Is an April 2020 Court Order Driving the Migrant Surge in Lukeville, Ariz.?

Smugglers may not be lawyers, but they are Ph.D’s in U.S. immigration rules

By Andrew R. Arthur on December 29, 2023

If you have been following the most recent migrant surge, you have likely heard the names of obscure border towns in Arizona like “Lukeville” and “Ajo”, all of which are in the Border Patrol’s Tucson sector.   Is an April 2020 court order in Unknown Parties v. Nielsen, requiring migrant releases in that sector in most circumstances in 48 hours, the reason why smugglers are leading migrants to remote locations in the Sonoran Desert?  It’s the most logical conclusion, which simply affirms the conclusion that smugglers may not have gone to law school, but they have self-taught Ph.D’s in the rules governing immigration detention.

Tucson Sector

Border Patrol’s Tucson sector is massive, running from the New Mexico state line in the east 262 miles along the Southwest border to the Yuma sector in the west.

Tucson sector also has more agents than any other sector in the country, with a cadre of 3,615 as of the end of FY 2020 (the last year for which statistics are available). 

While Tucson proper, with a population of more than 546,000, is a fairly major city, it’s not a “border town”, per se.  In fact, CBP describes Border Patrol’s Tucson station as “very unique”, in part because it sits “68 miles north of the international border”.

The rest of the sector’s 8 stations are somewhat closer to the border, but nearly all are isolated and remote, with responsibility over desolate stretches of the border.  Ajo station (near a town with a population of 2,944) is just 27 miles from the line up State Route 85, but from Lukeville (population: “about 39”), that road runs through the rugged and largely unimproved Organ Pipe Cactus National Monument

Up until recently, Tucson sector has not been as adversely affected by the migrant surge that started almost as soon as Joe Biden took office at other Southwest border sectors.  In FY 2021, for example, agents there apprehended just over 191,000 illegal entrants, a fraction of the nearly 550,000 migrants apprehended in the Rio Grande Valley (RGV) sector in Texas that year. 

Things have changed significantly in recent months, however.  In the first two months (October and November) of FY 2024, RGV agents made fewer than 51,000 apprehensions, while Tucson sector has seen more than double that number, nearly 120,000 apprehensions in the past two months. 

More than half of those Tucson apprehensions, slightly fewer than 61,000 migrants, have been adult aliens travelling with children in “family units” (FMUs).  FMUs and “unaccompanied alien children” (UACs) are the most difficult migrants for agents to deal with, as they must be segregated from unrelated adult males for their own protection.


On December 18, the Wall Street Journal reported, dateline: Lukeville, that:

Smugglers sneaking migrants to the U.S. border have moved from major crossings to more remote spots like this one in recent months, challenging immigration officials who lack the facilities or manpower nearby to handle huge numbers of people.

More than 50 migrants—including women and children from countries including Kenya, Senegal, Colombia and Guinea—were walking along the border east of this small Pima County town on Friday, saying they had been guided by smugglers to a hole in the 30-foot-high steel post wall.

Border Patrol agents on site were already busy taking into custody roughly 100 other migrants who had arrived earlier in the day, so other agents used cameras to monitor the new arrivals as they trekked to a staging area a few miles away.  

. . . .

Because the nearest full-scale Border Patrol processing facility to Lukeville is hours away in Tucson, federal officials are having to scramble and set up a holding area with a few tents and sun tarps to house and process all of those crossing, before they can determine whether they should be deported immediately or allowed to remain in the country pending court proceedings under the current immigration rules.

If you want to see what that surge looks like, take a look at this Tweet, posted by NewsNation’s Ali Bradley on December 20:



That surge in Lukeville continues unabated; Bill Melugin from Fox News tweeted this week:



With upwards of 2,500 migrants per day crossing there, CBP had to close the Lukeville port of entry on December 4 so that CBP officers could be reassigned to assist their Border Patrol compatriots in with the flow.

That closure, according to local news outlet Arizona Central, “has led to devastating effects for communities and businesses on both sides of the Arizona-Mexico border”, prompting Arizona Gov. Katie Hobbs (D) to sign an executive order on December 15 sending the National Guard to help out.  Despite that gubernatorial assignment, the port remains closed. 

Unknown Parties v. Nielsen aka: Jane Doe #1 v. Mayorkas

Which brings me to why smugglers and migrants are descending on a tiny town, a veritable pinpoint, on the 1,954-mile Southwest border.  The best answer to that question is that they want to take advantage of an April 17, 2020, district court order granting a permanent injunction in Unknown Parties v. Nielsen

The “Nielsen” in question is Kirstjen Nielsen, Donald Trump’s second DHS secretary, but the case actually started under the Obama administration in June 2015.  That’s when a class of plaintiffs filed suit in the U.S. District Court for the District of Arizona:

seeking injunctive relief related to alleged inhumane and punitive treatment of civil immigration detainees by [CBP] in the Tucson Sector at the Brian A. Terry Station/Naco Station, Casa Grande Station, Douglas Station, Nogales Station, Sonoita Station, Tucson Station, Why/Ajo Station, Willcox Station, and Three Points Station.  The Tucson Station and Three Points Station process detainees at the Tucson Coordination Center (TCC), which serves as a hub for coordinating the movement of the majority of detainees out of CBP custody. Plaintiffs charge the Defendants with violating the Due Process Clause of the Fifth Amendment based on alleged deprivations of sleep, of hygienic and sanitary conditions, of adequate medical screening and care, of providing inadequate food and water, and of a lack of warmth in CBP holding cells.

In February 2020, U.S. district court Judge David C. Bury found in favor of the plaintiffs and granted their request for a permanent injunction.  The order in the case was issued that April, and section II therein (captioned “Conditions of Confinement”) begins:

[CBP] shall be permanently enjoined from holding Processing Complete Detainees whose Time In Detention in Tucson Sector CBP facilities is longer than 48 hours, unless CBP provides conditions of confinement to meet Detainees’ basic human needs, pursuant to Detention-industry Standards for the following:

a. Bed and Blanket for sleeping;

b. Showers;

c. Adequate Food;

d. Potable Water; and

e. Medical assessment by a Medical Professional. 

Permanent Border Patrol facilities, which were erected in the 1990s and early 2000s to process primarily single adult males from Mexico (most of whom could be removed in about 8 hours), rarely have amenities like beds and showers. 

On April 20, 2020, Trump’s DOJ filed a notice of appeal to the Ninth Circuit in that case, now captioned Jane Doe #1 v. Wolf

Thereafter, however, on March 4, 2022, Biden’s DOJ and plaintiffs’ attorneys entered into a settlement agreement in the case (now Jane Doe # 1 v. Mayorkas) “to settle attorney fees, expenses and taxable costs incurred by the five organizations whose attorneys represented the Plaintiffs and class members in this lawsuit”, to the tune of $3.832 million. 

CBP Policy

Generally, under CBP policy, aliens are supposed to be released from Border Patrol custody within 72 hours, not the 48-hour limit mandated by the court in Unknown Parties.  That extra day can make a difference.  And, prior to the Biden administration, at least, that usually meant they were released to ICE detention, where beds, showers, and medical attention are all available. 

The “holding area” referenced by the Journal aside, there doesn’t appear to be a CBP detention facility in Lukeville, but there is one at Ajo station, a 45-minute ride away.  The problem is that the Ajo facility can only hold 100 people, insufficient for this surge.  During that time, the court-ordered two-day release clock is ticking. 

CBP has reportedly attempted to make do by sending the Lukeville migrants to a larger, 1,000-person facility two hours away near Tucson International Airport, and then onto Texas for processing.  Many, however, are simply released onto Tucson’s streets.   

Why are smugglers bringing thousands of migrants to Lukeville, Ariz., population “about 39”, a map dot in the middle of the Sonoran Desert?  My bet is they know that, thanks to a 2020 court order, CBP will be required to quickly release those migrants—because smugglers may not have law degrees, but they are self-trained experts in immigration detention rules.