Take It To The Board with Donna DiMaggio Berger
Take It To The Board with Donna DiMaggio Berger
Take It To The Board — When ICE Shows Up: What Every Private Community Should Know with Immigration Icon Ira Kurzban
The ongoing activities throughout the U.S. by Immigration and Customs Enforcement (ICE) has been dominating the news cycle recently and concerns and questions are growing about what to do if you or someone you love has an interaction with ICE at your place of employment, school or inside your community. Association boards face unique challenges in today's immigration environment. Should boards and their management professionals screen residents for immigration status? What about the employees of association vendors or the residents' employees?
In this week’s Take It To The Board podcast, host Donna DiMaggio Berger sits down with immigration law expert Ira Kurzban (he literally wrote THE BOOK on Immigration Law) for a behind-the-scenes look at his Supreme Court arguments, current ICE enforcement tactics, and a comprehensive discussion on what could happen if federal agents arrive at private residential communities.
A personal story sets the stage as Ira shares how his father arrived alone from Romania at age 12. This profound connection to immigration fueled Ira’s decades-long legal advocacy, including arguing McNary v. Haitian Refugee Center before the Supreme Court – a landmark case that preserved judicial review of constitutional challenges to the immigration system.
The conversation shifts to practical concerns for community associations as immigration enforcement intensifies. Donna and Ira deliver clear guidance on Fourth Amendment protections, explaining the critical distinction between administrative and judicial warrants when ICE agents appear at association properties. They emphasize that private communities retain significant rights to verify warrants and protect resident privacy.
Whether you serve on a board, manage a community, or simply care about constitutional rights, this conversation provides essential insights for navigating the complex intersection of immigration enforcement and private property rights. Listen now to understand what's at stake when federal authorities knock on your community's door.
Conversation Highlights:
- Why social media has significantly influenced both immigration policy and public perception of immigrants
- What key immigration reform Ira recommends for today’s policymakers and why it matters
- How certain countries are successfully balancing border protection with legal immigration and population growth
- Why board members and property managers should understand their legal rights and obligations when immigration authorities approach private residential communities
- What immediate, informed actions boards need to take if ICE arrives at a property to avoid facing legal consequences
- How Ira prepared for and argued the landmark McNary v. Haitian Refugee Center case before the U.S. Supreme Court, and its impact on immigration law
- How immigration law is expected to evolve over the next 5 to 10 years and what factors will drive that change
Related Links:
Hi everyone, I'm attorney Donna DiMaggio-Berger, and this is Take it to the Board where we speak condo and HOA. Immigration law has always been one of the most complex and emotionally charged areas of our legal system, and today we're speaking with one of its most influential figures. Ira Kurzban is a legend in the field. Ira is a founding partner of the law firm of Kurzban, kurzban, tetzeli and Pratt of Miami, florida, and is the author of the widely cited Kurzban's Immigration Law Sourcebook, which is basically the Bible of immigration law.
Speaker 1:Ira has been recognized nationally and internationally for his expertise, advocacy and commitment to human rights. Among his many landmark cases, mcnary v Haitian Refugee Center stands out not only because he argued it before the US Supreme Court, but because of the profound impact it had on access to justice for immigrants. In that 1991 decision, the Supreme Court sided with Ira's team, holding that federal courts could hear constitutional and procedural challenges to the immigration system, even when Congress had tried to shut the door to judicial review. It was a win not just for Haitian agricultural workers, but for the principle that due process can't be legislated away. Today we'll talk about that pivotal case, what it was like to argue before the highest court in the land, and how those legal principles still echo in the immigration debates we're facing right now, including the growing tensions between ICE enforcement and private communities.
Speaker 1:There's just so much to say about Ira Kurzban's credentials, so we're going to put a link to Ira's full bio in the show notes, as well as his Wikipedia page. So, ira, welcome to Take it to the Board. It's such a privilege to have you with us.
Speaker 2:Thank you, Donna. It's a privilege to be here. I hope I can even measure and fulfill some of those things that you mentioned, but I'll try.
Speaker 1:I know you can because I did a deep dive into your career over the last week. So I want to start out. You've mentioned in interviews that your father, ira, came to this country I think he was 12 years old alone from Romania, and when I heard you say that in an interview, I thought about my father-in-law. He came over in his early. He was a young adult. It was in the 1950s. He came from Uruguay to Brooklyn, which is your hometown. He did not speak any English. He told me that he learned it from watching TV and went immediately to work in a restaurant, worked his way up and eventually became an entrepreneur. So it's an incredible, the traditional American success story. Did your father ever share with you what his immigrant experience was like?
Speaker 2:He didn't like to talk about it much, and I suppose that's true of many immigrants who come to the United States. He left his country at 12 because of anti-Semitism In Romania. There was a period of time in which if you were Jewish you were not considered a citizen of the country. So his parents had him leave and go to Belgium. And the story is actually a really hardship story because he's on his own. He's 12 years old, he doesn't have a lot of assets. The family tells him to go and meet this other family in Belgium and they will take care of him. He goes and the family says they can't take him in. So I said well, you know what did you do? He said I sat down and I cried. He, through one means or another, wound up working in a button factory at 12 years old in Belgium for a period of time until he and his brother, who eventually came to join him, could go to Montreal. And he went to Montreal for a number of years and eventually came to the United States.
Speaker 2:This is the classic immigrant story and you know, when I see those kids at the border who were 12 years old or five years old or 15 years old, you know, I can't help but think about my dad and what would have happened had they just turned him away. And you know, my father had a fifth grade education. He comes to the United States, starts his own company with his brothers, has four boys, one of whom was an electrical engineer, one was a doctor and two were lawyers. And that's the history of America. You know, it's sad to see how people in this country have been kind of misled into believing that everybody coming to the border is a criminal and so forth.
Speaker 2:My dad was an extremely hardworking man. He got up at five in the morning, came home at seven at night and he did it all to raise four children so that they would have an education paid for all our educations. We, were very lucky saved whatever money he had toward education. And that's the story of America. I mean, that is, you know what we're all about. That's what made America the great engine of development that it is.
Speaker 1:I want to dig into that, because what you're describing your father's experience at 12. So his parents put him on a train, they send him to Belgium. They're thinking that that's going to be the route out of Europe and instead he has to spend some time working. That's grit, true grit, okay, and that is a trait that I think most people admire, and I'm thinking about my niece, who's 11. And if we put her on a train anywhere, I can't imagine she'd start working. Maybe I'm wrong, but I think that, as a country, grit has been something that traditionally was an admired trait, and now I don't think it's associated with the immigrant experience.
Speaker 2:No, and I think what's associated with all these negative things, which are distortions of reality, not true, factually, you know the whole issue that immigrants commit crimes. You and I both know that the crime rate in immigrant communities is far, far lower more than 50% lower than it is in American communities, because immigrants want to come here, they want to be hardworking people. I mean, look at the craziness of what we're doing right now. Immigrants, undocumented immigrants in the United States contribute $96 billion a year in taxes. They want to pay their taxes. They're hardworking people. They're hoping that in the future, if the government will recognize them, they'll recognize that they paid their taxes. And what are we doing now? We're going after them. We're getting their social security numbers. You know the administration is making an agreement with the IRS so they can identify who those people are. So what's happening? We're losing hardworking people who are going to be deported and we're losing $96 billion a year. You know we're firing Americans to save money and we're taking that money out of the hands of people who are hardworking people.
Speaker 1:Well, we're also sitting in Florida. We're losing tourism too, but that's a whole other topic for a different podcast episode. So how did we get here? I wanted to ask you about the role that social media and regular news media have played in this perception in terms of immigrants. You mentioned crime. Over the weekend, I saw a lot of tweets and posts on Facebook about an illegal immigrant attacking somebody on a cruise ship, and then there were other people saying this is really a Mexican national, and somebody's writing back saying no, it's not, it's just the liberal media that's saying it's that. How do we navigate this?
Speaker 2:view is that social media now is very structured, particularly by Republicans who understand how it works very well I don't think Democrats do, quite frankly, and they spend huge amounts of money organizing it to create a systemic environment, not just, you know, a week before the election or a month before the election, but all the time. And a good part of that is disinformation. And let's take immigrants we don't know, when you hear a story like that, whether or not the people in fact are US citizens or are lawful permanent residents. We just don't know. But let's even assume that it's true that somebody who is not a citizen or resident of the United States has committed a crime. What it does is it distorts the bigger picture, because the bigger picture is that the crime rates are much, much lower in immigrant communities. You can always find somebody who does something deviant right. Find somebody who does something deviant right, I mean whether it's a lawyer or whether it's an immigrant or someone else and you can blow that up. I mean and Trump was a master, quite frankly, of doing that he took Lincoln Riley, the tragic situation in Georgia, three or four other cases and blew them up so that in the mind of people listening to social media. That's the only thing that's important, never mind that we have 10 million or 20 million people who are undocumented. We're focused on three or four or five cases. The same thing, by the way, we're seeing in sending the people to El Salvador and Tren de Agua.
Speaker 2:You know, the reality is. Number one no one really knows what they've committed in the United States or what they've done, if they've done anything at all. Number two virtually all of them don't have criminal records. So what is it that we're sending people to? What amounts to a modern day concentration camp, because that's what C-code is. It's a modern-day concentration camp. We're sending them there because they're allegedly bad people, but the government has never disclosed what they've done. The government has never said you know that they're gang members.
Speaker 2:We've had gang members in the United States. When I was growing up, you had the Crips and the Bloods and every other gang in the United States. When I was growing up, you had the Crips and the Bloods and every other gang in the United States. Generally they didn't cause any havoc in the country. They're not good to have and nobody's saying people should be gang members and we should do something to try and end that. But to send them to a modern day concentration camp because they have a tattoo. We don't even know, and we've now found out, obviously, that some of those people don't have tattoos, some of the people whose tattoos were just read incorrectly to be a member of one gang or another, whether it's MS-13 or Tren de Aragua.
Speaker 2:The other thing that's important, I think, when it comes to this issue is MS-13 is a creation of the United States. Ms-13 is not from El Salvador. It started in the United States when we deported all of these kids back to El Salvador, who only spoke English, had no background in what was going on in El Salvador, and that's how the gang started to form. So you know, we we do have some responsibility. It's not like we're blameless, but whether or not we're responsible, the point is this represents a very, very small, insignificant group of people, and many of whom we don't even know if they fall under these categories.
Speaker 1:And many people know that. So many people know that when they're hearing about immigrant crime and MS-13 and all of these different things, many, many people know that it's being overblown. But there's people in other echo chambers that are listening to particular news stations and they're on certain social media platforms where, again, they're just bouncing off of each other and they're hearing the same thing over and over again, and that's how polarized we are right now in terms of what we're hearing. I mean, what's the end game here, though, in terms of villainizing immigrants, what's the? You mentioned the loss of tax paying taxpayers. You've mentioned the labor potential, labor shortages. We haven't gotten into the human toll, but what's the end game?
Speaker 2:Well, I think the end game has to be when the American people realize the contributions, as they have historically, what immigrants contribute to the United States. I mean, we have hundreds of billions of dollars at stake when we send students back to their countries and create an environment where students are not welcome into the United States, where governments like Germany and Canada and others are saying, if you go to the United States, be careful, as if you know this was a country you didn't want to go to. Tourism is way, way down in the United States. So none of this helps us from an economic point of view, and even more so is the fact that we have a declining population in the United States For the first time in 2022, if we did not have immigrants, the population would have been below what it was the previous year. In other words, immigrants are the only reason why we're keeping our population sustained. If that population crashes, like it has to some extent in Japan, we know what the result is a spiraling down economy, and you know Japan is the classic example of stagflation, because they've never been able to integrate immigrants into their country. So I think the answer is Americans are going to have to realize this and see it firsthand Economically, when they see their neighbors having their children separated from the parents, like we did. Last week, a Venezuelan woman was sent back to Venezuela and they left a two-year-old child in the United States, where we're deporting American citizens along with others. So I think what's happening is you're seeing that shift in the view of immigrants because you're hearing people say they don't think this administration has handled the immigration issue very well and Trump's decline has been significant on how he's handled immigration.
Speaker 2:Americans don't want mass deportation in the United States because they understand that these are the people who help us. They're the frontline people. When we need someone to take care of an elderly parent, they're there. When we need to have our crops picked, they're there. When we need service industry people, it's immigrants who are doing this job. What they want was control of the border and they were not wrong about that. But control of the border has now become the biggest source of disinformation in the country. They're still talking about a border bill. In June of 2024, the border was closed and has been closed, and I want to give you some numbers so you understand that in December of this year of 2024, I'm sorry there were 37 Haitians who crossed the border. In January, there were 17. In February, there were two. There is no border issue right now. The border has been closed almost for a year now.
Speaker 1:But you wouldn't know that if you listened to certain media outlets.
Speaker 2:You would not know that, and I agree with you. I think what people need to do, donna, is what you're doing. You're performing an incredible service by having other voices heard, and I think the real problem is that the Republicans, as I said, are extremely well-funded, well-organized. And I'll give you one other example. When Judge Boasberg entered his first order, complaining that they had sent people back in violation of his order, there was on social media within 25 minutes and I know this because I have some friends who support Trump and within 25 minutes, literally from the time he entered that order and it became public, there were things being put out on social media saying he's an ultra-liberal leftist, and so forth. I've been in front of Judge Boasberg. He's no leftist. He is a person who actually is on the surveillance court of the United States, which certainly tells you a lot about his background and so forth. But the idea is that this media is coming so fast, so furious and so consistent that the only way to do this is either shut it down or have an alternative. And I will tell you one thing and it's an interesting issue with regard to how to deal with the media Many years ago, we had something called the Fairness Doctrine.
Speaker 2:If you came on to a program and you lied, the remedy by the FCC was to allow the person who you lied about or the issue that you lied about to have the alternative voice heard on the same program and every single candidate. I have to tell you this on behalf of immigrants. When I talk to candidates, I say to them what's your position on the fairness doctrine? If we brought back the fairness doctrine, all of this would end, because nobody wants to have a show where they say outrageous things and the next time the person has the right or you lose your license. Remember, all of these are licensed, right? I mean, they're all on the internet. The internet should be responsible. We should have responsible regulatory treatment of the internet as well, because that's where most people are getting their news.
Speaker 1:Who eliminated the Fairness Doctrine, Ira? Do you know when it went away?
Speaker 2:It was a while ago. I mean it's been, I would say, at least 20 years or even more. But it also coincided with the time that Fox got its license. And they got their license unlawfully and people have done studies that have said that if you track the beginnings of Fox with the division in the United States, you will see that there's almost a direct line between the disinformation and their being used as a Republican talking point instead of of really being news, and the beginning of the division in the US, which obviously is even much more so now because you know you now have 20 or a thousand different Fox News stories and you have some people on the other side doing the same thing, but there's nobody responsible. And what we should do and hopefully in the next election or if there's a Congress that really wants to pay attention and really wants to stop this bring back the fairness doctrine. Make people responsible for what they say on the air and if it's not true, allow somebody else to come on and refute it on the same program.
Speaker 1:Yeah, I think you're absolutely right. Of course, you know, mark Zuckerberg got called in front of Congress and he's kind of changed his tune. They used to have certain policy in terms of fact-checking and preventing, you know, dissemination of so-called fake news, and now that's kind of all. He came out, I think a few months back, and said we're not going to be doing that anymore.
Speaker 2:I think they have to get rid of the exemption that they have Section 230, you know, the exemption that all the Internet providers have that say they don't have to be responsible for whatever is put on Right. You know we're seeing some movement though not a lot on human trafficking, where people are using the internet for human trafficking and they're trying to hold the internet providers responsible. But you know that's the other problem, that's that they have immunity from suit and they should have never been given immunity from suit. They should have been treated just like anybody else who is a broadcaster, because in fact that's what they're doing. They're really using the internet as a method of broadcasting in the US. So I agree with you.
Speaker 2:And the other thing is, you know, thank you for doing this, thank you for having another point of view on these things, because Americans don't know. I mean, you know I often tell people what I said about the undocumented paying $96 billion a year. Most Americans don't know that. They just see undocumented people as taking from our system. You know, taking Medicare, which generally isn't true because they're not eligible, taking Medicaid, which they're not eligible for. You know, we need to get that balance back and we don't have balance based on facts. We have balance based on ideology now and whatever you're pushing at the moment, and whoever has a better structure and more money can get away with it.
Speaker 1:So I said at the outset, I did a deep dive into your career and I know that back in college you studied I was poli sci too. You were political science and religion and you were talking a few minutes ago. You were painting a picture about Americans looking at kids in cages, at people being deported, and I'm thinking to myself what you're really talking about is emotions and whether or not you know you've got people who have a heart and look at something like that and it has an impact on them emotionally. What role do you think religious leaders are playing or should be playing right now in this entire debate?
Speaker 2:Yeah, I mean, you know, the Catholic Church has always been very vocal in their support of immigrants, particularly immigrants from Latin America. I mean, I remember my first case, HRC v Civiletti, which was in the 1970s. Our major witness was Brian Walsh, who was, I think, later became the archbishop in Miami or became was a very well-known priest in Miami, and he testified on our behalf about how poorly Haitians were being treated, and so religious leaders, particularly those in the Catholic Church, but I would say other evangelical leaders as well, Jewish leaders in the country. I mean, HIAS has always been an organization welcoming refugees, not only Jewish refugees, but others, so I think there's a history there.
Speaker 2:I'm hoping that they would be more and more vocal. They should be, because what's going on now is really just intolerable separating families, taking people to modern day concentration camps, busting down doors of people's homes even though they're the wrong homes, and I think, quite frankly, we're going to see more of it. Trump is bent on, you know, trying to make his false promise, in my view, when he said I'm going to deport all these criminals and I'm going to deport 10 million people. So let's look at what's happening. He's deported 280 people to El Salvador, not the 10 million that he's been talking about.
Speaker 1:You said 280 so far.
Speaker 2:Yeah, so to Seacolt, it's been 280. They have deported actually less people. According to TRAC, this past month they have deported less people per month than the Biden administration. So for all the arrests than the Biden administration, so for all the arrests and they're arresting lots of people they are deporting 680 people approximately about a month. The Biden administration deported 700 or so a month. So when you look at the numbers, they're actually not deporting people, they're just creating an element of fear.
Speaker 2:And you know my theory about all of this is that all these actions are designed to create so much fear among immigrants in the United States that they will self-deport, so that everything they're doing, donna, is about self-deportation. Let's take examples Sending those 200 people to Seacott they understand mentally what that means. Sending people to a modern-day concentration camp, taking the tough student and having four ICE officers dressed in hoods and everything else arrest her and then blasting that out to the media sphere, as we've been talking about. You know it's not funny but I was kind of chuckling to myself about. I've been doing this for 45 years. I've never seen an ICE officer dressed in black with a hood.
Speaker 1:I wanted to ask you that it does seem that hood, ok, I mean, I ask you that why it does seem that in particular. I'm glad you raised that issue because I was going to ask you is that, is that typical to have?
Speaker 2:I mean, you know, ice officers will come. Sometimes they make mistakes, sometimes they're not and, by the way, they're under enormous pressure, being told they're going to be fired unless they reach certain numbers per month. Under enormous pressure from Trump and Stephen Miller, and that they, you know they came in with these hoods and all dressed in black and they surrounded this woman and put her in a van and it was, you know, spread out all over social media. So what do people think? Gee, that could be me next. I could just be whisked off the street, being put in a van and being deported. Taking people to Louisiana is both a strategic legal move, because they want everybody in the Fifth Circuit, but it's also to send the same message I'm going to take you from Vermont and I'm going to send you to some jail in Louisiana. So all of these things are designed to create fear. Alien registration we haven't had alien registration since the 1950s. All of a sudden, you have to register. If you don't have your document, we're going to pick you up. And then Trump says not only are we going to pick you up, we're going to sue you and you're going to have to pay us hundreds of thousands of dollars for each day that you know because you haven't had your alien registration for a period of time. So these kind of fear tactics are ingrained in the idea that their recognition that they cannot deport 10 million people. So the only way you can get these people to be deported is self-deportation. You know, trump made this promise to the American people. I'm going to deport 10 million people. You'll see, I'm going to do what Eisenhower did. We're going to get all these people out of the country. Well, eisenhower did it before. There was a regime of due process and fairness. They just picked people up and put them on planes and took them away. So what is the Trump administration doing right now? They're taking legal people, making them illegal because those are people they can clearly identify and sending them out of the country. And so what's happened in the first three months? Tps has been withdrawn from Haitians. Tps has been withdrawn from Venezuelans. That's 1. Are because they've been, you know, told where they're going to be living and so forth, and pick all those people up and put them in deportation or in the parole people. All they have to do is revoke their parole and try and put them in expedited removal. On the TPS people, we know, many of them have final orders, so all they have to do is pick them up, scoop them up and deport them. So they know, in order to deport other people, it requires them to actually have a deportation hearing, and to have a deportation hearing requires them to prove a case in court, requires them to prove a case in court and they also recognize it requires them to fine them, which is the third part of what this is all about, which is Doge, to me, has never been about cutting costs, because if you look at what Musk has said, first he said $2 trillion.
Speaker 2:Then he said $1 trillion. He was going to cut. Then he said $500 billion. Now they're down to about $120 billion, which actually is less than the money they're taking from the revenue side by going after undocumented people, who will no longer obviously pay taxes, and going after the IRS by shrinking it so much they can't go after the billionaires. So Doge is now down to oh, we're going to save $125 billion or $150 billion, and that's why I never thought, ever, it was about cutting costs and saving money. Ever it was about cutting costs and saving money.
Speaker 2:What it's about is gathering your data, my data and all the immigrants' data. So where have they gone? They've gone to the Social Security records. They've gone to the tax records for immigrants. Now They've gone to the save records for immigrants. They've gone into the e-case file, that is, the files where you know the deportation cases. They've gone to criminal records-case file, that is, the files where you know the deportation cases. They've gone to criminal records. They're going to put all of that together. They're going to locate where the people are and then they're going to go to their homes. So Doge is not about cutting costs, it's about getting data. And once Trump has that data and once Musk has that data for everybody right, not just immigrants, but for immigrants they're going to be able to pick them up, maybe easier than they can now trying to go out and look for people. And for Americans, they're going to use it in elections, I suppose.
Speaker 1:Well wow, ira, that's a lot. That's a lot to unpack that you just unloaded. But let's talk about the Target Rich Environment, because the name of the podcast is Take it to the Board. So we've got people listening all over who serve on these community association boards, whether it's a condo, a cooperative association or a homeowner's association, or they may be managing these communities or they may be one of many, many different vendors who serve the community association industry. We're talking about roofers and landscapers and pool companies and, as you know, there are millions and millions of Americans living in community associations. We're talking to each other.
Speaker 1:In Florida, which has a lot of high-rises and a lot of homeowners associations, I really believe that their target rich environments potentially for ice to go to a high rise, particularly one in a diverse community like Miami-Dade 400 residents, let's say they're. You know, typically boards don't screen when it comes to approving purchasers and renters. They're not looking at legal status and I want to ask you whether or not they should be. You've got so many workers going in and out. I want to ask you if you can help our listeners kind of walk them through what should happen and could happen if ICE shows up at the association office and says we want to see your resident list, we want to see who's employed here. What are the first steps? Because fear is a huge factor, ira, because they're not used to this.
Speaker 2:The first step, of course, is the Fourth Amendment, that is, search and seizure. You don't have the right to see these records or search anything without a warrant. And the question is do they have a warrant? If they have a warrant, then you don't have much control. You have to give them whatever the warrant specifies, but you have your lawyer there, someone like you or somebody else, to look over what is in that warrant and what it says they can look at and what they can't look at because the warrant is. You know, you're protected by the Fourth Amendment. Everybody in the United States is protected by the Fourth Amendment. And then it gets to. Well, can they go to somebody and knock on their door? The person does not have to let them in unless they have a warrant. We still live in a country that's not like Russia, that may not be like Hungary or the PRC. We still have the Fourth Amendment.
Speaker 2:And what I think all these associations have to do is become educated, as you're saying, on what the parameters are of what they can or cannot do.
Speaker 2:One thing they cannot do that I think is important and you see the government is willing to go after anybody on this is obstruct the ability of ICE agents who have lawful warrants to search or seize somebody, which means they can't just say you know, they can't lie to an immigration officer, because that's a federal crime right under 18 USC 1001. And they can't obstruct them if they have a valid warrant and they have a valid reason for being there, but other than that, they have no right to come in, particularly to private property, associations or private properties. They're coming into a private property at the gate of the association. They don't even have to let them in right, because once they go through the gate it's private property. So what they should be doing, I think, and having people like you, get all the security people in all these different communities together and start educating them. Hey, you don't have to let the ICE agent in, no matter how aggressive he gets or whatever. Absent a warrant, they can't just come on the property, just like anyone else can't come on the property.
Speaker 1:You hit the nail on the head. Just like anyone else can't come on the property, you hit the nail on the head. Education is going to be key. Some communities, Ira, when you pull up, it'll say private property, okay, so that right then, and there is kind of a reminder. But let's talk about warrants, because people lay people can get very confused. There's a judicial warrant issued by a judge and then aren't there administrative warrants that ICE uses. That are a little bit different.
Speaker 2:Right.
Speaker 2:The administrative warrants have been an issue for a number of years. There are different cases. It depends on where they're going. If they're going into a public area, they can use an administrative warrant, but once they're going into a private area, I think there's a question as to the extent to which an administrative warrant can be used, particularly to seize somebody I don't think you can seize. I think you're quite right. I think that's where the fight is going to be.
Speaker 2:There are some cases where courts have thrown out administrative warrants as not being sufficient. Ok, which is not private property per se. It's not to me like a condominium, you know, where there are public people coming in and out in a factory. Can they use an administrative warrant? Maybe, but they can't use an administrative warrant just to go around and start looking at people and to arrest you, obviously, and they can't do it saying you know, I'm John Smith, and they say you know, if they want to arrest you, you say well, where is your warrant to arrest John Smith? Don't tell me about somebody else, you know, don't tell me about Mr Jones. You can go and arrest him if he's on your warrant, but I'm not Mr Jones, I'm Mr Smith.
Speaker 1:My recommendation? A couple things. One, if ICE shows up, call your association attorney, walk through it. You can even get them on FaceTime. Let them look at what warrant is being issued. Obviously, be calm, be cooperative. Get your attorney on the phone. You may even want to ask your security. A lot of these communities have security. Just have security come over and document. You're going to want to document everything. I think some training in advance would be very helpful. Exactly.
Speaker 2:I think that's the key. I really do, because you know, if you don't do the training in advance, they show up, they try to push them around, you know, and people get scared. You know, can I turn them down or not? They don't realize that, yeah, you can turn people down. They can't just come in. This is not the Gestapo.
Speaker 1:We have this in some communities Ira with process servers. For years we've gotten those questions when you've got elevators that go up and open directly into someone's unit in some of these luxury high-rises. So that's all you know. I think it's really important to be prepared. Could a board be held liable if they don't permit entry? And ICE has a legitimate warrant.
Speaker 2:Well, when you say held liable, I mean if they're engaged in actual and intentional obstruction, I suppose. But you know, most of the time it's the individual at the gate or something who's either letting them in or not letting them in, and that person may be responsible for obstruction. If there really is obstruction, I don't see how the board itself could be liable unless you know the and I'm not sure what liability means in this context. In other words, there's really not civil liability that matters. We're really just talking about criminal liability and you know somebody being arrested for obstruction or whatever. But I think that's also overblown.
Speaker 2:I mean, they have a right to come in if they have a warrant. I mean that's always been the case but it has to be a judicial warrant and it has to be specific. In other words, when I say they have a right to come in, they don't have a right to go everywhere, what does your warrant say? And I think the problem is that when it comes down to it and they show up and you say I want to call the attorney and they say no, too bad, or something like that, then they have to have the appropriate training on knowing how to handle that. You need to also have criminal lawyers involved, not just immigration lawyers, but criminal lawyers. What happens if they show up with a warrant and I say I want to call my lawyer and they say, too bad, we're coming in? Those are the kind of questions that you want to be able to answer in training prior to the time that they show up, and I think you need both an immigration lawyer and you may need a criminal defense lawyer. Unless somebody does both.
Speaker 1:I think, conversely, ira, that there could be potential civil liability if, let's say, the association allows ICE in and without a warrant.
Speaker 2:Oh, in that sense absolutely I think you've got privacy issues.
Speaker 1:I think you've got trespass issues.
Speaker 2:And not only that. I think what we're going to see more and more of now and it's interesting, there's a case in the United States Supreme Court that was argued yesterday the Martin case. I think people should really look into federal tort claim actions because we're going to see more and more and more mistakes made. You know, in Oklahoma yesterday or the day before, they bursted into somebody's house in the middle of the night. They made them all come out in the middle of the rain. It was a woman and her small children and stand in the rain and everything for I don't know how long, and it turned out they had the wrong house. They seized everything and they had the wrong house.
Speaker 2:Well, that's a classic federal torch claim action, and people need to start bringing those actions, and the ICE agents will then have to be more careful about what they do and where they go. Like, if they show up, let's take the association. They show up and they say, well, we're going in anyway. And we say, no, you don't have a warrant. And it turns out they're wrong, you can sue them. That's what the Federal Tort Claim Act is about. Law enforcement doesn't get a free pass.
Speaker 1:And if they've done any physical damage to the property in the course of it. Well, let me ask you should volunteer boards and their managers be inquiring into, when they're screening residents, whether or not they have legal status to be in the United States? Should they be asking these same questions when they're screening residents, whether or not they have legal status to be in the United States? Should they be asking these same questions when they're hiring people? Again, we're talking about volunteer directors. These are not for-profit companies. These are community associations that are created for the sole purpose of operating and administering the community.
Speaker 2:Yeah, that's a good question, though I don't think that's their obligation, Just as with an employer, it's not their obligation to do an investigation into someone's background. That's what the you know the 1986 law was all about, which is the employer sanctions. You just have to show the proper papers, you don't have to question them. Well, how did you get it? Where did you get it? How do I know? This is legal. In fact, if you do all those things, you could be considered discrimination. So in the employment context, you're always doing a balancing act. In the rental context, I think you're doing the same thing. That is well what happens if you say, well, I want to see your green card, and the person says, well, I don't have a green card, but I have an asylum. I've been granted political asylum and work author. Well, we're not letting you in because you're not a resident, you don't have a green card. They consume for housing discrimination. So I don't think it's a smart thing for the boards to get involved in that kind of issue.
Speaker 1:I think it's a slippery slope. I think they have enough challenges as volunteer directors just dealing with the day-to-day operation of the community to start acquiring potential liability for both the association and the directors themselves personally. So, ira, I agree with you I can't let you go until I nerd out a little bit as an attorney with regard to your appearance before the Supreme Court. Okay, so look as an attorney. That's a rare distinction of arguing before the United States Supreme Court. This was your landmark case McNary v Haitian Refugee Center. So I'm wondering can you take us behind the scenes a bit? How did you prepare for such a high stakes argument and what was it like to appear before the nine justices? Knowing the outcome could reshape immigration law for years to come. Can you give us like a little sneak?
Speaker 2:I'll tell you my favorite story about the case. Three days after I argued that case, justice Scalia came to Miami and spoke at the University of Miami. And you know I'm kind of a young lawyer and I'm really proud I was arguing and I go over to him and I say hello, and he has no idea who I am.
Speaker 1:Wait, and you had argued in front of him. He had no idea.
Speaker 2:Right, and he spent most of the time going after me in the case.
Speaker 1:So I remember he issued the dissent.
Speaker 2:Yeah, and you know it was very interesting. It just shows you, you know you think you have a big ego and you get deflated very, very quickly and you learn some humility about what you do. But the case was interesting just from the legal point of view that Scalia knew, I think, what was at stake and kept trying to say the case wasn't right. That was his position at the time. And Justice Souter, who had been on the court for about six months, asked his first question in the case in McNary. That was the first time he asked the question and he zeroed in on exactly the most important point in the case, which is the government's position in McNary. Was that, well, you could get review, you know, in a removal proceeding you don't have to go and attack the structure in which these decisions were made. And Souter and all the other justices I'll never forget this turned around because it was the first time he asked the question and he said well, what happens if they don't put you in a removal proceeding? Are you saying there's no constitutional review? And that was really the heart of the case, because you could only get constitutional review under the government's theory if you had been put in deportation and you raised it in a deportation proceeding. And you know that goes to a very classic issue in federal courts and constitutional law, which is can the Congress prevent the courts from reviewing a constitutional argument? From reviewing a constitutional argument? And even if you look at Patel, which unfortunately was the last case I had, you know the lower courts and the Supreme Court believed, and I think still believe, that the constitutional issues, if you were raising them, were saved because there was another provision. In other words, when Congress originally passed the preclusion of judicial review under 242.82b, that's the preclusion provisions, they came back several years later under the real idea and said we're going to put in 242A2D. D says notwithstanding anything else, you still have the right to have review of constitutional or statutory claims because they realize without it the statute precluding review would be unconstitutional. So the answer is you can preclude review up to a point and I think the courts have gone way beyond that point but you can preclude it up to a point, but you can't preclude a constitutional claim because if you do that you're rewriting the Constitution in effect. So McNary raised this issue.
Speaker 2:Mcnary was a very interesting case that affected about 200,000 farm workers and it was on the simple premise that you couldn't just banish all 200,000. You couldn't deny them the right to get special agricultural worker protection simply because they had gone to someone who at some point decided to make it into a money-making business, or at least that was the allegation. In other words, in order to do a SAW application, you had to get a letter from a farm contractor or a farm owner, and the contractor owner said yeah, he worked a certain number of days and picked these crops and so forth. Well, some people you know which gets back to our original point you always find some deviant somewhere doing some bad thing. Some of the farm contractors said, hey, this is a great way for me to make money, and started to sign phony applications.
Speaker 2:But that didn't justify just doing away with everyone where you say, oh, just because this farm contractor engaged in fraud, it means everybody he did was fraudulent. And we see this argument, by the way, all the time at the border with midwives, midwives who give birth to children in Texas, and they say well, that midwife committed fraud, which she may or may not have, but it doesn't mean that every single time she certified some child's birth that that was fraudulent. And so McNary started out on that premise and we sued and we said look, the procedures that were in place were not procedures that were constitutional. These people have no protection. They said they validly worked as farm workers and just because you believe that some of these farm contractors committed fraud is not a basis across the board to deny them they have a right in effect to due process right.
Speaker 1:Right, you wanted judicial review of the process, not of the individual applications.
Speaker 2:Exactly, and that was the McNary principle. It survived quite a long time. You asked me a question at some point whether or not would it survive. Now I don't know.
Speaker 1:Well, that's my next question. You argued McNary in 1990. I think Justice Stevens issued the opinion in 91. Today, in 2025, with the current composition of the court and their judicial philosophy, you think you'd get the same outcome, Ira.
Speaker 2:I'd hope so. I'd hope they'd follow the precedent. I think it's the right precedent because even now, with the Alien Enemies Act whether or not you think it's usable in this context or not, I absolutely don't think it is. I think this is all made up and I wish that the Supreme Court would have just shut it down immediately and said we're not being invaded by a foreign nation, we're not being. There's no ongoing war. But even if they do that, even they've recognized at this point that there has to be some due process protection. So, whatever the individual review is, there has to be something that protects people.
Speaker 2:My hope is that if McNary comes back and it may in the TPS cases, temporary Protected Status cases that if it does that, they will affirm that principle that the government to hold the government's feet to the fire. You can't just say whatever decision they make, you know we're just going to look away when they corrupted the entire process and indeed that's what we did in the Sajay case in the first Trump administration challenging TPS, because they totally ignored the process, they never followed any of the requirements and they simply said well, we think things are better in Haiti and they actually illegally rewrote. I mean, we had their handwritten notes where they were rewriting things to make it seem as if it wasn't as bad in Haiti. That's not the process that was supposed to be used is bad in Haiti. That's not the process that was supposed to be used. And so, yeah, it plays a very important function in keeping the government honest and I hope the court will recognize that.
Speaker 1:How do you see immigration law evolving? Ira in the next five to 10 years? It's going to get worse.
Speaker 2:It's going to get worse before it gets better. But I really think it's not only Trump, it's not only Stephen Miller, it's not only the Republicans remaining silent in the face of what they know. It's that the Democrats have never really fully embraced immigration in the way that they should have. Not all, but some of the Democrats have not done it, and I think they need to step up. I think, you know, we're very proud of the Statue of Liberty and the heritage that immigrants have brought to the United States, the cultural, I mean. You know, if you just think about the people who've come, you know Einstein and others who have come to the United States as refugees, what they have done in the United States is incredible, I mean. So, yes, I think eventually the pendulum will swing back, but I think we really need, as Democrats, you know, to step up.
Speaker 2:The Democrats who want to step up and Democrats there I mean not just the Democratic Party, I mean people who really believe in democracy need to step up and, you know, let people know the contributions that immigrants make. And one of the things we do at Immigrants List is we're going to start doing more and more commercials, more and more programs to talk about the benefits of immigrants in America, because I think you know it's become so diminished as a result of the attacks of the Republicans on immigrants that people don't realize all the contributions they make. I mean, maybe they do in some level, but I really feel like we need to keep repeating it and letting people know who these people are. Whether it's in entertainment or in classical music or in science or math or health, you know everything across the board. If you look at those people who made those contributions, they're remarkable.
Speaker 1:You know we started this episode I wrote talking about our own families' immigration stories. I imagine that is for the vast majority of Americans. They have those stories. Most of us did not come from the people who came over on the Mayflower. You know we came over in waves throughout the history of the country and so I imagine people listening, they all each have their immigration stories from their ancestors. So, ira, it has been an absolute privilege with having you here with us today. I really want to thank you for your time and expertise. By the way, are you still out there fighting the good fight?
Speaker 2:I am. I mean we're doing. We brought another TPS case in the Eastern District of New York challenging the premature cutoff of TPS for Haitians. So we're doing that and I'm still practicing.
Speaker 1:That's fantastic. I know you have a legacy firm, so congratulations. Maybe we'll set up a training session for some associations. Maybe we can do that.
Speaker 2:Anytime Happy to help. Thanks so much Take care.
Speaker 1:Thank you for joining us today. Don't forget to follow and rate us on your favorite podcast platform, or visit TakeItToTheBoardcom for more ways to connect.