Texas Governor Issues Order Barring Private Transport of Migrants, DOJ Sues

A lot of questions, like why are NGOs doing Covid testing after migrants are released?

By Andrew R. Arthur on August 3, 2021

Texas Governor Greg Abbott issued an executive order last week restricting the private transportation of migrants posing a risk of carrying Covid-19 into the Lone Star State. U.S. Attorney General Merrick Garland responded by having the Department of Justice sue the state to block the implementation of that order. It all raises many questions, not the least of which is why DHS — which is exempted under that order — isn’t transporting those aliens instead.

Four points of background.

First, the number of illegal migrants who have entered the United States this year along the Southwest border is historically high; in fact, monthly apprehensions since April have been running at 21-year records, as I explained on July 16.

Second, the Covid-19 pandemic is rolling on into its 18th month, exacerbated by the emergence of a new strain, the so-called “Delta variant”. It has increased the total number of Covid cases of late, as well as hospitalizations for the illness.

Third, while it has scrapped most of the prior administration’s successful border control policies, the Biden administration left in place Trump-era CDC expulsion orders, which were issued under Title 42 of the U.S. Code in response to the pandemic. Those orders allow DHS to quickly expel migrants who have entered the United States illegally or without proper documents.

As I have previously explained, the Biden administration quickly ended the expulsion of unaccompanied alien children (UACs) under Title 42 (none had been expelled since the practice was enjoined by a district court in November, an order that was stayed in January), but continued to expel adult migrants travelling with children in “family units” and single adult migrants.

Its ability to expel migrants in family units had been impeded by the increasing reluctance of the Mexican government to take them back: Of the more than 50,000 migrants in family units that were apprehended by Border Patrol at the Southwest border in June, fewer than 8,100 were expelled under Title 42.

That said, DHS could always expel those migrants under Title 42 back to their home countries, but apparently has refused to do so.

Fourth, the administration has come under scrutiny (including by me) for the way that it has been handling and releasing migrants at the Southwest border who have tested positive for Covid, while at the same time it expresses concerns about the aforementioned increase in Covid cases in the American population.

For example, on July 29 I discussed reports out of La Joya, Texas, that migrants who had entered illegally and tested positive for Covid were handed over to an NGO for quarantine, but were nonetheless able to leave that quarantine (allegedly unmasked while “coughing and sneezing”) for a meal at a local fast-food restaurant.

It is against these four background points that Abbott issued his order.

He stated therein that “despite the emergence of the” Delta variant “and the fact that vaccination rates are lower in” countries from which those migrants come and through which they have passed, the administration has been allowing migrants who have tested positive for Covid-19 into the United States generally and Texas specifically.

The number of Covid-positive migrants has been on the upswing, according to that order, which asserts CBP “has recently seen a 900 percent increase in the number of migrant detainees who tested positive for COVID-19 in the Rio Grande Valley [RGV].”

Abbott complains that “busloads of migrants, an unknown number of whom are infected with COVID-l9, are being transported to communities across the State of Texas, exposing Texans to the spread of COVID- 19.”

Utilizing Texas state law granting the governor power to “control ingress and egress to and from a disaster area and the movement of persons and the occupancy of premises in the area” (he made such a disaster proclamation on May 31), the order bars anyone other than federal, state, or local law enforcement from “provid[ing] ground transportation to a group of migrants who have been detained by CBP for crossing the border illegally or who would have been subject to expulsion under the Title 42 order.”

The order directs officers from the Texas Department of Public Safety (home to the state’s highway patrol and the Texas Rangers, among other components) to stop vehicles if they have a “reasonable suspicion” that those vehicles are transporting such migrants, and to “reroute” them back to their point of origin or a port of entry if found to be in violation of that order.

It also allows its officers to impound those vehicles, including (if not especially) if they refuse to be rerouted.

Reports suggest the order is “aimed at non-governmental organizations that often transport migrants from Customs and Border Protection stations to shelters and other destinations, as well as at Greyhound buses, which are frequently used by migrants to travel after being released from federal custody.”

Notably, however, that reporting indicates those both NGOs and Greyhound “sometimes operate under contract, or in connection with, the federal government.” I will get back to that, below.

DOJ seeks to enjoin that order, contending that it “would severely disrupt federal immigration operations” because the federal government “relies extensively on contractors, grantees” and NGOs to transport aliens.

Remarkably, DOJ admits that Border Patrol contractors in FY 2021 “have transported more than 120,000” aliens “in just one of the four Texas Border Patrol sectors” — likely the RGV, which has seen the lion’s share of migrant apprehensions (more than 331,000, up more than 313 percent from FY 2020) this fiscal year. They are making Abbott’s point.

DOJ further asserts that NGOs have to transport the aliens that CBP releases to them.

As an aside, I note that all aliens who have been apprehended after entering illegally are, by law, supposed to be detained (as I explained on July 29) and none is supposed to be released — to NGOs or anyone else.

The interesting part of DOJ’s pleadings, however, is its assertions that NGOs also “perform the critical role of promptly conducting COVID-19 testing and offering safe placement for isolation and quarantine consistent with public-health mitigation measures.”

Again, that more or less also makes Abbott’s point: DOJ admits that CBP is releasing untested migrants to those NGOs. Once those aliens are out of CBP custody, as the La Joya reporting suggests, there is not much that the NGOs can do to stop those aliens from moving freely in border communities or into the interior of the United States, even if those aliens are Covid-positive.

Finally, DOJ argues that “contractors and grantees” transport UACs for HHS’s Office of Refugee Resettlement (ORR), which by law takes custody of those children after they are apprehended by CBP. Those “contractors and grantees” apparently transport those children between ORR facilities, and also to sponsors and for medical visits.

All of this raises some pretty important questions.

The first is why, exactly, CBP (or ICE, which detains aliens who are apprehended at the border after CBP processes them) cannot transport those aliens instead of NGOs, contractors, or “grantees”.

Until illegal migrants are released (which as noted, by law they aren’t supposed to be), they are in DHS custody.

If the department needs more money to fulfill this duty, it should ask for it, but all DHS components that handle aliens are held to certain detention standards. What standards are NGOs, contractors, and grantees held to?

This is an especially salient point given the pandemic. DHS goes on and on about its Covid protocols, but do those protocols apply to NGOs, contractors, and employees? If Texas residents, and Americans as a whole, are to be protected, they need to do so, but what steps — if any — does DHS take to ensure they do?

Second, what does DHS do to make sure that released migrants are not Covid-positive before they get on a common carrier, like Greyhound?

Are untested migrants being placed on buses with the general population? If I were on one of those buses, I would want to know.

Third, and in that vein, why has DHS foisted responsibility for testing migrants onto NGOs?

Shouldn’t they be tested before DHS (illegally) releases them? If I were Abbott, I would take any steps I could to prevent them from being released at all, and certainly to prevent them from being released from DHS custody before it can be assured that they are not carrying the novel coronavirus or its variants.

Fourth, why is ORR, or its contractors and grantees, transporting children to sponsors in the United States?

Many of those sponsors are the children’s own parents, and almost all are family members (and almost all are here illegally themselves). As I explained on March 22, most paid the smugglers to bring those UACs to the United States to begin with.

If they can pay thousands of dollars to a smuggler, can’t they buy a plane ticket to come and pick up their child, niece, nephew, or grandchild themselves?

I have no idea whether DOJ will be successful in its suit, or whether Abbott’s order will be allowed to stand. In any event, however, both the governor’s order and DOJ’s motion to enjoin it have revealed a lot about what is going on at the Southwest border — and raised even more questions for a country that suffers under the threat of new pandemic restrictions, while the border remains open to illegal migration.