Texas and Biden administration lawyers face off in court over new law making illegal border crossing a state crime

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Lawyers for the Biden administration and Texas faced off in a federal court in Austin on Thursday to argue whether a new state law that would allow police to arrest people suspected of crossing the Texas-Mexico border illegally should go into effect next month.

Senate Bill 4, which Gov. Greg Abbott signed in December, is Texas’ latest attempt to try to deter people from crossing the Rio Grande after several years of historic numbers of migrants arriving at the Texas-Mexico border.

The law makes illegally crossing the border a Class B misdemeanor carrying a punishment of up to six months in jail. Repeat offenders could face a second-degree felony with a punishment of two to 20 years in prison. The law also requires state judges to order migrants returned to Mexico if they are convicted; local law enforcement would be responsible for transporting migrants to the border. A judge could drop the charges if a migrant agrees to return to Mexico voluntarily.

On Thursday, attorneys representing the U.S. Department of Justice and several nonprofit organizations that have sued the state argued that only the federal government can enforce immigration laws. They said that precedent set by federal courts makes clear that states are prohibited from enacting their own restrictions on entry to and removal from the U.S.

Brian Boynton, a deputy assistant attorney general arguing on behalf of the DOJ, rejected the notion that there is an “invasion” at the southern border, a refrain Gov. Greg Abbott has repeated to justify his border efforts.

Boynton also denied that the federal government has “abandoned” its duty to enforce immigration laws.

“There has been no abandonment,” Boynton said during a roughly hourlong argument in a packed courthouse. He added that the federal government has removed more than 400,000 migrants from the country since May, when the Biden Administration ended Title 42, the Trump-era policy that allowed officials to quickly expel migrants from the country.

Since March 2021, Abbott has implemented various tactics, including sending state troopers and the National Guard to different parts of the state’s 1,200-mile border with Mexico; arresting migrants and charging them with trespassing; erecting barriers on land and water; and most recently, blocking U.S. Border Patrol agents from entering a city park in Eagle Pass and enclosing the area with concertina wire.

Meanwhile, the Texas Attorney General’s Office has repeatedly sued the Biden administration over its immigration policies, characterizing them as open border policies. Some of those legal cases have gone to the conservative-majority U.S. Supreme Court, which has ruled in favor of the Biden administration, reaffirming decades-long precedent that the federal government has sole authority over immigration laws.

Last year, the state Legislature approved SB 4, which put Texas on a legal collision course with the federal government over immigration enforcement.

In December, ​​the American Civil Liberties Union, the ACLU of Texas and the Texas Civil Rights Project sued Texas on behalf of El Paso County and two immigrant rights organizations — El Paso-based Las Americas Immigrant Advocacy Center and Austin-based American Gateways — over the new state law.

The following month, the Justice Department filed its own lawsuit against Texas. The lawsuits have since been combined.

A major point of contention between the opposing parties was whether SB 4 would allow migrants to access the asylum process, which they are entitled to under federal law. Boynton said that if a migrant were arrested under SB 4, they would not have a chance to claim asylum and could be sent back to Mexico, even if that country refused to accept them.

Lawyers for the state of Texas, however, said the law would not impede the asylum process. Ryan Walters, an attorney representing the state, suggested that migrants prosecuted for illegally crossing the border could apply for asylum from a Texas prison.

“There have been a lot of assumptions about the law,” Walters said. “Federal law enforcement can still come in and do credible fear interviews. There’s no difference from other cases where migrants are in Texas custody.”

But U.S. District Judge David Ezra said during the hearing that judges presiding over SB 4 cases will ultimately be forced to decide whether to abide by federal or state law. While SB 4 states that a court “may not abate the prosecution of an offense” on the basis that a federal determination of the immigrant's status is pending, federal law asks that courts do take an immigrant’s asylum application into account.

Ezra also took issue with the fact that SB 4 would allow state judges to hear felony immigration claims. Typically, federal judges with lifetime tenure, known as Article III judges, have jurisdiction over cases where federal prosecutors seek criminal charges for immigration offenses, such as illegal entry.

“Someone who faces a possible 20-year sentence won’t have the benefit of an Article III judge,” Ezra said. “That is an issue of some concern.”

Ezra asked the state’s lawyers considerably more questions than he asked of the DOJ lawyers. He took jabs at state lawmakers, stating that “a little more care should have gone into drafting” SB 4, and at several points he joked that the state’s attorneys were in a difficult position.

Ezra rebuffed the state's argument that there is an "invasion" at the border.

"I haven't seen, and the state of Texas can't point me to any type of military invasion in Texas," Ezra said. Abbott has invoked the word "invasion" to describe the influx of migrants at the border because a clause in the U.S. Constitution prohibits states from engaging in war unless invaded.

"I don't see evidence that Texas is at war," Ezra said.

At the same time, Ezra said he sympathized with the state’s concerns about the border.

“This court is not unsympathetic to the concerns raised by Abbott,” said Ezra, noting that he has lived in immigration hot spots such as Phoenix and Tucson as well as on the border in Del Rio. “I’m very familiar with the concerns and to some substantial degree agree with those concerns.”

Ezra said at the end of the hearing that he would try to make a decision as soon as possible and well ahead of March 5, when SB 4 is scheduled to take effect. He predicted that his decision would be appealed and that the case would ultimately make its way to the U.S. Supreme Court.

Before the hearing began, immigration rights advocates gathered outside the courthouse to condemn SB 4 and to demand a halt to its implementation. Advocates said the law would not only impact the border but would also endanger people of color throughout the state.

“SB 4 will turn every police officer in Texas into an ICE agent and every judge into an immigration judge,” said Kristin Etter of Texas Immigration Law Council, a nonprofit that provides legal resources to immigrants and refugees. “SB 4 has statewide implications, turning every immigrant or somebody who looks or sounds like an immigrant into a potential criminal and subject to state deportation.”

Still, supporters of the new state law believe it is constitutional.

“We look forward to that fight in court,” state Rep. David Spiller, R-Jacksboro, said last week during a news conference with Abbott and other Republican lawmakers in Eagle Pass that was heavy on criticism of the Biden administration’s border policies. “I know his Department of Justice has filed a suit to contest that. To that I say, ‘Bring it, we're ready for that fight.”

DOJ says Texas law interferes with federal immigration law

The DOJ argues that SB 4 interferes with federal law, and even if the Texas law attempts to mirror federal law, it’s still problematic because it doesn’t provide migrants access to the asylum process and could affect diplomatic relations with Mexico — one of the country’s largest trading partners.

In 1952, Congress approved the Immigration and Nationality Act, which regulates immigration in the country and includes federal statutes that prohibit entering the country illegally.

“The United States has been enforcing federal crimes of illegal entry and illegal reentry in Texas since they were enacted in 1952,” DOJ lawyers argue in court documents. “Yet Texas has gone at least seven decades without an unconstitutional state counterpart like SB 4.”

SB 4 would also interfere with the asylum process, the DOJ argues.

“Noncitizens can generally apply for asylum even when they have not entered through a port of entry,” the DOJ lawyers argue. “But if asylum applicants may be arrested, prosecuted, detained, and removed by Texas during the pendency of their application, they will be prevented from participating in federal processes that allow for a grant of asylum or related protection from removal.”

The DOJ also argues that if SB 4 goes into effect, it could lead to migrants attempting to cross the border illegally in New Mexico, Arizona or California, which would force the U.S. Department of Homeland Security, the agency that oversee immigration enforcement agents, to “reallocate its assets, resources, and personnel, which would be a significant undertaking.”

If the law isn’t stopped, the DOJ argues, it also could inspire other states to pass their own state immigration laws.

“At best, this could create a problematic ‘patchwork’ system of laws,” the DOJ argues. “At worst, there may be a disastrous impact on the federal government’s ability to carry out its core immigration functions.”

During Thursday’s hearing, Ezra said that if other states impose their own immigration laws, the United States would turn into a “confederation,” harkening back to the Civil War era.

SB 4 can also create other unintended consequences, the DOJ argues, by prosecuting migrants who may have permission to enter the country under certain federal programs or being applied to unaccompanied children, who have been given certain protections by Congress.

SB 4 also doesn’t take into consideration the fact that the U.S. has negotiated agreements with Mexico to accept a certain number of migrants from countries that have refused to accept its own deported citizens, the DOJ argued.

“Immigration enforcement involves a sensitive balancing of United States’ interests in national security and foreign relations, including the reciprocal treatment of U.S. citizens abroad,” the DOJ lawyers wrote. “And allowing each State to arrest, detain, prosecute, and remove foreign nationals would fundamentally undermine that delicate balance.”

Lawyers for El Paso County and the immigrant rights groups make similar arguments in their court filings. But they add that Texas’ new law also could lead to racial profiling by police and hurt U.S. citizens who have undocumented relatives.

“The harms of enforcement will be immense,” they argue. “Communities face the arrest and summary removal of loved ones, and the separation of families.”

They cite a landmark federal civil rights case — Ortega-Melendres v. Arpaio — as an example of how giving local police the power to enforce immigration laws may lead to racial profiling. In December 2013, a federal judge in Phoenix found that Maricopa County Sheriff Joe Arpaio’s deputies had racially profiled Hispanic residents during traffic stops and the sheriff’s “immigration sweeps.”

The case stemmed from a 2007 traffic stop, when deputies pulled over a driver who had picked up some men from a church that was being used as a staging area for day laborers. After letting the driver go, the deputies detained Manuel de Jesús Ortega Melendres — a Mexican citizen riding in the vehicle who had a tourist visa that he showed to the deputies — and turned him over to federal immigration authorities. After being held for hours, immigration agents let him go.

Texas argues it picked up a baton the federal government dropped

Lawyers for the state argue that Texas is experiencing a “full-scale invasion of transnational criminal cartels across our southern borders — and Texas is ground zero.”

They argue that Texas has a right under the U.S. Constitution to defend itself against criminal organizations that are responsible for smuggling people and drugs. The Biden administration, instead of helping Texas, has decided to sue the state, Texas’ lawyers argue.

“Even if federal immigration laws somehow did run up against SB4, those statutes could not

be read to vitiate the federal government’s obligation to protect the States from invasion, nor to trump Texas’s constitutional entitlement to defend itself against invasion,” Texas’ lawyers argue.

They also argue that the Biden administration has failed to uphold immigration laws Congress has approved that aim to hold more migrants in detention centers, deny more asylum claims and deport migrants whose claims are rejected.

“The Biden Administration notoriously ignores each of these INA (Immigration and Nationality Act) obligations, and others too, which is akin to posting a flashing ‘Come In, We’re Open’ sign on the southern border,” Texas lawyers write.

Texas lawyers also claim that the Biden administration “refuses to dismiss at the port of entry the waves of economic migrants whose asylum claims are patently frivolous.”

The arguments by lawyers for El Paso County and the immigrant rights groups’ of “how the law will operate is incorrect,” and are speculative since the law hasn’t yet taken effect, the state’s lawyers claim.

“SB4 merely enables one State (Texas) to pick up a baton that the federal government has deliberately dropped,” Texas’ lawyers argue.

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