# No ICE Arrests in NYC Immigration Courts

An episode of [Bloomberg Law](https://invisiblenetwork.ai/podcast/277975394), 21 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/fa62ed34-6c89-4129-bcf1-b4510036223d/audio.mp3?utm_source=Podcast&in_playlist=91224201-26a6-429d-ac3c-ae2b0012ff6d

Immigration law expert Leon Fresco, a partner at Holland & Knight, discusses a New York judge ruling that ICE cannot arrest noncitizens in Manhattan immigration courts. Then judiciary expert Carl Tobias, a professor at the University of Richmond Law School, discusses judicial nominees refusing to admit that Donald Trump lost the 2020 election. 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.
[0:08] Speaker 2: For decades, ICE refrained from making arrests at immigration courts,
[0:13] Speaker 2: but that changed under the Trump administration when ICE issued
[0:17] Speaker 2: a new policy that allowed agents to arrest non citizens
[0:21] Speaker 2: as they were appearing for scheduled hearings in court. The
[0:25] Speaker 2: policy led to protests and some ugly scenes at courthouses. Now,
[0:30] Speaker 2: a federal judge has ruled that Manhattan courthouses are off
[0:34] Speaker 2: limits as far as ICE officers making arrests, except in
[0:38] Speaker 2: some limited circumstances. My guest is Leon Fresco, a partner
[0:42] Speaker 2: at Holland and Knight and the former head of the
[0:44] Speaker 2: Office of Immigration Litigation in the Obama administration. Leon tell
[0:48] Speaker 2: us about Judge Castell's order temporary order pending the outcome
[0:53] Speaker 2: of litigation that challenges ICE's policy of making arrests at
[0:58] Speaker 2: immigration courts.
[0:59] Speaker 1: The current state of affairs in New York City is,
[1:02] Speaker 1: if you go to one of the immigration court houses
[1:06] Speaker 1: in New York City, ICE is not allowed to arrest
[1:09] Speaker 1: you unless you either have serious offenses in terms of
[1:13] Speaker 1: a criminal history, or you have a final order of removal,
[1:17] Speaker 1: or you're a national security or public safety risk, and
[1:22] Speaker 1: so this all comes from the idea that people were
[1:24] Speaker 1: being deterred from going into immigration court to have their
[1:30] Speaker 1: immigration hearings because they were worried that ICE was going
[1:33] Speaker 1: to arrest them when they would show up at the
[1:36] Speaker 1: immigration court. And the reason they were worried about that
[1:39] Speaker 1: is because that was actually happening during the time period
[1:42] Speaker 1: where there was concerns about arresting three thousand people a day.
[1:48] Speaker 1: Arresting three thousand people a day is not so easy,
[1:51] Speaker 1: and so a lot of the places where people were
[1:53] Speaker 1: getting arrested were in the places where they were most
[1:57] Speaker 1: likely to be, which were at ICE check ins and
[2:00] Speaker 1: immigration court. So you knew people were going there, but
[2:03] Speaker 1: the point was you didn't want to deter people from
[2:06] Speaker 1: going there because those were the key points of the
[2:09] Speaker 1: throughput of the immigration system. And so people were stopping
[2:14] Speaker 1: attendance of these ICE check ins and of these immigration
[2:18] Speaker 1: court hearings because they were like, I don't want to
[2:19] Speaker 1: get arrested simply for going to the immigration court. So
[2:24] Speaker 1: this judge had originally not wanted to enjoin ICE from
[2:29] Speaker 1: arresting people in immigration court because the government had made
[2:34] Speaker 1: the argument previously that there was an Ice guidance that
[2:39] Speaker 1: was issued on May twenty seven, twenty twenty five, that
[2:43] Speaker 1: actually allowed them to do this, so that they had
[2:46] Speaker 1: considered the matter, they had reviewed it, they investigated it
[2:50] Speaker 1: andt cter on and they said, yes, so according to
[2:52] Speaker 1: this memo, we can arrest people at immigration court. And
[2:57] Speaker 1: so the judge said, well, look, you had a policy
[2:59] Speaker 1: basis for conducting these arrests. I'm not going to enjoin them.
[3:02] Speaker 1: But then just recently the Department of Justice actually went
[3:07] Speaker 1: back to the court and said to the court, sorry
[3:11] Speaker 1: about that. You remember when we told you that we
[3:13] Speaker 1: had a memo that considered the need to go to
[3:17] Speaker 1: immigration courts and have arrest just kidding. We didn't actually
[3:21] Speaker 1: have a memo like that. It didn't actually apply to
[3:24] Speaker 1: immigration courts until We're sorry. And so because there was
[3:28] Speaker 1: no memo that actually considered this issue, then the judge said, well,
[3:32] Speaker 1: then you clearly didn't use your obligations under the Administrative
[3:36] Speaker 1: Procedure Act to actually consider this, so I'm not going
[3:40] Speaker 1: to let you do this while the case is pending.
[3:42] Speaker 1: I think the judge probably more frustrated about how this
[3:46] Speaker 1: was done rather than the state of actual law. But
[3:50] Speaker 1: because of the sort of. I don't know whether you
[3:52] Speaker 1: want to call it a mission or whatever you want
[3:54] Speaker 1: to call it. The judge said, no more arrests and
[3:57] Speaker 1: immigration courts in New York while this cases pending.
[4:01] Speaker 2: Yeah, I mean that was a startling admission by the
[4:04] Speaker 2: US Attorney's office in Manhattan, and basically they blamed it
[4:08] Speaker 2: on Ice. So the judge said that a revision in
[4:12] Speaker 2: his order was needed to correct a clear error and
[4:16] Speaker 2: prevent a manifest injustice. Was it a legal error by
[4:20] Speaker 2: Ice that caused that to happen?
[4:23] Speaker 1: I don't know exactly, but I actually have a theory, June,
[4:26] Speaker 1: because I was involved in this for many years at
[4:29] Speaker 1: the Department of Justice, and so here's what happens. Ice
[4:32] Speaker 1: coordinates extremely well with the Department of Justice when the
[4:36] Speaker 1: cases are pretty much in any district outside of New
[4:40] Speaker 1: York City, because those are all handled by the Department
[4:45] Speaker 1: of Justice Civil Division, Office of Immigration Litigation, where I
[4:48] Speaker 1: was head, and so everything could be coordinated. But in
[4:52] Speaker 1: New York, it's a joke called the Sovereign District of
[4:55] Speaker 1: New York that you don't tell the US attorneys there
[4:58] Speaker 1: what to do. They don't listen to anything going on
[5:01] Speaker 1: in Washington. They do their own thing. So as a
[5:04] Speaker 1: result of that, they have to correspond with ICE, and
[5:09] Speaker 1: it's not clear who in ICE start corresponding with a
[5:12] Speaker 1: New York person, some random person in DC who's not
[5:15] Speaker 1: in the know. And so many times you would see
[5:18] Speaker 1: I would call this one of the achilles heels or
[5:21] Speaker 1: weaknesses of the entire litigation platform of the Department of
[5:27] Speaker 1: Justice is if you suit in New York, you'd have
[5:30] Speaker 1: a completely different strategy, case approach. Whatever you're doing in
[5:34] Speaker 1: New York doesn't apply anywhere else, and so you almost
[5:37] Speaker 1: have these two random, completely different things going on. And
[5:41] Speaker 1: so it's very easy in that scenario for the US
[5:44] Speaker 1: Attorney's Office in New York to not actually know anything
[5:47] Speaker 1: about what's going on in Ice and just be told
[5:50] Speaker 1: by some ICE New York person, Oh yeah, this memo
[5:52] Speaker 1: covers immigration courts. That's not a surprising scenario.
[5:56] Speaker 2: When I hear it to judge was surprised that, yes, well.
[6:01] Speaker 1: The judge, your viewers are getting inside knowledge here in
[6:04] Speaker 1: terms of very few people understand this disconnect that goes
[6:08] Speaker 1: on between New York and the rest of the country.
[6:10] Speaker 1: So the judge is not gonna understand why the Department
[6:13] Speaker 1: of Justice written large, because that's all the judge knows
[6:16] Speaker 1: is this is the Department of Justice doesn't have the
[6:19] Speaker 1: correct information. Since this is the government, so the government
[6:23] Speaker 1: quote unquote should have the correct information. But as we
[6:27] Speaker 1: all know, there's not one government. There's a lot of
[6:29] Speaker 1: people in the government, and depending on who you talk
[6:32] Speaker 1: to in the government, you might hear something that's not correct.
[6:35] Speaker 1: And so while this shouldn't happen, and it's not something trivial,
[6:40] Speaker 1: it's something I'm not surprised to hear has occurred, because
[6:44] Speaker 1: that's the kind of thing that unless and until one
[6:46] Speaker 1: day the US Attorney's Office in New York actually wants
[6:50] Speaker 1: to let their immigration cases get handled by the National
[6:55] Speaker 1: Civil Division, so that all the immigration cases are handled harmoniously,
[6:59] Speaker 1: you're going to get potential situations like this.
[7:02] Speaker 2: So the judge handed down the decision on Monday. On Tuesday,
[7:06] Speaker 2: Ice violated the order. They arrested a twenty one year
[7:10] Speaker 2: old Honduran at twenty six Federal Plaza, which is one
[7:13] Speaker 2: of the three immigration courthouses in Manhattan that the judge
[7:17] Speaker 2: had ruled were off limits for arrests, and according to
[7:21] Speaker 2: The New York Times, a man who worked with the
[7:24] Speaker 2: Immigration Assistance Program. Tried to hand the ICE officers a
[7:28] Speaker 2: copy of the judge's decision, and they refused to accept it,
[7:32] Speaker 2: and one told him that the agency didn't care. I
[7:35] Speaker 2: mean open defiance of a court order.
[7:38] Speaker 1: Again, I don't want to give excuses. I just want
[7:43] Speaker 1: to say sort of how these things work. So a
[7:45] Speaker 1: judge issues an order on a Monday, and on a
[7:49] Speaker 1: Tuesday there's an arrest. It's not like ICE is some
[7:54] Speaker 1: integrated artificial intelligence system where every human being is plugged
[7:59] Speaker 1: in and suddenly knows all of America's case law instantaneously
[8:05] Speaker 1: when that case law is introduced. So what happens is
[8:09] Speaker 1: ICE clearly isn't implementing this memo with sufficient rapidity. And
[8:15] Speaker 1: you had an officer who probably on Monday already knew
[8:19] Speaker 1: I'm going to arrest this individual, mister Alexander Castillo Nourles
[8:24] Speaker 1: because you know, they say that they're a dangerous gang member.
[8:27] Speaker 1: Who knows if this is true or not, I don't know,
[8:29] Speaker 1: But if they really think they have a dangerous gang
[8:32] Speaker 1: member in their sights, all the better for them to
[8:34] Speaker 1: arrest this person to make sure that they're not walking around.
[8:38] Speaker 1: But it turns out that they don't know the court order.
[8:41] Speaker 1: Then the people tell them the court order. The problem
[8:44] Speaker 1: from the perspective of the government is just people randomly
[8:47] Speaker 1: handing an ice agent a court order. That ice agent
[8:50] Speaker 1: isn't an attorney. What they know about the law is
[8:53] Speaker 1: sort of what's in their training materials, and so it's
[8:57] Speaker 1: very complicated because they're not just going to read a
[9:00] Speaker 1: court order and know the significance of what that court
[9:03] Speaker 1: order is, what it's telling them to do. So you
[9:06] Speaker 1: ended up with this very unfortunate situation, and probably there
[9:10] Speaker 1: will be content hearings about it, but just another set
[9:13] Speaker 1: of facts of I get how it led to this.
[9:17] Speaker 1: It shouldn't have led to this. There's no excuse for it.
[9:20] Speaker 1: It's a violation of the court order. But you can
[9:23] Speaker 1: understand how until these ice agents, who are not attorneys,
[9:28] Speaker 1: who are just people, probably sometimes with only high school educations,
[9:33] Speaker 1: are given very specific guidance, you can only do xyz.
[9:38] Speaker 1: They continue to operate as they've been operating, and nothing
[9:42] Speaker 1: will deter them from their orders until the same person
[9:45] Speaker 1: who gave them their prior order gives them a new order.
[9:49] Speaker 2: The underlying case here is a suit brought by two
[9:52] Speaker 2: new York based nonprofits challenging the Trump administration guidance that
[9:59] Speaker 2: broadens the circ circumstances in which civil immigration arrests can
[10:03] Speaker 2: be made in or near a courthouse and rolls back
[10:06] Speaker 2: Biden error guidance restricting courthouse arrests, and the judge is
[10:11] Speaker 2: found that there's a substantial likelihood of showing that the
[10:15] Speaker 2: arrest policy is arbitrary and capricious. What's your take on
[10:19] Speaker 2: how successful this challenge will be.
[10:22] Speaker 1: Well, I think it's going to be tough. These lawsuits
[10:25] Speaker 1: have been filed all around the country and nobody's been
[10:28] Speaker 1: able to get an injunction that is of any significant
[10:32] Speaker 1: umph to it that has really stopped this now. I
[10:35] Speaker 1: do think in this case in New York, it may
[10:38] Speaker 1: be that given where this administration is right now, where
[10:43] Speaker 1: it's not trying to ruffle any more feathers between now
[10:45] Speaker 1: and the election and then is sort of gearing up
[10:48] Speaker 1: for a post election immigration enforcement roundup, that it may
[10:53] Speaker 1: not do anything for now. I could see them just
[10:56] Speaker 1: litigating this kind of in a slow track, low profile
[11:00] Speaker 1: for now. But I don't think that the statutory scheme
[11:06] Speaker 1: dissuades the Department of Homeland Security legally from conducting these arrests.
[11:11] Speaker 1: The problem is if people stop showing up the immigration court,
[11:16] Speaker 1: at some point the immigration enforcement personnel have to make
[11:21] Speaker 1: a decision do they want to start having to enforce
[11:23] Speaker 1: all of these what are called in absentia removal orders,
[11:27] Speaker 1: which is an order if you don't show up the court,
[11:29] Speaker 1: you're like ordered by default to be removed, and then
[11:34] Speaker 1: people will litigate these on an individual basis, and all
[11:39] Speaker 1: of that takes more time than just getting the actual
[11:42] Speaker 1: removal order in the first place, So you almost want
[11:45] Speaker 1: to try to figure out is the juice worth the
[11:47] Speaker 1: squeeze of these arrests. And I don't know what they're
[11:51] Speaker 1: going to decide there, because if they're really focused on
[11:53] Speaker 1: an arrest quota, removals be damned or anything else, then
[11:58] Speaker 1: they'll keep doing the arrest because this is a way
[12:00] Speaker 1: to raise the arrest quota. But if they're really looking
[12:04] Speaker 1: at what is the way to get the highest number
[12:06] Speaker 1: of completely enforceable, unappealable removal orders, then you wouldn't start
[12:11] Speaker 1: arresting people in court because you leave yourself vulnerable to
[12:15] Speaker 1: these new process claims.
[12:17] Speaker 2: Stay with me Leon Coming up next, the administration spares
[12:21] Speaker 2: banks from an immigration crackdown. Remember you can always get
[12:25] Speaker 2: the latest legal news by listening to our Bloomberg Law
[12:28] Speaker 2: podcast wherever you get your favorite podcasts. I'm June Grosso
[12:32] Speaker 2: and this is Bloomberg.
[12:36] Speaker 1: You are listening to Bloomberg Law with June Grosso from
[12:40] Speaker 1: Bloomberg Radio.
[12:43] Speaker 2: New York City is a sanctuary city with policies dating
[12:47] Speaker 2: back to the nineteen eighties. The new mayor, Zoran mom Donnie,
[12:52] Speaker 2: has tried to fortify New York sanctuary city status. He
[12:57] Speaker 2: signed an order blocking Ice from city can spaces without
[13:01] Speaker 2: a judicial warrant. He's publicly condemned federal operations at local hospitals.
[13:08] Speaker 2: He'd released a know Your Rights video. What effect do
[13:12] Speaker 2: those actions have? I've been talking to immigration law expertly
[13:15] Speaker 2: on Fresco of Hollanden Knight Leon the Mayor's and immigrant himself,
[13:20] Speaker 2: and has been very strong about immigrants' rights and New
[13:25] Speaker 2: York's status as a sanctuary city.
[13:28] Speaker 1: If you are looking at a chart, it would kind
[13:31] Speaker 1: of look like a U shape in the sense that
[13:34] Speaker 1: what happens is, yes, if you don't cooperate in any
[13:37] Speaker 1: way and you create every possible obstruction with the federal
[13:41] Speaker 1: government's immigration enforcement efforts. There will be less removals if
[13:46] Speaker 1: the federal government does nothing about it. But if the
[13:49] Speaker 1: federal government gets angry with you, so that's the sort
[13:51] Speaker 1: of downward slope of the U. But if the federal
[13:54] Speaker 1: government at the lowest point of that, you decide, I'm
[13:57] Speaker 1: very angry that I'm being impeded in with So what
[14:01] Speaker 1: I'm going to do is start sending more agents to
[14:03] Speaker 1: New York. And even though the state and the locals
[14:06] Speaker 1: will not tell me where the foreign nationals are that
[14:09] Speaker 1: do not have status, I'm just going to start looking
[14:12] Speaker 1: for them everywhere. Then it'll make things worse. And so
[14:16] Speaker 1: that's the determination that the local government has to make,
[14:21] Speaker 1: is what do they calculate the federal government to response
[14:25] Speaker 1: will be. And if they think that the federal government's
[14:28] Speaker 1: response will be one of increased resources, then that makes
[14:32] Speaker 1: the problem actually worse. And so you could decide as
[14:36] Speaker 1: a different strategy. It's probably one that if I was
[14:39] Speaker 1: a mayor. Nobody's ever elected me mayor like them, never
[14:41] Speaker 1: run for b But if I was a mayor, what
[14:44] Speaker 1: I would try to do is reach an agreement with
[14:47] Speaker 1: the ICE enforcement people and says, look, if I'm proactive
[14:51] Speaker 1: about giving you criminals. Will you leave everybody else in
[14:54] Speaker 1: my city alone and not create a reign of terror?
[14:57] Speaker 1: And I say, I will only be very proactive and
[15:01] Speaker 1: cooperative and give you all the help you need if
[15:03] Speaker 1: you reach this agreement with me. I think there are
[15:05] Speaker 1: agreements like that that are there to be had. But
[15:09] Speaker 1: I think the problem is politically some people may think, well,
[15:12] Speaker 1: that's not sufficient enough. We don't want anyone getting deported.
[15:16] Speaker 1: And if you do that, then you end up with
[15:18] Speaker 1: the situation where we're in now at New York and
[15:21] Speaker 1: in some other places.
[15:22] Speaker 2: So let's broaden this from New York. Banking executives were
[15:26] Speaker 2: really concerned that the Trump administration would force banks to
[15:30] Speaker 2: verify the citizenship of new and existing customers. I mean,
[15:34] Speaker 2: there was frantic lobbying. Why were they so afraid of this, Well.
[15:39] Speaker 1: The real worry was that there would be essentially just
[15:44] Speaker 1: like in the workplace, where you cannot work theoretically. I
[15:47] Speaker 1: mean plenty of people work who are undocumented, but theoretically,
[15:50] Speaker 1: if you want to work and you are in America,
[15:53] Speaker 1: you have to give your employer proof of your immigration status.
[15:57] Speaker 1: And what the banks didn't want to have to do
[15:59] Speaker 1: is is now take all of the hundreds of millions
[16:02] Speaker 1: of accounts they have this was sort of the worst
[16:04] Speaker 1: case scenario, and have to figure out the immigration status
[16:09] Speaker 1: of every one of their customers. I currently work with
[16:11] Speaker 1: banks all the time on various sanctions compliance issues, and
[16:15] Speaker 1: even when you're doing this with very small groups of
[16:20] Speaker 1: people Cubans or North Koreans or whoever, the amount of
[16:24] Speaker 1: different immigration statuses in the world, there's like hundreds of them,
[16:29] Speaker 1: and there's a lot of quasie ones where things are
[16:31] Speaker 1: pending you don't exactly know what their status is. There's
[16:35] Speaker 1: lawsuits every day which put people in and out of
[16:38] Speaker 1: status again, and the judge will issue an injunction put
[16:41] Speaker 1: them back in status, and the injunction will get removed
[16:44] Speaker 1: by the appellate court. And for the banks to have
[16:48] Speaker 1: to keep track of all of that would become an
[16:51] Speaker 1: incredibly substantial burden on them, There's no doubt about it.
[16:56] Speaker 1: They would become like the police, but in the banking realm.
[17:00] Speaker 1: And so they did not want that. But there still
[17:02] Speaker 1: is an executive order that's out there that is voluntarily
[17:07] Speaker 1: asking the banks to get more information on their customers,
[17:10] Speaker 1: and so people do wonder will the banks say you
[17:14] Speaker 1: know what, let's get out in front of this and
[17:16] Speaker 1: let's start debanking people that we know don't have immigration status.
[17:20] Speaker 1: And so we're gonna have to wait and see how
[17:22] Speaker 1: that works. And then it gets more complicated too, from
[17:25] Speaker 1: the standpoint of what if you're a visitor. So a
[17:28] Speaker 1: lot of people come here on visitor visas. My favorite
[17:31] Speaker 1: ones are the Canadian snowbirds. That's an example that everybody knows.
[17:35] Speaker 1: They come from Canada, they're here six months a year,
[17:38] Speaker 1: they go to Florida, they go to the early Bird
[17:40] Speaker 1: dinner and all of that stuff. And the question is
[17:43] Speaker 1: should they have a bank account or not? Because they
[17:45] Speaker 1: don't actually have any status that gives them a Social
[17:48] Speaker 1: Security number in America. But what's the problem with giving
[17:51] Speaker 1: them a bank account. It's great for the bank here,
[17:54] Speaker 1: it's great for them, it's great for everybody involved. And
[17:57] Speaker 1: there's plenty of people like this who are six month
[17:59] Speaker 1: retiring type people and under these kinds of guidances, they
[18:03] Speaker 1: wouldn't have an account that they could use. And so
[18:07] Speaker 1: the question from the bank's perspective is why should we
[18:09] Speaker 1: have to debank all these people? And that's a very
[18:13] Speaker 1: complicated thing. And so I don't think the administration wanted
[18:15] Speaker 1: to dive too much into this, so they're giving the
[18:18] Speaker 1: banks flexibility to figure out what is going to be
[18:21] Speaker 1: the best way to make sure that undocumented people don't
[18:24] Speaker 1: have access to the banking system. But there's no requirements
[18:29] Speaker 1: right now that banks have to dbank undocumented people.
[18:32] Speaker 2: Whoever thought I'd hear you say d banking, it's you
[18:35] Speaker 2: really not my sector. So now, according to a Bloomberg
[18:39] Speaker 2: Law analysis, the Trump administration has issued thousands of fines
[18:43] Speaker 2: against immigrants that total more than thirty six billion dollars,
[18:47] Speaker 2: not that they've collected that, and it started taking people
[18:50] Speaker 2: to court and seizing their tax refunds, garnishing wages. I mean,
[18:55] Speaker 2: first of all, what are they finding them for.
[18:57] Speaker 1: There are fines and penalties in the system. This is
[19:00] Speaker 1: part of again a theme that we've discussed previously, which
[19:03] Speaker 1: is that and in its core, immigration law is civil.
[19:06] Speaker 1: It's not criminal. There are some things that are criminals.
[19:09] Speaker 1: So coming across the border illegally, evading inspection is criminal,
[19:14] Speaker 1: and if you get deported, coming back in without permission
[19:18] Speaker 1: is criminal. But most immigration law is civil, and so
[19:22] Speaker 1: a lot of the violations and the finds and penalties
[19:25] Speaker 1: that you would get are civil, So things like overstaying
[19:29] Speaker 1: your visa, you can be fine for each day you're
[19:32] Speaker 1: here that you've overstayed your visa, so there's a fine
[19:36] Speaker 1: for that, or taking if you've been given an order
[19:41] Speaker 1: of removal and you don't leave, or an order of
[19:43] Speaker 1: voluntary departure and you don't leave, there are fines for that.
[19:47] Speaker 1: So what the administration has started doing is it said, well,
[19:50] Speaker 1: why did Congress put these finds there, Let's actually start
[19:53] Speaker 1: doing it. Let's do something with this congressional authority that
[19:57] Speaker 1: was in there. And so they're starting to say, if
[20:00] Speaker 1: we know of a human being who's here without status,
[20:04] Speaker 1: we're gonna, you know, just go into our databases and
[20:09] Speaker 1: just start printing out thousands of these fine letters and
[20:13] Speaker 1: send them out and then if we can actually correspond
[20:16] Speaker 1: it with tax refunds, then we'll actually not give the
[20:19] Speaker 1: tax refund out. And so that's the main thing that's happening.
[20:23] Speaker 1: A lot of these fines are being issued, they're not
[20:25] Speaker 1: being paid. I had a client who's actually here on
[20:29] Speaker 1: what's called a U visa, which is what happens is
[20:32] Speaker 1: you're here, you don't have status, but you're the victim
[20:34] Speaker 1: of a violent crime. This client was definitely a victim
[20:38] Speaker 1: of a violent crime that it's well documented the photographs
[20:42] Speaker 1: and everything, and the mental health issues that arose from it,
[20:45] Speaker 1: et cetera. But the government didn't really know that, and
[20:48] Speaker 1: so they tried to issue her like a million dollar fine.
[20:51] Speaker 1: And we had to come in and say, hey, this
[20:54] Speaker 1: is a person who's here on a U visa. Do
[20:57] Speaker 1: you really think it's appropriate theation of a million dollar fine.
[21:00] Speaker 1: They said, no, it's not appropriate, so they took it away.
[21:03] Speaker 1: But the point is, so a lot of people are
[21:05] Speaker 1: getting set fine notices that they actually wouldn't even apply
[21:08] Speaker 1: to them if they really thought about it or had
[21:10] Speaker 1: legal counsel telling them. But the idea really is make
[21:15] Speaker 1: it harder to be here, make it more potentially scary
[21:19] Speaker 1: in the sense that you don't know what the issues
[21:21] Speaker 1: are going to be with these fines. And if you
[21:24] Speaker 1: actually are ever in a situation where the government would
[21:26] Speaker 1: owe you money, such as in the case of a
[21:30] Speaker 1: tax refund, then the government doesn't have to pay that money.
[21:33] Speaker 2: The Trump administration overhauled the regulations on monetary penalties and
[21:38] Speaker 2: they dropped certain requirements and once the regulations were finalized.
[21:44] Speaker 2: Total fines are up more than five hundred and fifty
[21:46] Speaker 2: percent over the ten thousand Ice had issued before streamlining
[21:50] Speaker 2: the process. And it's happened that some immigrants don't even
[21:54] Speaker 2: know that they're on the hook until they're hit with
[21:57] Speaker 2: a lawsuit or lose a tax refund.
[21:59] Speaker 1: It seems like right, because what happens is they used
[22:02] Speaker 1: to have to personally serve you or get certified mail
[22:06] Speaker 1: swing that you got it, and now that's not required,
[22:09] Speaker 1: so this can all be done via THEAI and databases
[22:12] Speaker 1: and just printing these things out and sending them out
[22:14] Speaker 1: in bulk, and so they're able to issue these fines
[22:18] Speaker 1: in bulk, but a lot of times they're not getting
[22:20] Speaker 1: to people because these are transient people. They're moving wherever
[22:23] Speaker 1: the work is or or they're trying to avoid being detected,
[22:28] Speaker 1: or who knows what's happening. But the point is these
[22:31] Speaker 1: fines are being sent to a last note address, but
[22:34] Speaker 1: they're not getting them to the actual human being. And
[22:38] Speaker 1: so it's only like you say, later, whether there's a
[22:40] Speaker 1: tax refund or a lawsuit, when the lawsuit has to
[22:43] Speaker 1: have personal service, that people then realize that these fines
[22:47] Speaker 1: were sent to them.
[22:48] Speaker 2: Finally, we've talked before about the migrant detention cases. The
[22:53] Speaker 2: appeals courts are divided on this, so divided. The Fifth
[22:56] Speaker 2: and the Eighth Circuits have upheld the mandatory detention policy,
[23:00] Speaker 2: the Second, sixth, and eleventh have ruled against it, and
[23:03] Speaker 2: the Seventh Circuit panel split in three ways. So you'd
[23:07] Speaker 2: normally expect that this would then go up to the
[23:10] Speaker 2: Supreme Court. But are there reasons why both sides might
[23:14] Speaker 2: not want to take the chance of going to the
[23:16] Speaker 2: Supreme Court on this issue?
[23:18] Speaker 1: Absolutely, and here are the reasons, which is from the
[23:21] Speaker 1: government's perspective, immigration is a national issue. And meaning if
[23:26] Speaker 1: you have two circuits right now, the Fifth Circuit which
[23:29] Speaker 1: includes Texas and Louisiana and Mississippi, and the Eighth Circuit
[23:33] Speaker 1: which includes Minnesota and North Dakota, Surrey, I think, and
[23:37] Speaker 1: some others that allow you to detain certain people without
[23:42] Speaker 1: a bond hearing, and you really want to be able
[23:44] Speaker 1: to detain those people, what do you do? You move
[23:46] Speaker 1: them to a detention facility in those jurisdictions and then
[23:51] Speaker 1: they can't challenge their detention. Now they might say, well,
[23:54] Speaker 1: you did that on purpose, and I should still be
[23:56] Speaker 1: allowed to have jurisdiction under the law of the other circuit.
[24:00] Speaker 1: But in any case, the government may say, look, I
[24:03] Speaker 1: don't care. I don't need a nationwide ability to do this,
[24:07] Speaker 1: because if I have this in one or two circuits,
[24:09] Speaker 1: I can detain whoever I actually really need to detain,
[24:13] Speaker 1: and so I'd rather have that authority than lose it altogether.
[24:16] Speaker 1: In the Supreme Court. Now, from the advocates perspective, they
[24:20] Speaker 1: might say the opposite, which is, look, well, we've got
[24:22] Speaker 1: all these great rulings in the Second Circuit and in
[24:26] Speaker 1: the Seventh Circuit, and even in the Eleventh which is
[24:30] Speaker 1: which is pretty rare. And so from that perspective, you know,
[24:34] Speaker 1: ICE can only detain so many people in Texas and
[24:38] Speaker 1: in Louisiana, and so they're not gonna be able to
[24:40] Speaker 1: detain everybody there. So let's just consolidate all the good
[24:43] Speaker 1: circuits that we have in call it today. And they
[24:46] Speaker 1: won't do this too much. They might do it a little,
[24:48] Speaker 1: but we're very worried, given the makeup of the Supreme Court,
[24:51] Speaker 1: what if they can do this nationally. Now I don't
[24:55] Speaker 1: think this is tenable as a long term thing. I
[24:58] Speaker 1: think it's going to collapse. I'm either one of the
[25:01] Speaker 1: litigants is going to need to appeal this to get
[25:03] Speaker 1: out of detention because they'll just be detained for way
[25:06] Speaker 1: too long, or the government will just say this is untenable.
[25:10] Speaker 1: We can't keep sending everybody to Texas or Louisiana or whatever.
[25:15] Speaker 1: So I do think it's going to come to a head,
[25:17] Speaker 1: but it will be very interesting to see when and how.
[25:20] Speaker 2: See how long they can hold out. Thanks so much, Leon,
[25:23] Speaker 2: that's Leon Fresco of Honda Knight. There have been some
[25:27] Speaker 2: remarkable answers at confirmation hearings to basic questions asked by
[25:33] Speaker 2: Senate Democrats of judicial nominees selected by President Trump. Take
[25:38] Speaker 2: John Mark, nominated to be a judge for the Southern
[25:41] Speaker 2: District of Texas. When questioned by Democratic Senator Chris Coons,
[25:46] Speaker 2: he refused to acknowledge that the twenty second Amendment limits
[25:50] Speaker 2: a US president from serving more than two elected terms.
[25:55] Speaker 3: Mister Mark, is President Trump eligible to run for president
[25:58] Speaker 3: again in twenty twenty eight.
[26:03] Speaker 4: Senator, Without considering all the facts and looking at everything
[26:07] Speaker 4: depending on what the situation is. This to me strikes
[26:10] Speaker 4: as more of a hypothetical of something that could.
[26:12] Speaker 3: Be not a hypothetical. Has President Trump been elected president twice?
[26:16] Speaker 4: President Trump has been certified the president of the United
[26:19] Speaker 4: States two times.
[26:20] Speaker 3: Is he eligible to run for a third term under
[26:22] Speaker 3: our constitution?
[26:24] Speaker 4: I would have to review the I need to tell you.
[26:27] Speaker 3: The language of the constitutional amendment that makes it clear that, no,
[26:30] Speaker 3: he is not eligible to run for the third term.
[26:33] Speaker 3: Anybody else brave enough to say that the Constitution of
[26:35] Speaker 3: the United States prevents President Trump from seeking a third term.
[26:38] Speaker 2: No one was brave enough to say that, and all
[26:41] Speaker 2: of Trump's nominees have refused to answer this simple question
[26:45] Speaker 2: with a yes or no. Did Donald Trump lose the
[26:49] Speaker 2: presidential election in twenty twenty. Instead, the nominees dance around
[26:54] Speaker 2: the question, saying things like Joe Biden was certified as
[26:59] Speaker 2: the winner of the twenty twenty vote, or that Joe
[27:02] Speaker 2: Biden served as president. The nominees also skirret around questions
[27:07] Speaker 2: about whether the US capital was attacked on January sixth
[27:12] Speaker 2: of twenty twenty one. My guest is an expert in
[27:15] Speaker 2: the federal judiciary, Carl Tobias, a professor at the University
[27:19] Speaker 2: of Richmond Law School. Is Trump nominating more clear loyalists
[27:26] Speaker 2: to the bench in his second term as opposed to
[27:29] Speaker 2: his first term. Picks.
[27:30] Speaker 5: Well, it depends on which level you're talking about, too.
[27:34] Speaker 5: I think the appellate ones everyone believes are more important
[27:38] Speaker 5: because there are fewer of them. They make law for
[27:41] Speaker 5: all the states in a particular appeals court, and those
[27:46] Speaker 5: have been very conservative ideologically. But the dynamic we're seeing
[27:52] Speaker 5: that you just alluded to was that a number of them,
[27:57] Speaker 5: an increasing number, seemed to be the Trump loyalists, if
[28:02] Speaker 5: you will, and often have been his personal attorneys, starting
[28:06] Speaker 5: with Bovie, but then a number of others Smith for
[28:11] Speaker 5: the A Circuit Missouri, and then Schwartz for the second Circuit,
[28:17] Speaker 5: and Flowers for the Sixth Circuit of late and so
[28:22] Speaker 5: he's increasingly turning to people whom he has had represent
[28:27] Speaker 5: him personally in his litigation.
[28:30] Speaker 2: A common thread in all these confirmation hearings is that
[28:34] Speaker 2: the nominees refuse to answer whether a yes or no,
[28:38] Speaker 2: whether Trump lost the presidential election in twenty twenty.
[28:42] Speaker 5: Yes, all of them, I believe, both Upellate and District
[28:47] Speaker 5: have refused to provide a straightforward answer as to who
[28:52] Speaker 5: won the election, and they say something like the House
[28:56] Speaker 5: certified that the winner was Joe Biden or something of
[29:01] Speaker 5: that sort, and a similar kind of answer to the
[29:03] Speaker 5: January sixth insurrection and attacks at the Capitol.
[29:08] Speaker 2: And you had at least one nominee, John Mark refused
[29:12] Speaker 2: to acknowledge that the twenty second Amendment prevents a president
[29:16] Speaker 2: from running for a third elected term. I mean, that's
[29:19] Speaker 2: so basic.
[29:20] Speaker 5: Well, you're correct. Most of the nominees have been very
[29:23] Speaker 5: reticent to say anything about Trump, and so it shouldn't
[29:27] Speaker 5: be surprising, but it is disconcerting. The Democrats are committed
[29:31] Speaker 5: to asking the questions, but I think nominees are equally
[29:34] Speaker 5: committed to not wanting to cross President Trump.
[29:38] Speaker 2: So let's talk about the federal appellate nominees. The latest
[29:42] Speaker 2: two he's raising them from the federal judgeships to appellate courts.
[29:49] Speaker 5: Yes, they were his district nominees and then district appointees
[29:54] Speaker 5: in the eighth and tenth circuits. One Daniel Trainer, was
[29:59] Speaker 5: a Dakota district judge and the other is Dan Domenico,
[30:07] Speaker 5: who's a district judge in Colorado for the tenth Circuit.
[30:10] Speaker 2: I mean, do they stand out as far as what
[30:12] Speaker 2: they've done on the district court level?
[30:14] Speaker 5: I think they're pretty typical of his district appointees, and
[30:21] Speaker 5: they have issued some conservative rulings, but not that many.
[30:26] Speaker 5: But I think mostly you appoint district judges for their
[30:30] Speaker 5: ability to move the cases. Are they competent? Can they
[30:34] Speaker 5: move the cases along? And I think both of those
[30:36] Speaker 5: judges have done that and they don't have that many
[30:39] Speaker 5: controversial cases.
[30:41] Speaker 2: Trainer was one of more than a dozen federal judges
[30:45] Speaker 2: who last year wrote a letter promising not to hire
[30:49] Speaker 2: law clerks from Columbia over its handling of the student
[30:53] Speaker 2: protests on the Israel Hamas War. There was a misconduct
[30:57] Speaker 2: complaint filed against him, which was later dismissed. I mean,
[31:01] Speaker 2: is that going to be a key question? What do
[31:03] Speaker 2: you think the key questions are going to be?
[31:06] Speaker 5: I think they'll probably ask them about the rulings that
[31:10] Speaker 5: they have had that are controversial. I think that's what
[31:13] Speaker 5: they'll probably talk about. It just because they don't have
[31:16] Speaker 5: very long records on the district bench.
[31:19] Speaker 2: During the first term, the ABA rated ten of his
[31:23] Speaker 2: nominees as unqualified, and this term you have at least one.
[31:29] Speaker 2: Kathleen Lane, she's nominated to the District Court of Montana.
[31:36] Speaker 2: She received an unqualified rating, but it was mainly due
[31:40] Speaker 2: to a limited legal experience.
[31:43] Speaker 5: Yes, she graduated from law school in twenty seventeen, and
[31:47] Speaker 5: the ABA likes to see twelve years of practice experience.
[31:52] Speaker 5: She had two federal clerkships and then five or so
[31:57] Speaker 5: years practice after that. It was purely based on the
[32:02] Speaker 5: lack of experience in the type of cases that she
[32:06] Speaker 5: would be deciding in the Montana district. I used to
[32:10] Speaker 5: teach out there, so I have a sense of what
[32:12] Speaker 5: that docket looks like. It has lots of important public
[32:17] Speaker 5: lands issues, which she has worked on some as the
[32:21] Speaker 5: I think as deputy solicitor General in Montana. But you
[32:26] Speaker 5: have to be able to keep up with the docket,
[32:28] Speaker 5: and they have all kinds of cases, and you can
[32:31] Speaker 5: imagine in a huge state, big land base, but not
[32:35] Speaker 5: many people and long distances between the courthouses, but very
[32:40] Speaker 5: experienced judges as colleagues. They will be very generous and
[32:44] Speaker 5: will help her if she needs help. But she had
[32:47] Speaker 5: only tried I think, one case, and had very little
[32:52] Speaker 5: courtroom experience I believe, had not taken depositions, and so
[32:58] Speaker 5: there just wasn't the experience there. And the ABA letter
[33:02] Speaker 5: was very complimentary of her but just saying there wasn't
[33:07] Speaker 5: enough experience to be handling cases as a trial judge
[33:11] Speaker 5: in the federal system.
[33:13] Speaker 2: So where do the ABA reviews stand. The Republicans don't
[33:19] Speaker 2: pay attention to them, the Democrats do. Where do they stand?
[33:23] Speaker 1: Well?
[33:23] Speaker 5: As I understand that the White House and DJ has
[33:26] Speaker 5: instructed the nominees to not even cooperate with the ABA
[33:32] Speaker 5: in trying to collect information on them, much less interview them,
[33:37] Speaker 5: which is very different from the first term, and so
[33:41] Speaker 5: the ABA has essentially been shut out, and so in
[33:44] Speaker 5: lots of instances, they just don't have much information except
[33:47] Speaker 5: what's in the public record, and so that makes it
[33:50] Speaker 5: very difficult. But the ABA, to its credit, has tried
[33:55] Speaker 5: to do everything it can to gather information on the
[33:58] Speaker 5: particular people, interview lawyers they know in localities, and so
[34:03] Speaker 5: I think they have tried to do their best. But
[34:06] Speaker 5: on a number of them, they just haven't had enough
[34:09] Speaker 5: information to even make a rating.
[34:11] Speaker 2: Are there any instances where the ABA rated people unqualified
[34:16] Speaker 2: because of their position on Trump issues? I mean, does
[34:20] Speaker 2: it go that way the way the Republicans claim?
[34:23] Speaker 5: I don't think so, especially talking about as you just
[34:26] Speaker 5: brought up in Trump one point oh, there were ten
[34:32] Speaker 5: nominees who received not qualified ratings, but I think they
[34:36] Speaker 5: were almost exclusively based on their experience, not their ideology.
[34:44] Speaker 5: And if you look at those, then eight of them
[34:46] Speaker 5: were actually confirmed by the Senate Republican majority and are
[34:52] Speaker 5: still serving on the courts. But the ABA was not
[34:57] Speaker 5: very partisan about that in any way. They just really
[35:00] Speaker 5: didn't have much relevant experience.
[35:03] Speaker 2: Tell us about Trump's numbers so far and whether any
[35:07] Speaker 2: circuit courts have been flipped.
[35:09] Speaker 5: Six people have been confirmed. They're five nominees or future vacancies,
[35:15] Speaker 5: and they will probably be confirmed this year. I think
[35:18] Speaker 5: they'll try to do that before the midterms if possible,
[35:23] Speaker 5: so there'll probably be eleven in his first half term.
[35:27] Speaker 5: At that level. At the district level, thirty one have
[35:31] Speaker 5: been confirmed, five are on the floor, four have Thursday
[35:35] Speaker 5: votes in committee, and four nominated on May twelve, with
[35:39] Speaker 5: hearings that will be scheduled probably in June. So that's
[35:42] Speaker 5: where we are. But in terms of present vacancies, there
[35:47] Speaker 5: are five on the Appeals Court in all future vacancies,
[35:50] Speaker 5: and at the district level they're thirty four current ones
[35:53] Speaker 5: and seven future ones, so they're a fair number still
[35:57] Speaker 5: of vacancies and the number of them don't have nomine.
[36:00] Speaker 2: Why aren't they moving as fast as they did in
[36:02] Speaker 2: the first term.
[36:03] Speaker 5: Well, they just haven't seized on the moment. Probably they
[36:08] Speaker 5: have enough time to catch back up. They're not terribly low,
[36:13] Speaker 5: but recently it's picked up some. For example, there were
[36:17] Speaker 5: six last week nominated. But part of the problem is
[36:21] Speaker 5: there's been very little interaction between the White House and
[36:24] Speaker 5: states that have one or two Democratic senators, and there's
[36:29] Speaker 5: been only two nominees in the recent batch actually had
[36:35] Speaker 5: blue state senators, one for Pennsylvania where you have one
[36:38] Speaker 5: Democrat and one Republican. So we'll see what Fetterman says
[36:42] Speaker 5: about that nominee, and then a second win in Michigan
[36:46] Speaker 5: where both senators are Democrats, Peters and Slotkin, and I
[36:53] Speaker 5: assume that they will return their blue slips and we'll see.
[36:57] Speaker 2: Thanks so much, Carl. That's Professor Tobias of the University
[37:01] Speaker 2: of Richmond Law School, and that's it for this edition
[37:05] Speaker 2: of The Bloomberg Law Show. Remember you can always get
[37:08] Speaker 2: the latest legal news on our Bloomberg Law podcasts. You
[37:11] Speaker 2: can find them on Apple Podcasts, Spotify, and at www
[37:15] Speaker 2: dot Bloomberg dot com slash podcast Slash Law, and remember
[37:19] Speaker 2: to tune into The Bloomberg Law Show every weeknight at
[37:22] Speaker 2: ten pm Wall Street Time. I'm June Grosso and you're
[37:26] Speaker 2: listening to Bloomberg

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