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Federal judge disputes Texas' invasion claim during sweeping immigration law hearing

Kristin Etter, director of policy and legal services at the Texas Immigration Law Council, talks to opponents of Senate Bill 4 outside the federal courthouse in Austin on Thursday, February 15, 2024.
Sergio Martínez-Beltrán
/
The Texas Newsroom
Kristin Etter, director of policy and legal services at the Texas Immigration Law Council, talks to opponents of Senate Bill 4 outside the federal courthouse in Austin on Thursday.

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The state of Texas squared off today in federal court against the U.S. Department of Justice and a coalition of immigrant rights groups that argue a sweeping, new state border enforcement bill is unconstitutional.

Senate Bill 4, which was approved by the Texas Legislature late last year, authorizes a judge or magistrate to order a migrant to return to Mexico, regardless of their nationality. It also makes it a state crime to enter Texas from Mexico without authorization. The measure was signed into law by Gov. Greg Abbott in December and is scheduled to go into effect March 5.

Both the Justice Department and coalition of immigrant rights groups filed lawsuits against the state, which were consolidated and heard in federal court for the first time on Thursday.

“SB 4 is clearly invalid under settled precedent,” Brian Boynton, the principal deputy assistant attorney general, told the court.

Arguing for the Justice Department, Boynton said the law is in direct conflict with federal immigration law. In part, that’s because of its provision empowering magistrate judges to return migrants to Mexico.

Boynton told federal Judge David Ezra that those orders, like deportation, fall under the purview of the federal government, not the state.

But Ryan Walters, the chief of special litigation at the Texas Office of the Attorney General, argued that the measure does not conflict with federal authority.

“The orders to return are not removals. They are not expelling people,” Walters said.

Skepticism from judge’s side

Throughout the hearing, Judge Ezra pressed both the federal government and the state of Texas on their arguments.

Ezra, who was appointed in 1988 by Republican President Ronald Reagan, showed skepticism with the state’s arguments.

The judge criticized the way the Texas Legislature wrote the law and pushed back, questioning the state on the law’s provision stating that “a court may not abate the prosecution of an offense … on the basis that a federal determination regarding the immigration status of the defendant is pending or will be initiated.”

He said that’s contrary to current law, which allows asylum to be a defense against removal efforts.

But the state argued migrants have the “option” to return to Mexico. If they don’t choose that option, they’d be prosecuted.

“You won’t get removed, you just go to jail,” Ezra told the state.

The state argued it was safer for migrants to be inside a Texas prison than to return to their countries.

David Donatti, a senior staff attorney at the ACLU of Texas, said the state is going to regret making that statement.

“The vast majority of Texas jails and prisons are not even air conditioned and it gets very hot in Texas,” Donatti told reporters after the hearing. “I think that is a statement that none of us would accept for ourselves.”

State’s claims of invasion

Judge Ezra and Walters spent much of the hearing talking about the state’s argument that Texas is under an invasion and that’s why SB 4 is needed.

“I haven’t seen and the state of Texas can’t point me to any type of military invasion in Texas,” Ezra said.

The state argued cartels at the border operate like paramilitary forces, and that the Texas Military Department is very active in efforts at the border. Walters said the state’s decision of putting razor wire along the Texas border, as well as buoys on the Rio Grande River, are part of a military function.

Ezra agreed “Texas is definitely under pressure,” and acknowledged the high number of illegal crossings into Texas. However, he rejected the state’s characterizations, saying there is no evidence Texas is at war.

The “invasion” rhetoric has been especially harmful to the El Paso community following a mass shooting there in 2019.

A white supremacist drove to the border city from outside of Dallas to target Hispanic shoppers at a Walmart to ward off what he described as an “invasion” of Texas.

Following the hearing, El Paso County Commissioner Sergio Coronado reminded the public of the consequences of embracing that language.

“SB 4 is an unconstitutional attempt to codify xenophobia and perpetuate false narratives of an ‘invasion’ taking place in our borderlands,” he said in a statement. “Our El Paso community was the target of a lone gunman who murdered 23 people and injured 22 others because of this same ‘take back our country’ language.”

If implemented, opponents of the law said there would be big statewide implications. The legislation doesn’t only apply to recent border crossings, but instead makes undocumented immigrants subject to arrest anywhere in the state.

“SB 4 has statewide application turning every immigrant or somebody who looks or sounds like an immigrant into a potential criminal and subject to state deportation,” said Kristin Etter of the Texas Immigration Law Council. “[That includes] those that are already here that have permission of the federal government to be lawfully working in our state.”

Etter also warned Texas business owners who rely on immigrant workers what the law and others like it will do to their labor pool.

“These new laws are coming for your workers, your roofers, your builders, your waiters, your neighbors and your friends to turn them into criminals and to deport them,” she said.

The Texas Newsroom’s Rachel Osier Lindley contributed to this report.

Sergio Martínez-Beltrán is the Texas Capitol Reporter for The Texas Newsroom. Got a tip? Email him at smb@kut.org. Follow him on Twitter @SergioMarBel.
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