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Abbott’s migrant roundup order still blocked

Good.

A federal judge in El Paso on Friday extended her order blocking Gov. Greg Abbott’s directive to state troopers to pull over drivers transporting migrants “who pose a risk of carrying COVID-19.”

U.S. District Judge Kathleen Cardone lengthened her restraining order by another two weeks after a hearing Friday, according to a court filing. Her original order on Aug. 3 was set to expire Friday.

In July, Abbott ordered state troopers to pull over civilian drivers giving rides to recent immigrants who may be infected with the virus and redirect the drivers to their origin point. If the driver didn’t comply, the troopers should seize their vehicles, the order said.

Soon after, the U.S. Department of Justice sued Texas and Abbott, describing the governor’s executive order as “dangerous and unlawful.”

In the lawsuit, the DOJ said Abbott’s order would disrupt federal immigration officials’ network of contractors and nongovernmental organizations that help host recently arrived migrants while their legal cases are pending.

See here and here for background on the suit filed by the Justice Department. There’s also now another lawsuit filed by the ACLU on behalf of several groups; as far as I know there has not yet been a hearing for that. In keeping with my earlier posts, I don’t know how this is likely to play out, but as a rule any time Greg Abbott and Ken Paxton lose in court, it’s probably a good thing.

Another lawsuit filed against Abbott’s migrant transport order

Bring them on.

Immigrant rights groups backed by the American Civil Liberties Union filed a federal lawsuit against Texas Governor Greg Abbott over his executive order restricting the transportation of migrants, claiming it goes against federal law and amounts to racial profiling at the southern border.

The legal challenge was brought by the nonprofit Annunciation House, a migrant shelter provider in El Paso, along with immigrant advocacy groups Angry Tias & Abuelas of the Rio Grande Valley and FIEL Houston,. They are represented by attorneys with the ACLU’s Immigrants’ Rights Project and the ACLU of Texas.

This lawsuit, filed late Wednesday in El Paso federal court, comes six days after the U.S. Department of Justice sued Abbott to block the order. On Tuesday, a federal judge in that case issued a temporary restraining order blocking enforcement of the order until a hearing on an injunction can be held.

Echoing the DOJ’s claims, the ACLU and immigration groups allege that the order violates the supremacy clause of the U.S. Constitution by attempting to regulate the movement of migrants, which is for the federal government to decide. They also say the order unlawfully attempts to regulate the federal government.

[…]

In Wednesday’s lawsuit, the ACLU argues the order will directly impact people who have been released from the federal government’s custody into the country to await their immigration hearing. Those people will be unable to get any form of transportation after being released from CBP custody, according to the complaint, which points out that state law enforcement officials would be taking migrants back to CBP after the agency released them.

The groups also claim the order allows Texas police to racially profile travelers along the border region.

“It directs state officers to make their own determinations about passengers’ immigration status, wholly independent of the federal government, and to impose harsh penalties based on those unilateral immigration decisions,” the lawsuit states. “It opens the door to profiling, standardless detention, questioning, vehicle seizure, rerouting, and heavy fines. The executive order is already having a profound chilling effect on people’s movement in border communities and throughout the state.”

In addition, the immigrant advocacy organizations say they will be directly affected by the order if it is allowed to be enforced. Annunciation House transports migrants who have been released from federal immigration custody to its facility, which houses migrants in the El Paso area. Angry Tias funds numerous services for migrants, including a taxi service that is kept on retainer. Both groups say they would be unable to provide such services under the governor’s order, would face having their vehicles impounded and would be left with no way of assisting migrants.

See here and here for background on the suit filed by the Justice Department. As before, I don’t really know enough to say much of value – I’m not fully clear on the differences in the claims made by the two groups of plaintiffs. It may be that this suit winds up getting combined with the other one, as often happens. Whatever the case, I’m rooting for the plaintiffs. The Texas Signal and Daily Kos have more.

Judge halts Abbott’s “pull over migrants” executive order

For now, anyway.

A federal judge on Tuesday blocked Gov. Greg Abbott and the state of Texas from ordering state troopers to pull over drivers transporting migrants “who pose a risk of carrying COVID-19.”

U.S. District Judge Kathleen Cardone granted a temporary restraining order against Abbott’s move, meaning it will be blocked while the case continues to unfold. The U.S. Justice Department sued Abbott and Texas on Friday, a day after U.S. Attorney General Merrick Garland threatened to take legal action if Abbott didn’t rescind his order, calling it “dangerous and unlawful.”

In a statement later Tuesday, Abbott’s press secretary said the state looks forward to presenting evidence that supports his order.

“The Court’s recent order is temporary and based on limited evidence,” Press Secretary Renae Eze said in the statement.

Cardone still must decide whether Texas’ move is constitutional, and her temporary restraining order is set to last until the court’s next hearing on Aug. 13. Abbott has defended his order as necessary to help prevent the spread of COVID-19 in Texas, while advocates for migrants say it would disrupt federal immigration efforts and invite troopers to racially profile people.

See here for the background, and here for a copy of the restraining order. This is all pretty technical and I don’t have the knowledge to say anything cogent, so I will give you a bunch of links at the end of the story for more reading, and we’ll go from there. This tweet made me think about what may come next:

It certainly won’t surprise me if Abbott takes another crack at this if he loses. He has every incentive to push at this until he can claim a victory of some kind. Buzzfeed, the Chron, Daily Kos, and TPM have more.

Justice Department sues over Abbott’s anti-migrant executive order

Good.

The Biden administration sued Texas on Friday, asking a federal judge to block Gov. Greg Abbott’s order that state troopers pull over drivers transporting migrants who pose a risk of carrying COVID-19 as a way to prevent the spread of the virus.

The lawsuit comes a day after the U.S. Attorney General Merrick Garland, in a letter to the governor, threatened to take legal action against Texas if Abbott didn’t rescind his order. Garland described the order as “dangerous and unlawful.”

The Department of Justice said in the lawsuit that Abbott’s order will contribute to the spread of COVID-19 and it will disrupt immigration officials’ network of contractors and non government organizations that help host recently arrived migrants as their legal cases are pending.

“In our constitutional system, a State has no right to regulate the federal government’s operations,” the DOJ argued in a motion asking the judge to block Abbott’s order, adding “this restriction on the transportation of noncitizens would severely disrupt federal immigration operations.”

[…]

The lawsuit says that if migrants are not allowed to be transported by volunteers or contractors they would have to be confined to immigration facilities where there would not be enough space for every migrant.

I’d not blogged about this before, so here’s the background for you:

Gov. Greg Abbott draws criticism for ordering state troopers to pull over vehicles with migrants, saying it will stem COVID-19 risk
U.S. attorney general blasts Texas Gov. Greg Abbott’s latest border directive and threatens a legal battle
‘Dangerous and unlawful.’ AG Merrick Garland threatens to sue over Gov. Abbott’s latest border order

Yes, the same Governor who has banned mask mandates and vaccine mandates for local government employees somehow thinks this will have a positive effect on COVID, even though 90% of migrants are vaccinated, nearly double the rate of the Texas population as a whole. For more on the lawsuit, which is an emergency motion seeking an injunction or temporary restraining order, see here. For a copy of the lawsuit itself, see here. For an analysis of why the Abbott executive order is “*flagrantly* illegal and unconstitutional”, see here. For more in general, see Dos Centavos and the Chron.

Deportation freeze still on hold

Grrrrrrrr.

Best mugshot ever

A federal judge in Texas has put an indefinite halt to President Joe Biden’s 100-day ban on deportations after issuing a preliminary injunction late Tuesday.

The ruling by Judge Drew Tipton comes after he had already temporarily paused the moratorium twice. The ban is nationwide and is in place as the case continues to play out in courts.

The ruling is a victory for Texas Attorney General Ken Paxton, who sued to block Biden’s order three days into the Biden administration. Paxton’s office argued the state would face financial harm if undocumented immigrants were released into the state because of costs associated with health care and education, and said the moratorium would also lure others to come to Texas.

Tipton, a Trump appointee to the federal bench, wrote in his order that Texas would also incur costs for detaining immigrants within its state. “Texas claimed injury from unanticipated detention costs is sufficiently concrete and imminent. The harm is concrete or de facto because Texas incurs real financial costs in detaining criminal aliens,” he wrote.

It’s unclear whether the Biden administration will appeal the ruling to the 5th Circuit Court of Appeals, which has jurisdiction over Texas’ federal benches.

See here, here, and here for the background. This continues to be a load of crap, though as noted before one that seems to have a fairly limited impact. I don’t know what the argument is for not appealing. You can find a copy of the order here.

Deportation pause still on hold

Another pause for the pause, which is as dumb and annoying as it sounds.

Best mugshot ever

A federal judge in Texas has extended the block on President Joe Biden’s deportation moratorium for two more weeks as the case continues to play out in court.

Judge Drew Tipton said in an order dated Monday the extension was necessary for “the record to be more fully developed” in the case brought by Texas Attorney General Ken Paxton, who challenged Biden’s 100-day pause on deportations.

Tipton originally issued a 14-day suspension of Biden’s moratorium on Jan. 26. The pause in deportations was part of Biden’s attempted day one overhaul of several of former President Donald Trump’s immigration policies. But Paxton quickly filed a lawsuit in response to Biden’s moratorium, claiming the state would face financial harm if undocumented immigrants were released from custody, because of costs associated with health care and education.

In his order, Tipton, a Trump appointee who took the bench last year, said Texas would face more harm than the federal government if the extension was not granted.

See here and here for the background. Not clear to me why this is taking so long, or even if this counts as “so long” at this point. I started to write that I wasn’t sure why there hasn’t been an appeal yet, but this tweet by Aaron Reichlin-Melnick answered that question, and suggested now one may be forthcoming . Beyond that, all I know is we’re still waiting.

Federal judge blocks the deportation pause

Infuriating, but possibly less than it appears.

Best mugshot ever

A federal judge in Texas temporarily blocked the Biden administration from moving forward with a 100-day pause on many deportations across the US, saying Tuesday that it was not adequately reasoned or explained to the public.

The temporary restraining order represents an initial setback for the Biden administration, which has vowed to reform agencies like Immigration and Customs Enforcement (ICE) by restricting who is arrested and deported.

“This is a frustrating loss for an administration that was trying to set a different tone than the chaos and rapid changes of the prior four years,” said Sarah Pierce, an analyst at the Migration Policy Institute. “The order makes it clear that the moratorium may face significant legal hurdles.”

Judge Drew Tipton, who was appointed by former president Donald Trump, ordered the Biden administration to immediately stop enforcing its moratorium on many deportations, which had gone into effect on Friday before Texas sued. The temporary restraining order is in effect for 14 days as the case proceeds.

On Jan. 20, the Biden administration issued a pause on deportations for many undocumented immigrants who have final orders of removal. The memo states that the 100-day pause applies to all noncitizens with final deportation orders except those who have engaged in a suspected act of terrorism, people not in the US before Nov. 1, 2020, or those who have voluntarily agreed to waive any right to remain in the US.

But Tipton said the memo issued by David Pekoske, acting secretary of the Department of Homeland Security, appeared likely to violate the Administrative Procedures Act and that it was not adequately reasoned or explained.

“Here, the January 20 Memorandum not only fails to consider potential policies more limited in scope and time, but it also fails to provide any concrete, reasonable justification for a 100-day pause on deportations,” he wrote, while adding that Texas had shown evidence it would suffer if Biden’s moratorium was not blocked.

Tipton said Texas had demonstrated “that it pays millions of dollars annually to provide social services and uncompensated healthcare expenses and other state-provided benefits to illegal aliens such as the Emergency Medicaid program, the Family Violence Program, and the Texas Children’s Health Insurance Program.”

The state claimed that those costs would rise if the moratorium continued.

But Pratheepan Gulasekaram, an immigration law professor at Santa Clara University Law School, said the decision appeared to be vulnerable to an appeal.

“Federal administrations can and should be able to set their own enforcement policy as long as it is not forbidden by federal law. This allows a state to stop the federal government from reassigning resources and personnel and deciding the optimal level of enforcement,” he said. “This is not the way our federalism in the constitution is structured. States don’t have veto ability.”

See here for the background. Slate’s Mark Joseph Stern, who notes that Judge Tipton admitted his own ignorance of immigration law in the ruling, goes into some detail.

There are several remarkable aspects of Tipton’s decision. First, it applies nationwide—even though conservative jurists and Republican politicians spent the last four years decrying nationwide injunctions as illicit and unlawful. Trump’s Department of Justice launched a campaign against these injunctions, complaining that they unconstitutionally interfered with executive power. Right-wing judges condemned them as lawless power-grabs that promote “gamesmanship and chaos.” Republican lawmakers proposed legislation bringing them to a heel. Intellectuals in the conservative legal movement accused “resistance judges” of using them to sabotage the president. Now, six days into Biden’s term, a conservative judge has issued a nationwide injunction at the behest of a Republican politician.

Second, it is extremely difficult to determine the harm that Biden’s memo inflicted on Texas—and, by extension, why the state has standing to bring this case at all. In his lawsuit, Paxton failed to identify any concrete harm to Texas that actually flows from the deportation pause. Instead, he rehashed general complaints about the state’s expenditures on immigrants eligible for deportation—using estimations from 2018—and asked the court to assume that Biden’s memo would raise these costs. Paxton offered zero evidence that this specific memo would raise costs to Texas. Tipton gave the state standing anyway.

Third, and most importantly, Tipton’s decision is utterly divorced from both the entire framework of federal law governing deportation and the removal system as it functions on the ground. The thrust of Tipton’s reasoning is that a federal statute says the government “shall remove” an immigrant who has been “ordered removed” within 90 days. But, as the Supreme Court recognized as recently as last June, federal law also gives DHS sweeping discretion to determine which immigrants to deport, and when. A slew of statutes and regulations recognize this authority and address immigrants who are not removed within 90 days, a clear signal that this deadline is not, in fact, an iron rule.

Moreover, the deportation process is complex and time-consuming: It involves not only legal appeals but also tedious pragmatic considerations, like how an immigrant will actually be transported out of the country. The government has to plan this transportation on a mass scale, and it does not have a travel agency at its disposal that can guarantee an international flight full of deported immigrants within 90 days or your money back.

In short, if immigration law meant what Tipton says it does, then every president has violated it every day of their term, including the one who appointed him. Luckily, it does not. And there is therefore a very good reason to doubt that Tipton’s order will cause many, if any, deportations. The judge blocked Biden’s general policy of non-enforcement—but he did not, and could not, force the government to actually ensure that every immigrant who is eligible for removal be deported within 90 days. Biden’s DHS can merely exercise its authority to pause deportations on an immigrant-by-immigrant basis by granting an administrative stay of removal. It can halt travel arrangements and cancel deportation flights. Biden’s memo might be on hold, but it is perfectly lawful for the government to freeze deportations under its existing discretionary powers.

Others noted that the order is pretty limited in scope:

Everyone’s favorite question of standing was also brought up. It was not clear as I was drafting this if the Biden administration was going to ask the judge to put his order on hold, or if they were just going to appeal directly; either way, things may change before this runs in the morning, or shortly thereafter. It’s important to remember that the point of this lawsuit first and foremost is Ken Paxton’s fundraising, which works to his advantage whether he wins or loses. Given that, he may as well lose, that’s all I’m saying. Daily Kos, the Chron, and the Trib have more.

Paxton sues over deportation pause

That didn’t take long.

Best mugshot ever

Three days into the Biden administration, Texas Attorney General Ken Paxton has filed his first lawsuit against the federal government. The lawsuit seeks an halt to one of the president’s executive actions on immigration, a 100-day pause on some deportations.

The moratorium, issued the same day as the presidential inauguration, was one of a flurry of early executive actions from the new administration. It is part of a review and reset of enforcement policies within Customs and Border Protection, Immigration and Customs Enforcement, and the U.S. Citizenship and Immigration Services agencies as the Biden administration “develops its final priorities,” according to a statement from the Department of Homeland Security.

Paxton said the moratorium violates the U.S. Constitution and various federal and administrative laws, as well as an agreement between Texas and DHS.

“When DHS fails to remove illegal aliens in compliance with federal law, Texas faces significant costs,” reads the complaint, which was filed in federal court in the U.S. Southern District of Texas. “A higher number of illegal aliens in Texas leads to budgetary harms, including higher education and healthcare costs.”

The filing also alleges various other violations, including against posting-and-comment rules, as well as failure to ensure laws are “faithfully executed.” In a statement, a spokesperson for the Department of Homeland Security said they were “not able to comment on pending litigation.”

The moratorium excludes any immigrant who is “suspected of terrorism or espionage, or otherwise poses a danger to the national security of the United States,” those who entered after Nov. 1 and those who have voluntarily waived any rights to remain in the country, according to a DHS memo. It also retains an enforcement focus on people who have been convicted of an “aggravated felony” as defined by federal immigration law.

The first question one should ask of any lawsuit filed by Ken Paxton at this time, especially a politically-motivated lawsuit like this one, is whether it has any merit or if it’s just theater designed to rile up the rabble. Neither this story nor the Chron story examines that, though the latter does touch on some of the legal questions.

The case is before U.S. District Judge Drew Tipton, a Trump appointee who took the bench in Corpus Christi last June and previously practiced law in Houston. In a hearing held via Zoom on Friday, Tipton did not immediately rule on Texas’ request for a temporary restraining order. Instead, he said he would take the matter under advisement and vowed to make a decision quickly.

Administration officials did not respond to a request for comment, and a DHS spokesperson declined to comment on pending litigation. But in a memo issued Wednesday, DHS Acting Secretary David Pekoske said the moratorium was implemented as the agency shifts staff and resources at the southwest border, and to protect the health and safety of DHS personnel amid the pandemic.

“We must ensure that our removal resources are directed to the department’s highest enforcement priorities,” Pekoske added.

The order does not apply to noncitizens who: have engaged in or are suspected of terrorism or espionage or who otherwise pose a national security risk; were not in the U.S. before Nov. 1; or voluntarily signed a waiver to rights to remain in the U.S. as long as they’d been given “a meaningful opportunity to access counsel” beforehand. It also gives the acting director the discretion to allow deportations on a case-by-case basis.

The agreement Paxton refers to is one that the department, while still controlled by the Trump administration, signed preemptively with multiple jurisdictions, including the state of Arizona, that required the agency to give them six months to review and submit comments before moving forward on any changes to immigration policy, as Buzzfeed News first reported. The legal enforceability of those documents, however, has yet to be seen.

[…]

In the virtual hearing Friday, Will Thompson, an attorney for the state, argued that the DHS agreement was valid and precluded it from enacting policy changes before the 180-day feedback period has ended. Thompson also said Texas would suffer irreparable harm from the pause on deportations, such as increased education and health care costs for undocumented immigrants.

Department of Justice attorney Adam Kirschner raised several legal arguments for why the agreement is not enforceable, among them that it violated Article II of the Constitution by giving Texas, at least for 180 days, “veto power over immigration law,” which is within the jurisdiction of the federal government. Kirschner also said the state failed to identify injury that the policy would cause, other than “general budgetary concerns.”

At least you have an idea what they’re arguing about, but it’s still pretty dry. Daily Kos gets more into the merits.

Paxton “says Biden administration is violating the agreement TX signed w/ Trump’s DHS, which said the agency would check in with Texas before making changes,” BuzzFeed News’ Hamed Aleazis tweeted. Paxton’s threat demands DHS immediately rescind the memo, as well as “an immediate response or we will seek relief to enjoin your order, as contemplated by the Agreement.”

To put it plainly, Ken Paxton can eat shit. Legal experts like Santa Clara University School of Law professor Pratheepan Gulasekaram have criticized the agreements, calling them “completely unmoored from legal, constitutional ways of implementing policy,” BuzzFeed News previously reported. “The agreements, as Ken Paxton well knows, are blatantly illegal,” tweeted Aaron Reichlin-Melnick. “Of course, that’s never stopped him before. The Biden administration seems likely to take the correct step here; tell him to pound sand. The federal government can’t contract away its right to make policy changes.”

Not to mention that Cuccinelli was unlawfully installed at DHS! A federal court had already previously ruled that the truly very strange Cuccinelli had also been unlawfully appointed to head U.S. Citizenship and Immigration Services (USCIS). Reichlin-Melnick noted at the time that the previous administration had since dropped its appeal of that ruling, yet was still “letting him go to work every day.” Perhaps because they knew he’d be willing to put his signature to ridiculous policies like the one now trying to tie up the new administration.

The full thread is here, and you should also read this thread by Buzzfeed News immigration reporter Hamed Aleaziz, who suggests that federal judge Tipton could put the Biden order on hold as the suit is being heard. The ACLU and ACLU of Texas have filed an amicus brief in opposition to Paxton’s suit. This may be an early test of just how much Trump-appointed judges will abet in acting as roadblocks to anything President Biden wants to do.

“I’m haunted by their eyes”

We should all be haunted, and outraged, by this.

Immigrants held in a McAllen-area U.S. Customs and Border Patrol processing center for migrants — the largest such center in America — are living in overcrowded spaces and sometimes are forced to sleep outside a building where the water “tastes like bleach,” according to an attorney who recently interviewed some of the migrants.

“It was so bad that the mothers would save any bottled water they could get and use that to mix the baby formula,” attorney Toby Gialluca told The Texas Tribune on Saturday.

But when she recalls the conditions described to her by the immigrants she interviewed at McAllen’s Centralized Processing Center, Gialluca said she goes back to one thing.

“Their eyes. I’m haunted by their eyes,” Gialluca said.

Gialluca and a slew of other lawyers have been meeting with children and young mothers at facilities across the state this month as pro bono attorneys. At the McAllen Center, Gialluca said everyone she spoke with said they sought out Border Patrol agents after crossing the Rio Grande so they could request asylum.

Gialluca said the migrants, all from Honduras, Guatemala, and El Salvador, told her they aren’t receiving proper medical care and children don’t have enough clean clothes. Unable to clean themselves, young mothers reported wiping their children’s runny noses or vomit with their own clothing, Gialluca said. There aren’t sufficient cups or baby bottles, so many are reused or shared.

“Basic hygiene just doesn’t exist there,” Gialluca said. “It’s a health crisis … a manufactured health crisis,” she said.

[…]

On Saturday, state Sen. Carol Alvarado, D-Houston, issued a letter to the Texas Health and Human Services Commission inquiring about the reportedly inhumane conditions at a Clint facility where another group of lawyers told the Associated Press about a group of 250 infants, children and teens who spent nearly a month without adequate food, water and sanitation.

Attorneys who visited the El Paso-area station said they found at least 15 children sick with the flu and described a sick and diaperless 2-year-old boy, whose “shirt was smeared in mucus,” being taken care of by three girls all under 15.

“HHSC has a responsibility to these children and individuals to ensure they are receiving, at a minimum, basic care,” Alvarado wrote, acknowledging that the facilities are managed at a federal level, but still imploring the state to do more. “As these facilities are in our state, the conditions under which they operate is a reflection of our values and commitment to the humane treatment of all within our borders.”

There are a lot of elected officials in this state who support passing laws greatly restricting access to abortion because they say they believe in the sanctity of life. Most of those same officials oppose laws that grant equal treatment under the law to LGBTQ people, and support laws that allow “sincerely held religious beliefs” to be a legal reason to not do business with LGBTQ people, because they believe that LGBTQ people are engaged in immoral behavior. These same elected officials, who care so much about life and morality, don’t have so much as an unkind word to say about the appalling, inhumane treatment of thousands of people, many of them children and babies, right here in Texas. I don’t know why any moral authority is granted to these officials, whose names include Greg Abbott, Dan Patrick, Ken Paxton, John Cornyn, Ted Cruz, Chip Roy, Dan Crenshaw, Ron Wright, Lois “Bathroom Bill” Kolkhorst, Jonathan “Former Fetus” Stickland, Tony “Death Penalty For Abortion” Tinderholt, and many many more. They have clearly shown that they don’t deserve it.

UPDATE: In addition to voting all of these useless assholes out of office, you can donate to or volunteer for any of these organizations if you want to help do something about this.

Butterflies versus the wall

Go, butterflies!

The National Butterfly Center in South Texas sent a certified letter to the Department of Homeland Security (DHS) Wednesday stating its intent to sue over the construction of a border wall on its private property.

In July, Marianna Trevino-Wright, executive director of the center, discovered private contractors working for U.S. Customs and Border Protection (CBP) using chainsaws on protected habitat and widening a roadway on the center’s property to make way for the wall.

The letter alleges this is a violation of the center’s private property rights. Though exceptions exist for government workers maintaining levees for flood control, the National Butterfly Center’s attorney says the “conduct is outside the scope” of those permissions. “The express purpose of this entry and destruction is to enable the construction of a border wall,” the letter reads.

“This is a much bigger issue than the National Butterfly Center,” Jeffrey Glassberg, president of the nonprofit, told the Observer in August. “There’s a procedure the government could follow with due process. But they’ve decided — like with so much else — to just ignore the law, trampling on private property rights. The complete disrespect for the legalities of this country is something that ought to concern every American regardless of how they feel about a border wall.”

You can see a copy of the letter at the link. We didn’t need this reason to oppose the wall, but we’ll take it.

Lawsuit filed over Muslim ban documents

From the inbox:

The American Civil Liberties Union of Texas filed a Freedom of Information Act (FOIA) lawsuit [Wednesday] demanding government documents about the on-the-ground implementation of President Trump’s Muslim ban.

Today’s action is part of a total of 13 FOIA lawsuits filed by ACLU affiliates across the country. The ACLU of Texas lawsuit is seeking records from U.S. Customs and Border Protection’s Houston Field Office.  In particular, the lawsuit seeks records related to CBP’s implementation of President Trump’s Muslim ban at Houston’s Bush Intercontinental Airport (IAH) and Dallas Ft. Worth International Airport (DFW). The ACLU first sought this information through FOIA requests submitted to CBP on February 6. The ACLU is now suing because, other than acknowledging receipt of the request, the government has failed to respond.

“Transparency and accountability in our government are fundamental marks of a vibrant democracy,” said Edgar Saldivar, senior staff attorney of the ACLU of Texas. “If our government is to be truly of the people, by the people, and for the people, the American public needs to know what goes on behind the veil of federal agencies. FOIA gives us that right. And with this lawsuit, we expect to find out more about CBP’s role in carrying out the Muslim ban.”

“President Trump has tried twice to force his unconstitutional and ham-fisted Muslim ban on the public, and twice American courts have had to remind him — swiftly — that he is not above the law,” said Terri Burke, executive director of the ACLU of Texas. “CBP’s refusal to comply with our FOIA requests indicates that not everyone in the Trump administration got the message. But we will continue to do everything in our power to ensure that CBP respects our laws, as well as the people — all of the people — they protect.”

“CBP has a long history of ignoring its obligations under the federal Freedom of Information Act — a law that was enacted to ensure that Americans have timely access to information of pressing public concern. The public has a right to know how federal immigration officials have handled the implementation of the Muslim bans, especially after multiple federal courts have blocked various aspects of these executive orders,” said Mitra Ebadolahi, Border Litigation Project Staff Attorney with the ACLU of San Diego and Imperial Counties.

Each lawsuit seeks unique and local information regarding how CBP implemented the executive orders at specific airports and ports of entry in the midst of rapidly developing and sometimes conflicting government guidance.

The coordinated lawsuits seek information from the following local CBP offices:

Atlanta
Baltimore
Boston
Chicago
Detroit
Houston
Los Angeles
Miami
Portland
San Diego
San Francisco
Seattle
Tampa
Tucson

All of the affiliate FOIA lawsuits will be available here:
https://www.aclu.org/other/aclu-cbp-foia-lawsuits-regarding-muslim-ban-implementation

This release can be found here:
https://www.aclutx.org/en/press-releases/aclu-texas-files-lawsuit-demanding-documents-implementation-trump-muslim-ban

The ACLU national release is here:
https://www.aclu.org/news/aclu-files-lawsuits-demanding-local-documents-implementation-trump-muslim-ban

The ACLU national release on the original FOIA requests is here:
https://www.aclu.org/news/aclu-files-demands-documents-implementation-trumps-muslim-ban

The ACLU of Texas release on the original FOIA request from is here:
https://www.aclutx.org/en/press-releases/aclu-texas-files-demands-documents-implementation-trumps-muslim-ban

More background on CBP’s FOIA practices is here:
https://www.aclu.org/letter/aclu-letter-cbp-re-foia-practices-july-2016

Here’s a Chron story about the lawsuit. Given what a debacle this all was (and still is), we deserve to know exactly what happened and to whom.

Nothing says “holiday season” like immigration raids

How festive.

Immigration agents are planning to round up Central American families that have been ordered deported by a judge in response to an unexpected surge in children and families crossing the border in South Texas, a former high-ranking immigration official said Thursday.

Alonzo Peña, the deputy director of U.S. Immigration and Customs Enforcement in 2009 and 2010, said officials are concerned because the number of families crossing the border usually slows down this time of year, yet Border Patrol agents in the Rio Grande Valley have seen an increase in recent months.

The Border Patrol apprehended about 50,000 children and families in 2015 in the Rio Grande Valley, down from about 100,000 in 2014, but the number of apprehensions has spiked since September, according to Border Patrol statistics.

“The numbers for this time of year, normally they drop, and they’re continuing to surge and increase,” Peña said. “They’ve got to figure out ways to send a message that the gates are not open, the doors are not open and it’s not a free pass. And they’re concentrating on those that have final orders, who have exhausted their due process.”

ICE regularly conducts what it calls targeted enforcement operations, in which agents round up immigrants who fall under the agency’s priorities for deportation, including those who recently crossed the border, those convicted of crimes and those who have been ordered removed by an immigration judge. This would be the first such operation specifically targeting families.

News of the planned raids, first published by the Washington Post, which reported they would likely happen in January but hadn’t received final approval, drew criticism from activists. Hundreds of immigrants might be targeted, the newspaper reported.

“Such a roundup would be a nightmare for those families and for our claim to being a nation of refuge,” Frank Sharry, executive director of the immigration advocacy group America’s Voice, said in a written statement.

Here’s that WaPo story. Some of this may sound reasonable, but ICE’s track record is lousy, and the so-called “family detention centers” we use are horrible, for-profit jails being used to warehouse children. And not to be crass about it, but the politics of this are awful for Democratic Presidential candidates trying to draw clear distinctions between themselves and the deport-em-all GOP frontrunners. This is a bad idea, and we really need to rethink what we are doing here. ThinkProgress and TPM have more.

Catching up on United versus Southwest

There have been a few news stories of interest since we first heard about the Southwest Airlines plan for international flights at Hobby Airport, which is being vigorously opposed by United, who wants to keep IAH as the only international airport in Houston. United has a couple of Congressmen on their side.

In this corner...

Two local congressmen have asked Mayor Annise Parker not to turn Hobby Airport into an international operation because they are concerned Houston would not get sufficient customs staffing to avoid long delays for international travelers.

The opposition of U.S. Reps. Kevin Brady, R-The Woodlands, and Al Green, D-Houston, casts doubt on whether Houston should become a two-international-airport city, even if city-commissioned studies indicate it would be an economic boon.

In a letter sent to Parker this week, Brady and Green echo an argument made by United Airlines, which has been lobbying against the project at City Hall, saying they oppose equipping Hobby with a federal inspection services facility because they fear it will divert customs officers from Bush Intercontinental. Resulting delays, United argues, will cause international passengers to book flights through another hub.

Brady and Green argue that an international Hobby would “divert, not increase” the number of customs officers in Houston.

[…]

In his annual State of the Airports address Thursday, [Houston Airport System Director Mario] Diaz lamented what he described as persistently low customs staffing at Bush Intercontinental.

Last week, Diaz told the Houston Chronicle that if council approved an international Hobby, “the city could make a very, very good argument that those (customs) services should be enhanced.” Several times on Thursday, Diaz acknowledged the challenge in lobbying for federal funding.

“If we can make the correct understanding to the Appropriations Committee that (we need more) Customs and Border Protection … staffing, they’ll have to find something else that they may be able to cut, but that’s a budget problem,” Diaz said.

The story quotes an expert who notes that the level of Customs agent staffing at a given airport is determined by the demand for international passenger arrivals at that airport. Keep all that in mind for now.

This story questioned the effect on air fares of Southwest’s arrival on the international scene.

And in this corner...

According to data compiled by Hotwire.com, average airfares from Houston to Cancun and other Mexican destinations have increased steadily since March 2009 and were higher across the board last month than they were in 2007 before the onset of the recession and also in 2008 when record high-oil prices jacked up all types of airfares.

High-priced oil also factors in the escalating fares now, along with an improving economy.

Average airfare from Houston to Cancun last month was $630, compared to $495 a year ago.

[…]

Airfare analysts say the increased competition probably would bring fares down to some extent, but probably not as drastically as fliers are envisioning.

Rick Seaney, CEO of FareCompare.com, said Southwest probably would start out by offering sales reducing fares up to 40 percent and then “settle down” a few months later into a price range reducing fares 5 to 10 percent.

Still, he said, “when you add capacity to a route, prices are going to be lower.”

But with high jet fuel prices and tougher competition from merged mega-carriers like Delta and United, which are able to charge higher fares on certain routes where there is less competition, it’s not as easy for Southwest to offer the startlingly low fares that made it famous as the country’s pioneering domestic budget carrier.

“A lot of those things that allowed Southwest to keep the price points really low are not as easy today,” Seaney said, noting that it depends on how intent Southwest is “to make a stronghold.”

“My guess is since this is the first time Southwest would actually be flying international, it’d be top on their priority list,” he said.

If that’s not good enough for you, Southwest is now making the job creation pitch in their favor.

Opening Hobby Airport to commercial international flights will create 10,000 jobs, bring 1.6 million more air travelers through Houston annually and inject an additional $1.6 billion a year into the local economy, according to a Southwest Airlines executive who has seen city-commissioned studies on the matter.

“We’re asking for an opportunity to invest $100 million in a new building in your city to provide more passengers, 1.6 million a year, a huge economic gain for the city,” Ron Ricks, executive vice president and chief legal and regulatory officer for Southwest Airlines, told the Houston Chronicle editorial board Tuesday.

[…]

Southwest CEO Gary Kelly said repeatedly at the editorial board meeting that Southwest is not asking for any city investment in the terminal expansion and Customs facility addition to Hobby. The $100 million cost of the project is to be covered by debt backed by Southwest and paid off through ticket surcharges.

Clark said Customs waits at IAH are among the worst in the nation. “If Houston can secure additional agents, they should be deployed to address the chronic understaffing IAH experiences every day,” Clark said.

But Ricks asked, “Is Houston going to let 20 Customs agents stand in the way of a $1.6 billion-a-year economic impact? If we can’t solve finding 20 Customs agents in this economy, then Houston, we do have a problem.” Ricks said staffing is covered by a $17.50-per-international passenger fee.

Kelly said he believes Southwest’s entry into the Houston market will drive down prices and increase passengers at both airports.

“If you make the air fares affordable, the people will fly – a gigantic increase. We’re arguing to you the pie is going to increase,” Kelly said.

United says “Nuh uh!” in response to that:

United Airlines officials said Wednesday that allowing international commercial flights at Hobby Airport would force the carrier to cut 1,300 Houston jobs and dozens of flights from Bush Intercontinental Airport, and that city-paid consultants and Southwest Airlines are using unrealistic data to support the proposal.

In a letter to Mayor Annise Parker on Wednesday, United CEO Jeff Smisek said “the assumptions that underlie the analysis are so contrived it is clear they were designed to reach a predetermined conclusion.”

Smisek said United is commissioning its own study and urged Parker to “delay this decision, which you agree will impact Houston’s aviation industry and economic future for decades to come.”

Golly, couldn’t United mitigate those job losses by moving all the people they relocated to Chicago after the “merger” back to Houston? I’m just saying.

Nene Foxhall, United’s executive vice president of communications and government affairs, said if the Hobby proposal goes through, the airline will have to rethink proceeding with the next stage of an expansion project at Bush Intercontinental’s Terminal B – a potential $1 billion investment.

United claims that Southwest’s study was made on excessively optimistic assumptions. I have no trouble believing that, but I’m not particularly inclined to give United and its blackmail attempt a whole lot of credence.

Smisek says in his letter, which you can see here, that United “welcomes competition from AirTran, Southwest and all carriers for international service at IAH, where there are ample gates and facilities.” And with that, I turn the blog over to Tiffany once again for her long-awaited followup analysis:

First, thanks to all who responded favorably to my previous guest post. And yes, it’s been more than a weekend since I promised to write a follow-up. Unlike my spouse, I’m not conditioned to getting up at 5 am daily to create blog content, so it took me a while to work this in.

I’ve been reading with interest the “debate” around whether or not creating an international terminal at Hobby would be dilutive to the US Customs presence at Intercontinental. I’ve seen numerous comments from people saying things like, “the lines are too long at IAH as it is, this will only make it worse! They’ll take agents away!”

This got me thinking about the real numbers involved in the lines at International arrivals. Basically, it’s a function of how many people are getting off the plane at once. A busy airport like IAH has multiple flights coming in at the same time, especially when long haul flights from Europe and Asia arrive. An international terminal at Hobby would, at least in the beginning, have a much smaller number of flights and no 747s dumping 450 people at a time on Customs and Border Protection. Do the math:

The proposed Hobby scenario is 25 flights a day at 5 gates. The average capacity of a 737 in the Southwest fleet is 137 people. Southwest flies ONLY 737s. Even if they added the biggest, baddest 737 out there to give themselves greater range or capacity, they will top out at about 180 passengers. So 25 flights a day, spread over 10 hours – we’ll be generous and say 3 flights an hour, then round up capacity and say 500 people an hour through customs at Hobby, closer to 600 if they go with new 737-900ERs. This number is too large, in any real sense, but keep it in mind as we continue our mental math.

Compare that to IAH, where United and all of the other international carriers land something like at least twice that number of flights an hour (peak times when long haul flights come in from Europe or Asia) with an average capacity of a 747 or a 777 at 450 passengers PER PLANE. Look at the data, which I have taken straight from the Customs and Border Protection website, which can generate this handy table for any date range you select. This one is for 1 January 2011 to 1 January 2012.

So at peak times, Border Protection sees an average of 1100 or more people an hour through IAH. That makes our 500 passengers an hour through Hobby seem crazy-big. But stay with me. The data from CBP can’t be cut by day of the week, so I can’t tell if it’s appreciably worse on certain days. I’ve been on enough overnight flights to be leery of the low averages between 8 and 10 am, for instance. If you look at just 2 of the arrival schedules for cities in question with the proposed Southwest expansion, Mexico City and Cancun, as pulled from the handy schedule tool at http://fly2houston.com/:

You can see that United doesn’t bring in more than one 737 from either departure city before noon (at least on a Wednesday, the day I pulled the data). The majority of the flights come in during those peak average hours on the CBP chart. So it’s unclear to me that taking some passengers OUT of those IAH averages would be a bad thing. Given that the IAH Master Plan for 2011 (the last one available on their website) is estimating a 3.9% annual growth rate in international travel alone between now and 2015, and diversion of traffic from Cleveland when United (probably) draws down that hub in favor of Chicago, it seems to me there is still PLENTY of growth going on at IAH to sustain demand for international flights, even if you add a potential 500 passengers an hour that could go through Hobby instead.

The advantage I’d see for potential international travelers at Hobby, and frankly for CBP as well, is that at least in the short run, Southwest would be the only international carrier at Hobby, and for that length of time, the average number of passengers coming through per hour would be highly predictable and consistent. That would make staffing easy to model, and certainly have a smaller swing from valley to peak than they have at IAH. As a traveler, I’m having a hard time seeing a downside with this.

The funding mechanism for Customs agents has always seemed opaque to me. On the one hand, United is claiming that IAH is already understaffed and opening Hobby would take agents away form IAH. This presumes the number of customs agents in a city airport system is a zero sum game. Of course United also contended that they didn’t have an issue with Southwest flying internationally as long as they do it out of IAH, which as I’ve shown above is absolutely silly in terms of wait times for the passengers. If they could add more agents to IAH to handle that added traffic, why couldn’t they add agents at a new airport, making passengers at IAH no worse off, and possibly with an improved option for lower fares and reduced customs wait times at Hobby relative to IAH?

This all presumes that new aircraft types don’t drastically change the throughput of arrivals in the IAH customs hall independent of anything Southwest might or might not do, of course. Surely United wouldn’t be planning to add more folks to what is already an overcrowded CBP system, right? That’s what they’re trying to protect us all from! And yet, look at the data. According to Boeing’s order book, the old Continental ordered 25 787s and United ordered 25. It’s true that I can’t tell where these planes are INTENDED to go in the United Route system, or even if those 50 orders are still “firm” in Boeing’s books, but think about it for a few minutes. This aircraft is slightly larger than the 737 (210-290 passengers, depending on configuration), with a range suited for flights between, say Houston and Delhi, India. Imagine the customs issue at IAH when you add 75 extra people per flight.

But you might be more concerned about the Airbus order book. The A380 holds 525 passengers. Imagine IAH at peak hours with 525 people on each of the BA, Air France and Emirates flights and not the 450 currently on a 747. You won’t have to wait long to see what it will feel like. Lufthansa is bringing the A380 to IAH beginning this August, and that Frankfurt flight lands at about 2 pm, right before a number of those United flights from Mexico.

Color me skeptical about United’s position generally. They may lose some customers, and cut some flights, in response to Southwest opening international service. But even with the newest, longest range 737s, it’s still a 737. And that “fleet commonality” is a huge part of what makes Southwest able to do what they do to control costs. Trust me here, I wrote a doctoral thesis on it. For United, as for American and AeroMexico, the overall risk of passenger loss will go up over time as Southwest expands their schedule past the currently proposed 5 city pairs. But those airlines, with their diversified fleets and deeper, longer route structures (at least for the US-based carriers), will still have plenty of places to go that Southwest can’t get to in a 737, and passengers want to go those places. I find the Customs and Border Protection argument disingenuous, given the pressures already in the customs hall and the growth projections that are already part of the IAH Master Plan and the fleet growth plan of United, insofar as I can guess what it is from the Boeing order book.

It’s the customers who have the most to gain from a Hobby expansion gateway. And as a customer, I’ll bet on Southwest working in my interest before I’ll bet on the “new” United.

So there you have it. And what she didn’t tell you is that she did field work for her thesis with Southwest, Continental, American and Boeing. High time it came in handy. In any event, we should get those long-awaited reports Monday – the recommendation from HAS Director Mario Diaz about whether or not to expand Hobby, and the city’s economic impact studies – to be followed by discussion and eventually a Council vote on what to do. A statement from the Texas Organizing Project calling on the city to ensure all voices are heard in this process is here.