EAGLE PASS 鈥� On a cloudy recent Friday morning, the Moncada Baseball Park near the U.S.-Mexico border was empty, save for one young man practicing dribbling drills in the park鈥檚 soccer fields.
Across the street, at a busy commercial vehicle inspection site with 18-wheelers rolling through after crossing the border from Mexico, the Texas Department of Public Safety 鈥� under questionable legal authority 鈥� dropped off a group of migrants whom officers identified as having illegally crossed into the country.
The migrants, about a dozen men and women, stepped out of a white Texas Department of Criminal Justice bus and were directed toward a truck port where they sat and waited under shade near an outdoor fan for nearly three hours. Then, a federal agent in a white Border Patrol van picked them up and drove them away. A few hours later, the process was repeated with a new group of migrants.
The procedure was part of a new step in Operation Lone Star, Gov. 鈥檚 push to slow the number of migrants crossing the Texas border, testing the limits of the state鈥檚 ability to enforce immigration laws that are traditionally seen as a federal responsibility.
State and local law enforcement have long transferred custody of undocumented migrants to federal immigration authorities after they鈥檝e been arrested. But previously it鈥檚 been the federal government鈥檚 job to pick them up. Abbott鈥檚 decision to arrest migrants and actively bring them back to the border, essentially forcing such a handoff, represents a broadening of the state鈥檚 role in the immigration enforcement process. But experts disagree on how significant it is or whether it鈥檚 intruding on a federal responsibility and stretching the legal limits of the state鈥檚 efforts on the border.
鈥淭here are ongoing questions about what authority they have to bus people from one location to another,鈥� said Aaron Reichlin-Melnick, policy director at the American Immigration Council. 鈥淟egally speaking, is that immigration enforcement? I still don鈥檛 know.鈥�
Getting answers has been difficult. Although the program has been operating since , state and federal officials have ducked questions about how it works, refusing to say where the migrants are being transported to and from, what they are being arrested for and what happens to them after they are turned over to federal immigration authorities. The only way The Texas Tribune was able to confirm that federal authorities are accepting custody of the migrants was by staking out the Eagle Pass port of entry and witnessing the exchange in person.
DPS troopers and National Guard service members stationed at the border to arrest migrants caught crossing the border illegally and return them to the ports of entry. They immediately raised alarms for immigrant rights advocates who said Abbott鈥檚 plan was veering into the federal government鈥檚 purview over immigration enforcement and could lead to violations of the migrants鈥� civil rights because it was unclear what authority state officials were using to hold them under custody.
A spokesperson for U.S. Customs and Border Protection, which oversees Border Patrol, didn鈥檛 answer questions about how Abbott鈥檚 latest order affects agents鈥� work on the ground. Instead, the spokesperson referred to comments made by Chris Magnus, Customs and Border Protection commissioner, earlier this month during a news conference in Washington in which .
鈥淥ur goal is always to work cooperatively when we can within the law, and based on what鈥檚 appropriate under different circumstances with our state and local partners,鈥� he said.
Texas Military Department officials provided at least one answer about how the program works at a legislative hearing earlier this month. Brig. Gen. Win Burkett of the 36th Infantry Division told lawmakers in July that National Guard service members play no role in the transportation of migrants to the border.
With limited information, immigration and border security experts disagree about how radically Abbott鈥檚 order has changed state law enforcement鈥檚 involvement in immigration enforcement.
Victor M. Manjarrez Jr., who worked for the U.S. Border Patrol for 22 years and retired as the Tucson Sector chief in 2011, said Abbott鈥檚 latest order is nothing out of the ordinary. He said local or state officers referring migrants to Border Patrol is a common practice along the Texas-Mexico border.
鈥淗onestly, there鈥檚 nothing that special,鈥� said Manjarrez, who is now the associate director of the Center for Law and Human Behavior at the University of Texas at El Paso.
Usually, he said, when law enforcement officers along the border come across migrants on foot or in a vehicle, they stop them on state charges. If the officers suspect the migrants crossed the border illegally, the officers hold the migrants until Border Patrol agents pick them up. But Abbott鈥檚 order goes a step further by having state officers drive the migrants to a location where it is easier for Border Patrol to process them.
鈥淚nstead of having troopers stuck on a highway, we鈥檙e going to take individuals to you,鈥� Manjarrez said.
To an extent, he added, local law enforcement officers along the U.S.-Mexico border have always enforced immigration laws.
鈥淚f you call Border Patrol to show up, to some degree you鈥檙e enforcing immigration law. If you鈥檙e taking them to a port of entry, you鈥檙e enforcing some type of immigration law,鈥� he said. 鈥淚n either case you鈥檙e doing it.鈥�
Manjarrez said that during his time in Arizona, it was common for local law enforcement officers to take migrants to Border Patrol instead of waiting for immigration agents to arrive at the scene.
鈥淢y argument would be, how is this different than what鈥檚 been done in the past?鈥� he said. 鈥淭he big difference with this is that there was an executive order that came out, and it was intended to make a big splash.鈥�
But Denise Gilman, co-director of the Immigration Clinic at the University of Texas School of Law, said the transportation of the migrants to immigration authorities marks a drastic shift into a new level of immigration enforcement by the state. By taking the migrants back to the border for processing, she said, state officials are facilitating that enforcement.
鈥淭he fact that they straight up don鈥檛 take them across the border doesn鈥檛 take away the immigration enforcement nature of it,鈥� Gilman said.
But in order to stop the practice, the federal government would likely have to sue. With Texas pressing further into immigration enforcement than any other state has done before, some immigrant rights advocates have been baffled that the Biden administration hasn鈥檛 done so.
Gilman said that may be because Abbott鈥檚 order doesn鈥檛 fully call for the state to take immigration enforcement into its own hands. State officers are still handing off the migrants to federal immigration authorities at the border.
鈥淚t鈥檚 not completely clear that it鈥檚 100% state unilateral action, as opposed to collaborative action with the federal government,鈥� she said.
Immigrant rights advocates also say Abbott could be inviting a lawsuit in hopes of setting up a legal battle with the Biden administration with the goal of overturning the U.S. Supreme Court鈥檚 decision in a 2012 Arizona immigration law to expand the state鈥檚 ability to participate in immigration enforcement.
Texas has successfully been able to in lawsuits against the Biden administration that have led the White House to restart two of the most consequential Trump-era immigration policies: , the that essentially closes the border to most people, and , which forces some asylum-seekers to wait in Mexico as their cases make their way through American courts. Another Texas lawsuit also led to a federal judge ruling that 鈥� a program for younger immigrants who were undocumented to be able to get renewable work permits 鈥� is illegal. These three cases are still playing out in federal courts.
In his executive order, Abbott cited the decision in a case over Arizona鈥檚 so-called 鈥渟how me your papers鈥� law, which required police to ask people for proof of citizenship. Abbott wrote that the Supreme Court did not address 鈥渨hether reasonable suspicion of illegal entry or another immigration crime would be a legitimate basis for prolonging a detention, or whether this too would be preempted by federal law.鈥�
Reichlin-Melnick said Abbott was trying to find a loophole in the Arizona case.
鈥淕ov. Abbott says he thinks it鈥檚 an open question about whether or not state agents can enforce unlawful entry,鈥� Reichlin-Melnick said. 鈥淚f the state can enforce federal criminal immigration laws, that would get rid of quite a lot of the restrictions put on states in Arizona v. U.S., and it鈥檚 possible Gov. Abbott is looking for a test case that can expand things in that area.鈥�
Abbott did not answer a question about whether he wanted that case revisited and referred questions about the program to DPS.
But other Texas officials have been open about their wish to have the Supreme Court reconsider the decision.
Earlier this year, Texas Assistant Attorney General on border security that his office would like to see the court reconsider its decision in the Arizona case on whether local police officers could arrest migrants on immigration violations. In 2012, the Supreme Court ruled in a 5-3 decision that local police didn鈥檛 have the authority to arrest someone based solely on their immigration status.
鈥淥ur office doesn鈥檛 agree with that ruling. We abide by that ruling because that is the current state of the law out of Supreme Court,鈥� he said. 鈥淲e welcome laws that might allow us to have a new case that we could go up on to redress this issue because the makeup of the Supreme Court has changed.鈥�
Meanwhile, Abbott has gotten around that requirement by directing state authorities to arrest migrants on state trespassing charges when they veer onto private property.
Reichlin-Melnick said it is clear that legal precedent bars local law enforcement agencies from enforcing immigration law without permission from the federal government.
鈥淚t鈥檚 pretty clear it鈥檚 not an open question. The Supreme Court has said over and over again that this is a federal responsibility,鈥� Reichlin-Melnick said. 鈥淸Abbott鈥檚] attempting to loophole his way out of that, but it鈥檚 not a particularly strong loophole.鈥�