Immigration news, in context
This is the 108th edition of BORDER/LINES, a weekly newsletter by Felipe De La Hoz and Gaby Del Valle designed to get you up to speed on the big developments in immigration policy. Reach out with feedback, suggestions, tips, and ideas at BorderLines.News@protonmail.ch.
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This week’s edition:
In The Big Picture, we look at the many legal, operational, and communications issues around Texas Gov. Greg Abbott’s border operation.
In Under the Radar, we examine some new border wall construction from pre-approved contracts.
In Next Destination, we discuss a legislative effort to reform the immigration courts.
The Big Picture
The news: A Texas state judge ruled that Gov. Greg Abbott’s Operation Lone Star—a political show to deploy state law enforcement officials and National Guard troops to the border—was unconstitutional, as concerns keep piling up over the program’s goals, impact, and legality.
Despite persistent questions over exactly what Lone Star is meant to accomplish, Abbott has made it a signature policy of his tenure for what very much seem like political purposes, as he postures for a potential run for the presidency in the 2024 GOP primaries. To recap, the mission broadly involves targeting migrants for arrest not on civil immigration grounds, which local authorities categorically do not have the authority to do outside of very specific intergovernmental agreements, but on state criminal trespass grounds. Abbott has devoted significant state resources to it and been sure to have public appearances out on grassy fields surrounded by Humvees to drive home the perception that the situation at the border is more akin to a warzone than an arrival point for what are often families of migrants seeking asylum protections.
Abbott has been crystal clear from day one that the trespassing rationale is a shoehorned-in excuse for what is fundamentally a state-level immigration enforcement initiative, and this has left the state government vulnerable to charges that it is usurping what has always been a federal government function. Indeed that’s exactly what Texas State District Judge Jan Soifer ruled this week in a lawsuit brought by Ecuadoran migrant Jesús Guzmán Curipoma, who was arrested after crossing the border in an attempt to claim asylum. Soifer pointed out the obvious fact that the state was attempting to exercise a federal enforcement prerogative through a barely-disguised mechanism and threw out Curipoma’s arrest, ruling that the state had violated the U.S. Constitution’s Supremacy Clause.
The state has already vowed to appeal the decision (including erstwhile state attorney general, noted securities fraud felony defendant, and Big Lie proponent Ken Paxton, who is not even party to the case), but the fact that this argument has now been made and accepted by a judge probably opens up the floodgates to more such challenges. Even this only encompasses Lone Star’s litigation risks; the whole program has been plagued by almost too many operational, procedural, and PR disasters to properly list.
Most serious among these is the string of deaths among National Guard personnel. Last year, the Army Times began reporting on a series of apparent suicides by soldiers who were assigned to the mission and either on the verge of deploying or already deployed to the mission. While it was initially a volunteer assignment, as part of his effort to ramp up the troop presence, Abbott instituted mandatory deployments, sending as many as 10,000 troops both to the border itself and in support roles more inland. This meant thousands of National Guard soldiers—who are often in a sort of standby state and are typically home with their families and in other occupations when not actively deployed—were sent off to what was essentially a useless show mission for months, away from families and by all accounts spending the bulk of their time doing nothing.
The publication has now reported on an additional apparently alcohol-fueled death among the soldiers on the border force, bringing the total to five deaths in the last several months, as well as one unsuccessful suicide attempt. As we’ve noted before, federal law prevents not only local law enforcement from engaging in federal immigration enforcement, but military personnel from engaging in any domestic law enforcement at all, meaning that the troops aren’t even formally engaged in the arrest efforts, but providing some nebulous assistance to the state law enforcement force that is conducting the arrests.
Beyond the operation’s legal and morale issues, it has been plagued by operational missteps and errors, including the dismissal of charges based on paperwork issues and the arrest of people who were not supposed to be subject to the order. Troops have been filmed trespassing on private property, somewhat comically the very crime that the operation was using as a pretext for enforcement. Migrants rather predictably don’t often understand what’s happening—they are expecting to be detained by Border Patrol and put into civil immigration proceedings, but instead being arrested by Texas law enforcement and prodded to plead guilty to a state misdemeanor crime. Their stay in criminal detention is often short, before being transferred to ICE detention. As we discuss below, this might actually be helping them stay in the country, as it circumvents the Title 42 expulsion process.
How we got here
Operation Lone Star began in July 2021. At first, it was a multi-state effort focused in Texas, with the governors of Arizona, South Dakota, Iowa, and Arkansas deploying their respective National Guard troops to the Texas-Mexico border. Florida, Ohio, and Nebraska sent state highway patrol troopers, and Texas sent local police and National Guard forces as well (this was in addition to the troop presence deployed to the border by the federal government under Trump). Texas governor Greg Abbott claimed that the policy was a necessary step in combating the Biden administration’s supposed “open border” policies—even though Biden had continued the Trump administration’s expulsions of asylum seekers and other migrants at the border under Title 42.
Title 42 is ostensibly a public health measure. It’s the result of a law that allows federal health authorities to authorize the expulsion of any person or group of people whose presence in the U.S. could lead to the introduction or spread of the communicable disease. In the spring of 2020, the Trump administration used Title 42 to, in effect, deny entry to all asylum seekers at the border, arguing that their presence in the U.S. could have dire public health consequences. Rather than processing asylum seekers at the border and giving them a court date, immigration officials turned migrants away immediately without any kind of hearing. Since there was no legal record of expulsions, migrants sent back to Mexico under Title 42 often made repeat attempts to enter the U.S., creating an impression that border crossings were at an all-time high. In reality, border encounter statistics reflect individual crossing attempts, not the number of people crossing. In other words, a migrant who crossed the border three times would count as three encounters or apprehensions.
Abbott and his political allies used these figures to argue that the Biden administration had “opened” the border to an unprecedented number of migrants, even as Title 42 expulsions continued. To be clear, the Biden administration did allow for some exemptions to Title 42. Exceptions depended on a host of factors, including a migrant’s nationality and where they were apprehended. Even now, the majority of migrants encountered at the border are expelled under Title 42. According to the latest CBP data, there have been 177,491 Title 42 expulsions during this fiscal year, which began in October 2021. Just over 147,000 migrants have been admitted into the U.S. under Title 8 in that timeframe.
Biden and Trump’s policies towards asylum seekers at the border have been more or less the same. Though the Biden administration allowed for more exceptions to Title 42 expulsions, migrants are still being sent back to Mexico en masse. Federal immigration policy towards asylum seekers has hardly changed since the spring of 2020, despite Abbott’s claims.
Still, Abbott claimed the Biden administration was refusing to enforce immigration policy—and said that if the federal government wouldn’t enforce the law, then state and local governments had to fill the gap. There are a few problems with that reasoning, the most glaring of which is that state and local governments cannot enforce federal immigration law. (There are instances in which state and local governments can be deputized to do so, a program known as 287(g), but those are the result of partnerships with ICE or other immigration enforcement agencies, not of unilateral decisions by state governors.) Given those constraints, the police and troops sent to the Texas-Mexico border couldn’t arrest migrants on immigration grounds, so they instead arrested migrants for criminal trespassing.
One perhaps unexpected consequence of Lone Star is that those arrests undermine Title 42 expulsions. As BuzzFeed News reported in December, migrants arrested for trespassing under Lone Star aren’t expelled. They’re taken into criminal custody and eventually transferred to ICE detention; some of the migrants arrested under Lone Star have been able to file asylum applications, which they wouldn’t have been able to do if they had been expelled. Texas RioGrande Legal Aid, an organization that provides legal help to migrants, told BuzzFeed News that 115 of the 120 asylum seekers the organization has information about have been able to pursue their asylum cases. Of course, Abbott is not trying to make it easier for migrants to file asylum applications, even if that’s the unintended effect of his policy.
It probably wouldn’t have taken a brilliant legal mind to arrive at the conclusion that Lone Star was a clear effort by a state to usurp the authorities delegated exclusively to the federal government. Abbott certainly hasn’t made much of an effort to conceal the fact that he believes his dog and pony show is a necessary infill to the abdication of responsibility by the Biden administration (a ridiculous sentiment for a variety of reasons). In fact, he’s touted it, using it as electoral fodder, particularly as he feels the heat from a primary challenge by former Congressman and unabashed crank Allen West, a person whose Wikipedia page includes an entry labeled “Iraq torture incident.”
There will be a lot more such challenges, and they face decent prospects. “We thought the federal government wasn’t doing a good job so we took over” might be a solid political argument, but it’s a terrible legal one, particularly with something as clearly reserved for the feds as immigration enforcement. Beyond that, it could well start to become less of a political asset and more of a political liability if the National Guard suicides scandal grows. It doesn’t take much of a stretch to lay at least some responsibility directly at Abbott’s feet. Plus, if there’s one thing Texans like, it’s their property rights, and having cops and soldiers patrolling private property to arrest trespassers might start to look a lot like the state itself continuously trespassing.
It’s certainly not the first time that a state tries to take matters into its own hands when it comes to immigration. The most direct parallel is the infamous Arizona SB 1070, sometimes called the “show me your papers” law, which was signed now more than ten years ago. In its original form, the law would have made it a state crime for noncitizens to not carry immigration documentation, as well as for anyone to attempt to hire or shelter an undocumented person, among other provisions. Most of its provisions were struck down by the Supreme Court in 2012, but the court did allow a provision that enabled state law enforcement to question people on their immigration status if they had a “reasonable suspicion” to believe they were in the country unlawfully.
Studies in the intervening time have shown that, overall, the law decreased immigrant communities’ trust in the government and local authorities. Even if Lone Star is terminated, it might have some long-term impact on the relations between immigrant groups and state authorities in Texas (not that one would imagine these relations to be particularly warm in the first place). It also further sets the stage for actions like this, as governors test the waters of using their own executive authorities to directly defy the federal government. It’s immigration today, relatively low-hanging fruit for conservative politicians, but tomorrow it might be voting rights, or the certification of an election.
Under the Radar
Border wall construction continues under Biden
Federal contractors are once again working on Trump’s border wall in south Texas, according to Border Report. A CBP spokesperson told Border Report that the construction crew in that area is working on “previously approved levee remediation work.” But environmental activists who have long opposed the border wall say the ongoing construction is detrimental to wildlife in the Rio Grande Valley.
Construction will also resume in Arizona, California, and other parts of Texas. As CBS News reported in December, the Department of Homeland Security announced that it would use border security funds previously allocated by Congress to close gaps in the wall and conduct environmental and clean-up projects in areas where the wall has already been built. The Biden administration has challenged the notion that it’s continuing Trump’s construction project, and has instead characterized the recent construction as an attempt to make the existing structure more safe. “We would say that that's existing barrier right there that we are addressing, like an open, unsafe construction situation, versus adding additional mileage, which would be adding new barrier,” a senior CBP official told CBS News.
Lofgren may introduce a bill to overhaul the immigration courts
California Rep. Zoe Lofgren has been drafting on a bill that would make federal immigration courts an independent entity, the San Francisco Chronicle reports. Lofgren, who chairs the House Judiciary Subcommittee on Immigration, is reportedly still working on the bill. Early drafts of the bill obtained by the Chronicle suggest that the final piece of legislation would call for an immigration court system that is similar to the current one in structure, but wholly separate from the Department of Justice, which currently oversees the nation’s immigration courts.
Under the current system, the courts are managed by the Executive Office for Immigration Review, an agency within DOJ. The Attorney General is therefore in charge of the entire system and has the power to override immigration judges’ rulings. For example, Trump’s attorneys general used their power of executive review to rule that immigration judges could no longer grant asylum to migrants who are fleeing gang persecution, domestic violence, or other forms of interpersonal violence. Attorneys general (and the officials they appoint) have also set quotas on how many cases immigration judges are expected to process in a given timeframe, a move that immigration judges say limits their discretion.
The National Association of Immigration Judges has been calling for independent immigration courts for several years, and in 2020 told the House subcommittee that Lofgren chairs to that “America needs an immigration court that is free from improper influence on the decisions of immigration judges.”