In bid for deportation power, Texas runs against roadblocks
AUSTIN, TEXAS
Led mainly by Republicans, Texas lawmakers passed a law allowing state judges to deport unauthorized migrants apprehended near the southern border – an aggressive bid to commandeer power over immigration that belongs to the federal government.
It hasn’t been going well.
The law known as Senate
Bill 4, passed in November, was supposed to take effect March 5,creating new state crimes for illegally crossing the U.S.-Mexico border and a process for returning arrested migrants to Mexico.
Federal courts have thus far blocked Texas from enforcing SB 4 as questions about its constitutionality persist. But even if the courts uphold the law, Texas has run into other roadblocks that could jeopardize the state’s ability to deport migrants.
According to the Biden administration, federal agencies will refuse to accept migrants who are subject to Texas deportation orders, depriving the state of a crucial link in the removal process.
“The message is that the U.S. government is in charge of immigration admissions and removals,” said Kevin Johnson, dean of the University of California at Davis law school.
Additionally, the Mexican government said it will reject any migrant Texas tries to deport.
“We won’t allow that, no matter if they are Mexican nationals or foreigners from other countries,” Foreign Affairs Secretary Alicia Bárcena said in a March 21 television interview.
Deportations are executed by international agreements between nations.
Lacking such agreements, Texas hopes to have Department of Public Safety troopers or local law enforcement escort migrants to a port of entry to be handed over to federal agencies that routinely oversee deportations. State law enforcement would “monitor compliance” by watching the migrant cross to the Mexican side, court records show.
Without cooperation from the U.S. and Mexican governments, Texas has no viable way to enforce deportations ordered by state judges under SB 4, said Jacqueline Brown, director of the Immigration and Deportation Defense Clinic at University of San Francisco’s law school.
“I believe it would nullify the deportation provision of the law, and I believe it could result in violence and chaos if Texas attempted to go rogue and just started driving people back and abandoning them in Mexico,” Brown said.
The Mexican government has also warned that Texas-led deportations would cause chaos and confusion at the border.
Gov. Greg Abbott’s office did not respond to emailed questions about obstacles to the state’s deportation plans.
When asked in December what Texas would do if Mexico refused to accept migrants from the state, Abbott said, “We’re going to send them right back to Mexico.”
He did not elaborate. Republican lawmakers, angered by President Joe Biden’s immigration policies and concerned about the rapid rise of migrants illegally crossing into Texas, crafted SB 4 to give the state a larger role in border security matters.
The law has two major provisions.
First, SB 4 makes it a state crime to cross the border without authorization, allowing migrants to be charged with new crimes such as illegal entry from a foreign country or illegal reentry after a prior deportation.
Second, the law creates a state-initiated removal process.
Migrants convicted of illegal entry or reentry from a foreign nation would be subject to deportation after serving their state sentence.
Migrants also can be removed without a conviction under SB 4. If a judge or magistrate determines there is probable cause that a migrant entered or reentered the country illegally, the charge can be dismissed with a written order requiring the migrant to return to the country “from which the person entered or attempted to enter.”
The migrant would have to agree to be removed, and removal is available only to those who had not been previously convicted of a crime established by SB 4. Migrants also cannot be removed if they had been charged with a Class A misdemeanor or a felony, the law says.
Before migrants are taken to the U.S.-Mexico border, SB 4 requires fingerprints, photographs and biometric measures to be collected and migrants to be checked against local, state and federal criminal databases.
Failure to comply with a removal order is a seconddegree felony that could result in a prison term of up to 20 years.
Lawyers for the state have said that if the U.S. or Mexican governments decline to assist Texas with a removal, the migrant would be arrested again – a topic that arose during March 20 oral arguments before the 5th U.S. Circuit Court of Appeals, which will determine the legality of SB 4.
Chief Judge Priscilla Richman said SB 4 appeared to be the first time a state proclaimed a right to remove migrants from the country.
“This is not a power that, historically, has been exercised by states, has it?” Richman asked.