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Texas sued over law allowing state, local police to make immigration arrests

SAN ANTONIO — Civil rights groups sued Texas on Tuesday over a controversial new law that would allow state and local police to arrest and deport migrants suspected of being in the country illegally, a power that until now has rested solely with the federal government.

The legal challenge came a day after Texas Gov. Greg Abbott (R) signed the bill into law and as negotiations over new border security measures appeared stalled in the U.S. Senate at least until after the holidays.

The influx of migrants into the United States has become a potent political issue in the 2024 presidential race and in several U.S. cities, including Chicago, where authorities this week are investigating the death of a 5-year-old migrant child who fell ill at a large shelter.

“It’s a mess,” Sen. Richard J. Durbin (Ill.), the No. 2 Senate Democrat, said of the many priorities Congress must deal with in January, including a deal to strengthen U.S. border policy in exchange for sending more aid to Ukraine. The chamber will face a lot of deadlines at the beginning of the year, he noted, “and we don’t have a great record when it comes to that.”

The lawsuit filed against Texas sets up a potential showdown between the state and the federal government over who has ultimate authority to protect borders and enforce immigration law. It is a fight that Abbott has longed for. The law also gives Texas courts the power to order immigrants suspected of entering the state illegally to return to the country through which they entered.

“These laws will help stop the tidal wave of illegal entry into Texas,” Abbott said in a statement Monday.

The Supreme Court in 2012 struck down elements of an Arizona law that gave state officials similar powers to enforce immigration policies, ruling that immigration enforcement is a federal responsibility. But a legal challenge to Texas’s legislation will come before a more right-leaning high court, with a 6-3 conservative supermajority.

“Immigration is a quintessentially federal authority,” said the complaint filed in U.S. District Court in Austin by a group of Texas civil and immigrant rights organizations, El Paso County, and the American Civil Liberties Union, arguing that the law, known as S.B. 4, violates the supremacy clause of the U.S. Constitution. “A state cannot replace Congress’ immigrant scheme with its own.”

The Texas law is the latest in a drumbeat of increasingly aggressive tactics by Abbott to address the historic numbers of people seeking asylum and crossing the state’s border. His administration has bused tens of thousands of migrants to cities in other states; deployed hundreds of Texas National Guard soldiers to place spiked buoys in the Rio Grande and string razor wire along the Texas riverbank; and empowered state troopers to arrest migrants on private property and charge them with state crimes.

In response to the lawsuit, the governor said in a statement that “President Biden has repeatedly refused to enforce federal immigration laws already on the books and do his job to secure the border. In his absence, Texas has the constitutional authority to secure our border through historic laws like S.B. 4. Texas will take this fight all the way to the U.S. Supreme Court if necessary.”

Separately Tuesday, the conservative U.S. Court of Appeals for the 5th Circuit temporarily blocked the Biden administration from destroying razor-wire border fencing installed by Texas officials, pending the outcome of the state’s appeal of a lower-court judge’s ruling in favor of the federal government.

Abbott also signed legislation this week that authorizes $1.54 billion more in state border wall construction funding and sets a 10-year mandatory minimum sentence for human smuggling.

There were more than 2 million illegal crossings at the southwest border with Mexico for each of the past two fiscal years ending Sept. 30, according to data from U.S. Customs and Border Protection. Border crossings have surged since dropping sharply in June, with migrants from around the globe entering from Mexico to seek asylum, economic opportunities or a new life in the United States.

Entering the United States, other than through an approved crossing, is already illegal under federal law and is policed by federal authorities.

But thousands of migrants have been arriving to seek humanitarian protection or work, and they generally are not prosecuted, especially families. When more people cross the border illegally than federal agencies can process, migrants are often released into the United States to await a far-in-the-future court date.

Congress has failed for decades to pass major immigration legislation that could address the border situation. Details of the current negotiations have not been made public. But several senators and aides briefed on the talks say they involve legislation that would make it easier to expel or quickly deport some migrants and raise the standard for migrants to be able to apply for asylum, all in exchange for Ukraine aid. The proposals would pose political challenges for both Democrats and Republicans and would almost certainly draw challenges from migrant advocacy and civil rights groups.

The surge in border crossings has reverberated across the country, with Democratic cities such as New York, Washington and Chicago struggling — along with border communities — to address the needs of tens of thousands of new arrivals, many of them bused from the Texas border.

Chicago Mayor Brandon Johnson (D) lashed out at Abbott this week after a 5-year-old migrant boy staying in a shelter in the city fell ill and died. The mayor said the governor was sending new arrivals north without regard for their health or physical needs.

Abbott spokesman Andrew Mahaleris accused Johnson of lying and said migrants who are bused north volunteer for the rides. The buses are stocked with food and water, he said, and make stops where migrants can buy additional supplies.

Local law enforcement officials across Texas said they are analyzing the potential impact of the new law that gives them the power to make immigration arrests. Leaders of smaller agencies have said allocating resources to enforce immigration law could divert attention from protecting their communities. The governor’s border crackdown, Operation Lone Star, has already overwhelmed small county jails and prosecutors with dockets full of cases of migrant men and, recently, women arrested on trespassing charges.

“I don’t have space in my jail,” said Maverick County Sheriff Tom Schmerber, a former Border Patrol agent whose jurisdiction is home to Eagle Pass, where 1,000 to 5,000 migrants a day regularly attempt to cross into the country.

Under the new law, 79 different law enforcement agencies — from constables to school resource officers — in the Houston area alone would have the power to arrest undocumented immigrants, said Cesar Espinosa, executive director of Fiel, a civil rights organization. Some larger city and county police departments have said they are concerned that enforcing S.B. 4 will make them vulnerable to accusations of racial profiling and instill fear in immigrant communities with whom they’ve spent years building trust.

Espinosa’s group has begun holding town hall meetings about the measure with its 16,000 members, many of whom are immigrants and undocumented; such people make up a significant portion of the Texas labor force and contribute to the state’s economic success, he said.

“This is Texas’s Prop 187 moment as it was in California. It’s worse than S.B. 1070 in Arizona,” said state Rep. Armando Walle (D), referring to two similar laws that galvanized voters in those states against Republicans. The Arizona law was later blocked by the Supreme Court.

Walle said the new law also reflects the continued anti-immigrant rhetoric embraced by former president Donald Trump, now the front-runner for the 2024 Republican presidential nomination. Over the weekend, Trump — whom Abbott endorsed last month — accused undocumented immigrants of waging an “invasion” of the United States and “poisoning the blood” of the country.

Migrants who cross the border illegally have cost Texas more than $12 billion, said state Sen. Charles Perry (R-Lubbock), who sponsored S.B. 4. He said the Biden administration has ignored those costs, and he called for the courts to “weigh in on the responsibility of sovereignty over our borders.”

“A country that doesn’t have a border ceases to be a country,” Perry said.

Texas cleared out two state prisons in the last several years to house migrants detained under Abbott’s Operation Lone Star initiative; some of them languished in cells beyond statutory limits and were ordered released by state judges. Perry said that under S.B. 4, the state will find space and money to lock up even more undocumented immigrants so the world gets the message that Texas is no longer open to them.

But attorneys and advocates critical of Abbott’s border crackdown say migrants are rarely familiar enough with the details of state law for it to deter those already on their way to northern Mexico.

El Paso County Judge Ricardo Samaniego called the new law “one of the most horrible mandates we’ve ever faced” and said the county does not have the resources to enforce it.

Mexican officials have also rejected Texas’s plan to send expelled migrants back into their territory under the new law.

The legislation was pushed by hard-liners such as Texans for Strong Borders, which listed a crackdown on illegal immigrants among its 2023 legislative priorities. The group’s president, Chris Russo — who drew criticism this fall for meeting with white-supremacist leader Nick Fuentes — has been critical of Abbott in the past, saying the governor had not gone far enough to secure the border.

The governor, who was once considered a possible 2024 presidential hopeful, has been sensitive to such criticism after facing upstart primary challenges from candidates in the most conservative wing of the state party.

“Unfortunately, Operation Lone Star has not been effective in stopping illegal entry, as evidenced by the record numbers of illegal crossings,” Russo said. “In order for S.B. 4 to be effective, it must be coupled with a concerted effort by the state to actually repel illegal border crossings.”

Hennessy-Fiske reported from Houston. Vinall reported from Melbourne, Australia. Maria Sacchetti and Liz Goodwin in Washington contributed to this report.

This post appeared first on The Washington Post

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