San Antonio Express-News (Sunday)
Arrests give migrants way to stay
Amid crackdown, some make bail, remain in U.S. as they seek asylum
When Gov. Greg Abbott deployed thousands of Texas National Guard troops and state police to arrest migrants along the border with Mexico, he pitched it as a way to deter them from crossing into the country illegally, out of fear they could be jailed for months on state misdemeanor charges.
But in some cases, Operation Lone Star is having the opposite effect, according to defense attorneys and a county official who handle the state’s criminal cases against the migrants.
Instead of sitting in jail for six months to a year on trespassing charges, as Abbott suggested, some immigrants are resolving their cases in far less time or being released from jail on bail. They are then free to stay in the U.S. as they make their claims for asylum.
For these migrants, Abbott’s Operation Lone Star is a way around Trump-era border policies that call for the expulsion of most migrants from the country before they can submit asylum claims and that allow federal authorities to expel them to Mexico as they await their immigration hearings.
“Operation Lone Star has allowed our clients to avoid federal programs where they would have not only been expelled, but would have had to remain in Mexico (amid) pending asylum proceedings,” said Kristin Etter, an attorney with Texas RioGrande Legal Aid who has represented more than 700 of the migrants. “Furthermore, even if our clients are convicted of criminal trespass under Operation Lone Star, that has no impact on their immigration status and does not make them ineligible for asylum or other forms of immigration relief.”
In most cases, Etter said, “our
clients who are asylum-seekers and express a fear of return are being released back into the United States while their asylum claims are pending.”
Since ordering state authorities to jail migrants on the trespassing charges last July, Abbott has repeatedly slammed President Joe Biden for diverging from former President Donald Trump’s immigration policies.
But defense attorneys say Abbott’s border operation has allowed thousands of migrants to bypass two of Trump’s signature immigration policies: Title 42, which allows federal authorities to immediately turn back migrants before they can make an asylum claim, and the Migrant Protection Protocols, which require some asylum-seekers to wait in Mexico for their U.S. immigration hearings.
The Biden administration ended the latter program, also known as “Remain in Mexico,” before reinstating it in December under court order, accompanied by federal guidance that made migrants eligible to wait in Mexico only if they had crossed the border within the last 96 hours and lacked any criminal history.
By the time those arrested under Abbott’s border initiative are turned over to federal authorities, they have been in state custody for well over four days and have picked up a criminal record from their trespass arrest, Etter noted.
Abbott’s office did not respond to a request for comment.
Val Verde County Attorney David Martinez, the local misdemeanor prosecutor responsible for handling the migrant arrests in his county, also said the state’s border operation appears to be empowering asylum-seekers to work around federal policy.
By last October, Martinez had rejected or dropped trespassing charges against more than 40 percent of the migrants arrested in Val Verde County. Many of those cases involved migrants who appeared to have a “credible asylum claim,” Martinez said, adding that he opted not to proceed with those cases based on a statement from DPS Director Steve McCraw that the arrests were aimed at criminals instead of those seeking asylum.
“We don’t base any of our decisions on the federal immigration practices. We’re focused only on enforcing Texas law,” said Martinez, a Democrat. “But I think anybody who’s paying attention understands that through Operation Lone Star, some of these immigrants have been afforded an opportunity that perhaps would not have existed but for Operation Lone Star.”
Gordon Quan, a longtime Houston immigration attorney, said he is not aware of any federal immigration laws or policies that would contradict Etter’s statements regarding Title 42 and the Remain in Mexico policy.
“I think it’s a very clever argument, and I think it passes the smell test. If the policy says ‘persons without a criminal history,’ and now they have a criminal history, then it seems like they should be allowed to stay,” Quan said, adding that he would expect the guidance to apply to migrants even if they had been charged but not yet convicted.
U.S. Customs and Border Protection said it does not partner with the state or play any role in Operation Lone Star. The agency did not address questions about how the operation affects federal immigration policy.
The Texas Department of Public Safety, the state agency tasked with enforcing much of Abbott’s border initiative, did not respond to a request for comment.
Arrests in single county
For much of the operation, state troopers have focused their efforts on Val Verde County, which includes the border city of Del Rio, and neighboring Kinney County. State troopers have also been deployed to other parts of the border, including the heavily trafficked Rio Grande Valley sector, though local officials there have declined to participate in Abbott’s migrant arrest initiative.
In recent months, state authorities have stopped arresting migrants in Val Verde County, with just two trespassing arrests recorded there since Nov. 5, according to Martinez. He noted that DPS has still maintained an outsized presence in Val Verde County and made some 20 arrests for human smuggling there since early November.
The trespassing arrests are now centered almost entirely in the small, conservative community of Kinney County, which borders Mexico for 13 miles southeast of Del Rio.
The Republican-controlled county has enthusiastically welcomed Operation Lone Star, taking a sharply different approach to the migrant arrests than Martinez.
By Tuesday, 954 migrants arrested under Operation Lone Star were being held at a pair of state prisons outfitted into jails, according to a spokesman for the Texas Department of Criminal Justice.
Of that total, 889 were arrested in Kinney County, while just
39 had been picked up in Val Verde County, many of their cases apparently stemming from arrests made in October or earlier.
Last month, Kinney County Judge Tully Shahan — a Republican who has said Texas is “under siege” as “thousands upon thousands of illegal aliens invade” the state — replaced the three state-appointed judges handling most of the county’s trespassing cases, each of whom had been releasing migrants on no-cost bail as they awaited trial.
Shahan, who did not immediately respond to a request for comment, has been presiding over cases himself and declining to release migrants on no-cash bail. He has since hired new judges who are expected to adopt the same approach, likely keeping migrants behind bars for months if they do not plead guilty or post bail, as the Texas Tribune first reported.
Recently, however, a judge in Travis County dismissed a case against a migrant arrested on criminal trespassing charges in Kinney County, ruling that Abbott’s arrest plan runs afoul of the U.S. Constitution by obstructing the federal government’s enforcement of immigration laws.
Defense attorneys cast the ruling as a road map for dismissing hundreds of similar cases, though Abbott and Attorney General Ken Paxton vowed to challenge the decision.
Angelica Cogliano, an attorney representing the migrant,
Jesús Alberto Guzmán Curipoma, said it’s “ironic” that Operation Lone Star has led to some migrants avoiding removal. Guzmán Curipoma, who is from Ecuador, a country that would make him eligible for expulsion under Title 42, has filed an asylum claim and is awaiting trial.
Cogliano said the intervention of state and local law enforcement does not always inadvertently help migrants avoid deportation, however.
“The flip side is some of our clients are getting deported who otherwise wouldn’t have been, according to federal policy,” Cogliano said. “And then they’re getting kidnapped by the cartel and held for ransom.”
Meanwhile, Martinez said a DPS official told him last month that the agency had stopped making arrests in Val Verde County because it was looking to “refocus their attention on Maverick County and some other counties further down in South Texas.” He said he was skeptical the change was unrelated to his handling of the trespassing cases, many of which he dismissed for lacking evidence of probable cause or because the migrant appeared to have a “credible asylum claim.”
“I suspect, because they’re still going gangbusters in Kinney County, that perhaps they like their approach more than they like my approach,” Martinez said.
“Operation Lone Star has allowed our clients to avoid federal programs where they would have not only been expelled, but would have had to remain in Mexico (amid) pending asylum proceedings.”
Kristin Etter, attorney with Texas RioGrande Legal Aid