Texas Legislature tries again with bills making illegal border crossings a state crime

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Texas lawmakers have already gotten to work on the fourth special session of the year where Republicans will once again attempt to pass a sweeping immigration law that would allow state and local law enforcement to more easily arrest and prosecute people who cross the border from Mexico.

Republican lawmakers who control both chambers have largely been in agreement about their desire to pass the border security legislation — but in the most recent special session that ended Tuesday, their efforts unraveled amid political bickering.

On Tuesday, the warring chambers signaled they’d come to an agreement.

Sen. Charles Perry, R-Lubbock, and Rep. David Spiller, R-Jacksboro, filed identical immigration bills — Senate Bill 4 and House Bill 4 — that would empower Texas peace officers to arrest undocumented immigrants and require that a state judge order the person to leave the U.S. to Mexico in lieu of prosecution.

“Our shared priority has always been securing our southern border and developing a better process to address illegal immigrants that enter the State of Texas,” Perry said. ”The identical bills filed today chart a new path forward for our state.”

In his call for the latest special session, Gov. Greg Abbott asked lawmakers to address education and border security — both of which failed to pass after repeated efforts this year. On school vouchers, Republicans are at odds with a small faction of House Republicans aligning with Democrats who oppose the public subsidy for private schools. But Republicans have been on the same page in principle as they pushed for new border measures.

Abbott specifically asked the Legislature to pass laws that mirror the language from the House and Senate’s most recent efforts and called on the Legislature to make it a state crime to cross the border illegally from Mexico into Texas — it’s already a federal crime. And he asked for more funding for the construction of border barriers.

In the most recent special session, the House and the Senate each passed their own versions of those bills, which died when each chamber refused to consider the other chamber’s legislation.

Both chambers’ bills would have also empowered police to arrest undocumented immigrants, but they were at odds over what should happen after an arrest. One bill proposed prosecuting immigrants and turning them over to immigration agents after they serve their state sentence. The other proposed transporting them to a port of entry and ordering them to return to Mexico.

Now, Perry and Spiller have combined some of the language to reach a compromise.

Perry said both of the newly-filed bills still authorize state law enforcement officers to arrest any person who illegally enters or re-enters Texas. After immigrants are fingerprinted and receive a background check, they would appear before a magistrate or judge, Perry said, then they will be taken to a port of entry and ordered to leave the country.

It’s already illegal under federal law to cross the border between ports of entry; immigrants can be prosecuted for entering the country illegally and face between six months and two years imprisonment.

Immigration experts say the proposal would provoke constitutional challenges, as federal courts have repeatedly ruled that immigration law enforcement falls under federal jurisdiction.

Sergio Méndez Silva, a lawyer with Mexico City-based human rights organization, Fundación para la Justicia, said what Texas is attempting to do is illegal and will violate the human rights of immigrants attempting to seek safety.

“Mexico must strongly reject any intention of the Texan government to attempt to expel migrants illegally,” he said.

Political crossfire

Ultimately, the border legislation failed to pass the most recent special session because it got caught in the crossfire between Lt. Gov. Dan Patrick, who leads the Senate, and House Speaker Dade Phelan — both of whom touted their desire to pass strong border security measures.

The House and the Senate both proposed similar legislation to allocate $1.5 billion toward further construction of a border barrier with Mexico; those bills also died when neither chamber took action on the other’s version of the bill.

On Tuesday, Republican lawmakers in both chambers came to an agreement and filed identical bills that would allocated $1.5 billion for border barriers, plus $40 million to pay state troopers to patrol Colony Ridge, a Houston housing development that far right publications have said is a magnet for undocumented immigrants.

The impasse escalated in the final days of the session as leaders of both chambers blamed each other for not passing bills to criminalize border crossing.

As the session wound down without a compromise, Patrick took a shot at House Speaker Dade Phelan on social media.

“The Speaker is desperate to improve his border credentials with conservatives,” Patrick said. “The bill’s author claimed it’s the toughest border bill ever, but it is simply a Texas-sized catch-and-release bill.”

Phelan fired back, saying his chamber “will not be lectured on border security by a Senate that has weakened our bill substantially and wants to further empower the federal government to turn migrants loose.”

If Texas lawmakers pass a law making illegal entry a state crime, it will likely force a showdown with the Biden administration — and the resulting jurisdictional dispute could potentially end up before the U.S. Supreme Court.

In the landmark 2012 case, Arizona v. U.S., the Supreme Court ruled that local police didn’t have the authority to arrest someone solely based on their immigration status.

Perry said during a committee hearing last month that instead of building border barriers, lawmakers should focus on getting the Biden administration’s attention, and the way to do it is to approve legislation that would allow police to “start catching people and sticking them in detention camps.”

“Whether it’s constitutional or unconstitutional, that’s yet to be determined,” Perry said. “But that will get the federal government's attention quicker than any action that we can create.”

Spiller said in an interview during the previous special session that his intention isn’t “to subvert what the federal government can do or be in conflict with that. But do I have a problem with the Biden administration? You’re damn right I do.”

“That's the fight I want to have with them,” he added. “Just tell them: Do your job.”

Constitutional questions

Most immigrants crossing into Texas are from countries other than Mexico, which could be an issue if Texas wants to deport them to Mexico.

In fiscal year 2023, which ended on Sept. 30, about 83% of the 1 million immigrants encountered by Border Patrol on the Texas-Mexico border were not Mexican citizens. Many are coming from Central and South America, Asia or Eastern European countries. Some are also from Canada.

Tonatiuh Guillén López, Mexico’s former chief of the National Immigration Institute, the country’s immigration regulatory office, said that like the U.S., Mexico’s immigration policies are set by Congress and enforced by the federal government. He said that if Texas tries to remove migrants, it would be unlikely that Mexico would accept them because countries only negotiate on immigration matters with other countries’ federal governments.

“I doubt that the state has legal authority to do so. Texas can’t do this because Texas doesn’t have a diplomatic relationship with Mexico,” Guillén López said.

Méndez Silva, the Mexico City lawyer with Fundación para la Justicia, said Mexico’s supreme court ruled earlier this year that the Trump administration’s “remain in Mexico” program, which forced asylum seekers to wait in Mexico until their U.S. court date, was illegal. He said that ruling indicates that Texas wouldn’t be allowed to deport anyone to Mexico.

“If under these conditions, as the (Mexican) Supreme Court has said, it is illegal in Mexico — because this regulatory framework does not exist and there is a great lack of certainty and security in Mexico — well, it is even worse when Texas, unilaterally, without having jurisdiction in an openly illegal manner, begins to carry out these types of expulsions.”

Rodolfo Rubio Salas, an immigration professor at El Colegio de Chihuahua in Ciudad Juárez, said that what Texas is doing political theater to appease its base.

“The idea is: ‘We are doing something that the federal government should be doing,’ ” he said. “Whether this is enforceable — it’s most likely not — it would get the political gains that they are seeking.”

Kristen Etter, the incoming director of policy and legal services at the Texas Immigration Law Council, said the legislation could lead to violations of migrants’ civil rights. She said police throughout Texas could use the law to target anyone who can’t prove they are in the U.S. legally, including legal immigrants who may not have their papers handy when stopped by the police.

“If the bill was supposed to be limited to the border, then why not just say that? Why not make it clear that this only applies within one mile of the border, 10 miles of the border or, 100 miles of the border? But they don't,” she said. “And it's because they want it to apply statewide and it will be.”

She said that holding someone after they serve their sentence — as the latest bills propose — is illegal unless U.S. Immigration and Customs Enforcement asks a local jail or prison to hold the person for them.

Andrew Henderickson, government relations coordinator with the American Civil Liberties Union of Texas, said a state prosecution could hinder migrants from qualifying for asylum.

Under federal law, a person who enters the country, regardless of whether they did it legally or illegally, has up to a year to apply for asylum.

“I think it just shows another example of how when you have these state laws that are attempting to interact with federal immigration law it just gets complicated very quickly,” he said.