Judge slaps down Texas bill that criminalizes undocumented immigration

A federal district judge dismissed a Texas law Thursday that would have made it a state crime to enter illegally.

In effect, Senate Bill 4 was a bid by the state to take over immigration enforcement from the federal government — which Texas officials argued in court has allowed or even facilitated an “invasion” of migrants into the state.

That’s a claim Judge David Ezra comprehensively rejected in a decision that barred the S.B. 4 from taking effect.

“Several factors warrant an injunction. First, the Supremacy Clause and Supreme Court precedent affirm that states may not exercise immigration enforcement power except as authorized by the federal government,” Ezra wrote.

Second, he wrote that the law “conflicts with key provisions of federal immigration law, to the detriment of the United States’ foreign relations and treaty obligations.”

Finally, he determined that “surges in immigration do not constitute an ’invasion’ within the meaning of the Constitution, nor is Texas engaging in war by enforcing SB 4.”

The decision marks a reversal for the faction of hard-right Republicans in the camp of Gov. Greg Abbott (R), who have made the border front and center of their rhetoric in the lead-up to the state’s GOP primary.

“Texas will immediately appeal this decision,” Abbott said in a statement Thursday. “Texas has the right to defend itself because of President Biden’s ongoing failure to fulfill his duty to protect our state from the invasion at our southern border. Even from the bench, this District Judge acknowledged that this case will ultimately be decided by the U.S. Supreme Court.”

The case will now likely be appealed to the 5th Circuit Court of Appeals — a highly conservative body that has shown some limited sympathy for the invasion argument.

S.B. 4 passed last year as part of the state’s special legislative session on the border, during which the Republican-controlled House and Senate also passed a series of other bills — such as the creation of a designated state ‘border force,’ building its own border wall and hiking penalties against those who smuggle drugs or facilitate crossings of migrants.

These laws come amid a new campaign by state prosecutors against border nonprofits such as Annunciation House, which provides services, shelter and transport to migrants newly arrived in the U.S.

In late February, Texas Attorney General Ken Paxton’s (R) office accused Annunciation House of operating “a stash house” for migrants — language previously used to describe caches used by drug traffickers.

Of this new legal effort, S.B. 4 was perhaps the furthest reaching: a law that gave state and local enforcement the authority — and arguably the obligation — to arrest and deport undocumented migrants.

The law created provisions to charge them criminally if they didn’t consent to deportation — or, potentially, if Mexico or their home countries wouldn’t take them — and sentence them to up to 20 years in prison.

That law formalized Texas’s existing foray into immigration enforcement. Since it began border operations in 2021, the state has apprehended nearly 400,000 migrants, and arrested 30,000 for for “criminal trespassing.”

These walked right up to the line of established constitutional law — or in the case of S.B. 4, the plaintiffs argued in court, stepped right over them.

In court, the Biden administration and its allies presented the case as effectively open and shut: a matter of the federal government’s largely unchallenged ability to set immigration policy.

“Congress has clearly occupied the field with respect to the entry and removal of noncitizens, displacing the ability of the 50 States to regulate in this area,” Department of Justice lawyers wrote.

“Our case had only one claim: the supremacy clause of the Constitution,” said Anand Balakrishnan of the American Civil Liberties Union, which sued the state in conjunction with the federal government and El Paso County.

“The Constitution passes authority over immigration in the end to the federal government, and states can’t legislate in that area in a way that conflicts with federal law,” Balakrishnan said.

For its part, the state argued that this is a misreading of the Constitution — but that even if it wasn’t, the Constitution gave it powers to resist what it has repeatedly described as an invasion.

“There is a full-scale invasion of transnational criminal cartels across our southern border—and Texas is ground zero,” state attorneys wrote the court.

That’s an argument Ezra panned in court in February, according to The Texas Tribune.

“I haven’t seen, and the state of Texas can’t point me to any type of military invasion in Texas,” Ezra said. “I don’t see evidence that Texas is at war.”

Ezra expressed more sympathy for Texas’s other claims. For example, Mike Banks, Texas’s newly appointed border czar, argued there had been an increase in trespassing and crimes “against property owners and residents along the border,” as well as the arrest of more than 15,000 migrants with past U.S. criminal convictions and 336 on the terror watch list — respectively 0.6 percent and 0.1 percent of the total.

Banks also noted “the tidal wave of illegal migration across the southern border has been accompanied by an increase in migrant mortalities that occurred during illegal border crossings.”

Ezra also told the state he was “very familiar with [their] concerns and to some substantial degree agree with those concerns.”

But he expressed his own caution at the prospect of elected state judges getting to decide whether migrants faced 20-year prison sentences — as opposed to appointed federal ‘Article 3’ judges, who are viewed as less susceptible to political pressure.

Federal lawyers argued Texas had “no persuasive response” to the argument that the new law conflicts with federal protections for noncitizens “who claim a fear of persecution or torture in their home country or the country to which they would be removed.”

That’s an issue that Ezra called “of some concern.”

“Someone who faces a possible 20-year sentence won’t have the benefit of an Article III [immigration] judge,” Ezra said.

In addition to the higher-level constitutional arguments, El Paso County argued in court that the law harmed it in distinct local ways: first, by directing thousands of migrants into its jails and court system, and by forcing a wedge between local government and a heavily Hispanic population that features many people who are foreign-born, regardless of their status.

If the law goes through, the state has estimated that it will perform 75,000-80,000 additional arrests — about 3,000 of which will happen in El Paso County.

In its brief to the court, Texas promised it would try to disperse the migrants it arrested across other jails — but the county’s isolation makes that impossible, County Attorney Bernardo Rafael Cruz told The Hill.

“We’re geographically very far from anywhere else,” Cruz said, “and there’s no filter where a county jail can say, ‘We can’t receive that prisoner.’ We’d have to house those folks, and we have no place to put them.”

El Paso argued that federal regulations around housing immigrant detainees, combined with the county’s own policy of getting anyone who is arrested before a judge within 24 hours, make implementing the law even more complicated and expensive.

The county told the court that housing the new detainees in its jails — which Cruz said are already at or near capacity — would cost an additional $20 million per year.

But perhaps further-reaching are the county’s concerns about what the new law would do to its efforts to responsibly govern and police a largely Spanish-speaking population who often looks quite similar to the migrants the bill targets.

That’s a concern that also troubled Harris County, home of Houston, the state’s largest metropolis. In an amicus brief, Harris County Attorney Christian Menefee warned that S.B. 4 “will have a chilling effect on noncitizens’ willingness to aid law enforcement … harming Harris County’s ability to successfully prosecute criminal defendants and combat crime.”

But that reality is even more stark in the border county of El Paso, more than half of whose 850,000 people are Hispanic, and about a quarter are foreign-born.

That means the county includes many mixed-status families: a son who is a citizen, say, living with parents who are undocumented.

It’s arguable whether these people will be impacted by S.B. 4. In court, the state told Ezra that law enforcement agents would only target those they see actually crossing the border. 

During Texas’s existing border operations, which have included arresting migrants for criminal trespass, state police have “generally avoided arresting unaccompanied minors or family units and has concentrated enforcement actions against single adults,” Victor Escalon, regional director of the Texas Department of Public Safety, told the court.

But Cruz emphasized that’s not a distinction that was written into the law — a point Ezra himself echoed, telling the state’s attorneys that “a little more care should have gone into drafting” the bill.

Under the law, Cruz said, a “‘summary of facts’ is enough probable cause to warrant an arrest,” which he said raises a new suite of concerns around racial profiling. 

“It’s unclear how a state officer with no immigration training can have probable cause to arrest on S.B. 4,” he said. “So will they be racially profiling people, asking, ‘Does that person look brown, like they’re from Mexico? Do they speak another language?’ In a predominantly Hispanic area, that makes people nervous.”

Last year, El Paso County Sheriff Richard Wiles told reporters that the bill would have little effect on how his officers did business. “It won’t affect our patrol officers when they encounter business with undocumented immigrants.”

But S.B. 4 has passed in a climate in which state government is increasingly intolerant of local authority. Paxton is suing cities that have decriminalized possession of marijuana, and the suit against Annunciation House.

“If I have a cousin is undocumented, and cousin, suffering from domestic abuse — maybe I’m not going to call the police,” Cruz said. “Maybe they’ll show up and see my undocumented cousin and arrest him under S.B. 4. Or maybe they’ll think I’m undocumented.”

Updated at 1:24 p.m. ET