PRESIDIO — Last weekend, the Presidio field office of the Border Network for Human Rights (BNHR) hosted a community forum and a protest to help residents prepare for the potential implementation of a new state immigration law on March 5.
Around two dozen people gathered at the Presidio Activities Center to learn about the law and flashed protest signs the next morning in Saint Francis Plaza. Fernando Garcia, executive director of the BNHR, led attendees in a series of chants. “No SB 4!” they cried.
SB 4 — which created a new class of state immigration crimes for unauthorized entry into Texas — was a major victory for state Republicans, who have long criticized the Biden administration for inflated numbers of migrant apprehensions during his time in office. “President Biden’s deliberate inaction has left Texas to fend for itself,” Gov. Greg Abbott wrote in a press release.
For activist groups like the BNHR and the ACLU of Texas, the bill’s passage was a call to action. “The unconstitutional law is one of the most extreme pieces of anti-immigrant legislation any state legislature has ever witnessed,” reads an online pamphlet from the ACLU of Texas.
Whether or not SB 4 will actually take effect in March is currently being sorted out in federal court. Shortly after the bill was signed into law, the national and state chapters of the ACLU and the Texas Civil Rights Project sued the state on behalf of El Paso County and two immigrants’ rights organizations, Las Americas Immigrant Advocacy Center and American Gateways.
In January, the Department of Justice filed a separate suit against the state of Texas on the grounds that the state cannot enforce federal immigration law; the two suits were eventually combined.
Last Thursday, U.S. District Judge David Ezra heard oral arguments from both parties over the course of three hours. Ezra pledged to hand down his decision “well ahead” of March 5, but anticipated that his decision would be appealed and heard before the U.S. Supreme Court.
What is SB 4?
SB 4 was signed into law on December 18, 2023, during the final of an excruciating series of four Texas special legislative sessions — part of the reason the Legislature went overtime last year was because of partisan disagreements about border security. Gov. Abbott gave the green light to two other bills that day: a bill to enhance penalties for human smuggling as well as a $1.54 billion appropriation in state funding for “border security operations” and “border barrier infrastructure.”
SB 4 was authored by Sen. Charles Perry, the representative for Lubbock and chair of the Water, Agriculture and Rural Affairs Committee. Rep. David Spiller, representing a swath of rural counties along the Red River in North Texas, filed an identical bill in the House.
The bill passed the House and Senate without a single Democratic vote — Sen. César Blanco and Rep. Eddie Morales, serving the Big Bend region, both voted nay. “The federal government already has an offense for unlawful entry, and that has not deterred desperate migrants looking for a better life,” Blanco wrote in a press release.
SB 4 gives state law enforcement — including Department of Public Safety troopers, county sheriff’s departments and local law enforcement — the power to arrest individuals believed to have entered the country illegally. The only places people cannot be arrested under the law are at a primary or secondary school, a place of worship, a healthcare facility or a “SAFE-ready facility” that provides exams and counseling to sexual assault survivors.
By extension, the law also gives judges in state courts the power to rule on these cases, rather than federal judges who adjudicate the federal immigration crime of unlawful entry.
These state-level judges can dismiss pending charges and issue a written order “requir[ing] the person to return to the foreign nation from which the person entered or attempted to enter.” This “return to Mexico” order can only be applied to individuals who voluntarily consent and have no criminal history. Once the order is issued, the arresting agency must collect a wide array of information on the individual including “biometric measures.”
Those who do not consent to the removal order and are ultimately convicted under SB 4 face up to a six-month jail sentence, and their “removal” is mandatory. Refusing to obey the order to return to a port of entry is a second-degree felony.
The law also offers “immun[ity] to liability from damages” to state officials, employees or contractors sued after attempting to enforce the law, except in the case of “bad faith, with conscious indifference, or with recklessness.”
“A slap in the face”
On January 3, the U.S. government filed suit against the state of Texas and co-defendants Greg Abbott, the Texas Department of Safety and DPS Director Stephen W. McCraw. The government’s case rests on the belief that SB 4 violates the Supremacy and Commerce Clauses of the U.S. Constitution.
The Supreme Court case most often invoked by the government’s complaint is Arizona v. United States, which struck down SB 1070, a 2010 Arizona state law with similar provisions to Texas’ SB 4.
SB 1070 also made it unlawful to be present in the United States without proper documentation and authorized local enforcement to make arrests of people suspected to have entered the country illegally. The law also made it a state misdemeanor for undocumented people to seek work and criminalized U.S. citizens found to be sheltering, hiring or transporting them.
Counsel for the United States against Texas echoed the Supreme Court’s Arizona decision — that the provisions written into SB 4 are too similar to existing “carefully calibrated” federal immigration laws and are therefore unconstitutional. “Texas cannot run its own immigration system,” the complaint reads.
The Supremacy Clause has been invoked more recently in a showdown between the state and federal governments in Eagle Pass, where the state’s own makeshift border barriers have also been the subject of a lawsuit. State law enforcement also took over an Eagle Pass park with river access, which federal officials claim has inhibited their ability to perform search and rescue operations for migrants in distress.
David S. BeMiller, chief of Law Enforcement Operations for U.S. Border Patrol, wrote as much in a declaration filed in support of the government. He believed that toughening up Texas state law wouldn’t reduce migration rates and would instead shift migration corridors elsewhere, creating “additional operational stress to CBP personnel” in other sectors. “If Texas imposes criminal penalties for unlawful entry and reentry by migrants, I anticipate that migrants would instead seek to enter the United States through Arizona, New Mexico and California,” he wrote.
The complaint also raised concerns that the bill does not exempt asylum seekers — migrants may still apply for asylum even if they do not cross the border at a designated port of entry.
As a worst-case scenario, the government also argued that Americans abroad “risk reciprocal and retaliatory treatment” at the hands of foreign governments that oppose the law.
U.S.-Mexico relations were the most immediate concern for U.S. officials. “The purpose and effect of SB 4 would be to remove noncitizens to Mexico, regardless of their country of citizenship, and without any indication that Mexico is willing to accept them, potentially subjecting noncitizens to further criminal penalty if Mexico denies entry,” they wrote.
At Thursday’s hearing, Judge Ezra appeared open to Texas’ arguments, stating that he was “sympathetic” to the state’s case, but that SB 4 “slaps the federal immigration law right in the face.”
“Full-scale invasion”
The state insists that desperate times call for desperate measures — and conjures the feds’ own statistics to prove it. “There is a full-scale invasion of transnational criminal cartels across our southern border — and Texas is ground zero,” the state’s response reads.
Per Customs and Border Protection statistics provided by the defense, “total encounters” of migrants more than doubled between FY 2019 and FY 2023, from 1,148,024 to 3,201,144, cresting to a new record.
Counsel for the state was also alarmed that apprehensions of migrants convicted of crimes had also gone up, from 4,269 to 15,267 over the same time period. The state draws a direct connection between these numbers and the White House: numbers were lower under the Trump administration, and reached an all-time high under Biden, marking an “unprecedented abdication of duty.” That “abdication of duty,” they argue, renders the Arizona decision void — the federal government has left Texas “at the mercy of hostile non-state actors,” necessitating action above and beyond the normal boundaries between the state and federal governments.
The use of the term “invasion” by both Texas’ legal team and by Republican politicians echoes a clause of the Constitution that doesn’t give states the power to engage in war “without the Consent of Congress … unless actually invaded.” The state blames the migrant “invasion” on the cartels and says the two are so correlated that to stamp out one is to stamp out the other, to the humanitarian benefit of all. “Both Texas citizens and the aliens themselves –– many of them unaccompanied minors –– are often at the mercy of cartels that see illicit activity along the border as good business,” the state’s response reads.
The state argues that an astronomical increase in fentanyl deaths tied to drug smuggling from Mexico is proof positive that the “porous border” puts Texan lives at risk. “The border crisis is not confined to harms caused by the unprecedented influx of unlawful immigration,” it wrote.
Representative Spiller, who introduced an identical bill to SB 4 in the House, went so far as to say that federal immigration policy wasn’t just failing to stem the tide but was actually encouraging the influx of illegal cross-border traffic. “Biden is the cartel’s best friend,” he tweeted. “He is doing everything they want him to do.”
“La ley es ilegal”
As part of last weekend’s events in Presidio, representatives from the Border Network for Human Rights in El Paso teamed up with the organization’s local office to offer a workshop for Spanish-speaking locals. The goal of the program was to educate Presidians — regardless of immigration status — about their rights under the new law.
BNHR Executive Director Fernando Garcia called his organization’s tour of the border a “journey of resistance,” using education as a form of protest. “The main tool at our disposal is the U.S. Constitution,” he told the crowd.
The group’s presentation focused specifically on how to respond during traffic stops. Samantha Singleton, a policy expert for BNHR, explained that one of the main risks to travelers under SB 4 is that the term “smuggling” can be interpreted literally by local law enforcement. “The law criminalizes drivers and their passengers,” she explained.
Singleton offered an example widely touted by activist groups: what about a pastor driving a church van full of folks seeking shelter who might not be aware of each passenger’s immigration status. “[SB 4] applies whether you know people are undocumented or not,” she said.
Both Garcia and Singleton warned that — because the law allows “untrained police officers” to make arrests based on suspected immigration status — the law encouraged racial bias. “It affects all Texans, but especially Latin American families,” Garcia said. “[Under SB 4], all of us could be criminals, drug traffickers or cartel members.”
Their educational campaign drove home the point that both documented and undocumented people in the U.S. have constitutional rights –– chief among them in the context of a traffic stop: the Fifth Amendment, popularly referred to as “the right to remain silent.” BNHR offers a simple script: “I’m exercising my right to remain silent and won’t answer any more questions.”
The “right to remain silent” applies to officers’ questions about immigration status, nationality and how an individual arrived in the U.S. If an officer asks for a license and registration, the driver is obligated to provide these documents — but a passenger is not required to identify themselves verbally or with written documents.
If a driver or passenger is arrested, they should provide their name, date of birth and address but are not legally required to provide any other personal information. Anyone who is arrested under SB 4 has the right to an attorney and is not required to speak with law enforcement before obtaining one.
The BNHR encourages people who are uncertain of whether or not they are being arrested to ask. “If the officer doesn’t answer you, which is likely, continue to ask them [about it] or say: ‘I’m going to go if I’m not being detained.’”
Garcia led the audience through a skit to practice what they’d learned. In the exercise, a U.S. citizen rushes their undocumented grandmother to the clinic when she gets sick. A police officer pulls them over and arrests the driver for smuggling — proving the point that anyone can be arrested for smuggling, even if it’s their own family.
Informational brochures provided by the BNHR reminded the audience that those arrested under SB 4 also have the right to a translator and the right to record their interactions with police.
They recommend that those afraid of being arrested under the law designate an emergency contact and carry with them their essential personal items — medicine, glasses, food, water — and keep any documents related to their immigration status in a safe place.
Garcia was resolute in his protest against SB 4. “La ley es ilegal,” he said. “The law is illegal.”