The pursuit of punishment no matter the cost

The pursuit of punishment no matter the cost
Migrants from Central and South America wait near the residence of Vice President Kamala Harris after being dropped off on September 15. Texas Governor Greg Abbott dispatched buses carrying migrants from the southern border to Harris' home. (Photo by Kevin Dietsch/Getty Images)

On Friday in this piece for paid subscribers I wrote about Ron DeSantis' cruel political stunt of flying migrants to Martha's Vineyard as well as its parallels with the so-called "reverse freedom rides" of the 1960s in which Black people were similarly tricked and bussed north. Both cases of tossing human beings like trash on the front lawn of a neighbor you're feuding with.

It's become a cliche to say that the cruelty is the point when it comes to the likes of DeSantis and Trump but I don't know if that's strong enough condemnation anymore. It implies that there was ever another choice they might have conceivably made. I'm reminded of the old quote about winning in football. Cruelty isn't everything it's the only thing.
It was one of the most inhuman things I have ever seen

Subscribe to read that one and everything in the archives.

Down below we've got a piece by my pals Felipe De La Hoz and Gaby Del Valle of the great immigration-focused newsletter BORDER/LINES that attempts to explain what is going on with the transporting of migrants around the country and a number of other related topics. Please be sure to check out their work and subscribe.

Elsewhere Judd Legum has been on top of the story obtaining the misleading brochure given to the migrants.

DeSantis is now apparently being investigated by authorities in Texas.  

Late Monday, Bexar County Sheriff Javier Salazar, which represents the area in Texas where the migrants were recruited for the flight to Massachusetts, announced he had launched a criminal investigation into DeSantis' scheme. Salazar said that migrants "were 'hoodwinked' with promises of jobs and other benefits to the flight to Massachusetts." According to Salazar, there is "a high probability that laws were broken.

Before we get to BORDER/LINES a couple other things.  

Check out these threads here and here with a bunch of non-Red Cross non-governmental mutual aid and local groups you can donate to if you'd like to help with relief for the people in Puerto Rico after the devastating hurricane.

Police in Platteville, Colorado claim they were responding to a report of a road rage incident involving a gun when they stopped a twenty year old suspect on Friday. Yareni Rios-Gonzalez pulled her car over just after a set of train tracks and the cop in question did the reasonable thing and pulled up directly behind her.

You can probably guess where this heading but it gets worse first.

Meanwhile two other cops from a nearby town arrived and they performed what the Colorado Bureau of Investigations called "a high-risk traffic stop" which they didn't mean in the way that it turned out to be true. Next they detained Rios-Gonzalez for "felony menacing" and placed her in the back of the cop car which as you will recall was straddling the aforementioned train tracks. While the cops went to search her car for the supposed gun the most predictable thing in the world happened.

Rios-Gonzalez was later taken to the hospital with what the Kansas City Star reported was a “significant brain injury” and the CBI said was "serious bodily injuries." Police have since told local news outlets that she is expected to survive. The cop – whose name I haven't seen reported – has been placed on paid administrative leave although it's hard to imagine there will be too many further consequences. Unless the bosses are pissed off about the patrol car getting wrecked.

While this is all already bad enough as it is and a perfect example of the depraved indifference to safety demonstrated by police on a daily basis I'm sort of jumping ahead to where it gets even more maddening. When no one suffers any consequences besides the woman hit by the train.

Knowing what we know about qualified immunity is there any doubt that a court will rule down the line that because there is no previously established case that has determined that leaving a suspect locked inside of a car to be hit by a train violates their constitutional rights – how would a reasonable officer expect that to happen? – that Rios-Gonzalez will be prevented from suing the cop and the department for the obvious malicious negligence this is?

As our man Matthew Segal of the MA ACLU pointed out "Your regular reminder that under qualified immunity courts give police officers a better shot at avoiding liability if the officers hurt people in new ways."

Cops gotta make it new in other words.

Real quick on the topic of judges: As ridiculous as they can routinely be here's one in Seattle having an epiphany of sorts. As reported by Seattle Municipal Court Watch on Twitter a woman was appearing in front of the city court over charges she had stolen from Target and other stores.

At sentencing, City says a woman has been "very impactful on our downtown Target." Defense attorney notes she stole about $700 worth of goods. Judge says, "We probably spent $100,000 on this case which probably could have supported [the woman] for 5 years of services."
Woman had already spent 244 days in jail & was released after pleading guilty, received credit for time served. Every night in jail cost the city $219. All told, her cases required 34 court hearings. She was released without housing.
Judge: I have real questions about whether the 240-odd days have increased community safety. The 7 cases involved theft from Target or Rite Aid, being in Target w/o permission & one case where she "intentionally touched" Target employee w/o permission; they were not injured.

244 days in jail at a cost to the city of $219 a night is over $53,000 dollars and that's before you add in the cost of the 34 hearings. All for around $700 worth of theft. What are we doing here? It's nice to see the judge asking that question in this particular case but wouldn't it be better if we could expand that way of thinking to courts everywhere around the country.

What are we doing here?

Who is helped by this system? Does the pursuit of punishment no matter the cost keep any of us safer?

How about this sort of thing?

If you missed this Hell World from last week about how Los Angeles abuses and mishandles their unhoused population you should read it.

Another thing I wanted to mention regarding the sweeps is the amount that they're spending on the trucks, and all the cops standing around, probably on overtime, and all that type of shit Again, just give that fucking money to the people instead of spending it on this theater that makes the mayors look like they're cleaning up the streets.
The waste is incredible. A lot of the problems that people have with seeing unhoused people could be solved with effective investment in public infrastructure. We don't like to see human waste on the ground. Okay. Well, Los Angeles doesn't have any public bathrooms. You literally cannot find a bathroom for miles if you're not a paying customer.
Similar in Boston.
I don't like seeing needles on the ground. Okay. Well, there should be trash cans around. There's no trash cans within like six blocks of me. I was walking my dog on a really long walk, and it hit me one day, like, wow, I can't throw the poop away because I can’t find a single fucking trash can. Imagine being unhoused, and you're an addict, and you're using needles, and you have to walk two miles to drop off a needle in the public trash can. That's unrealistic. If you're tired of seeing people in tents, then put them in a house, put them in an apartment.
Or safe injection sites. Look, I don't want needles on the sidewalk. I don't think that's a good thing. But a lot of people would oppose having a safe injection site in their area as well. It all goes back to the idea of just get them out of my face. I don't care what happens to them, I just don't want to have to see it. That’s the empathy disconnect we’re talking about. These are not sub-humans or whatever. They're not a different species. They are you after a couple of bad breaks. How little empathy people have... I'm sure you see it more than most.
I have a little cart I go out with, and I've had people be like, “Don't give them anything! You're the reason they're here because people give them free stuff.” Some are like “They have more money than we do! They're not paying rent.” It’s just ridiculous. I've had people get confrontational about me being out there. They foam at the mouth when they see that you have clean needles to give out. It’s like, well, would you rather have a community full of hepatitis and HIV? We hand out sharps boxes as well. At the end of the day there's this demonization, that these people are out there because they're doing drugs, because they're bad people, they made bad choices. They like to do crime. My experience has been the complete opposite, where drug use is either self medication or a survival tool. Women who are unhoused do meth because they need to stay up all night so they don't get raped. And then to sleep during the day they do a little heroin. And I'm sure to calm whatever traumas they've experienced. In my experience, most people end up using drugs after they have become unhoused because of the trauma of being unhoused. It's the only medication on the streets.

As an update the so-called CARE court that we talked about in the piece above was signed into law by Newsom the other day.

Migrants from Venezuela, who boarded a bus in Texas, wait to be transported to a local church by volunteers after being dropped off outside the residence of US Vice President Kamala Harris. (Photo by Stefani Reynolds / AFP) 

FAQ on the situation with asylum seeker transfers to the Northeast

by Felipe De La Hoz and Gaby Del Valle of BORDER/LINES

The Big Picture

This week, given the national salience of the issue of asylum seekers being bussed and flown to places like Martha’s Vineyard in a joint effort by Texas Gov. Greg Abbott and Florida Gov. Ron DeSantis (and to some extent, Arizona Gov. Doug Ducey), we decided to try to tackle some of the significant questions that seem to be confusing observers. What follows are some general queries, followed by our best attempts to fully answer them.

What is the current status of the migrants being bussed or flown from the border?

The fact that these migrants were transported as part of this particular stunt does not in and of itself have any bearing on the immigration process they’re undertaking. Put another way, they are in the exact same legal footing as an asylum seeker who had entered through the southern border and then remained in the border region, or had arranged their own travel to the northeast, with the potential additional complication of having their case calendared in a court far away from where they actually ended up (more on that later).

In practice, this means that they’re in removal proceedings and are pleading asylum as a defense to the government’s attempt to deport them—the standard process for people who apply for asylum after arriving on U.S. soil or at a port of entry without any existing status and pass an initial credible fear screening. Of course, this is only the case for the people who are currently being permitted to exercise their right to claim asylum, as the zombified Title 42 remains in place and causing expulsions, as we’ll explain.

More specifically, people who are attempting entry into the United States without entry documentation are generally put into expedited removal, a process by which they can be quickly deported without the intervention of a judge. However, there is an explicit carveout for asylum seekers in 8 USC § 1225(b)(1)(A)(i), which states that an agent “shall order the alien removed from the United States without further hearing or review unless the alien indicates either an intention to apply for asylum under section 1158 of this title or a fear of persecution.”

The aforementioned 1158 sets out the processes and standards for seeking asylum, which is by and large a pretty absolute right regardless of the manner of entry. We emphasize that because some of the discourse around these migrants seems to insinuate that they are unlawfully present, which stems from either bad faith, or more charitably a misunderstanding of the distinctions between unlawful entry and unlawful presence. In the case of asylum seekers who present at a port of entry, there was never any unlawful conduct and they at no time violated U.S. law, while those who turned themselves in after crossing a border have technically violated one of two criminal statutes, 8 USC § 1325 or 1326, which criminalize uninspected crossings.

These criminal statutes are not applied as a matter of course (except in circumstances like the infamous 2018 Zero Tolerance policy, in which they were weaponized in service of the broader aim of family separation). In any case, they have no bearing on eligibility for asylum, a point that is made explicitly in asylum law: 1158(a)(1) gives the right to apply to “any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status.”

There are a few exceptions, including a one-year post-arrival deadline and the existence of so-called safe third country agreements (which we wrote about extensively when the Trump administration signed them with Guatemala, El Salvador, and Honduras despite ample concerns over due process). By and large, though, applicants must receive a full hearing of their cases, which for these migrants happens defensively in the immigration courts (as we wrote about before, there is a recent, very limited program to have some cases initially heard by USCIS, but that doesn’t seem to apply to most or all of the asylum seekers at issue in this transfer scheme).

Technically, per 1225(b)(2)(A), those awaiting these hearings are to be held in detention (you may remember that this was a significant issue in the litigation over Remain in Mexico, which the Supreme Court eventually allowed to end). However, the government also has access to the option of parole, as delineated in 1182(d)(5)(A), which allows it to “parole into the United States temporarily… for urgent humanitarian reasons or significant public benefit any alien applying for admission to the United States,” which has been interpreted as allowing the government to release people in custody given its functional inability to detain them as well as the fact that doing so serves no particular benefit and causes significant harm.

Therefore, the people being released from custody while in immigration proceedings are lawfully present, at least insofar as their immigration cases are ongoing. If their cases are resolved in their favor and they’re granted asylum, then they become permanently lawfully present, while in the reverse case, they become unlawfully present and are deported. Right now they exist in a sort of procedural limbo, but they are not present in violation of law, and the government is both aware of their presence and has at least temporarily approved of it.

Going forward, they will have to show up at court hearings and present evidence that they have a “well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion,” the longtime refugee definition, just like any other asylum seeker. This has been made intentionally more difficult in some cases by this transfer effort, particularly when they have been given court dates in faraway courts to where they have ended up (more on this later).

Why are they being let into the country? What about Title 42?

Title 42 is still in place, and in fact, the Biden administration is trying to expand the policy further. The Secretary of State has asked Mexico to accept Title 42 expulsions of more migrants from Cuba, Nicaragua, and Venezuela, Reuters reported last week. Mexico primarily accepts migrants from Guatemala, El Salvador, and Honduras, as well as those from Mexico. The U.S. regularly expels Mexicans even though sending asylum seekers back to the country they’re fleeing violates the principle of non-refoulement, or non-return.

Per Reuters, CBP has conducted 299,000 expulsions of Guatemalan, Honduran, and Salvadoran nationals this fiscal year, compared to about 9,000 of Cuban, Nicaraguan, and Venezuelan nationals combined. From the government’s perspective, Title 42 was initially a perfect way to deny entry to people who were likely to ask for asylum upon reaching the United States—Central American and Mexican nationals—under public health grounds. (As a reminder, Title 42 is ostensibly a public health law; its purpose is to deny entry to anyone whose presence in the United States could contribute to the introduction or spread of a communicable disease.)

But Title 42 has been less effective at keeping out so-called “extra-continental” migrants: people from Latin America, Africa, Asia, and Europe. There has been a notable increase in asylum seekers from other parts of the world in recent years. CBP logged more than 730,000 encounters of migrants from countries other than Mexico, Guatemala, Honduras, and El Salvador between October 2021 and July of this year. Of those, 700,000 have been paroled into the United States under Title 8, while 32,634 have been expelled under Title 42.

Expulsions have more to do with who Mexico will accept than who the United States wants to let in. The migrants currently being processed at the border and bussed across the country are largely from Venezuela, whose government is not currently accepting expulsion flights and who the U.S. has a hard time returning to Mexico under Title 42. The Biden and Trump administrations have both used Title 42 to not only expel migrants to Mexico, but also to their countries of origin when possible. From March 2020 to December 2021, DHS expelled more than 13,000 Haitians apprehended at the border, according to data analyzed by the Washington Office on Latin America.

Who is actually doing the transportation?

The entities engaging in the transportation itself are private bus and charter flight companies who are in turn being paid by the states themselves and are acting under their direction. Abbott pioneered this approach—one of multiple supposed border security stunts he has played in the past year, including the disastrous National Guard deployments as part of Operation Lone Star and the redundant commercial traffic searches that almost set off an international incident.

Documents obtained by CNN showed that, as of the end of last month, Texas had spent over $12 million in contracts with Wynne Transportation, a private bus operator that is ferrying migrants to Washington, D.C. and New York City. It’s not immediately clear where the money is coming from, but presumably it’s being paid by some state general fund. While the state has requested private donations to fund the trips, it had received less than $200,000 as of August 17, meaning that it’s mainly going to be a direct taxpayer expenditure. Arizona, meanwhile, has spent at least $3.5 million on its more limited bussing program.

Florida had a more bizarre role in the most recent flights of migrants to Martha’s Vineyard. Buried on page 494 of its General Appropriations Act for the current fiscal year, it created a special fund that would utilize $12 million from “interest earnings associated with the federal Coronavirus State Fiscal Recovery Fund” to create “a program to facilitate the transport of unauthorized aliens from this state consistent with federal law” (yes, this means that, indirectly, federal coronavirus stimulus funds are paying for these transfers). In this instance, Florida took $615,000 from that fund to pay Vertol Systems Company, Inc. for chartered flights to Martha’s Vineyard.

As some observers are starting to point out, the disbursement may have violated Florida’s own law on two fronts: first, the asylum seekers weren’t being transported “from this state,” as the flights apparently originated in San Antonio, and second, as per our explanation of their status, these migrants were not “unauthorized” as defined by law. It seems unlikely that this will actually stop DeSantis from continuing to use the fund for this political theater, particularly since it’s hard to envision who exactly might have both standing and desire to challenge the fund’s use.

More broadly, it’s likely that these stunts will continue and escalate. Abbott in particular seems to have decided to tailor his entire electoral strategy around tough-guy border posturing, and as a political antic, the bussing of migrants to liberal, sanctuary enclaves like New York City and Martha’s Vineyard is well-calculated. Some have claimed that the fact that communities have come together to receive the migrants instead of turning them away has neutralized the political value of the stunt, but that’s not exactly true. These are not the audiences that Abbott et al are pandering to; they are tossing red meat to right-wing constituencies who increasingly inhabit closed information spheres in which they see big-city Democratic mayors asking for federal assistance and laugh at the supposed liberal hypocrisy and the fact that these cities are being “owned.” It doesn’t seem much more complicated than that.

Have they been misled or tricked? Are the transfers illegal?

There has, at this point, been plenty of evidence that the migrants are often being—at minimum—heavily misled into accepting the transfers. Journalist Judd Legum, for example, obtained a copy of a brochure supposedly distributed to asylum seekers boarding the planes to Martha’s Vineyard. The document seemed shoddily made and was masquerading as a document produced by Massachusetts itself, listing in English and Spanish “refugee benefits” including points like cash assistance and employment services.

While such benefits do exist for refugees—who, as a reminder, have the same set of persecution requirements as asylum seekers but undergo their humanitarian processes entirely outside the United States and then arrive with status already in hand—they do not exist for asylum seekers, and it would appear that operatives working for Texas and Florida intentionally led people to believe that they would be eligible. One such operative is an elusive “Perla,” a mysterious woman who various migrants described to reporters as having lied to them, including by saying that the flights were headed to Boston and that they would be provided homes and employment once they arrived. One migrant even described having been paid $200 by “Perla” to recruit other migrants to board the flights.

It remains unclear who Perla is (rest assured that plenty of reporters are looking for her) but it’s almost certain that she was deployed in some way by Texas or Florida. This all raises the question of whether these bussing or charter flight operations themselves violated any laws. The unsatisfying answer here is: it’s murky. It’s not clear-cut whether there are specific violations of law at issue here, in part because there doesn’t seem to be coercion per se, only false pretenses.

Human trafficking statutes generally require that people be transported forcefully or, in the case of false pretenses, that they then be coerced into some type of labor or imprisonment upon their arrival. Still, we inherently understand that there’s a legal issue with telling someone you’ll fly them to one place and dropping them off without notice in another, which makes the most likely avenue of relief here not a criminal case but some sort of civil tort action, where the migrants could file suit under the argument that they have been harmed by the states’ actions after having been misled.

One statute that some observers have latched onto is 8 USC § 1324(a)(1)(A)(ii), which criminalizes anyone who “knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, transports, or moves or attempts to transport or move such alien within the United States.” This, however, is not applicable here because, as we explained above, these folks are not remaining in the United States in violation of law. They have been released by Homeland Security in anticipation of their court proceedings. It would also be a terrible idea to attempt a reinterpretation of this statute to criminalize this sort of transports because, while these are obviously harmful political machinations, most of the time these transfers are being paid for by nonprofits and other groups actually helping migrants get to their destinations.

Who is issuing their paperwork? What is the problem with the addresses?

When migrants are processed at the border, they’re given a Notice to Appear in immigration court by either Customs and Border Protection or Border Patrol. That form is their official charging document that lays out why they’re in deportation proceedings and provides information about the date and location of their first hearing date. These forms are also supposed to include the address where migrants will live while their case progresses through the court system—these are the addresses where they can expect to receive updates about their hearings, including information about date changes.

This is where things get tricky. The asylum seekers being processed at the border often don’t have family or community contacts in the United States. Even in cases where they do, many don’t have a home to go to once they’re released from DHS custody. Rachel Self, an attorney in Massachusetts, told reporters that DHS officers listed false addresses on paperwork issued to migrants who were subsequently sent to Martha’s Vineyard.

Despite the migrants telling DHS that they didn’t have addresses in the U.S., the officers listed the addresses of “random homeless shelters” across the country, from Washington State to Florida, as the asylum seekers’ mailing addresses. They also told the migrants to check in with U.S. Citizenship and Immigration Services to change their addresses, even though that agency has nothing to do with processing asylum seekers with upcoming court dates, and did not adequately inform them that they have to attend check-ins with Immigration and Customs Enforcement at risk of deportation or detention if they fail to do so. These check-ins are not in Martha’s Vineyard—they’re supposed to be at the ICE office closest to the address listed on each migrant’s NTA.

As our Gaby Del Valle reported for Curbed, CBP also listed false addresses on NTAs issued to migrants who were bussed from Texas to New York. In that instance, CBP listed the address of Catholic Charities of Brooklyn and Queens’ office as migrants’ place of residence. Migrants not only arrived at the office thinking it would be their new home, but also learned that they’d have to change their address the government has on file for them or risk deportation.

One issue is that the Executive Office for Immigration Review, the federal agency that oversees the immigration courts, sends hearing notices to the address listed on migrants’ NTAs. If they miss court because they didn’t get these notices—or for any other reason—they could be ordered deported in absentia. Hasan Shafiqullah, the attorney-in-charge of Legal Aid’s Immigration Law Unit, explained that migrants can re-open their cases if they can prove they never received notice of their hearing information, but doing so can be an uphill battle.

What’s new about this? How did this work before?

Under Obama, federal immigration agencies implemented a policy called “Safe Release” in which CBP and ICE coordinated to get asylum seekers to their final destination, typically cities where they had sponsors waiting for them. The Trump administration scrapped Safe Release in 2018, and CBP quickly began dropping asylum seekers off in small border communities that were unequipped to take them in. It’s important to note that these migrants didn’t want to end up in border towns: in most cases, they had relatives or family friends in cities across the country; what they lacked was a way of getting there. The point was to create the optics of an invasion, of border towns being overrun with migrants—and in a way, it worked.

In most cases, though, the communities where CBP dropped off asylum seekers mobilized to provide support and transportation to the migrants. This often involved bussing them to bigger transportation hubs, from which they’d be able to take buses or planes to their final destination. Crucially, these efforts were voluntary: no one was tricked or misled into going to a place they had no intention of going to. Still, the end of the Safe Release program meant that municipal and state governments had to use their own funds to help transport asylum seekers—not for political purposes but because the federal government had abdicated responsibility.

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Thanks as always for reading. Chip if you can. See you in a few days.