The end of Title 42?|Amazon buys into ICE Air

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Title 42

A Trump-appointed judge in Texas ruled earlier this month that the U.S. can no longer exempt unaccompanied immigrant children from Title 42, potentially forcing the Biden administration to return to a Trump-era policy of expelling minors who reach the southern border.

Title 42 allows border and immigration officials to immediately expel migrants at the border under the pretense of stopping the spread of the coronavirus. President Biden has, so far, continued the Trump administration’s use of the public health law—with the exception of unaccompanied children.

In Judge Mark Pittman’s order (pdf), brought about by a Texas lawsuit against the government, he questioned why unaccompanied minors were ever exempted in the first place: “Nothing in the orders, however, attempts to explain how preventing the spread of COVID-19 between [unaccompanied children] can also prevent the spread of COVID-19 from the interior of the United States.”

Pittman found that the policy’s exemption for unaccompanied children causes Texas to experience “significant financial loss,” “most directly through healthcare spending.”

Late Friday night, the CDC terminated its previous order regarding unaccompanied children and released a new policy meant to satisfy Pittman’s concerns while continuing to exempt unaccompanied minors from Title 42.

In the current termination, CDC addresses the court’s concerns and has determined, after considering current public health conditions and recent developments, that expulsion of unaccompanied noncitizen children is not warranted to protect the public health. Because it is not warranted, and in recognition of the unique vulnerabilities of unaccompanied noncitizen children, CDC is immediately terminating the CDC Orders to the extent they apply to them. In making this determination, CDC considered multiple factors in its public health assessment.

It is likely that Texas will challenge the “new” order which maintains the status quo.

The same day as Pittman’s order, a 3-judge panel of the D.C. Circuit Court of Appeals handed down a ruling (pdf) allowing the continued use of Title 42, but only to expel migrants to countries where they will not face persecution or torture.

It is likely that § 265 grants the Executive sweeping authority to prohibit aliens from entering the United States during a public-health emergency; that the Executive may expel aliens who violate such a prohibition; and that under § 1231(b)(3)(A) and the Convention Against Torture, the Executive cannot expel aliens to countries where their “life or freedom would be threatened” on account of their “race, religion, nationality, membership in a particular social group, or political opinion” or where they will likely face torture.

In practice, this means that migrant families will need to be screened and given the chance to express a fear of persecution or torture—a step that has been unavailable since the implementation of Title 42 in 2020.

The panel, consisting of two Obama judges and a Trump judge, also questioned the reasoning behind Title 42, saying it “looks in certain respects like a relic from an era with no vaccines, scarce testing, few therapeutics, and little certainty.”

To be sure, as with most things in life, no approach to COVID-19 can eliminate every risk. But from a public-health perspective, based on the limited record before us, it’s far from clear that the CDC’s order serves any purpose.

These developments may lead to the end of Title 42 sooner than later. According to Buzzfeed News, DHS is “planning” to inform Mexican officials that the policy could be terminated as soon as April.

  • Further reading: “Democratic lawmakers, civil liberties groups demand end to Title 42 border expulsions,” WaPo.
  • Further reading: “Ukrainian Refugees Are Hitting a Wall at the US-Mexico Border,” Vice News. “Ukrainian and Russian Refugees Surge at US-Mexico Border,” Time.

Amazon’s ICE Air

Amazon bought a 19.5% stake in the company behind Immigration and Customs Enforcement’s for-profit, privately chartered deportation flights. Amazon previously used Air Transport Services Group’s (ATSG) services to ship merchandise from warehouses to distribution centers. Last week, however, Amazon became a partial owner in ATSG, whose subsidiary Omni Air International executes deportation flights reportedly rife with abusive behavior and violence.

Nearly 100 formal allegations of abuse and mistreatment aboard these deportation flights, known as ICE Air, have been filed with the Department of Homeland Security.

One man recounted that after being thrown to the ground and shot with rubber bullets, he was placed in a WRAP [a device that binds a person’s legs together and their arms behind their back] and loaded onto an Omni flight, where his body remained locked at a 40-degree angle for about nine hours. “It was so painful,” he said. “The position was very stressful on my body, my muscles were shot with pain the entire bus ride and flight back to Cameroon.”

In one of the most publicized instances, Bangladeshi immigrants were tased, wrapped in full-body restraints, and thrown onto the plane like “sacks of vegetables.” They were left in restraints the entire 30-hour flight.

“A disproportionate amount of the abuses that we have seen are on [Omni] flights to African countries of origin,” [Angelina Godoy, director of the University of Washington Center for Human Rights] said. “I wouldn’t be surprised if that’s a reflection of inherent anti-Blackness or racism. I wonder what makes this a special high-risk charter other than the color of the skin of the people that are on the plane.”

Operation Lone Star

Texas Gov. Greg Abbott (R) raided nearly half a billion dollars from other law enforcement agencies to continue to pay for Operation Lone Star, the National Guard deployment at the Mexican border. Abbott claims the deployment, consisting of as many as 10,000 military personnel, is necessary “to combat the smuggling of people and drugs into Texas.”

“The crisis at our southern border continues to escalate because of Biden Administration policies that refuse to secure the border and invite illegal immigration,” said Governor Abbott. “Texas supports legal immigration but will not be an accomplice to the open border policies that cause, rather than prevent, a humanitarian crisis in our state and endanger the lives of Texans. We will surge the resources and law enforcement personnel needed to confront this crisis.”

The deployment has been beset by low moralesuicidespoor working conditions, and limited job benefits.

More than half expressed skepticism or frustration with Operation Lone Star and how senior leaders planned, executed and communicated about the mission. Nearly 30% vented about the mobilization’s length, haste or involuntary nature in their answers. About 30% said the most difficult part of Operation Lone Star was the deployment’s impact on their civilian lives, including lost wages, disrupted families and interrupted careers and educations.

Meanwhile, hundreds of arrests made by Operation Lone Star are now in question after a Travis County Judge dismissed a trespassing charge against Jesus Guzman Curipoma, an Ecuadorian man seeking asylum who was arrested at a railyard last year. Judge Jan Soifer ruled that Abbott’s program is unconstitutional and in violation of the Supremacy Clause of the United States Constitution, which gives the federal government exclusive control over immigration. Following her ruling, more than 400 people arrested under Operation Lone Star have challenged the legality of their arrests using the same argument as Guzman Curipoma.

Intercept: As the lawyers dug deeper into Guzman’s case and others like it, what they found shocked them. The rural counties where Operation Lone Star arrests were taking place were at best incapable — and in some cases seemingly unwilling — of providing the bare minimums of due process in response to the deluge of low-level cases brought on by the governor’s campaign. “They are completely backlogged,” Miró said. Obtaining basic public documents like a probable cause affidavit proved virtually impossible. The men in custody were routinely presented with plea deals, written in English and without translation, and encouraged to sign. Hearings were sometimes held en masse, outdoors, in a parking lot.

The defense attorneys also observed a pattern, later corroborated by video evidence, of DPS troopers leading individuals onto private property and then arresting them for trespassing.