# Trump Administration Wants to Turn Away Asylum Seekers

An episode of [Bloomberg Law](https://invisiblenetwork.ai/podcast/277975394), 25 Mar 2026, 36 min.

Audio: https://podtrac.com/pts/redirect.mp3/traffic.omny.fm/d/clips/e73c998e-6e60-432f-8610-ae210140c5b1/7c892d84-801f-4c0b-b0e9-ae2b0012ff5f/4c5f1a2c-5632-49e5-a456-b41800276f80/audio.mp3?utm_source=Podcast&in_playlist=91224201-26a6-429d-ac3c-ae2b0012ff6d

Immigration law expert Leon Fresco, a partner at Holland & Knight, discusses the Supreme Court oral arguments over whether the Trump administration can turn away asylum seekers at the border. Then David Voreacos, Bloomberg legal reporter, discusses a federal trial court’s agreement with the Justice Department for the new US Attorney in New Jersey. June Grasso hosts. See omnystudio.com/listener for privacy information.

## Transcript

[0:02] Speaker 1: This is Bloomberg Law with June Grosso from Bloomberg Radio.
[0:09] Speaker 2: Can the Trump administration turn away asylum seekers at the
[0:13] Speaker 2: US Mexico border. Federal law says that any non citizen
[0:18] Speaker 2: who quote arrives in the United States can apply for asylum.
[0:23] Speaker 2: So the answer turns on what it means to arrive
[0:26] Speaker 2: in the United States, and most of the oral arguments
[0:30] Speaker 2: at the Supreme Court today revolved around the interpretation of
[0:34] Speaker 2: those words. The government's attorney, the Vek Suri, said, a
[0:38] Speaker 2: person has to have crossed the border in order to
[0:42] Speaker 2: arrive in the United States.
[0:44] Speaker 3: You can't arrive in the United States while you're still
[0:47] Speaker 3: standing in Mexico.
[0:48] Speaker 4: That should be the end of this case.
[0:50] Speaker 2: But liberal Justice Katanji Brown Jackson challenged that interpretation.
[0:56] Speaker 5: Imagine a person who has a placard on their body
[0:59] Speaker 5: as they approach the border that says, you know, I
[1:03] Speaker 5: would like intrigue. I'm being persecuted in Mexico. Your suggestion
[1:08] Speaker 5: that the United States would say, unless you can figure
[1:11] Speaker 5: out a way to illegally cross, we're not going to
[1:13] Speaker 5: entertain that claim seems very peculiar.
[1:17] Speaker 2: And the attorney arguing on behalf of asylum seekers Kelsey
[1:21] Speaker 2: Cochrane said, arriving in the United States simply meant making
[1:25] Speaker 2: it to a port of entry until a change in
[1:28] Speaker 2: policy ten years ago.
[1:30] Speaker 6: From nineteen seventeen to twenty sixteen, ninety nine years there
[1:35] Speaker 6: was not a single example of a turnback. So what
[1:37] Speaker 6: was happening is people would come through the port at
[1:40] Speaker 6: that point. When they were in the port, they would
[1:42] Speaker 6: be inspected and processing. What happened, So it's an unusual
[1:45] Speaker 6: scenario we have here where we have the officers standing
[1:47] Speaker 6: there and turning people back.
[1:49] Speaker 2: The justices pressed her with questions about whether an asylum
[1:53] Speaker 2: seeker had arrived in the United States if they reached
[1:56] Speaker 2: the border wall or made it almost halfway through the
[1:59] Speaker 2: Rio grand or cross the Rio Grande, or we're first
[2:03] Speaker 2: in the line waiting to enter a port of entry
[2:06] Speaker 2: or second in the line. Here are justice is Amy
[2:09] Speaker 2: Cony Barrett and Neil Gorsuch.
[2:11] Speaker 7: How do you know under your theory when the person
[2:14] Speaker 7: is close enough that we could say they have arrived
[2:17] Speaker 7: in or arrived in the destination. I mean, what if
[2:20] Speaker 7: there's a queue and they're far back, or what if
[2:22] Speaker 7: they arrive not at a port of entry. How close
[2:25] Speaker 7: do you have to be to the border. Could you
[2:27] Speaker 7: say that someone arrives in the United States if they're
[2:29] Speaker 7: at a portion of the border that does not have
[2:31] Speaker 7: a port of entry, Like, what is it if it's
[2:33] Speaker 7: not crossing the physical border? What is the magic thing
[2:38] Speaker 7: or the dispositive thing that we're looking for where we say, ah,
[2:40] Speaker 7: Now that person we can say arrives in the United States.
[2:44] Speaker 3: Now, how come somebody who's in the line isn't in.
[2:47] Speaker 3: I mean, if the whole point is to make sure
[2:49] Speaker 3: that people are attempting to get into the country have
[2:54] Speaker 3: the opportunity to file asylum claims, and they've made it
[2:58] Speaker 3: all the way, why doesn't matter he's second in line.
[3:02] Speaker 2: The High Court's answers could reshape the government's asylum policy.
[3:07] Speaker 2: Joining me is an expert immigration law. Leon Fresco, a
[3:10] Speaker 2: partner at Honden Knight Leon tell us about the issue
[3:13] Speaker 2: in this case about asylum.
[3:15] Speaker 1: So, in this case, which is called known versus alot Lado,
[3:19] Speaker 1: the issue is whether a non citizen who has stopped
[3:23] Speaker 1: on the Mexican side of the US Mexican border are
[3:27] Speaker 1: they considered someone under the statute who arrived in the
[3:30] Speaker 1: United States for the purposes of being allowed to get
[3:34] Speaker 1: asylum processing under the immigration laws. So here's how this works.
[3:39] Speaker 1: So there's two kinds of people who tried to apply
[3:42] Speaker 1: for asylum. There's the people who tried to sneak across
[3:45] Speaker 1: the border, and so for those people, traditionally, for the
[3:50] Speaker 1: last thirty forty years or so, there was this understanding
[3:55] Speaker 1: that yes, once you got across the border, you could
[3:58] Speaker 1: make a claim for asylum. Now there's a separate case
[4:01] Speaker 1: and a separate issue involved with President Trump basically using
[4:04] Speaker 1: the travel ban authority to say no, if you cross
[4:07] Speaker 1: the border, you can't get asylum.
[4:09] Speaker 4: But that's not an issue in this case.
[4:11] Speaker 1: This case is about whenever you ask people what you're
[4:17] Speaker 1: supposed to do when you really want asylum, the issue
[4:21] Speaker 1: is they say, well, go to a port of entry
[4:23] Speaker 1: and present yourself as a proper person.
[4:26] Speaker 4: Don't create chaos and all kinds.
[4:29] Speaker 1: Of confusion by running across the border. Go to a
[4:32] Speaker 1: port of entry. So what happens is you go to
[4:34] Speaker 1: a port of entry, if the government refuses to ever
[4:38] Speaker 1: see you, it just keeps you on the Mexican side,
[4:41] Speaker 1: which is what's currently happening. Then you never get to
[4:44] Speaker 1: apply for asylum either. So the question that this case
[4:48] Speaker 1: tries to deal with is what happens to those individuals
[4:52] Speaker 1: who clearly presented themselves and said I want asylum, but
[4:57] Speaker 1: their human body is on the Mexican side of the
[4:59] Speaker 1: b order. Does the US government have an obligation to
[5:03] Speaker 1: still process these individuals for asylum?
[5:06] Speaker 4: That's the question.
[5:08] Speaker 1: And the Trump administration says no, if your body's on
[5:11] Speaker 1: the Mexican side of the border, you don't get to
[5:13] Speaker 1: apply for asylum. And the litigants who were from this
[5:16] Speaker 1: organization called Al Ultra Lado said no, that's not correct,
[5:21] Speaker 1: and the Ninth Circuit said the same thing, that once
[5:23] Speaker 1: you've presented yourself for asylum, you've done what's needed. It's
[5:28] Speaker 1: not really mattering if your body is a few feet
[5:31] Speaker 1: away from the US territorial border.
[5:34] Speaker 2: Explain the questions over the interpretation of the phrase arrives
[5:39] Speaker 2: in the United States.
[5:41] Speaker 1: So the asylum statute uses the quote arrives in or
[5:47] Speaker 1: is quote physically present in the United States. So if
[5:51] Speaker 1: you were just to do again an artificial intelligence or
[5:54] Speaker 1: a dictionary or something like that, then that would be
[5:59] Speaker 1: the end of this, because then that would mean if
[6:02] Speaker 1: you arrived in, your body would have to be inside
[6:04] Speaker 1: the United States, or if you were physically president of
[6:06] Speaker 1: the United States, that would mean your body would have
[6:09] Speaker 1: to be inside the United States. But then there's a
[6:11] Speaker 1: separate concept in the immigration law called an arriving alien.
[6:17] Speaker 1: And the idea is, if you are an arriving alien
[6:19] Speaker 1: and you're apprehended or somehow in the custody of the
[6:23] Speaker 1: government or even the situational awareness of the government that
[6:28] Speaker 1: you are an arriving alien, you're someone who can apply
[6:30] Speaker 1: for asylum. Yes, you're kept in detention during this time,
[6:34] Speaker 1: but you can apply for asylum. The law actually uses
[6:37] Speaker 1: this word arriving alien. So the question is, why would
[6:41] Speaker 1: the law use the term arriving alien if that didn't
[6:46] Speaker 1: mean anything, if the sort of process of arriving didn't
[6:51] Speaker 1: shield you in some way from being able to get asylum,
[6:55] Speaker 1: if the government knew about you and apprehended you in
[6:58] Speaker 1: some way, whether the apprehension was inside the United States
[7:02] Speaker 1: or to prevent you from coming inside of the United States.
[7:06] Speaker 1: And so that's the sort of debate or dispute here
[7:10] Speaker 1: is once the government knows about you and is doing
[7:12] Speaker 1: something to stop you, then that should be the end
[7:16] Speaker 1: of it in terms of what the plaintiffs, the immigrants
[7:18] Speaker 1: rights groups think they think, hey, that's the answer here.
[7:22] Speaker 1: You are an arriving alien, you've been apprehended, you should
[7:25] Speaker 1: now get to apply for asylum. And the government says, yeah,
[7:28] Speaker 1: but that's not how that works. The arriving alien is
[7:31] Speaker 1: sort of for the apprehension of the person and then
[7:35] Speaker 1: the deportation of the person and the detention. But the
[7:38] Speaker 1: actual act of applying for asylum requires an actual arrival
[7:43] Speaker 1: and requires physical presence in the United States. And so
[7:47] Speaker 1: I do think that because much of this court is textualists.
[7:51] Speaker 1: So you have three very strong textualists on the court,
[7:54] Speaker 1: but then you also have people who are asking practical
[7:57] Speaker 1: questions amongst the conservative justices that I think out of
[8:01] Speaker 1: the six conservative justices, you're probably likely to find at
[8:05] Speaker 1: least five votes probably for the government's argument that in
[8:11] Speaker 1: order to be eligible for asylum, your human body actually
[8:15] Speaker 1: has to be inside the United States.
[8:18] Speaker 4: Now, they may say.
[8:19] Speaker 1: Look, this is very cruel that the administration can just
[8:23] Speaker 1: keep people out from the ports of entry when they're saying,
[8:26] Speaker 1: go to the ports of entry.
[8:28] Speaker 4: This has to be your solution. But they may say that's.
[8:31] Speaker 1: Something for the Congress to have to adjudicate in terms
[8:35] Speaker 1: of passing a bill that lets a certain amount of
[8:38] Speaker 1: people get screened each day, or does something else, but
[8:43] Speaker 1: it's not an issue for the courts to decide. I
[8:45] Speaker 1: think that's where this is likely going, but we'll have
[8:48] Speaker 1: to wait and see.
[8:49] Speaker 2: The Justice has posed all these hypotheticals to determine what
[8:53] Speaker 2: point an asylum seeker had to have reached in order
[8:57] Speaker 2: to be considered to have arrived in the United States.
[9:01] Speaker 2: So was it enough if they reached the border wall
[9:04] Speaker 2: or made it almost halfway through the Rio Grande, or
[9:08] Speaker 2: cross the Rio grand or suppose they were first in
[9:11] Speaker 2: line waiting to enter a port of entry, or suppose
[9:14] Speaker 2: they were last in line. So is the court going
[9:17] Speaker 2: to come down with a decision that says, Okay, here's
[9:21] Speaker 2: the point where you arrive and can ask for asylum.
[9:24] Speaker 4: That's correct. I mean.
[9:25] Speaker 1: The problem is it's very hard to draw a bright
[9:27] Speaker 1: line rule. The easiest bright line rule to draw, which
[9:31] Speaker 1: is why I think this is going to be appealing
[9:33] Speaker 1: to the conservative justices, is that your body is inside
[9:36] Speaker 1: the United States. Once you draw the line at something else,
[9:41] Speaker 1: then the question is where do you draw that line?
[9:44] Speaker 1: And this is why they talked a lot about the
[9:46] Speaker 1: Haitian interdiction cases where Haitians were interdicted at sea, and
[9:52] Speaker 1: the question was did those cases require asylum and they
[9:56] Speaker 1: did not. Those were considered extra territorial case and that
[10:00] Speaker 1: the asylum laws didn't apply to the Haitians that were
[10:04] Speaker 1: intredicted at sea. And so the idea is, where do
[10:08] Speaker 1: you draw this line if it's hard to sort of
[10:12] Speaker 1: say if the government is aware of you, because the
[10:14] Speaker 1: government can be aware of you in many different ways
[10:17] Speaker 1: through satellite, through drones, through some other thing. If you're
[10:21] Speaker 1: in Mexico and you're being stopped from coming in, that
[10:24] Speaker 1: doesn't mean you're in custody. You're free to leave. You
[10:27] Speaker 1: could go anywhere else. And so I don't know how
[10:32] Speaker 1: you would draw this line. But what's going to be
[10:34] Speaker 1: interesting is I do think, assuming that the immigrants' rights
[10:38] Speaker 1: groups lose here on that basis, that it's sort of
[10:42] Speaker 1: hard to draw a line. And so we might as
[10:43] Speaker 1: well read the statute the way it says, which is
[10:46] Speaker 1: arrives and that your body has to be in the US.
[10:49] Speaker 1: There's still going to be a second case that comes
[10:51] Speaker 1: to the Supreme Court. Well, when you do arrive and
[10:54] Speaker 1: you do apply for asylum, can the Trump administration still
[10:57] Speaker 1: ban you anyway? And I think it's going to be
[11:00] Speaker 1: hard for the court if they rule against the immigrants here,
[11:03] Speaker 1: to rule against them yet again a second time and
[11:06] Speaker 1: say there's just literally no way to apply for asylum
[11:09] Speaker 1: ever in America.
[11:11] Speaker 4: So we'll see.
[11:12] Speaker 1: But I do think the difficulty they're having with this
[11:16] Speaker 1: case for shadows a potential triumph for the immigrants rights
[11:22] Speaker 1: groups in this second case about what happens when people
[11:25] Speaker 1: do actually arise.
[11:27] Speaker 4: But again, we'll just have to wait and see.
[11:28] Speaker 2: What's happening now. Because during the oral arguments, they said
[11:32] Speaker 2: that the administration wasn't using this policy of the call
[11:37] Speaker 2: it metering, wasn't using this policy right now, correct.
[11:41] Speaker 1: They're banning everybody from asylum. So that's what they're doing
[11:44] Speaker 1: right now, is they're saying you're just completely banned from
[11:48] Speaker 1: seeking asylum at the southern border of the United States.
[11:51] Speaker 1: But the point is that that argument rests on the
[11:57] Speaker 1: fact that the reason you're banned is because you're crossing illegally.
[12:01] Speaker 1: So if you're crossing illegally, that's what triggers the ban.
[12:05] Speaker 4: So the idea is go to a.
[12:07] Speaker 1: Port of entry. But when you go to a port
[12:09] Speaker 1: of entry, you're not being allowed into the United States.
[12:12] Speaker 1: So that's the problem. There's no place to currently apply.
[12:17] Speaker 1: And so what this case would remedy is they would
[12:20] Speaker 1: remedy this issue that you couldn't go to.
[12:23] Speaker 4: A port of entry to apply for asylum.
[12:25] Speaker 1: Now, again, I don't think it's actually going to remedy anything,
[12:28] Speaker 1: because I don't think the Supreme Court is going to
[12:31] Speaker 1: rule that there's a way to define this statute that
[12:34] Speaker 1: makes any sense other than that your body has to
[12:36] Speaker 1: be in the US in order to have a right
[12:39] Speaker 1: for asylum, because where do we draw the line on
[12:41] Speaker 1: where your body could be outside the US. But what
[12:45] Speaker 1: I do think is when they then get to the
[12:47] Speaker 1: second case about well what about when your body is
[12:50] Speaker 1: in the United States, can the president still UNILA early
[12:53] Speaker 1: ban you, then they're going to have to look at
[12:55] Speaker 1: that within the context of what they decided here and
[12:58] Speaker 1: see that this really would mean that a president could
[13:01] Speaker 1: ignore all of these statutes that talk about asylum and
[13:05] Speaker 1: its pages and pages and pages of statutes and regulation,
[13:08] Speaker 1: could just ignore all of them and say this whole
[13:10] Speaker 1: thing doesn't exist anymore.
[13:12] Speaker 4: And I do think that.
[13:13] Speaker 1: Will probably give the court some pause, although who knows,
[13:16] Speaker 1: because I do think it's also natural to say, under
[13:20] Speaker 1: the previous scenario, we had a million people crossing the
[13:23] Speaker 1: border each year. Now we don't have any So one
[13:26] Speaker 1: certainly produces a more manageable result than the other. And
[13:30] Speaker 1: the Supreme Court by changing the way that the band works,
[13:35] Speaker 1: could potentially spark another million people at the border, which
[13:39] Speaker 1: they probably wouldn't want to do. The question is do
[13:41] Speaker 1: they also want to just allow a one hundred percent
[13:44] Speaker 1: ban on asylum cases.
[13:45] Speaker 4: So we'll have to wait and see.
[13:47] Speaker 2: Stay with me, Leon, coming up next. Mark Wayne Mullen
[13:51] Speaker 2: was sworn in today as a new Secretary of Homeland Security.
[13:55] Speaker 2: Our change is ahead. This is Bloomberg. Wayne Mullen was
[14:00] Speaker 2: sworn in today at the White House as the new
[14:03] Speaker 2: Secretary of Homeland Security. President Trump said he has a
[14:07] Speaker 2: lot of confidence in his new DHS secretary.
[14:11] Speaker 8: With Secretary Mullin at DHS, we will continue our record
[14:14] Speaker 8: setting efforts to deport these illegal alien criminals from our country,
[14:18] Speaker 8: and we are doing at record levels despite a very
[14:22] Speaker 8: unfair court system.
[14:23] Speaker 2: I've been talking to Leon Fresco, a partner at Holland
[14:26] Speaker 2: and Knight. He was the former head of the Office
[14:29] Speaker 2: of Immigration Litigation in the Obama administration, Leanne. I've been
[14:33] Speaker 2: wondering whether it would be helpful if the person who
[14:37] Speaker 2: leads the Department of Homeland Security actually has some background
[14:42] Speaker 2: or experience in immigration.
[14:45] Speaker 1: Well that's complicated because actually the first Homeland Security Secretary
[14:49] Speaker 1: was Tom Ridge, who was the governor of Pennsylvania. And
[14:52] Speaker 1: then the second one was Michael Turnoff, who had been
[14:54] Speaker 1: a judge. Yes, he'd had some law enforcement background. You
[14:58] Speaker 1: had Janet Apolitano who was the governor of Arizona. You
[15:01] Speaker 1: had Jay Johnson who was an attorney at the Defense Department.
[15:05] Speaker 1: The only one who worked in the immigration was quite frankly,
[15:09] Speaker 1: Ali Majorcus. And you know that, depending on who you
[15:12] Speaker 1: talk to, was either good or terrible. So I don't
[15:16] Speaker 1: know necessarily that experience is the issue. But what really
[15:19] Speaker 1: matters is the judgment, the intellectual curiosity, the getting of
[15:24] Speaker 1: good people to advise you. And I do think in
[15:29] Speaker 1: terms of this, there's a couple of things that you
[15:31] Speaker 1: can look toward that you know might be helpful. I
[15:33] Speaker 1: don't think the policies are substantively going to change, I'm
[15:37] Speaker 1: almost certain of that, but I do think to the
[15:40] Speaker 1: extent that there's an ability to exercise the policies without
[15:44] Speaker 1: being gratuitously inflammatory. I do think that will be helpful.
[15:49] Speaker 1: And we'll see if a Secretary Mullen does that. I mean,
[15:52] Speaker 1: he claimed that he would be doing that, but we'll
[15:55] Speaker 1: have to see, you know, and to the extent that
[15:58] Speaker 1: that can happen on an agent and see why. Basis
[16:01] Speaker 1: that the social media be dialed down a little bit,
[16:04] Speaker 1: that the rhetoric be dialed down a little bit, All
[16:07] Speaker 1: of that helps in terms of not creating these sort
[16:11] Speaker 1: of markers of inflammation that you see around the country.
[16:15] Speaker 1: So that will be one. The other thing he said
[16:17] Speaker 1: that was interesting is he would require judicial warrants to
[16:21] Speaker 1: enter homes or businesses, which was something that the previous
[16:26] Speaker 1: secretary didn't want to say that he would work with
[16:29] Speaker 1: the Congress when they were concerns about specific cases. So
[16:32] Speaker 1: we'll see if that ends up happening, and you know,
[16:36] Speaker 1: he may end up getting involved in this DHS shut
[16:39] Speaker 1: down negotiation to try to see if there's a way forward,
[16:43] Speaker 1: to try to see if this can finally be ended
[16:45] Speaker 1: so that you know, TSA and everything else can come back.
[16:48] Speaker 1: So we'll see, this will be his first test. If
[16:51] Speaker 1: he's able to come up with an interesting response to
[16:54] Speaker 1: the DHS shutdown and he's part of the negotiations, then
[16:57] Speaker 1: I think you could expect some interesting, helpful changes. But
[17:03] Speaker 1: if he's sort of divorced from this round of negotiations
[17:06] Speaker 1: and he doesn't take a role in solving it, then
[17:09] Speaker 1: I do think you'll pretty much then end up seeing
[17:12] Speaker 1: more of the same as we move forward, Because.
[17:14] Speaker 2: The policy itself comes from the administration, right, and in
[17:19] Speaker 2: this case, Stephen Miller.
[17:22] Speaker 1: Correct, most of the immigration policy comes from Stephen Miller
[17:25] Speaker 1: and comes from the White House and people who work
[17:27] Speaker 1: for Stephen Miller. And so the idea was that there
[17:31] Speaker 1: would be sort of an operational person implementing this, but
[17:35] Speaker 1: they wouldn't be the ones formulating the policy. But look,
[17:38] Speaker 1: at the end of the day, once you're the Secretary
[17:40] Speaker 1: of Homeland Security, you get a lot of say in
[17:43] Speaker 1: what gets implemented and how it can't be done without you.
[17:46] Speaker 1: So the only thing they can do is fire you,
[17:48] Speaker 1: which is quite inconvenient to have to keep firing secretaries
[17:52] Speaker 1: of Homeland Security. So Secretary Mullen will have the ability
[17:56] Speaker 1: to implement policies that he wants and to not implement
[18:01] Speaker 1: policies that he doesn't want. But the question is will
[18:04] Speaker 1: he be willing to take on some of those battles.
[18:06] Speaker 1: Does he have the acumen to end up doing that
[18:10] Speaker 1: in a way that doesn't get him fired.
[18:12] Speaker 4: Those are all very.
[18:14] Speaker 1: Important questions, and I think there's nothing to do but watch,
[18:17] Speaker 1: because no one can really know how that's going to
[18:20] Speaker 1: play out. But one thing he can do for sure
[18:23] Speaker 1: is to insist that everything that comes out of the
[18:27] Speaker 1: department take more of a tone that's not designed in
[18:30] Speaker 1: its purpose to be inflammatory. And I do think that
[18:34] Speaker 1: would be a tremendous already benefit as opposed to trying
[18:38] Speaker 1: you know, you have social media posts that talk in
[18:41] Speaker 1: a way that's very aggressive, or you have rhetoric that
[18:44] Speaker 1: talks in a way that's very aggressive. None of those
[18:46] Speaker 1: words or none of that rhetoric changes the actual number
[18:50] Speaker 1: of people you remove, and in fact, they could actually
[18:53] Speaker 1: shrink the number of people you remove. And so why
[18:56] Speaker 1: say it if it doesn't actually help the operational mission?
[19:00] Speaker 2: Have they actually stopped with the very aggressive tactics that
[19:04] Speaker 2: we saw, you know, in Minneapolis and Chicago, and have
[19:09] Speaker 2: they sort of dial that back as the borders are
[19:13] Speaker 2: said they would.
[19:15] Speaker 1: At the moment, they're focused on the cities where they
[19:18] Speaker 1: have cooperation for the rest of twenty twenty six because
[19:22] Speaker 1: they don't sort of want this to insert itself as
[19:24] Speaker 1: an election issue. They're trying to just focus on creating
[19:28] Speaker 1: their numbers of removals through these jurisdictions where they have
[19:32] Speaker 1: cooperation and trying to develop cooperation in more serious cases.
[19:36] Speaker 1: They're trying to do that in New York and in
[19:39] Speaker 1: Los Angeles and in Minnesota, where they say, look, would
[19:41] Speaker 1: some of these very serious criminals, would you please cooperate
[19:44] Speaker 1: with us and helping them to get removed by notifying
[19:48] Speaker 1: us where they are and helping us apprehend them. And
[19:51] Speaker 1: I do think they're making inroads there. And the question
[19:54] Speaker 1: is do they just want to stay with that for
[19:56] Speaker 1: the rest of the year or not. But I do
[19:58] Speaker 1: think their plan is twenty seven rolls around, or even
[20:02] Speaker 1: late twenty twenty six after the midterm election, to come
[20:05] Speaker 1: back and sort of ramp this up again. And that's
[20:09] Speaker 1: where we're gonna have to see where Secretary Mullin goes,
[20:12] Speaker 1: if he actually will allow that or will he just
[20:15] Speaker 1: keep what will have been going on for nine months
[20:18] Speaker 1: previous to that by then will he say, Look, this
[20:21] Speaker 1: is working, We're getting pretty good numbers, We're not inflaming people.
[20:25] Speaker 4: Why not just keep doing this.
[20:27] Speaker 2: ICE agents have been deployed to fourteen airports today to
[20:33] Speaker 2: help during the shutdown, as lines to get through security
[20:37] Speaker 2: have been growing and growing, hours long waits at some airports.
[20:42] Speaker 2: Minority Leader Chuck Schumer came out against it during a
[20:45] Speaker 2: speech on the Senate floor today.
[20:48] Speaker 9: ICE needs to leave the airports now. Trump needs to
[20:52] Speaker 9: pay TSA workers now and push Republicans to reach a deal.
[20:58] Speaker 9: No intimidates, no one timidation forces at are airports, no
[21:02] Speaker 9: more chaos at checkpoints.
[21:04] Speaker 4: Enough is enough.
[21:06] Speaker 2: What's your take on using ICE at the airports during
[21:10] Speaker 2: the shutdown?
[21:11] Speaker 1: Well, there's a lot to say about this ICE at
[21:13] Speaker 1: the airport's thing, and so let's just go through step
[21:15] Speaker 1: by step. So first the question is will they be
[21:18] Speaker 1: performing ICE functions or TSA functions.
[21:21] Speaker 4: So if you start with.
[21:22] Speaker 1: That question, let's say they're actually performing ICE functions, which
[21:25] Speaker 1: is if they're there to actually apprehend and then lead
[21:30] Speaker 1: to the eventual removal of people without immigration status at
[21:33] Speaker 1: the airport. Well, theoretically that is consistent with the real
[21:37] Speaker 1: ID requirement. You're not supposed to be able to fly
[21:40] Speaker 1: if you don't have a real ID, and so if
[21:43] Speaker 1: you are there without a real IDA and you're trying
[21:46] Speaker 1: to fly, then theoretically you are exposing yourself to removal.
[21:51] Speaker 1: So in that area that would just be a debate
[21:54] Speaker 1: about whether you should have ICE doing that or not.
[21:56] Speaker 1: But that seems to be not an operationally incon system thing.
[22:00] Speaker 1: People may not like that ICE is there, but as
[22:02] Speaker 1: long as they're not in masks or creating all kinds
[22:06] Speaker 1: of havoc, it would be theoretically consistent. Like I said,
[22:10] Speaker 1: with the real IDEAC, there's a different question if ICE
[22:13] Speaker 1: is scanning your luggage and checking your pockets and your
[22:17] Speaker 1: keys and all of this.
[22:19] Speaker 4: The issue there is one.
[22:20] Speaker 1: There's a TSA training issue, which is you'd have to
[22:24] Speaker 1: get that training to know how to use that machine
[22:26] Speaker 1: and what to say to people, what to do with
[22:28] Speaker 1: disabled people, what to do with elderly people, et cetera.
[22:33] Speaker 1: So I don't know that you could just implement that
[22:35] Speaker 1: in a day or two, but I don't think they're
[22:37] Speaker 1: doing that anyway.
[22:38] Speaker 4: But the third point is.
[22:40] Speaker 1: Yes, it's true the TSA agents aren't getting paid, but
[22:44] Speaker 1: even when the TSA agents were getting paid. That was
[22:46] Speaker 1: considered one of the lowest morale jobs in the government.
[22:50] Speaker 1: If you pay any attention when you go through the
[22:54] Speaker 1: TSA screening process, many times the TSA are talking about
[23:00] Speaker 1: out the concept of when is my next break?
[23:04] Speaker 4: Is it in five minutes? Is it in eight minutes?
[23:06] Speaker 1: You know, they're they're very attuned to not being there
[23:10] Speaker 1: at that's because the job is just you know, it's
[23:14] Speaker 1: this job of just repetition and stress and repetition, and
[23:18] Speaker 1: so the job is a low morale job. So the
[23:21] Speaker 1: point is, if you're trying to ramp up ICE numbers
[23:25] Speaker 1: and you're moving them into a job that is a
[23:27] Speaker 1: low morale job, I don't know how that's consistent with
[23:30] Speaker 1: your desire to increase ICE numbers. So I don't think
[23:36] Speaker 1: that would be in a long term thing. If ICE
[23:39] Speaker 1: was actually going to do TSA work, they would end
[23:42] Speaker 1: up with a lot of dissatisfied, low morale ICE employees.
[23:46] Speaker 1: So we'll just have to see how that plays out.
[23:49] Speaker 2: Let's talk for a minute about immigration judges, because the
[23:52] Speaker 2: Trump administration fired nearly one hundred immigration judges last year,
[23:57] Speaker 2: and over the weekend, the Merits Systems Protection Board which
[24:02] Speaker 2: is composed of all Republicans, endorsed the Trump administration's argument
[24:07] Speaker 2: that Article two permits the president to remove these immigration judges,
[24:13] Speaker 2: and the judges are appealing. This sounds like, you know,
[24:16] Speaker 2: some of the arguments that we've heard before, right.
[24:19] Speaker 1: This is the whole doctrine of inferior officers, which has
[24:22] Speaker 1: been used in many different contexts in the administration where
[24:27] Speaker 1: President Trump has tried to use his authority under the
[24:30] Speaker 1: Constitution under Article two to fire inferior officers. And the
[24:34] Speaker 1: question is just whether an immigration judge who is an employee.
[24:37] Speaker 1: Here's just to lay this out for your audience. The
[24:40] Speaker 1: immigration judge is not a normal judge. They're not picked
[24:43] Speaker 1: by the president and confirmed by the Senate. An immigration
[24:46] Speaker 1: judge I answers an online ad and they put their
[24:50] Speaker 1: resume in the online ad system, and they go through
[24:53] Speaker 1: a hiring process and a six week training and then
[24:56] Speaker 1: they're an immigration judge. And so the question is is
[24:58] Speaker 1: that person considered an inferior officer who exercises significant authority
[25:06] Speaker 1: and can actually set some precedents an immigration law, or
[25:11] Speaker 1: are they considered someone who's so inferior that they are
[25:15] Speaker 1: that they actually have civil services protections, and the meritistem
[25:20] Speaker 1: Protection Board says, no, these people do exercise significant authority
[25:24] Speaker 1: under federal law, so they can be removed by the president.
[25:29] Speaker 1: And I do think it's interesting because there's two kinds
[25:31] Speaker 1: of immigration judges. There's ones that are called normal immigration
[25:36] Speaker 1: judges and there's a second one called appellate immigration judges.
[25:40] Speaker 1: And so I think this argument is much stronger for
[25:42] Speaker 1: the appellate immigration judges because they do set precedents that
[25:47] Speaker 1: then have to be followed by the lower immigration judges.
[25:50] Speaker 1: So I do think in their situation, it's probably much
[25:53] Speaker 1: easier to argue that they exercise significant authority under federal law.
[25:58] Speaker 1: But under the normal immigration judge, where they're constantly in
[26:01] Speaker 1: the court, you know, you go to immigration court, they say,
[26:03] Speaker 1: I don't authority to do anything. I have to just
[26:05] Speaker 1: follow what I'm being told. And now they have a
[26:08] Speaker 1: lot of AI that's sort of guiding them through what
[26:11] Speaker 1: they're supposed to do in a hearing because a lot
[26:13] Speaker 1: of them are new and a lot of them don't
[26:15] Speaker 1: even have experience in immigration law. The question is, if
[26:18] Speaker 1: you're basically almost an AI judge at this point, what
[26:22] Speaker 1: do you do vis a the are you really someone
[26:25] Speaker 1: exercising any kind of significant authorities. So I think there
[26:29] Speaker 1: that's going to be a harder one, and I think
[26:31] Speaker 1: the federal circuit may be more amenable to saying those
[26:35] Speaker 1: people do have NRIT systems protection, board protection.
[26:39] Speaker 2: Finally, leon this week, Gregory Bavino is retiring. I'm sure
[26:44] Speaker 2: to applause from advocates for migrants. He was the face
[26:49] Speaker 2: of the administration's harsh crackdown on immigration that led to
[26:55] Speaker 2: the deaths of two US citizens by federal agents. Do
[26:59] Speaker 2: you think he would forced out forced to retire.
[27:02] Speaker 1: Well, what happens is when you reach a certain age,
[27:05] Speaker 1: you can retire and have all of your benefits. And
[27:08] Speaker 1: so the role he wanted to play was essentially the
[27:11] Speaker 1: Tom Homan role, where you know Tom Homan had been
[27:15] Speaker 1: the Borders are and then he sort of was a
[27:18] Speaker 1: little bit downgraded both by Secretary Noman by circumstances in the.
[27:22] Speaker 4: News related to him.
[27:24] Speaker 1: But then when these things happen in Minnesota, people brought
[27:28] Speaker 1: back Tom Homan, and even Secretary Mullin has said he
[27:32] Speaker 1: wants to bring back Tom Holman and work with him.
[27:35] Speaker 1: And so Tom Homan's thing has always been looks the
[27:38] Speaker 1: vision of I should be go and find people who
[27:43] Speaker 1: we know are undocumented and deport that. Don't just start
[27:46] Speaker 1: sweeping the streets, grabbing everybody you can and asking whether
[27:50] Speaker 1: they're here legally or not.
[27:51] Speaker 4: He's always been uncomfortable with that. Tom.
[27:53] Speaker 1: That doesn't mean he doesn't want the ultimate same outcome
[27:56] Speaker 1: of every undocumented person being deported.
[27:59] Speaker 4: He does, but he.
[28:00] Speaker 1: Wants to do that within the context that you go
[28:03] Speaker 1: after people at their home or at their address or
[28:06] Speaker 1: wherever that you know already are undocumented, and so you're
[28:10] Speaker 1: fulfilling that mission.
[28:12] Speaker 4: And so Bavino didn't want that.
[28:13] Speaker 1: He wanted to just get more efficient, so to speak,
[28:17] Speaker 1: and just grab people wherever they were, and that would,
[28:21] Speaker 1: in his view, lead to much quicker either both removals
[28:25] Speaker 1: or self removals, because people wouldn't want to be living
[28:28] Speaker 1: in an environment where they could be apprehended at any minute.
[28:31] Speaker 4: So when that.
[28:32] Speaker 1: Policy was taken away, and his leadership of that policy
[28:35] Speaker 1: was taken away, then it was no longer in his view,
[28:39] Speaker 1: sort of desirable to keep working in the administration, and
[28:43] Speaker 1: so that happened to a lot of people.
[28:45] Speaker 4: They retire in that situation.
[28:46] Speaker 2: Leon, Thank you for tour Deforce. Tonight we covered so
[28:50] Speaker 2: many immigration topics. I really appreciate your insights. That's Leon
[28:55] Speaker 2: Fresco of Honden Night. Coming up next. A New Jersey
[28:59] Speaker 2: court reaches a d deal with the Department of Justice
[29:02] Speaker 2: on New Jersey's next US attorney. This is Bloomberg. A
[29:06] Speaker 2: federal trial court has come to terms with the Justice
[29:09] Speaker 2: Department on appointing a career prosecutor as New Jersey's US attorney,
[29:15] Speaker 2: substituting him for the Trump administration's three person leadership structure
[29:21] Speaker 2: that's been ruled illegal. Robert Fraser, a senior trial council
[29:25] Speaker 2: working organized crime cases out of Newark, has been picked
[29:29] Speaker 2: as the office's new US attorney, and unlike in prior
[29:34] Speaker 2: recent instances when judicially appointed US attorneys were rapidly fired
[29:39] Speaker 2: by the White House, Fraser's selection was approved by DOJ.
[29:44] Speaker 2: Joining me is David Voriakis. Bloomberg Legal reporter David remind
[29:49] Speaker 2: us about the saga that started with the appointment of
[29:54] Speaker 2: Alina Haba, President Trump's former personal attorney as US Attorney
[29:59] Speaker 2: for New Jersey.
[30:02] Speaker 10: Haba was appointed on a one hundred and twenty day basis,
[30:07] Speaker 10: and some criminal defendants in New Jersey challenged the legal
[30:12] Speaker 10: authority of her to prosecute them. After that one hundred
[30:16] Speaker 10: and twenty days expired, a judge came in from Pennsylvania
[30:21] Speaker 10: and sitting by special designation, decided that she was illegally appointed,
[30:27] Speaker 10: and he put that on hold until an appeals panel ruled.
[30:32] Speaker 10: Then an appeals panel in December agreed that her appointment
[30:37] Speaker 10: was illegal and she stepped down.
[30:40] Speaker 2: So then in December, Attorney General Pam Bondi decides to
[30:45] Speaker 2: delegate the duties of running the US Attorney's office to
[30:49] Speaker 2: three lawyers. I mean, I've never heard of that before,
[30:52] Speaker 2: So tell us what the federal judge Matthew Brann ruled
[30:56] Speaker 2: about that.
[30:57] Speaker 10: Judge brand who also handled the earlier Hobba case, ruled
[31:02] Speaker 10: that this was a similarly flawed appointment and that their
[31:08] Speaker 10: appointment was also illegal, and he also put that ruling
[31:13] Speaker 10: on hold. Since then, there's been a lot of controversy
[31:18] Speaker 10: and confusion over who was running the US Attorney's office
[31:22] Speaker 10: in New Jersey. So there was a routine sentencing in
[31:27] Speaker 10: a child pornography case in which the defense lawyers challenged
[31:32] Speaker 10: the legal authority of the arrangement in New Jersey and
[31:38] Speaker 10: the judge expressed a great deal of impatience and sharply
[31:44] Speaker 10: criticized the line prosecutor who appeared in court and wanted
[31:49] Speaker 10: an explanation on what were the plans for running the
[31:53] Speaker 10: US Attorney's office, because there had been no real explanation
[31:57] Speaker 10: out of the office about who was going to lead
[32:00] Speaker 10: the office going forward. After Judge Brand ruled that the
[32:05] Speaker 10: arrangement was illegal.
[32:06] Speaker 2: Before we get into what happened here, explain why federal
[32:10] Speaker 2: judges are making decisions about US attorneys.
[32:15] Speaker 10: There's a federal law that if there's a vacancy in
[32:19] Speaker 10: a US Attorney's office, that the judges in a district
[32:24] Speaker 10: in this case, the state of New Jersey, would get
[32:28] Speaker 10: together and appoint someone to run the office as the
[32:34] Speaker 10: US attorney until the Senate confirms a presidential nominee. It's
[32:40] Speaker 10: happened a number of times in US history around the country,
[32:44] Speaker 10: and they did that in New Jersey to replace Alena Haba,
[32:49] Speaker 10: and the choice by the judges, Desiree Grace, who had
[32:53] Speaker 10: been the number two in the office, was immediately fired
[32:56] Speaker 10: by Attorney General Pam Bondi.
[33:00] Speaker 2: So did the federal judges then negotiate with the Justice
[33:04] Speaker 2: Department to come to an agreement.
[33:07] Speaker 10: This time, it appears that the judges must have reached
[33:10] Speaker 10: an agreement with the Justice Department on the latest pick,
[33:15] Speaker 10: because the Justice Department and Alina Habba, who now works
[33:21] Speaker 10: as a special assistant, if you will, for Pam Bondi,
[33:26] Speaker 10: embraced the pick and that pick, Robert Fraser was not
[33:31] Speaker 10: immediately fired as Desiree Grace had been, and as two
[33:36] Speaker 10: other judicially appointed US attorneys in other districts also experienced.
[33:43] Speaker 2: The Justice Department said, the Department of Justice thanks the
[33:47] Speaker 2: District Court for working with the Department to appoint Robert
[33:50] Speaker 2: Fraser to serve as US attorney so that once again,
[33:54] Speaker 2: criminal prosecutions can resume without needless challenge or delay. On
[33:59] Speaker 2: behalf of the peaceeople of New Jersey, So tell us
[34:02] Speaker 2: a little about Robert Fraser.
[34:05] Speaker 10: Robert Fraser is a thirty five year veteran of prosecutor's office.
[34:11] Speaker 10: He worked in a local prosecutor's office as well as
[34:14] Speaker 10: the US Attorney's office. He has a lot of experience
[34:19] Speaker 10: in gang cases and in organized crime cases. He has
[34:23] Speaker 10: a reputation as being very well regarded by his peers
[34:29] Speaker 10: and by the judges that he's quite meticulous in his preparation,
[34:35] Speaker 10: his investigations, and his trial work, and that he's someone
[34:41] Speaker 10: who's expected to unite the office and return them to
[34:47] Speaker 10: the days when it was a high functioning place.
[34:52] Speaker 2: Now, court selected US attorneys in eastern Virginia and northern
[34:57] Speaker 2: New York were terminated by the White House on this
[35:00] Speaker 2: same day that they'd been chosen. So is the White
[35:03] Speaker 2: House sort of saying we want to be consulted on
[35:06] Speaker 2: the US attorneys.
[35:08] Speaker 10: It would appear that the White House has made peace
[35:11] Speaker 10: with the judges in New Jersey on this choice. In
[35:15] Speaker 10: the previous instances in which the judges ruled against Elena
[35:20] Speaker 10: Habba and in which the judges districtwide chose Desiree Grace,
[35:26] Speaker 10: the Justice Department sharply criticized those judges as activists who
[35:32] Speaker 10: were working against the Trump agenda. That did not happen
[35:36] Speaker 10: with the selection of Robert Fraser. So one can infer
[35:40] Speaker 10: that the White House and Pam Bondi are comfortable with
[35:44] Speaker 10: this pick.
[35:44] Speaker 2: Well, we'll see if this kind of negotiation works in
[35:49] Speaker 2: the case of other US attorneys. Thanks so much, David.
[35:52] Speaker 2: That's Bloomberg Legal reporter David Voriakis, And that's it. For
[35:56] Speaker 2: this edition of The Bloomberg Law Show. Remember you can
[35:59] Speaker 2: always get the latest legal news on our Bloomberg Law podcasts.
[36:02] Speaker 2: You can find them on Apple Podcasts, Spotify, and at
[36:05] Speaker 2: www dot bloomberg dot com slash podcast Slash Law, And
[36:11] Speaker 2: remember to tune into The Bloomberg Law Show every weeknight
[36:14] Speaker 2: at ten pm Wall Street Time. I'm June Grosso and
[36:17] Speaker 2: you're listening to Bloomberg

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