fascinating analysis. One part that disturbs me. Say a migrant is able to get through the wire, injured, bleeding, but here. Is the border patrol supposed to send them back through that same wire, now injured and thus that much more likely to be unable to save themselves?
It's sort of like a situation during a curfew, when people escaping from a burning building are forced back into the building because they aren't allowed to be on the streets.
“I’m not persuaded. No witness was able to testify that “4,555 migrants entered during this incident.” Instead, Texas’s witness—described as the “Border Czar for the State of Texas”—says that some unspecified Texas National Guardsman gave him that number. Are we supposed to believe that this Texas National Guardsman was able to count up to this precise number during this chaotic incident? Meanwhile, there was testimony at trial that it often takes several days to process detainees, making the number of detainees processed that day completely irrelevant.”
At least 6.3 million migrants have entered the country at and between ports of entry since Biden took office….
this is simply not analogous to the structural injunction issued by Judge Reinhardt, or at least the predictive policy judgment embedded in the excerpted passage.
This is more like a case where there is concrete evidence of disabled prisoners being beaten in a state prison system due to either institutional neglect and passivity or encouragement by the state prison guards.
We might not know precisely how many prisoners are disabled, and due to the nature of prisons and limited public access, evidence of the level of state complicity is hard to come by (similarly, plenty of people—who you likely regard as gauche and untrustworthy—have attempted to enter migrant holding facilities scattered across the country to film, and reveal to the public the level of taxpayer resources being expended, but they are kicked out by govt officials).
In the hypothetical, the judge issues an injunction requiring the disabled inmates be housed in separate facilities, despite the existence of statute granting prison guards discretion to house disabled and able-bodied inmates together.
Perhaps the injunction can be criticized on the grounds that it may require costly compliance measures. But we know that segregating the inmates will prevent further beatings, and that the prior conduct of the prison guards justifies the judge in foreclosing their opportunities to exercise statutorily-conferred discretion.
releasing prisoners and asserting that this will not harm the public does not involve the common sense judgments outlined above. Instead, it involves weighing into a fraught policy debate, with competing claims based on neuroscience, and conflicting interpretations of data. Also Reinhardt s “factual finding” was wholly predictive, and not based on previous cases where mass prison releases did not result in crime increase.
But it’s perfectly consistent to say that (a) the situation at the border is dysfunctional for any number of reasons (bad laws, bad DHS policies, insufficient funding), and (b) on the narrow issue of fence-cutting at Eagle Pass, the officers on the ground properly exercise discretion, or at least there’s insufficient evidence that they don’t.
I would think that in answering B)—specifically whether migrants were monitored as they walked the mile to the processing facility or whether they were basically allowed to enter the interior—a district judge could properly take judicial notice of the background facts concerning the migrant crisis.
And these facts include an unprecedented inflow of migrants into the US interior; DHS (in coordination with various nonprofits) transporting and dispersing migrants into the interior with no apparent intention of processing asylum claims or preparing them for possible deportation; and incredible evasiveness and duplicitousness from the federal government about the administration’s policy and true intentions.
These background facts could permissibly color the district judge’s views of the credibility of the border patrol agents, and prompt him to discount their testimony that no migrants fled into the interior during that mile-long walk.
And in light of widespread footage of large caravans of migrants streaming into the US interior, the judge could permissibly credit the testimony of the unidentified texan. And its a very hard ask for citizens witnessing streams of migrants pouring by to get a precise headcount.
Even without taking judicial notice of DHS' general fecklessness, the district judge specifically noted the testimony offered by CBP officials was inconsistent with the documentary evidence (i.e., video) and otherwise contained indicia of unreliability. The proposition that he should trust the discretion of enforcement officers whose testimony he specifically concluded not to be credible seems, well, incredible.
It seems perplexing to me if correct legal arguments all take the shape of making it easier, not harder, for illegal immigration to happen. In particular it's perplexing, in commonsense terms, to interpret border patrol agents' duties as being to detain migrants, and thus to let them over the border to be detained, rather than not let them over the border at all. I mean, at that point, why have a border patrol at all, if the net effect is for them to bring *more* migrants over the border, to 'process' them?
When supposedly correct legal arguments are uniformly anti-commonsense, it is the law or even the structure of 'correct legal arguments' that needs to change.
This story is similar to many others including the MS-13 gangsters that murdered a free abd girl in New York a few years ago. https://abcnews.go.com/US/suspect-arrested-2023-murder-mother-5-killed-hiking/story?id=111157216 This murderous infidel (Victor Antonio Martinez-Hernandez) was allowed to illegally enter the US where he proceeded to rape, Rob and murder a unpossessed saqaliba woman (Rachel Morin), creating 5 motherless children. Of what practical value is it to the dhimmis of America to have violent criminals of all sorts flowing into the US territory where they are just free to roam about at night and day and stalk and kill perfectly good abeed and saqaliba? This would never happen in Saudi Arabia, or Tripoli or any place ruled by Shariah Law where good abeed and saqaliba are protected by Islamic Justice. The basic problem in America seems to be this "democracy" and "diversity" stuff that the dhimmis obsess over, as if "democracy" was itself an objective, rather than a means to an end. The objective of Shariah and of all "civilized" forms of government is to PROTECT THE INNOCENT from Rapists/Robbers/Murderers (e.g., Holy Quran 5:33) , not to facilitate the importation and existence of Rapist/Murderers.
"The district court is making the officers out to be completely incompetent—sending the migrants on their merry way, totally oblivious to the fact that thousands of them are hopping the fence. The officers insist that there were agents stationed along the road and no one ever saw any migrants escape. From my perspective, a conclusion that officers were 'culpable and duplicitous' should rest on more than a hearsay statement from an unidentified Texan with a photographic memory."
This strikes me as an unfair characterization of the district court opinion, which makes pretty clear that part of the "duplicitous" conduct at issue is that based on the objective evidence such as video, the judge concluded CBP's witnesses were not being candid about what really happened.
This is a helpful post (particularly as to the Border Patrol’s authority to turn back aliens at the border) and your bottom-line reaction tracks my own.
The analogy to prison-reform litigation is what immediately came to mind when the SG’s stay application surfaced and I read through the lower court decisions. Once you’ve accepted that Texas doesn’t have an absolute right to prevent interference with the fencing, the notion that this situation is susceptible to management by federal court injunction is just untenable.
The US white supremacy Democracy has abolished slavery and involuntary servitude in North America, depriving millions of pious Islamic people of color of their halal saqaliba and abeed. And the US had abolished many diseases like Polio and Measles. And, obviously the US is not building enough Factories to provide "jobs" to the millions of alien infidels being brought in by Biden. So of what practical value are these Millions of unpious migrant infidels to the United States? And, why import uninspected pious muslim male migrants potentially carrying Polio in from Pakistan and Afghanistan? Do you think that pious Muslims already in the US want their many children to be exposed to Polio and to noxious parasites and viruses imported direct from Africa and South America? It seems, based on your essay, that in order for US "officers [to] have the authority to force the migrants to turn back to Mexico", it would be necessary for Congress to repeal statutes that purport to legalize the non-port entry of aliens carrying unknown parasites and viruses and bacteria who claim "asylum" or "refugee" status? At Elis Island, the State of New York operated a MEDICAL INSPECTION system that accepted and rejected the unwanted kufar based on health inspections etcetera. If the kufar had a fever or a cough (e.g., consumption, tuburculosis) or no apparent job/wife-potential, the State of New York sent them back on the boat (and fined the ship's captain?) Why would Texas be expected to suffer a constant influx of parasites and viruses from Africa and South America without having any way of conducting Medical Inspection (e.g., unable, because they clandestinely crossed at non-port locations)? Why should the US Border Patrol agents expend any time, effort or resources to rescue Migrants who are drowning because they are engaged in attempted increase of their carbon footprints by means of northward migration and non-port entry? Limiting the Carbon Footprint of Migrants must continue to be the top priority of the Obama Administration. Migrants entering the US multiply their carbon footprint by 50x or 100x depending on their point of origin. Migrants that drown in a river do not multiply their carbon footprints. Fish, turtles and crocodilians also need to eat. Did the Dhimmi Congress pass a law obligating Border Patrol to do help people to multiply their carbon footprints?
fascinating analysis. One part that disturbs me. Say a migrant is able to get through the wire, injured, bleeding, but here. Is the border patrol supposed to send them back through that same wire, now injured and thus that much more likely to be unable to save themselves?
It's sort of like a situation during a curfew, when people escaping from a burning building are forced back into the building because they aren't allowed to be on the streets.
“I’m not persuaded. No witness was able to testify that “4,555 migrants entered during this incident.” Instead, Texas’s witness—described as the “Border Czar for the State of Texas”—says that some unspecified Texas National Guardsman gave him that number. Are we supposed to believe that this Texas National Guardsman was able to count up to this precise number during this chaotic incident? Meanwhile, there was testimony at trial that it often takes several days to process detainees, making the number of detainees processed that day completely irrelevant.”
At least 6.3 million migrants have entered the country at and between ports of entry since Biden took office….
Uh, isn't the number given by an unspecified Texas National Guardsman pretty precisely what "hearsay evidence" is? And the court accepts it as gospel?
Surely any presumption of regularity has been rebutted at this late date
this is simply not analogous to the structural injunction issued by Judge Reinhardt, or at least the predictive policy judgment embedded in the excerpted passage.
This is more like a case where there is concrete evidence of disabled prisoners being beaten in a state prison system due to either institutional neglect and passivity or encouragement by the state prison guards.
We might not know precisely how many prisoners are disabled, and due to the nature of prisons and limited public access, evidence of the level of state complicity is hard to come by (similarly, plenty of people—who you likely regard as gauche and untrustworthy—have attempted to enter migrant holding facilities scattered across the country to film, and reveal to the public the level of taxpayer resources being expended, but they are kicked out by govt officials).
In the hypothetical, the judge issues an injunction requiring the disabled inmates be housed in separate facilities, despite the existence of statute granting prison guards discretion to house disabled and able-bodied inmates together.
Perhaps the injunction can be criticized on the grounds that it may require costly compliance measures. But we know that segregating the inmates will prevent further beatings, and that the prior conduct of the prison guards justifies the judge in foreclosing their opportunities to exercise statutorily-conferred discretion.
releasing prisoners and asserting that this will not harm the public does not involve the common sense judgments outlined above. Instead, it involves weighing into a fraught policy debate, with competing claims based on neuroscience, and conflicting interpretations of data. Also Reinhardt s “factual finding” was wholly predictive, and not based on previous cases where mass prison releases did not result in crime increase.
But it’s perfectly consistent to say that (a) the situation at the border is dysfunctional for any number of reasons (bad laws, bad DHS policies, insufficient funding), and (b) on the narrow issue of fence-cutting at Eagle Pass, the officers on the ground properly exercise discretion, or at least there’s insufficient evidence that they don’t.
I would think that in answering B)—specifically whether migrants were monitored as they walked the mile to the processing facility or whether they were basically allowed to enter the interior—a district judge could properly take judicial notice of the background facts concerning the migrant crisis.
And these facts include an unprecedented inflow of migrants into the US interior; DHS (in coordination with various nonprofits) transporting and dispersing migrants into the interior with no apparent intention of processing asylum claims or preparing them for possible deportation; and incredible evasiveness and duplicitousness from the federal government about the administration’s policy and true intentions.
These background facts could permissibly color the district judge’s views of the credibility of the border patrol agents, and prompt him to discount their testimony that no migrants fled into the interior during that mile-long walk.
And in light of widespread footage of large caravans of migrants streaming into the US interior, the judge could permissibly credit the testimony of the unidentified texan. And its a very hard ask for citizens witnessing streams of migrants pouring by to get a precise headcount.
Even without taking judicial notice of DHS' general fecklessness, the district judge specifically noted the testimony offered by CBP officials was inconsistent with the documentary evidence (i.e., video) and otherwise contained indicia of unreliability. The proposition that he should trust the discretion of enforcement officers whose testimony he specifically concluded not to be credible seems, well, incredible.
Where in the opinion is this
It seems perplexing to me if correct legal arguments all take the shape of making it easier, not harder, for illegal immigration to happen. In particular it's perplexing, in commonsense terms, to interpret border patrol agents' duties as being to detain migrants, and thus to let them over the border to be detained, rather than not let them over the border at all. I mean, at that point, why have a border patrol at all, if the net effect is for them to bring *more* migrants over the border, to 'process' them?
When supposedly correct legal arguments are uniformly anti-commonsense, it is the law or even the structure of 'correct legal arguments' that needs to change.
This story is similar to many others including the MS-13 gangsters that murdered a free abd girl in New York a few years ago. https://abcnews.go.com/US/suspect-arrested-2023-murder-mother-5-killed-hiking/story?id=111157216 This murderous infidel (Victor Antonio Martinez-Hernandez) was allowed to illegally enter the US where he proceeded to rape, Rob and murder a unpossessed saqaliba woman (Rachel Morin), creating 5 motherless children. Of what practical value is it to the dhimmis of America to have violent criminals of all sorts flowing into the US territory where they are just free to roam about at night and day and stalk and kill perfectly good abeed and saqaliba? This would never happen in Saudi Arabia, or Tripoli or any place ruled by Shariah Law where good abeed and saqaliba are protected by Islamic Justice. The basic problem in America seems to be this "democracy" and "diversity" stuff that the dhimmis obsess over, as if "democracy" was itself an objective, rather than a means to an end. The objective of Shariah and of all "civilized" forms of government is to PROTECT THE INNOCENT from Rapists/Robbers/Murderers (e.g., Holy Quran 5:33) , not to facilitate the importation and existence of Rapist/Murderers.
"The district court is making the officers out to be completely incompetent—sending the migrants on their merry way, totally oblivious to the fact that thousands of them are hopping the fence. The officers insist that there were agents stationed along the road and no one ever saw any migrants escape. From my perspective, a conclusion that officers were 'culpable and duplicitous' should rest on more than a hearsay statement from an unidentified Texan with a photographic memory."
This strikes me as an unfair characterization of the district court opinion, which makes pretty clear that part of the "duplicitous" conduct at issue is that based on the objective evidence such as video, the judge concluded CBP's witnesses were not being candid about what really happened.
This is a helpful post (particularly as to the Border Patrol’s authority to turn back aliens at the border) and your bottom-line reaction tracks my own.
The analogy to prison-reform litigation is what immediately came to mind when the SG’s stay application surfaced and I read through the lower court decisions. Once you’ve accepted that Texas doesn’t have an absolute right to prevent interference with the fencing, the notion that this situation is susceptible to management by federal court injunction is just untenable.
The US white supremacy Democracy has abolished slavery and involuntary servitude in North America, depriving millions of pious Islamic people of color of their halal saqaliba and abeed. And the US had abolished many diseases like Polio and Measles. And, obviously the US is not building enough Factories to provide "jobs" to the millions of alien infidels being brought in by Biden. So of what practical value are these Millions of unpious migrant infidels to the United States? And, why import uninspected pious muslim male migrants potentially carrying Polio in from Pakistan and Afghanistan? Do you think that pious Muslims already in the US want their many children to be exposed to Polio and to noxious parasites and viruses imported direct from Africa and South America? It seems, based on your essay, that in order for US "officers [to] have the authority to force the migrants to turn back to Mexico", it would be necessary for Congress to repeal statutes that purport to legalize the non-port entry of aliens carrying unknown parasites and viruses and bacteria who claim "asylum" or "refugee" status? At Elis Island, the State of New York operated a MEDICAL INSPECTION system that accepted and rejected the unwanted kufar based on health inspections etcetera. If the kufar had a fever or a cough (e.g., consumption, tuburculosis) or no apparent job/wife-potential, the State of New York sent them back on the boat (and fined the ship's captain?) Why would Texas be expected to suffer a constant influx of parasites and viruses from Africa and South America without having any way of conducting Medical Inspection (e.g., unable, because they clandestinely crossed at non-port locations)? Why should the US Border Patrol agents expend any time, effort or resources to rescue Migrants who are drowning because they are engaged in attempted increase of their carbon footprints by means of northward migration and non-port entry? Limiting the Carbon Footprint of Migrants must continue to be the top priority of the Obama Administration. Migrants entering the US multiply their carbon footprint by 50x or 100x depending on their point of origin. Migrants that drown in a river do not multiply their carbon footprints. Fish, turtles and crocodilians also need to eat. Did the Dhimmi Congress pass a law obligating Border Patrol to do help people to multiply their carbon footprints?