may not know that Google is doing this, but they've
[7:23] Speaker 1: consented to location services, so at that point they have it,
[7:27] Speaker 1: and they phrases a diminished expectation of privacy, and that's
[7:31] Speaker 1: usually where it turns.
[7:32] Speaker 5: Cat.
[7:32] Speaker 2: Do you think they'll come out well.
[7:34] Speaker 1: I mean I listened to the argument, which was interesting.
[7:37] Speaker 1: I didn't see the argument as quite as divided as
[7:40] Speaker 1: some of the commentators have. I think quite clearly the
[7:43] Speaker 1: action will be affirmed. What they're probably likely to do
[7:46] Speaker 1: is write an opinion that will seek to put some
[7:49] Speaker 1: guardrails up, put some parameters. Here's what the police have
[7:52] Speaker 1: to do. Things that they can't do would be including,
[7:56] Speaker 1: you know, start following people around. And there are lots
[7:59] Speaker 1: of uses that they could conceivably be concerned about that
[8:03] Speaker 1: by writing a narrow opinion affirming the conviction and the
[8:06] Speaker 1: use of the geofense in this case, the court may
[8:10] Speaker 1: be trying to put up boundaries, as they did in
[8:12] Speaker 1: the Miranda decision and in other decisions in the past.
[8:15] Speaker 2: It seems when privacy is at stake, it's something that
[8:18] Speaker 2: concerns them personally, and the oral arguments are a lot livelier,
[8:23] Speaker 2: with more energy.
[8:24] Speaker 1: Energy, and good humor. At one point, Barrett commented that
[8:28] Speaker 1: she was aware that when she walked into Nordstroms or
[8:32] Speaker 1: one of these stores where she was shopping, that the
[8:35] Speaker 1: store seemed to know she was there. And this is true.
[8:37] Speaker 1: This is what Google does with his data. It sells
[8:39] Speaker 1: the data and then you immediately get text messages asking
[8:42] Speaker 1: if you are interested in a special on XYZ. So
[8:46] Speaker 1: you say, oh my gosh, my phone knows exactly where
[8:49] Speaker 1: I am and what I'm doing. And the justices all
[8:52] Speaker 1: seem to enjoy that. But so the point is when
[8:54] Speaker 1: the justices can relate to the use of the technology
[8:58] Speaker 1: in their own personal lives, then they stand up and
[9:01] Speaker 1: they take attention, and they tend to be very careful
[9:05] Speaker 1: in the opinion because it affects them as well as
[9:07] Speaker 1: everyone else.
[9:08] Speaker 2: It's a learning experience sometimes for us and for them.
[9:12] Speaker 1: Correct anyway, a fascinating case and it'll be interesting to
[9:15] Speaker 1: see where it comes out. But it's clear to me
[9:18] Speaker 1: and a few others that although they were interested in
[9:21] Speaker 1: a lot of the variations and the particular concerns were expressed,
[9:25] Speaker 1: that seems to be a clear majority of the court,
[9:28] Speaker 1: the justices who are supporting law enforcement. I want to
[9:31] Speaker 1: make sure that the tools of the law enforcement trade
[9:33] Speaker 1: are enabled.
[9:35] Speaker 2: And do you think that it could hamper police in
[9:39] Speaker 2: their investigations if they have to comply with certain requirements
[9:44] Speaker 2: that were referred to.
[9:46] Speaker 1: Well, again, it's hard to say yes if the court
[9:48] Speaker 1: said you cannot obtain a search one unless you have
[9:52] Speaker 1: more specific information about the individual. And there was also
[9:56] Speaker 1: some disconcern about what we call the lack of particularity
[10:00] Speaker 1: very general warrant. In fact, there was discussion about comparing
[10:03] Speaker 1: it to the general warrants that were issued by the
[10:06] Speaker 1: British authorities and the revolution that led to the Fourth Amendment.
[10:09] Speaker 1: But I think they will add enough to make sure
[10:12] Speaker 1: that this is a tool. It's going to be very useful.
[10:14] Speaker 1: But of course the other problem is it will also
[10:17] Speaker 1: continue to develop as technology develops. We are entering an
[10:21] Speaker 1: age of surveillance. I hate to say this, and that's
[10:24] Speaker 1: the one thing that everyone should be concerned about.
[10:26] Speaker 2: That certainly seemed to cut across the ideological divide. Thanks
[10:31] Speaker 2: so much for your insights, George. That's form our federal prosecutor,
[10:34] Speaker 2: George Newhouse of Richard's Carrington. President Trump's past remarks disparaging
[10:40] Speaker 2: Haiti became part of the oral arguments in two cases
[10:44] Speaker 2: before the Supreme Court this week that tests the Department
[10:47] Speaker 2: of Homeland Securities power to end temporary protections for migrants
[10:53] Speaker 2: from crisis ridden countries like Haiti in Syria. Just as
[10:57] Speaker 2: Sonya Soto, Mayors said that trump Comes past comments about
[11:01] Speaker 2: Haiti seemed to show that an improper discriminatory purpose may
[11:07] Speaker 2: have played a part in the decision to cut off
[11:09] Speaker 2: temporary protected status.
[11:12] Speaker 6: That Haiti is a quote filthy, dirty and disgusting s
[11:16] Speaker 6: whole country. I'm quoting him, and where he complained that
[11:19] Speaker 6: the United States takes people from such countries instead of
[11:25] Speaker 6: people from Norway, Sweden or Denmark, where he declared illegal.
[11:31] Speaker 6: Where he declared illegal immigrants which he associated with TPS
[11:37] Speaker 6: as poisoning the blood of America.
[11:39] Speaker 2: The administration told the court that those past remarks by
[11:43] Speaker 2: the president were not racist and shouldn't get in the
[11:46] Speaker 2: way of the government stripping away temporary protections from migrants.
[11:51] Speaker 2: But the overarching question was whether judges have authority to
[11:55] Speaker 2: even review the DHS secretary's decision. Some of the conservative justices,
[12:01] Speaker 2: like Clarence Thomas, question that.
[12:04] Speaker 7: Would you be kind enough to say what else is
[12:09] Speaker 7: reviewable under despite the jurisdiction stripping provision, because it seems
[12:18] Speaker 7: pretty broad. It says there's no judicial review of any
[12:21] Speaker 7: determination of the Attorney General.
[12:24] Speaker 2: My guest is immigration law expert Leon Fresco, a partner
[12:27] Speaker 2: at Hollanden Knight. Leons start by giving us the background
[12:31] Speaker 2: of these cases.
[12:33] Speaker 5: In September and in June of twenty twenty five, the
[12:36] Speaker 5: DHS Secretary at the time, Christinom terminated temporary protected status
[12:42] Speaker 5: designations for Siri and Haiti. What that means is the
[12:46] Speaker 5: president has the ability to at any time say that
[12:49] Speaker 5: the conditions in a country are so unacceptable that it
[12:53] Speaker 5: would not be a good idea to deport people to
[12:55] Speaker 5: those countries, and then that triggers an eighteen month period
[12:59] Speaker 5: called tenporary protected status, So that had been done under
[13:03] Speaker 5: the Biden administration for Syria and Haiti, and the Trump
[13:07] Speaker 5: administration lifted these designations for Syria and Haiti because they
[13:12] Speaker 5: said that there was no more need for this and
[13:15] Speaker 5: they said it was in the national interests of the
[13:17] Speaker 5: United States to not have TPS, which was a subsequent
[13:22] Speaker 5: argument in this case that what does that have to
[13:24] Speaker 5: do with anything here? This is sort of a larger
[13:27] Speaker 5: issue of what are the conditions in those countries. But nevertheless,
[13:31] Speaker 5: the immigration advocates found plaintiffs who were Syrian and Haitian
[13:36] Speaker 5: to sue the Department of Homeland Security over their TPS
[13:41] Speaker 5: revocation termination, and those cases work their way up the
[13:46] Speaker 5: district court and the appellate court, and they're now before
[13:49] Speaker 5: the Supreme Court on the issue of whether those designations
[13:53] Speaker 5: are reviewable, and if they are reviewable, what can be reviewed.
[13:57] Speaker 2: So several of the conservative justice has sort of harped
[14:01] Speaker 2: on the fact that the nineteen ninety law that created
[14:04] Speaker 2: TPS says there's no judicial review of the secretary's determination.
[14:10] Speaker 5: Correct, And there's a lot of case law on this
[14:13] Speaker 5: issue of judicial review, and the big one is mcnaery
[14:18] Speaker 5: that's a big case that had to deal with other
[14:20] Speaker 5: parts of the Immigration Code where they say there's no
[14:24] Speaker 5: judicial review. And the issue that comes into play is
[14:29] Speaker 5: does that mean everything is not subject to judicial review
[14:33] Speaker 5: or the final decision isn't subject to judicial review? And
[14:37] Speaker 5: this is where there was a lot of debate and
[14:40] Speaker 5: discussion there because the idea was, well, fine, if you
[14:45] Speaker 5: really did a good job analyzing the issue, you contacted
[14:49] Speaker 5: the State Department, you've had your experts on the ground
[14:52] Speaker 5: tell you that Haiti was fine and that Syria was fine, well,
[14:57] Speaker 5: then that wouldn't be something subject to review. But what
[15:00] Speaker 5: if everybody had found out Let's say they had put
[15:03] Speaker 5: it on YouTube as an example, where you blindfold the
[15:07] Speaker 5: secretary and you say throw a dart and wherever the
[15:10] Speaker 5: dark lands, that's what we're gonna do with TPS. We're
[15:13] Speaker 5: either gonna do yes or no. Could you review that?
[15:15] Speaker 5: Would you have any remedy if that's how they made
[15:18] Speaker 5: the decision on TPS. And it looked like there was
[15:21] Speaker 5: three justices who said even that would not be reviewable,
[15:24] Speaker 5: but there seemed to be about five justices who thought,
[15:28] Speaker 5: wait a second, and really something like that happened where
[15:32] Speaker 5: you just made a mockery of the review process on
[15:35] Speaker 5: whether to terminate or whether to renew TPS. Then that
[15:39] Speaker 5: might be something we would need to look at, because
[15:42] Speaker 5: how could you just allow a situation like that to
[15:44] Speaker 5: stand leon and.
[15:46] Speaker 2: The liberal justices brought this up. Then Homeland Security Secretary
[15:50] Speaker 2: Christy Nome, did she take any of the required steps
[15:55] Speaker 2: in canceling the GPS protections.
[15:59] Speaker 5: That's the concern that they have is they say that
[16:02] Speaker 5: at the end of the day, she really didn't review
[16:06] Speaker 5: the country conditions that were necessary. She really didn't have
[16:10] Speaker 5: the consultations that were necessary in order to make the
[16:13] Speaker 5: determinations that it actually was safe to deport people to
[16:19] Speaker 5: Syria and Tahiti. They said, this was just a very
[16:21] Speaker 5: brief email to the State Department and then boilerplate responses
[16:25] Speaker 5: saying there were no foreign policy concerns. And so they're saying, look,
[16:30] Speaker 5: we're not saying you have to have a massive trial here,
[16:34] Speaker 5: but if that's all you do, and then by the way,
[16:37] Speaker 5: you discuss in your revocation, notice that it's just in
[16:41] Speaker 5: the national interest to revoke this. You know that the
[16:45] Speaker 5: American people not be subjected to immigration from these countries.
[16:50] Speaker 5: That's not really what matters in these determinations. What the
[16:54] Speaker 5: statute says matters are the conditions on the ground and
[16:58] Speaker 5: whether it has become safe to port those individuals to
[17:01] Speaker 5: those countries based on the conditions on the ground.
[17:05] Speaker 2: And lawyers for the immigrants pointed to State Department advisories
[17:10] Speaker 2: that warn US citizens not to travel to either country
[17:14] Speaker 2: because of risks of terrorism, kidnapping, and armed conflict. Can
[17:18] Speaker 2: you lay out where you think the justices stand.
[17:21] Speaker 5: It looks to me like there will be five votes
[17:25] Speaker 5: Jackson Kagan Soto mayor. But also it looks like Justice
[17:29] Speaker 5: Barrett and Justice Roberts that are signaling concerned with this
[17:33] Speaker 5: idea that there might have been some administrative pretext and
[17:37] Speaker 5: procedural irregularity there, and that what would happen is you
[17:42] Speaker 5: would not have a categorical rule that says, under no
[17:45] Speaker 5: circumstances is anything reviewable. But what it would say is
[17:49] Speaker 5: you can have review as to whether the procedures that
[17:53] Speaker 5: the Congress requested were followed, and if they were, whatever
[17:57] Speaker 5: the outcome is that can't be reviewed because at the
[18:00] Speaker 5: end of the day, you need to have some ability
[18:04] Speaker 5: there to say, hey, there's deference given to these determinations
[18:08] Speaker 5: This is not the province of judges to say whether
[18:10] Speaker 5: Haiti is too dangerous or whether serious to dangerous. How
[18:14] Speaker 5: do the judges know that? But you have to follow
[18:17] Speaker 5: the procedures. You can't throw a dart on a dark
[18:20] Speaker 5: board and figure this out. And it looked like there
[18:23] Speaker 5: were three Justices Thomas, Alito and possibly gorzag who seemed
[18:28] Speaker 5: to be concerned that this TPS question. It isn't just
[18:32] Speaker 5: about deference to President Trump, but it's also about the
[18:35] Speaker 5: fact that there's foreign policy questions here about what we
[18:39] Speaker 5: say about foreign countries, and the vast majority of time
[18:43] Speaker 5: when you say that something implicates foreign policy, that then
[18:46] Speaker 5: becomes what is known as a political question, which means
[18:49] Speaker 5: it's not something the courts will elect to review. They'll say, look,
[18:53] Speaker 5: that's fully in the province of the president, and we
[18:57] Speaker 5: don't get involved in that. I don't know where just
[19:00] Speaker 5: this Kavanaugh will go seem very uncertain based on the argument,
[19:04] Speaker 5: but I think there's at least five votes to say
[19:07] Speaker 5: you can have review as to whether the procedure was followed,
[19:11] Speaker 5: but that judicial review of whether the right decision was made.
[19:15] Speaker 2: So last week the Supreme Court considered how much discretion
[19:20] Speaker 2: immigration officers should have at the border tell us what
[19:24] Speaker 2: the question is here and whether this comes up often
[19:28] Speaker 2: or not.
[19:28] Speaker 5: So this is a complicated issue. So I'll give you
[19:31] Speaker 5: this example. So a lot of times people they get
[19:34] Speaker 5: what's called the green card, which means that they're lawful
[19:37] Speaker 5: permanent residents of the United States. And so when they
[19:41] Speaker 5: get that, they're finally relieved that they're not going to
[19:43] Speaker 5: have to sweat it out every time they travel and
[19:46] Speaker 5: come back into the United States, because the idea is
[19:49] Speaker 5: they should be allowed to live in the United States
[19:51] Speaker 5: and the story. But there are some occasions where that's
[19:56] Speaker 5: not true, where you can actually be scrutinized you try
[20:00] Speaker 5: to come back in the country. One of the main
[20:02] Speaker 5: ones is the question of whether you abandoned your lawful
[20:07] Speaker 5: permanent residency. And this comes up all the time. People
[20:09] Speaker 5: will will live outside of the US for way too
[20:12] Speaker 5: long and they'll try to come back in, and the
[20:16] Speaker 5: customs of Border Protection will say are you really living here?
[20:20] Speaker 5: That happens a lot, that would probably happen thousands of
[20:23] Speaker 5: times a year. But another one will be and that's
[20:26] Speaker 5: the one that happened in this case, was did you
[20:30] Speaker 5: commit a criminal act when you were in the United
[20:33] Speaker 5: States or outside of the United States that we were
[20:36] Speaker 5: not aware of previously, but now we're aware of it.
[20:40] Speaker 5: And because you've committed that criminal act, now you are
[20:45] Speaker 5: subject to deportation. And so in this case, that's what happened.
[20:50] Speaker 5: They said that this person, mister Loo, had a pending
[20:54] Speaker 5: criminal charge. So what they said was, look, we know
[20:59] Speaker 5: that it would be bad, simply unfair to just you know,
[21:01] Speaker 5: you've boarded a plane with a green card, you haven't
[21:04] Speaker 5: been ordered deported, you haven't even been convicted of a crime.
[21:09] Speaker 5: You just have a pending criminal charge. So we know
[21:12] Speaker 5: it would be totally unlawful and unreasonable to not let
[21:17] Speaker 5: you in the country. So but what they did was
[21:20] Speaker 5: they kind of tried to do this weird middle ground
[21:22] Speaker 5: thing where they said, well, here's what we're going to do.
[21:24] Speaker 5: We're not going to admit you into the country as
[21:27] Speaker 5: a lawful permanent resident. We're going to admit you into
[21:31] Speaker 5: the country as a parole ee. And what a parole is,
[21:34] Speaker 5: it's illegal fiction. It's just saying we will let your
[21:38] Speaker 5: body into the US so that your body can be here.
[21:41] Speaker 5: But when you're a parole ee, your legal body, not
[21:45] Speaker 5: your actual body. Your actual bodies in the US, your
[21:48] Speaker 5: legal body is still outside the US. And what that
[21:51] Speaker 5: means is the government could at any time revoke that
[21:54] Speaker 5: parole and deport you. And so that's what actually happens
[21:58] Speaker 5: here is had they admit him as a lawful permanent resident,
[22:03] Speaker 5: they would have subsequently had no basis to deport him.
[22:06] Speaker 5: But because they admitted him as a parole ee, what
[22:09] Speaker 5: they subsequently did was say, ha, well, we admitted you
[22:12] Speaker 5: as a parole now we're going to revoke your parole.
[22:16] Speaker 5: And so this Supreme Court case really came down to
[22:19] Speaker 5: the issue of whether the CBPS allowed to do that
[22:24] Speaker 5: or whether they have to admit anyone who enters with
[22:26] Speaker 5: a Green card as a green card holder. So that's
[22:30] Speaker 5: the first question, but sort of the deeper question, which
[22:33] Speaker 5: was really at the heart of this, and this is
[22:36] Speaker 5: why this case is so interesting, is and I teach
[22:40] Speaker 5: this talk because I teach immigration law at GW Law School.
[22:43] Speaker 5: I teach in my very first class that for the
[22:46] Speaker 5: longest time, the immigration law was based on good faith,
[22:49] Speaker 5: meaning good faith of the applicant and good faith of
[22:52] Speaker 5: the government. And if you stop basing immigration law on
[22:56] Speaker 5: good faith, the whole system collapses. Well, here this was
[23:00] Speaker 5: testing that concept because what the plaintiffs and the side
[23:04] Speaker 5: for the foreign nationals we're saying was you can't trust
[23:08] Speaker 5: the government to act in a good faith manner here.
[23:11] Speaker 5: Look at what they did here, So from now on
[23:14] Speaker 5: that can't happen. And what the conservatives and the enforcement
[23:17] Speaker 5: but we're saying is, do you really think that our
[23:20] Speaker 5: government is just going to psychotically not let Green card
[23:24] Speaker 5: holders in just so that they could deport them later.
[23:27] Speaker 5: But the point is, if the Supreme Court doesn't act
[23:30] Speaker 5: to prevent this, they will have that authority to do
[23:33] Speaker 5: that to Green card holders, which is to say, for
[23:36] Speaker 5: any reason, we're not going to let you in with
[23:38] Speaker 5: your green card. We know we can't ban you, so
[23:41] Speaker 5: we'll parole you in and if for any reason we
[23:44] Speaker 5: want to provoke your parole later, we can do it.
[23:46] Speaker 5: Even though there was no actual reason to deport you.
[23:50] Speaker 5: They can just buy the legal fiction of you re
[23:53] Speaker 5: entering the country just decide to do this to you.
[23:56] Speaker 5: So that's the question, and the court really struggling with
[24:02] Speaker 5: this issue. There was a lot of skepticism at the
[24:05] Speaker 5: issue that there would be no standard at the border
[24:07] Speaker 5: by which the government could be prevented from saying that
[24:13] Speaker 5: you're not a lawful permanent resident. This really troubled people,
[24:16] Speaker 5: But they also don't want a MENI trial at the
[24:19] Speaker 5: airport about whether you should be admitted or not. So
[24:22] Speaker 5: this is very hard to figure out where this is
[24:25] Speaker 5: going to go. But I do think there's going to
[24:28] Speaker 5: be some constraints as to what the CBP, the Customs
[24:32] Speaker 5: of Border Protection could do in terms of trying to
[24:36] Speaker 5: figure out when they can refuse to allow you to
[24:40] Speaker 5: enter as a lawful permanent resident if you present a
[24:44] Speaker 5: lawful permanent resident card and one other thing. The argument
[24:48] Speaker 5: got so crazy that people were talking about why not
[24:51] Speaker 5: just dismiss this case as improvidently granted and go back
[24:54] Speaker 5: to the Second Circuits decision. You know, we're going to
[24:57] Speaker 5: create a Pandora's box here, so the outcome is possible here.
[25:01] Speaker 5: So this doesn't happen all the time. It might happen
[25:04] Speaker 5: a few thousand times a year. But it's really a
[25:07] Speaker 5: question of do you want to give the government. Do
[25:10] Speaker 5: you trust it enough to give it the authority where
[25:12] Speaker 5: it can ruin any Green Card holder's life for any reason,
[25:16] Speaker 5: or do you want to put that constraint and that's
[25:19] Speaker 5: where it really comes down to whether you believe the
[25:21] Speaker 5: government largely acts in good faith or whether you believe
[25:25] Speaker 5: the government largely doesn't act in good faith.
[25:27] Speaker 2: That's a more loaded question nowadays than it was probably
[25:31] Speaker 2: years ago. I've been talking to Leon Fresco of Holland
[25:35] Speaker 2: and Knight. He was the former head of the Office
[25:38] Speaker 2: of Civil Immigration Litigation in the Obama administration. So let's
[25:42] Speaker 2: turn out to an issue that will most likely end
[25:45] Speaker 2: up at the Supreme Court because there's a split in
[25:48] Speaker 2: the circuits mandatory detention for all. So the Second Circuit
[25:54] Speaker 2: here in New York ruled unanimously, with a Trump appointee
[25:57] Speaker 2: on the panel, that the Admitisstration can't jail immigrants without
[26:02] Speaker 2: the chance to seek bond. Have they been trying to
[26:05] Speaker 2: do this?
[26:06] Speaker 5: So this is a very complicated case. So let me
[26:09] Speaker 5: give you the original way this worked, and then what happened,
[26:14] Speaker 5: and then the case. So in nineteen ninety six, there
[26:17] Speaker 5: was a law called the Illegal Immigration Enforcement and Responsibility Act,
[26:22] Speaker 5: and that law said that there was an issue called
[26:27] Speaker 5: expedited removal, where if you just showed up at the
[26:30] Speaker 5: border or a port of entry and you didn't have
[26:34] Speaker 5: any reason to be here, then the government could detain
[26:39] Speaker 5: you without bond until your removal proceedings were concluded, and
[26:44] Speaker 5: then they could deport you. But the way that statute
[26:50] Speaker 5: was written, it says, if you are an alien meaning
[26:53] Speaker 5: you're not a US citizen, you're a foreign national who
[26:56] Speaker 5: is an applicant for admission meaning you want to one
[27:00] Speaker 5: day be legally admitted into the United States, you must
[27:04] Speaker 5: be detained mandatorily. But it says if you are an
[27:07] Speaker 5: alien seeking admission, So it has two different things in
[27:11] Speaker 5: the same statute, applicant for admission and seeking admission. So
[27:16] Speaker 5: for the first thirty years after that statute was written,
[27:19] Speaker 5: the way that the immigration authorities thought about this was
[27:25] Speaker 5: as follows. If you were apprehended at the border or
[27:30] Speaker 5: at the port of entry, or at the seaport or airport,
[27:33] Speaker 5: whatever it may be, that that was a person who
[27:36] Speaker 5: was an applicant for admission and seeking admission, that person
[27:39] Speaker 5: could be detained and that person didn't have an opportunity
[27:44] Speaker 5: to seek bond if their removal proceedings were pending. But
[27:49] Speaker 5: if you had stuck across the border and made it
[27:52] Speaker 5: through and you are no longer being chased, we never
[27:56] Speaker 5: even knew you were here. You just entered. At that point,
[27:59] Speaker 5: you were you're no longer seeking admission. You weren't caught
[28:03] Speaker 5: while you were trying to seek admission to the United States.
[28:05] Speaker 5: You were caught well after that. And that would be
[28:08] Speaker 5: a person that would be subject to the normal immigration
[28:12] Speaker 5: removal statutes, which say that if you either overstayed your visa.
[28:17] Speaker 5: That one everybody agrees. If you overstayed your visa and
[28:20] Speaker 5: your cought yes you can be deported, and yes you're
[28:23] Speaker 5: placed in removal proceedings, but you are entitled to a
[28:26] Speaker 5: bond hearing to determine whether you should be detained during
[28:31] Speaker 5: these proceedings. And you are entitled to bond if you're
[28:34] Speaker 5: not a flight risk or if you're not dangerous to society.
[28:37] Speaker 5: So everybody agrees to that with people that overstay their visa.
[28:42] Speaker 5: But there's this question that the Trump administration has decided
[28:46] Speaker 5: to resuscitate, which is, well, is this really true for
[28:50] Speaker 5: the people who stuck across the border and didn't get caught.
[28:54] Speaker 5: What are they more like? Are they more like the
[28:56] Speaker 5: visa overstate people or are they more like the people
[29:01] Speaker 5: who were just apprehended at the border. And so the
[29:05] Speaker 5: Trump administration decided to say no, no, no. They are
[29:09] Speaker 5: just like the people who were apprehended at the border.
[29:12] Speaker 5: It doesn't matter that they were successful in sneaking across.
[29:15] Speaker 5: They should be not rewarded for that. They should also
[29:19] Speaker 5: be mandatorily detained. So what you've been seeing is thousands
[29:24] Speaker 5: of habeas petitions being filed because people who went to
[29:27] Speaker 5: immigration court for their hearings were suddenly being put in detention,
[29:32] Speaker 5: even though they had been given bond. They were suddenly
[29:35] Speaker 5: being told, we don't have any authority to give you bond,
[29:38] Speaker 5: so you're going to be put in detention, and people
[29:41] Speaker 5: have been filing federal habeases.
[29:43] Speaker 2: Tell us more about the split between the Second Circuit
[29:47] Speaker 2: and the Fifth Circuit and the Eighth Circuit.
[29:49] Speaker 5: In the Fifth Circuit and in the Eighth Circuit, those
[29:52] Speaker 5: courts agreed with the Trump administration. But now this Second
[29:57] Speaker 5: Circuit is the first court that agrees with the foreign
[30:00] Speaker 5: national litigants. And they say that because this statute uses
[30:05] Speaker 5: two different terms in the same statute for mandatory detention,
[30:09] Speaker 5: not only do you have to be an applicant for admission,
[30:12] Speaker 5: which is everybody in the immigration court is an applicant
[30:15] Speaker 5: for permission, because if you're fighting your deportation, you're necessarily
[30:20] Speaker 5: saying I want to be admitted here legally, don't deport me.
[30:23] Speaker 5: So yes, that part's true. But because the statute also
[30:27] Speaker 5: uses the words seeking admission, that that means currently that
[30:33] Speaker 5: the verbiage of that means you have to be caught
[30:36] Speaker 5: when you're trying to enter the United States when you're
[30:40] Speaker 5: first asking for permission, not subsequently much later. And so
[30:45] Speaker 5: that's what the Second Circuit says, and they say, look,
[30:48] Speaker 5: thirty years of this matters. And it also matters that
[30:53] Speaker 5: when you're detaining people for not committing a crime, but
[30:57] Speaker 5: for immigration, which is a civil matter, if you're going
[31:00] Speaker 5: to hold people without bond, that's a serious constitutional problem
[31:05] Speaker 5: because even criminals get bonded. I mean, you can murder
[31:07] Speaker 5: somebody and potentially get bond. So why would someone who
[31:12] Speaker 5: just has an immigration violation not be entitled to bond?
[31:16] Speaker 5: And so that's what the court said is in a
[31:18] Speaker 5: case like that where there's serious constitutional concerns, if there's
[31:22] Speaker 5: an ambiguity where the law can be read fifty to
[31:25] Speaker 5: fifty one way, fifty to fifty the other, we can't
[31:28] Speaker 5: possibly choose the one that creates constitutional concerns, and so
[31:33] Speaker 5: that's why the Second Circuit decided to say that those
[31:36] Speaker 5: individuals are now entitled to bond. Now, this case is
[31:39] Speaker 5: for sure going to go to the Supreme Court because
[31:41] Speaker 5: there's a circuit split, and the Supreme Court will have
[31:44] Speaker 5: to decide what to do next.
[31:46] Speaker 2: I'm waiting for you to say one day, this is
[31:48] Speaker 2: an easy case because these immigration cases are all so complicated.
[31:54] Speaker 2: We've talked often about the way ICE officers mask themselves
[31:57] Speaker 2: up and a California law that required ICE agents to
[32:03] Speaker 2: identify themselves in public has been temporarily blocked by the
[32:08] Speaker 2: Ninth Circuit. First of all, tell us about the law
[32:11] Speaker 2: it self.
[32:12] Speaker 5: It's in the California Penal Code, and it says that
[32:15] Speaker 5: if you are a non uniformed federal law enforcement officer,
[32:20] Speaker 5: which they're really kind of triggering toward ICE, because ICE
[32:23] Speaker 5: is the ones that wear the masks and the non
[32:25] Speaker 5: identifying uniforms, if you're performing law enforcement duties, you can
[32:30] Speaker 5: be criminally prosecuted for that. So you have a duty
[32:34] Speaker 5: to display identification. And if you don't display identification and
[32:40] Speaker 5: you're non uniformed in California, the California Police can essentially
[32:45] Speaker 5: arrest ICE agents and place them.
[32:48] Speaker 2: In jail and explain why. The appeals courts said that
[32:51] Speaker 2: California law is an unlawful attempt to regulate the federal government.
[32:57] Speaker 5: And so the question was does that byolate the supremacy clause,
[33:01] Speaker 5: And the debate is California is saying, yes, we agree
[33:07] Speaker 5: that we're regulating the federal government in that sense, because
[33:11] Speaker 5: we're telling them that if they want to have ICE
[33:13] Speaker 5: operating in California, they have to be visible. They have
[33:15] Speaker 5: to say their eyes and they can't have masks. But
[33:18] Speaker 5: we're doing this for public safety reasons and we're not
[33:21] Speaker 5: actually interfering in their operations. Ice can still deport whoever
[33:27] Speaker 5: it wants, It can still capture whoever it wants. It
[33:29] Speaker 5: just has to identify itself. So they were trying to
[33:33] Speaker 5: say that should be an exception, and the federal government
[33:37] Speaker 5: was saying no, no, no, any regulation of federal law enforcement
[33:42] Speaker 5: officers and agencies. It doesn't matter how good your reason is,
[33:46] Speaker 5: or how benevolent your reason is or anything. It's just
[33:48] Speaker 5: not possible under the supremacy clause because then we end
[33:52] Speaker 5: up with an eye of the beholder situation of who
[33:55] Speaker 5: thinks what regulation is in the best interests and the
[33:59] Speaker 5: good faith and all of that, that's not really what matters.
[34:02] Speaker 5: The supremacy clause is a strict liability situation here where
[34:07] Speaker 5: you can't have any direct regulation by states or localities
[34:12] Speaker 5: of federal officers and agents and the performance of their
[34:15] Speaker 5: federal duties. And these judges were not so conservative, and
[34:19] Speaker 5: they agreed unanimously that an injunction was necessary to the
[34:23] Speaker 5: California law because they said, yeah, at the end of
[34:26] Speaker 5: the day, you can't have any direct regulation. It doesn't
[34:30] Speaker 5: matter that there's a minimal burden, or that it's a
[34:33] Speaker 5: safety issue, that it's not interfering or anything like that.
[34:37] Speaker 5: It's just saying there's a very bright line rule, and
[34:39] Speaker 5: you can't process that. The states cannot directly regulate federal operation.
[34:44] Speaker 5: They can't put rules that federal officers have to follow,
[34:48] Speaker 5: and especially not criminal rules where they go to jail
[34:51] Speaker 5: if they don't follow those rules. So I don't think
[34:55] Speaker 5: that this is a case where the Supreme Court's going
[34:58] Speaker 5: to need to do anything. BECA think that at the
[35:01] Speaker 5: end of the day, it may just finish there at
[35:03] Speaker 5: the Ninth Circuit. But it's very interesting in Tenth by
[35:06] Speaker 5: California and a very interesting decision by the Ninth Circuit.
[35:11] Speaker 2: I mean, the way the ICE officers are masked up, A,
[35:14] Speaker 2: it looks frightening, but B you have no idea who's
[35:18] Speaker 2: arresting you, who's stopping you. I mean, it's really discomforting
[35:22] Speaker 2: in so many ways, and there's nothing that California or
[35:25] Speaker 2: any state can do about it.
[35:27] Speaker 5: Well, the answer to that is you have to put
[35:29] Speaker 5: that in an appropriations bill. And that's why we currently
[35:32] Speaker 5: have a shutdown of the Department of Homeland Security. Is
[35:36] Speaker 5: you know, and I mean, yes, the TSA is back
[35:39] Speaker 5: because President Trump is using money from other legislation to
[35:43] Speaker 5: pay for them and everything. But you have the Secretary
[35:45] Speaker 5: of Homeland Security saying they're going to run out of
[35:47] Speaker 5: money in May, and it is currently shut down the
[35:50] Speaker 5: Department of Homeland Security in essence because there they don't
[35:53] Speaker 5: have appropriations because of this issue. That the issue is
[35:57] Speaker 5: that the Democrats in the Congress want ICE and CVP
[36:01] Speaker 5: to operate under specific guidelines like this, and the Republicans
[36:06] Speaker 5: don't want ICE and CVP to operate under specific guidelines
[36:10] Speaker 5: like this. But this is the forum in which it
[36:13] Speaker 5: has to be settled because if it's settled in the
[36:16] Speaker 5: federal courts, then you know, you could just you could
[36:19] Speaker 5: see where people would be nervous about this kind of thing,
[36:22] Speaker 5: because suppose some other states said, look, if you want
[36:27] Speaker 5: to enforce civil rights law in our state, you can't
[36:31] Speaker 5: be of a certain race or something, or we're gonna
[36:33] Speaker 5: arrest you, or you know, who knows what conditions people
[36:38] Speaker 5: can start putting in if they were not so belevolent,
[36:42] Speaker 5: and who decides whether those conditions are benevolent or not.
[36:45] Speaker 5: And so it is really just easier to have a
[36:48] Speaker 5: bright line rule that says, hey, the federal government gets
[36:53] Speaker 5: to decide how it's federal officers and operators do things.
[36:58] Speaker 5: The states have no role, and if they break the law,
[37:01] Speaker 5: you can always file a Bibbins lawsuit. If they broke
[37:03] Speaker 5: the law visa viu specifically, you can file a Bibbins
[37:07] Speaker 5: lawsuit section nineteen eighty three, whatever it takes to say
[37:10] Speaker 5: I want to get paid because my civil rights were violated,
[37:14] Speaker 5: or on the larger scale, you think there's a problem,
[37:17] Speaker 5: then you do the political advocacy necessary to get that
[37:21] Speaker 5: changed in an appropriations bill. And that's literally the fight
[37:25] Speaker 5: that we're having right now.
[37:27] Speaker 2: Leon, do you know when ICE officers started masking up
[37:31] Speaker 2: like this?
[37:32] Speaker 5: I do not think that that happened anytime before the
[37:35] Speaker 5: Trump administration. It might have happened on very specific targeted
[37:40] Speaker 5: operations where there were very dangerous people involved, but not
[37:44] Speaker 5: as a matter of just uniform practice that happened in
[37:48] Speaker 5: this most recent administration.
[37:49] Speaker 2: We covered a lot today, Leon, Thanks so much. That's
[37:52] Speaker 2: Leon Fresco of Holland and Knight. And that's it for
[37:55] Speaker 2: this edition of The Bloomberg Law Show. Remember you can
[37:58] Speaker 2: always get the latest legal news on our Bloomberg Law Podcast.
[38:01] Speaker 2: You can find them on Apple Podcasts, Spotify, and at
[38:04] Speaker 2: www dot Bloomberg dot com, slash podcast Slash Law, and
[38:10] Speaker 2: remember to tune into The Bloomberg Law Show every weeknight
[38:13] Speaker 2: at ten pm Wall Street Time. I'm June Grosso, and
[38:16] Speaker 2: you're listening to Bloomberg

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