Immigrant rights groups sue Texas to halt new law allowing arrests of migrants

A group of migrants follows a state trooper vehicle after surrendering in Eagle Pass on July 29. Two immigrant rights groups have filed a lawsuit to stop a new Texas law that would make illegally crossing the border a state crime. Photo by Veronica G. Cardenas for The Texas Tribune.

TEXAS –– Immigrant rights organizations have sued Texas after Gov. Greg Abbott approved one of the strictest state immigration enforcement laws, which authorizes police to arrest immigrants suspected of crossing the border illegally.

In their lawsuit, the American Civil Liberties Union and the Texas Civil Rights Project claim that Senate Bill 4, which Abbott signed on Monday and is scheduled to take effect March 5, violates the U.S. Constitution because Congress has given the federal government sole authority over immigration enforcement.

The lawsuit, filed Tuesday in an Austin federal court, says SB 4 would prevent immigrants from requesting asylum in the U.S., a right they have regardless of how they enter the country.

The groups filed the lawsuit on behalf of El Paso County and two immigrant rights organizations — El Paso-based Las Americas Immigrant Advocacy Center and Austin-based American Gateways. The groups are asking a federal judge to prevent Texas from implementing SB 4 and declare it unlawful.

They name Steve McCraw, director of the Texas Department of Public Safety, and Bill Hicks, El Paso’s district attorney, as defendants.

“Governor Abbott’s efforts to circumvent the federal immigration system and deny people the right to due process is not only unconstitutional, but also dangerously prone to error, and will disproportionately harm Black and Brown people regardless of their immigration status,” said Anand Balakrishnan, senior staff attorney at the ACLU’s Immigrants’ Rights Project. “We’re using every tool at our disposal, including litigation, to stop this egregious law from going into effect.”

Abbott and state Rep. David Spiller, R-Jacksboro, a sponsor of the legislation, defended the new state law and said the Biden administration’s immigration policies have created a crisis that the state now has to address.

“SB 4 is the Texas solution to a Texas problem. It is a humane, logical and efficient approach to a problem created and fostered by the Biden administration’s continued failure and refusal to secure our border,” Spiller said.

Abbott said that the law would deter immigrants from crossing illegally into Texas.

“The consequences of it are so extreme that the people being smuggled by the cartels, they will not want to be coming into the state of Texas,” Abbott said on Monday during a bill signing event in Brownsville.

Mexican President Andrés Manuel López Obrador on Tuesday criticized Abbott and said his government will challenge the law. 

“With those policies he wants to win popularity,” he said. “He’s not going to win anything, on the contrary, he’ll lose.”

Neither Biden nor the U.S. Department of Justice have publicly commented on the Texas law, but a White House spokesperson said in a statement that SB 4 “is an extreme law that will make communities in Texas less safe.”

“Generally speaking, the federal government — not individual states — is charged with determining how and when to remove noncitizens for violating immigration laws,” the spokesperson said.

The new law would make it a state crime to cross the Texas-Mexico border between ports of entry. Police who suspect that a person crossed the border illegally can arrest them and charge them with a Class B misdemeanor, which carries a punishment of up to six months in jail. Repeat offenders could face a second-degree felony with a punishment of two to 20 years in prison.

The law allows a judge to drop the charges if a migrant agrees to return to Mexico.

Migrants who decline to return immediately to Mexico would serve their sentence, then be transported by police to a port of entry — and they could face a felony charge for refusing to return to Mexico at that point.

Federal courts, including the U.S. Supreme Court, have ruled that immigration laws can only be enforced by the federal government.

In 2010, Arizona lawmakers passed Senate Bill 1070, which made it a state crime for legal immigrants not to carry their immigration papers and required police to investigate the immigration status of any person they come into contact with. In a landmark 2012 case, the U.S. Supreme Court ruled that local police didn’t have the authority to arrest someone solely based on their immigration status and said that responsibility falls to the federal government.

This article originally appeared in The Texas Tribune. The Texas Tribune is a member-supported, nonpartisan newsroom informing and engaging Texans on state politics and policy. Learn more at texastribune.org.