Texas now arresting migrants found near the border for “trespassing”—07-23-21

Immigration news, in context

This is the eighty-eighth 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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NOTE: Felipe was diagnosed with Covid yesterday and is under the weather, so it’s just Gaby today. Like last week, we’ll have a somewhat abridged version of BORDER/LINES consisting mainly of my analysis of Texas’s attempts to “crack down” on border crossings. (If you’re feeling sick, please go get a Covid test! You never know.)

This week’s edition:

  • In The Big Picture, we analyze the Texas government’s workaround attempt to enforce federal immigration law by arresting migrants for trespassing.

  • In Under the Radar, we take a look at rising Covid case numbers in ICE detention.

  • In Next Destination, discuss the recent House bill that would increase the number of available special immigrant visas for Afghans who helped U.S. forces during the war in Afghanistan.

The Big Picture

The news: Texas is now arresting migrants for trespassing on private property as part of Gov. Greg Abbott’s “Operation Lone Star,” a plan to crack down on the increase in migrants at the border. Meanwhile, the Biden administration continues to expel most migrants encountered at the border, including those in Texas, under Title 42.

The takeaways:

Texas state troopers have begun arresting migrants found crossing the border on trespassing charges as part of Gov. Greg Abbott’s plan to “crack down on illegal border crossings” in the state. The state is detaining migrants arrested for trespassing at the Briscoe Unit, a state prison in Dilley that was emptied to detain migrants. Per the Texas Tribune, there were three migrants in the facility as of July 21, and authorities expect to soon arrest as many as 50 people per day in the coming weeks. By August, they expect more than 200 daily arrests of migrants at the border. Abbott has deployed roughly a quarter of the state police force—around 1,000 officers—to counties near the state’s border with Mexico.

Local and state authorities generally can’t enforce federal immigration laws. (There are some programs, such as 287(g), that let local police departments and sheriff’s offices aid in immigration enforcement, but those operate in a far more limited capacity than what’s happening in Texas right now.) To get around that, the Texas Department of Criminal Justice is charging people suspected of illegally crossing the border with criminal trespassing or criminal mischief, both of which are misdemeanors. Much of the land on the Texas-Mexico border is privately owned. “If you cross the river—and almost everyone down there has posted ‘no trespassing signs'—so once you cross and get on the property, you will be picked up and taken to jail for trespassing,” the Val Verde County Judge told reporters last week. 

The arrests are the latest step in Operation Lone Star, Abbott’s plan to redirect law enforcement and other resources from other parts of the state to the border in response to a perceived migration crisis. In February, the month before Abbott announced Operation Lone Star, 64,248 of the 97,639 migrant encounters along the border occurred in one of Texas’s five Border Patrol sectors, according to data from Customs and Border Protection. The majority of those encounters were in the Rio Grande Valley, where federal immigration officers logged 28,402 migrant encounters in February, a 323 percent increase from February 2020.

But those numbers don’t tell the whole story. Seventy percent of the migrant encounters in Texas that month resulted in Title 42 expulsions, a Trump-era policy kept in place by the Biden administration that rapidly returns migrants encountered at the U.S.-Mexico border to Mexico—or, in some cases, to their country of origin—without due process. (We’ve explained Title 42 in depth in previous editions. To put it briefly, it’s an ostensible public health measure that allows the Centers for Disease Control and Prevention to bar admission of certain people at the border in order to prevent the “introduction or spread” of a communicable disease.) Customs and Border Protection officers logged more than 64,000 migrant encounters in Texas this February; of those, more than 45,000 led to expulsions. It’s important to note that the total number of encounters and expulsions doesn’t necessarily tell us how many people are being apprehended at the border. Because of the way Title 42 works, many migrants attempt repeat crossings. Earlier this year, a CBP spokesperson told Reuters that nearly 30 percent of the people apprehended at the border in April 2021 had previously tried crossing at least once.

Generally speaking, apprehension numbers across the border are going up. In June, the most recent month for which CBP has published complete data, border officers logged 178,416 apprehensions. Of those, 126,407 were in Texas. More than 57 percent of June apprehensions along the entire border led to Title 42 expulsions, but the numbers vary based on region. In El Paso, 82 percent of June apprehensions resulted in an expulsion. That figure was 90 percent in the Big Bend sector, 48.7 percent in the Del Rio sector, 90 percent in the Laredo sector, and 37.7 percent in the Rio Grande Valley sector. 

These figures are further complicated by the fact that apprehension numbers vary widely from sector to sector; the Rio Grande Valley leads in apprehensions, with 59,380 in June, and it’s also one of two Border Patrol sectors in Texas where most migrants are actually being let into the U.S. to apply for asylum. It’s also the only Texas Border Patrol sector where the majority of migrants immigration officers encounter are families or unaccompanied children. Of the 59,380 migrant apprehensions in the Rio Grande Valley in June, 27,777 were members of families and 8,386 were unaccompanied minors. 

If the data indicate anything, it’s not that the Biden administration has implemented the “open borders” policies Abbott and his allies claim, but rather that most migrants are still being turned away under Title 42, with some exceptions. The Biden administration said it wouldn’t expel unaccompanied children, and it has allowed some families to be processed and placed in deportation proceedings. (The administration was reportedly considering ending expulsions of migrant families by July 31, but more recent reports suggest that the program’s end may come later than expected.) 

Multiple things can be true at once. Month after month, CBP is logging more apprehensions along the southern border—including in Texas, where single adults continue to be expelled en masse while unaccompanied children and some family groups are being let into the U.S. to file asylum claims. But as the American Immigration Council recently explained, across the border, “significantly fewer people are being admitted into the United States and placed into normal deportation proceedings when compared to 2019, even when considering the increased numbers of single adults and a record number of unaccompanied children.”

Again, it bears mentioning that Abbott doesn’t have the legal authority to enforce federal immigration law. The state troopers deployed to the border are arresting people for trespassing and criminal mischief, both of which are state misdemeanors. Under normal circumstances—i.e., the pre-Covid, pre-Title 42 state of affairs—a non-citizen taken into criminal custody at the local or state level would have their fingerprints automatically sent to immigration authorities via a network of federal databases, and often being charged with a crime triggers deportation proceedings. For migrants apprehended at the border—who can also be charged with illegal entry under 8 U.S. Code § 1325 if they enter the U.S. without inspection between ports of entry—deportation proceedings double as asylum proceedings, with asylum protections functioning as a potential relief from deportation. 

But with Title 42 in place, it’s entirely possible that migrants arrested for trespassing could be held in criminal custody, transferred to Immigration and Customs Enforcement, and then expelled back to Mexico. The legality of holding migrants in congregate settings such as jails and immigrant detention centers for prolonged periods of time, and then expelling them to Mexico because their admission into the U.S. poses a supposed public health challenge, could ultimately be called into question. 

Under the Radar

Covid cases on the rise in certain ICE facilities

More than 1,300 immigrants in ICE custody have tested positive for Covid and are being held in isolation or monitoring, according to ICE data. The increase in cases in ICE detention centers comes amid a national surge in coronavirus cases as the Delta variant spreads across the country. Notably, the cases in ICE detention facilities mirror national trends: facilities located under the purview of ICE’s El Paso, Houston, and San Antonio field offices account for the majority of current cases. According to a recent CNN report, three states with low rates of vaccination—Texas, Florida, and Missouri—accounted for 40 percent of all Covid cases nationwide this week.

As of early July, just over 1,300 immigrants in ICE custody had been fully vaccinated, and an additional 8,221 had received one dose of the vaccine according to data obtained by CBS News. It’s unclear which vaccines people in ICE custody have been offered, and whether any of those figures represent the Johnson & Johnson vaccine, which only requires one dose. At the time of the CBS report, there were more than 27,000 people in ICE custody. 

Earlier this year, ICE facilities in Louisiana and Mississippi experienced Covid outbreaks, according to reporting from BORDER/LINES Felipe De La Hoz in The Intercept. The increase in cases in these facilities coincided with ICE transfers through a Mississippi facility where cases were on the rise, which spread the virus to other parts of the country. 

Next Destination

House passes bill authorizing 8,000 visas for Afghan allies

The House voted to authorize 8,000 more visas for Afghan nationals who helped American forces during the war in Afghanistan and may now face retribution in their country. The bill would expand the number of available special immigrant visas for Afghans from 11,000 to 19,000 and would expand eligibility requirements, the New York Times reports. Under the new requirements, anyone who helped the U.S. government during the war would be defined as facing retribution and would be able to apply for a visa, as would their surviving spouses and unmarried children under the age of 21. Under the current requirements, applicants must submit proof they either had a “sensitive and trusted job” during the war or a sworn statement that they faced specific threats due to their work on behalf of the U.S.

Per the Times, the bill could end up stalling in the Senate despite broad bipartisan support for expanding the special immigrant visa program Afghans. However, CQ Roll Call notes that a Capitol supplemental security spending proposal introduced by Sen. Patrick Leahy, the chair of the Senate Appropriations Committee, would increase the total number of Afghan special immigrant visas from 26,500 to 46,500. 

There are currently more than 20,000 Afghans waiting for special immigrant visas, half of whom have not finished the first steps of the application process. The Biden administration plans on evacuating 750 applicants who are further along in the process to the U.S. soon, and will move an additional 4,000 Afghan applicants to a safe third country to await the processing of their claims.