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Appeals court panel taking up provision in Texas border security law

On Wednesday the U.S. Fifth Circuit of Appeals will hear arguments over whether an immigrant harboring provision lawmakers passed nearly two years ago should be implemented.

Undocumented youth and allies showed signs to protest the Supreme Court's decision in 2016, which blocked President Obama's DAPA program.

While Texas lawmakers are just days away from kicking off a legislative session where attention will once again turn to border security, a controversial immigration-enforcement measure in a bill that Gov. Greg Abbott signed in 2015 remains tied up in federal courts.

On Wednesday, a three-judge panel of the U.S. Fifth Circuit of Appeals will hear arguments over whether a provision in a sweeping border security bill that lawmakers passed during the 84th Legislature should be implemented.

Under the provision, a person commits a crime if they “encourage or induce a person to enter or remain in this country in violation of federal law by concealing, harboring, or shielding that person from detection.”

House bill 11 went into effect in September of 2015 but the Mexican American Legal Defense and Educational Fund, or MALDEF, challenged the harboring provision in January 2016.

The civil rights group filed its lawsuit against Abbott, Texas Department of Public Safety Director Steve McCraw and the Texas Public Safety Commission, which oversees the DPS, arguing that the provision violated the Supremacy Clause of the U.S. Constitution, which states that immigration enforcement is only a federal responsibility.

In April 2016, U.S. District Judge David Alan Ezra blocked Texas from enforcing that portion of the bill until the case made it through the judicial process and a final ruling was rendered.

The plaintiffs in the case include David Cruz and Valentin Reyes, two landlords who don’t ask immigration status of their prospective tenants; and Jonathon Ryan, the director of an immigrant services agency. They allege that under the bill’s provisions, they could be accused of a crime for providing shelter space or renting homes to undocumented immigrants.

In his ruling, Ezra said the plaintiffs would likely succeed on the Supremacy Clause claim and the plaintiffs would suffer irreparable harm.

The Texas Attorney General’s office argued in filings last year that the plaintiff have no standing to challenge the bill because it didn't specifically include a punishment for renting properties to undocumented immigrants.

“HB 11 does not forbid individuals to ‘shelter’ unauthorized aliens; it prohibits ‘encourag[ing] or induc[ing] a person to enter or remain in this country in violation of federal law by concealing, harboring, or shielding that person from detection,’ the state’s attorneys wrote in a response dated September 29, 2016. In that pleading, the state also alleged that MALDEF and the other plaintiffs haven’t shown how federal immigration policy “displaces state police power over human smuggling.”

Wednesday’s hearing comes just days before a legislative session in Austin where lawmakers will again debate the state's role in immigration enforcement. Abbott and Lt. Gov. Dan Patrick have vowed to pass legislation that outlaws “sanctuary cities” – the common term for local governments that do not enforce federal immigration laws.

And the Texas Department of Public Safety, which has received the lion’s share of the state’s record-setting $800 million for border security funding approved in 2015, has stated it will seek hundreds of millions more to continue its efforts on the border.

It’s still unclear however, if Republicans will seek to be as aggressive as they were two years ago when they argued state action was necessary because the Obama administration refused to secure the southern border. Although President-elect Donald Trump made border security a top priority during his campaign, state lawmakers have said they will be patient and see what his actual policies look like before dialing back their own border-security efforts.

Read related Tribune coverage:

  • Taking aim at a new Texas law making it a state felony to harbor undocumented immigrants, a national civil rights group announced that it is suing the state.
  • A federal judge has blocked part of the state’s omnibus border security bill that makes harboring undocumented immigrants a state crime.  

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