This is [music] Bloomberg Law with June

Graasso from Bloomberg Radio.

You may remember last spring during the

federal crackdown targeting pro

Palestinian campus activities, Secretary

of State Marco Rubio pushed back against

criticism over the administration

revoking green cards and student visas.

>> This is not about free speech. This is

about people that don't have a right to

be in the United States to begin with.

No one has a right to a student visa. No

one has a right to a green card, by the

way.

>> Now, there is a new kind of focus on

green cards by the Trump administration.

One that affects immigrants when they're

applying for permanent residency or a

green card. 10 days ago, the Department

of Homeland Security announced that

immigrants seeking permanent residency

would have to return to their home

countries to wait for their green cards.

a sweeping change in the policy of

allowing them to remain in this country

while waiting. But then a week later,

DHS appeared to walk back the changes,

causing whiplash among applicants and

their attorneys. My guest is immigration

law expert Leon Fresco, a partner at

Holland Knight. Leon, what was this

latest policy change?

>> Well, let's start with some basic

immigration law. When a person wants

lawful permanent residency in the United

States, there's two ways for them to

achieve that goal. One is to apply from

abroad, which is called consular

processing. And when you do that, you

put whatever application you first have

to put in with US citizenship and

immigration services that says you

qualify for whatever green card it is.

Let's say it's that you have a US

citizen spouse or a US citizen parent or

a US citizen child or that you have an

employer that's willing to pay you to

come work in the United States or you're

an extraordinary Einstein type of person

or you've invested a million dollars

into the US economy and created 10 jobs.

Those are the basic criteria for a green

card. And then the second part is if

you're abroad, you go to an embassy

appointment. You know, once that first

part is approved by US citizenship and

immigration services, the State

Department makes a determination as to

whether you're admissible into the

country. And by admissible, that means,

you know, you're not a terrorist, a drug

dealer, a criminal, that kind of thing.

Now, if you're inside the United States

and you're here legally, you can do

what's called adjustment of status,

which is instead of leaving the country

to apply for the green card, you can do

both steps that I've described from

inside the United States. You file them

at the same time. You file first for the

application that says yes, I do qualify

for whatever green card category I

qualify for and I'm also admissible to

the United States. and that's called

filing for adjustment of status. So what

the new announcement by US citizenship

and immigration services tried to say

last week is it said that because the

adjustment of status statute INA245

is discretionary saying that you know

the secretary of homeland security may

adjust status. Well, we're just

reminding everyone of that and we're

saying, well, we're not going to

exercise that discretion unless it's an

extreme extraordinary circumstance case.

Now, their memo itself didn't say that.

Their press release said that because

that would have been completely contrary

to the intent of the statute, which says

that you can do it. And there's actual

statutory language with regard to

high-skilled immigration and investors

and everything else that specifically

says you can do it. But this for a week

freaked out every there's about a

million people like this in the United

States that are in the middle of their

green card process. And every one of my

clients, I would say hundreds, called me

or emailed me or texted me, do I have to

go home? What's going to happen? Etc.

And I told them, look, this memo is

going to be walked back. It's illegal.

There will be litigation on this

probably. And so on Friday, May 30th, we

had a situation where a press person, an

unnamed press person said, "No, no, no.

This memo just reminds our adjudicators

that they can use discretion, but it's

not telling everybody to go home. So,

this thing is going to remain in flux."

Are there certain groups of people

applying for green cards that might be

most affected? The couple of groups that

concern me that really need to think

about, you know, what's going to happen

in their cases moving forward are first

of all, if you are someone who came here

legally on a visa, but you overstayed

your visa and you gave birth to a US

citizen child and that child is now over

21, so they can now petition for you for

a green card. I especially imagine after

the birthright citizenship case whenever

that's decided, assuming that's decided

against the Trump administration's

position, they're going to be very angry

about that decision and they're going to

try to crack down on that way of getting

green cards and there's going to have to

be litigation on that. But that's one

aspect of this. But I also think in

general people who overstay their visa

and let's say they get married to a US

citizen like the uh Sandra Bulock Ryan

Reynolds green card movie you know where

that happens or the Gerard Deardau green

card movie or any number of green card

movies that you have those people are

going to face a lot more scrutiny also

when their green card applications go

forward. And the reason for all of this

is because there's been recent case law

from the Supreme Court that's not been

very helpful that said that because

adjustment of status is a May statute,

it's a discretionary statute, we're not

going to review denials of adjustment of

status. So, as long as they can cabin

these denials to individual cases, they

can kind of try to create an environment

where they create a blanket ban, which I

think a blanket ban could be challenged.

But if they're saying they're just doing

this in individual cases, it's going to

be much harder to challenge. And the

courts are either going to have to

change what they said or come up with

some exception or they will let all of

these cases get denied individually. So,

that's where we stand. There's still a

lot of flux and a lot of gray areas and

something we can keep talking about as

we do these podcasts, but a lot of

people are still very nervous about

this.

>> What's the danger of going back to your

home country and waiting for your green

card?

>> So, there's two or three dangers. Number

one, a lot of people can't leave because

they have jobs here. And if they leave,

they lose their job here and they have

no job abroad. And let's say you're

married to a US citizen, then your US

citizen spouse has to leave too or

you're separated from your US citizen

spouse. So there's a lot of that. But

then the second and more cynical thing

is once you're outside of the country,

you have zero rights of any kind to make

any challenges in any court, whatever.

So if the Trump administration wants to

do a travel ban or any other kind of

ban, then you're never coming back in

the country and joke is on you. in that

situation, whereas you're not subject to

that ban if you're inside of the United

States.

>> Has that, let's call it a clarification.

Has that done anything to alleviate the

concerns of green card applicants?

>> People are very nervous about this

because the memo is still saying, and

even this press guidance from Friday is

saying, "Look, we're just telling our

adjudicators on a case-byase basis to

look at their discretionary authority

and really take it seriously." And

everyone says, well, gee, you know, is

that going to be decided negatively in

my particular case? And if it is, then

just suddenly one day you're here

legally, the next day you get that

decision, you're here illegally, and you

have to leave immediately. So, it's

quite unsettling if you have a job, if

you have a house, if you have a spouse,

children, whatever else you have. It's

not so great to suddenly be told you

have 24 hours to leave the country. or

even the US citizenship and immigration

services will tell you come in get the

decision and then they place you in

detention which they could theoretically

do.

>> I don't know if I'm reading you wrong

but are they tougher on people who

overstay their visas than on people who

come here illegally or is people who are

come here illegally are not in

>> if you entered illegally you can't even

get a green card through this process

called adjustment of status. So that's

one of the big misconceptions of

immigration laws. People think anybody

can just marry a US citizen and fix

their status. That's absolutely not

true. You had to have entered here

legally in the first place. That's why

at the end of the Biden administration,

they were doing a

process where they were going to try to

take people who were married to US

citizens or who had US citizen children

above the age of 21 and allow them to

get a parole that would give them a

legal entry into the United States such

that they could apply for adjustment of

status. That was happening right at the

end of the Biden administration. But

obviously that reelection did not occur

and so that got cancelled immediately

when President Trump took over. So it

never happened. But if there were a

Democratic administration, I'd imagine

that that might come back in. But the

point is, it's never been available to

people who've crossed illegally. But

it's always been available to people

who've overstayed if they are either

parents to US citizen children over 21

or if they are spouses of a US citizen.

But I think the Trump administration is

going to quote unquote carefully use its

discretion and a lot of these cases are

probably going to be denied in the near

future.

>> Denied green cards.

>> Yeah, they'll be denied green cards, but

then they'll have no status and they

could easily be detained at that point

and placed them into removal

proceedings. So, let's turn to Homeland

Security Secretary Mark Wayne Mullen has

threatened to to halt or to delay

immigration and customs processing at

airports in sanctuary cities. He's

trying to leverage this, but you think

all of a sudden these sanctuary cities

are going to say, "We're not going to be

sanctuary cities anymore." So, let's

talk about how a lot of these things

work. Because the airports in a lot of

these cities that are quote unquote

sanctuary cities, and again, what we

mean by sanctuary cities is that they do

not cooperate with ICE requests to let

them into the jails or to report people

who are arrested to ICE. So, that's

what's called a sanctuary city. A lot of

these airports are run by independent

airport authorities that are not

necessarily feeding revenue into the

city or local government that is a

sanctuary city. These airport

authorities are sort of self-operating

entities that are funding themselves.

And yes, they have some affiliation with

the state and the locals, but a lot of

times they're regional authorities, etc.

So, it's sort of like saying, you know,

if you don't eat your vegetables, I'm

going to hit your brother in the face or

something. And it's a tangential

strike. And the other issue is this. So,

what's going on? So, when people fly

into an airport from abroad, they have

to get processed by someone at US

Customs and Border Protection. If

they're a US citizen, they have a

special line that just says, "Are you a

US citizen?" And if you are, you get in

unless you have some drugs or other

contraband. And if you are not a US

citizen, then you have to prove that you

can be admitted back into the United

States. And so that they have separate

lines for those individuals. And what

Secretary Mullen is saying is, look,

we're going to take those CBP employees

and move them out of the airports of the

sanctuary cities and presumably move

them to other airports like Miami or

Houston or Dallas or Las Vegas or

Orlando that are not sanctuary cities.

But here's the problem. There are no

more gates for any of those planes to

come in. It's fine if you have a

thousand more CBP agents in those

airports, but for a plane to actually

land, it's got to have runway space.

It's got to have a gate. It's got to

have all of those things. And every

airport in America is at capacity.

There's no more room for planes to land

in any of these airports in terms of the

timing or in terms of the gates or in

terms of anything else. And so from that

component, what you're really doing is

cutting air travel by 50%. And what's

really a problem there is if you're

cutting air travel by 50%, that's one of

our largest exports is foreign nationals

coming in here and giving us free money,

paying hotels, paying food, etc. There's

no trade involved. We're not sending any

money over there. They're just coming in

and giving us money. So it's the number

one foreign investment, you know, export

that we have. and we would be cutting it

by 50% by moving our CBP agents out of

those airports. And then the final point

to say here is that a very small

percentage of people who fly into these

airports actually is staying in a

sanctuary city. They're either going to

some other city that's a suburb or an

exerb or they're connecting to another

airport in another state. And so again,

like I said, it's really like, you know,

punishing your brother because you

didn't eat vegetables. It really is not

the best way of going at it. There's

many other ways that the Secretary of

Homeland Security could go after these

sanctuary cities. I won't suggest them

here on the podcast, but there are if

they're interested, they can contact me.

Uh, but you know, this is not the

correct way to do it in my opinion.

Coming up next, I'll continue this

conversation with immigration law

attorney Leon Fresco. An ICE officer has

been arrested in Texas for the shooting

of a Venezuelan man during the Trump

administration's Minnesota crackdown.

Will the case actually get to trial?

I've been talking to immigration law

attorney Leon Fresco of Holland Knight

about Homeland Security Secretary Mark

Wayne Mullen's threats to halt

immigration and customs processing at

airports and sanctuary cities. The

target of the threat right now appears

to be Newark airport because of the

high-profile protests outside Delaney

Hall, an immigrant detention center in

Newark. and a coalition of groups

representing airports, airlines, hotels,

and other businesses are calling on DHS

not to follow through on the threat.

>> It would be very difficult, especially

now during the World Cup where the final

is being played in the Meadowlands,

which is in New Jersey. The closest

airport to there is in uh Newark. They

were especially to cut it off. Now, I

think that that would be quite a

difficult incident for the government on

top of the fact that you have this

issue. We have the South African

national soccer team unable to get visas

to come into the United States. There's

too many blips in terms of you try to

have this very stringent policy where

you say, "Hey, we're going to be tough."

And then you unintentionally create a

ton of collateral damage that's creating

serious problems for entities that the

United States doesn't want. The United

States doesn't want to reduce its travel

exports by half, I don't think, because

a lot of people would lose jobs and

people would say, "Hey, why did I lose

my job?" And they would, you know, it

would eventually flow to that reason. Or

they don't want to have stories that you

tried to host a World Cup and teams

couldn't come in because they couldn't

get visas. But it becomes a reflection

of you start going on autopilot with a

lot of these policies that are meant to

just say nobody gets to come in. America

is closed and you end up doing damage

that you didn't intend to do because if

you said America's closed now it's

closed to people you didn't even want it

to be closed to.

>> For DHS the attention is on Newark and

off Minnesota. But Minneapolis

prosecutors are still going forward with

investigations and things. And they

charged an ICE officer with assault and

falsely reporting a crime as a second

federal agent to be charged over their

conduct during that Minnesota crackdown.

He's a federal agent. Can Minnesota

charge him?

>> Well, that's going to be the argument

that's made. And it's the same argument

we've been seeing in California where

the Ninth Circuit held that you cannot

regulate what a federal agent does when

a federal agent is performing their

duties. Now the difference here is one

thing is external regulation which is to

say here's a set of policies. You can't

wear masks or you can't do this or you

can't do that. Those sets of policies in

advance are going to be very hard. So

like the New York law that just got

passed that says they can't wear masks

or the California law that just got

stricken down. Those are going to be

very hard to survive. Most likely those

are going to be stricken under the

supremacy clause which says or which has

been interpreted to say that when a

federal officer is enforcing federal

law, they benefit from the supremacy

clause and you can't regulate how they

do it. Now, that's different than if a

federal officer breaks the law acting

outside of the scope of their

employment. They can be prosecuted in

that situation. So, if an individual

federal officer says, you know, oh yes,

this person had a gun and was shooting

at me and really there was no such thing

and the person just started on a

shooting rampage at a mall. That person

can be prosecuted under state law. they

were not acting in the scope of their

employment. There was no reason that

their employment mandated them to shoot

up a mall. And so you could prosecute

them for that. And so that's going to be

the question in a prosecution here is

going to be were the individuals acting

within the lawful scope of their

employment or were they so far outside

the bounds of what their employment

permits that they can be prosecuted?

>> And Texas appears to have cooperated in

this arrest. If another state's willing

to cooperate with you, you can enforce

the arrest warrant in another state and

the other state can then you know

implement the arrest and then you have

to have proceedings to even though it's

the same country extradite the person

back to Minnesota and try to have the

trial of that individual. So that can be

done. he'll probably want to remove it

to federal court to immediately file a

motion to quash that state proceeding

and the federal court will have to

decide whether the person was acting

inside or outside of the scope of their

employment.

>> Yeah, ICE called the Henipin County

Attorney's action unlawful and nothing

more than a political stunt. I mean,

that's going to be proven by this

proceeding that will most certainly be

removed to federal court where the ICE

officer will challenge the legality of

their indictment and the Henipin County

attorney is going to have to prove that

the person was acting so far outside of

the scope and bounds of their employment

that they can be prosecuted and we will

find out soon enough. It's hard with

these very factintensive cases to

predict what will happen, but it will

certainly be a federal court that gets

to decide this, not a state court. So,

at least from the perspective of the ICE

agent, they can say it's somebody who's

not part of the state machinery who's

going to decide this.

>> You know, I'm still surprised, I think

stunned is a better word, that nothing

has been done about the shootings, the

killings of Alex Prey and Renee Good. I

mean, the federal government is not

doing anything there.

>> Well, I think they said there were

investigations. I think it's going to be

up to the Congress to push for a report

on those investigations. And if those

reports say that unlawful conduct was

done, I mean, nothing is outside of the

statute of limitations yet. So

presumably a US attorney in Minnesota

could prosecute there or even if the

Trump administration ends, the 5-year

statute of limitations would not have

expired and a subsequent US attorney

could decide to prosecute there. So I

don't think this story is over one way

or the other here. So, you mentioned New

York and um Governor Hokll signed this

legislation and we've talked before

about masked US ICE agents and how it's

already been ruled in California that

the state can interfere with that. So,

what about the rest of this? The new law

also bans local law enforcement agencies

from entering into agreements that

police officers be deputized as

immigration agents. I didn't realize

across the country how many officers

have been deputized. Almost 16,000.

>> Right. There's a statute called INA

section 287G

which allows ICE, the Secretary of

Homeland Security to deputize state and

local officers to perform ICE functions.

So, what that means is, let's say if you

were in one of these 287g communities

and the officers got training and had an

agreement, when they pulled someone over

on the side of the road, they could

actually do an ICE check to determine if

this person was undocumented or not and

could actually detain the person for the

amount of time necessary to transfer

them over to ICE. And so what the state

of New York is saying is we want to ban

our localities from entering into these

287g agreements with the federal

government. What's interesting is there

was some very interesting fifth circuit

law during the first Trump

administration where the state of Texas

did the opposite. They said we want to

ban our localities from being sanctuary

cities. And the cities challenged that

saying you can't do that. We have a

right to have our own interpretation of

federal law. And the fifth circuit said,

"No, the states have supremacy over the

cities. And if the states want the

cities to be non-sanctuary cities,

that's their right. They have supremacy

over the the cities." So New York is

taking that same mentality and flipping

it and saying rather than saying that

the cities can't be sanctuary cities,

it's saying no, no, no, the opposite.

You can't be 287g cities. You can't be

the kind of cities that report people to

eyes. And so I assume if the cities

tried to challenge that in the second

circuit, the second circuit would say

the same thing. Would say that the state

has supremacy over the cities and that

the state can indeed preclude the cities

from being INA287G

cities.

>> So Governor Hokll has tried to make this

distinction between cooperating with

federal authorities on serious crimes

but not participating in broader

immigration enforcement. Is drawing that

kind of line even possible?

>> I think the problem is is in all of the

intermediary stuff. So, here's what

here's what everybody means and here's

why everything is lost in the

translation and here's where I have a

lot of sympathy for the Trump

administration and even there have been

Democratic administrations that have

said, "Hey, you need to start

cooperating." Here's the issue. In a

state like New York, by the time someone

is convicted of a serious crime, they've

probably been arrested many times before

then. They've probably been given many

chances. They've probably been let out.

And so, a lot of damage has been done.

It's very rare that the first time out

out of the box someone commits a serious

enough crime that they get convicted and

now they're reported to ICE. So yes, in

that situation, the state of New York

cooperates with ICE and says someone

who's been finally convicted of a crime

that's so serious and so repetitive that

they finally get put in jail as a felon

does get reported to ICE after their

jail term is done. So yes, that's true.

But as I'm sure a lot of your listeners

know, there's a lot of people who go

through the system many times who are

arrested, who are let out on bail, who

do a lot of very serious crimes and bad

things, and those people never get

reported to ICE. And so in the meantime,

they're doing a lot of damage. They're

committing a lot of crime. They're

harming a lot of people. And what the

Secretary of Homeland Securityurities

say is, "You've got to report those

people to us. make our lives easier so

that we don't have to go get random

grandmothers and and farmers and other

people like that. If you just would

report these people that got arrested

and got, you know, let out on bail and

didn't get anything and got a diversion

or or their fifth chance their case was

dismissed or whatever, we could actually

deport these people who are actually

committing crimes in their communities.

The problem is there's still a mentality

that exists from the 80s and the '9s

that people get arrested in large part

only because of their race and not

because of any actual crimes they're

committing. And so the fear was, well,

if we report arrested non-convicted

people to ICE, there's going to be a lot

of unjust deportations because these

people were unlawfully arrested because

of their race or whatever else. they

didn't actually commit a crime. But this

is really a matter of look, do you trust

your local police department or not?

Because if you do, then you would say

that that's probably happening less

hopefully in 2026 than it was in the 80s

and the '9s and in the first part of

this century. Such that now when you're

arresting people, you're probably

arresting them many, many times before

they actually get any kind of serious

punishment. And so maybe that does need

to be revisited so those people are

reported to ICE before their fifth or

sixth or seventh arrest. And so that's

where everything is getting lost in the

translation. And I think that's where

there needs to be a better faith

conversation between these cities and

these states and the Secretary of

Homeland Security to try to get at this

problem that a lot of local governments

are not doing anything with the people

they're arresting. And so hence they're

committing a lot of crime when they

otherwise could be placed into

deportation proceedings.

>> Conversations might actually help here.

Thanks so much Leon. That's Leon Fresco

of Honda Knight. And that's it for this

edition of the Bloomberg Law Show.

Remember, you can always get the latest

legal news on our Bloomberg Law podcast.

You can find them on Apple Podcast,

Spotify, and at

www.bloomberg.com/mpodcast/law.

And remember to tune in to the Bloomberg

Law Show every week at 10 p.m. Wall

Street [music] time. I'm June Graasso

and you're listening to Bloomberg.