Judge doubtful of Texas effort to criminalize immigration

AUSTIN, Texas (CN) — Immigrant advocates asked a federal judge on Thursday to block a Texas law making unlawful entry into the Lone Star State a state crime. 

Signed into law by Texas Governor Greg Abbott in December, Senate Bill 4 authorizes all state and local law enforcement to arrest individuals they believe entered the state illegally. The only exceptions are if an individual can show that they have been granted lawful status such as asylum or are enrolled in the Deferred Action for Childhood Arrivals, or DACA, program.

State courts tasked with handling cases will be able to issue removal orders. If a removal order is violated, a person faces 20 years in state prison. 

Shortly after Abbott signed the law, El Paso County and two immigrant rights organizations — Las Americas Immigrant Advocacy Center and American Gateways — sued Steven McCraw, director of the Texas Department of Public Safety. The U.S. Department of Justice also sued the state in January.

Both sets of plaintiffs claim SB4 violates the U.S. Constitution’s supremacy clause, which gives Congress the sole authority to legislate matters related to immigration. Las Americas and American Gateways have also said if the law is allowed to take effect, it would require them to divert their resources for representing clients in federal immigration court to tracking migrants in county courts. El Paso County has echoed this claim, claiming the bill conflicts with the goals of its recently opened migrant support services center. 

Representing the Justice Department, Principal Deputy Assistant Attorney General Brian Boynton called the law "clearly invalid under settled precedent."

That precedent, according to the plaintiffs, includes the U.S. Supreme Court ruling in Arizona v. United States, which invalidated a law that would have given local law enforcement greater authority to regulate federal immigration law.

Boynton also presented several instances where the law will complicate the enforcement of federal statutes and essentially giving the state carte balance the ability to remove any person who has unlawfully entered the state. He said that if allowed to take effect, SB4 presents a clear injury to the federal government's ability to handle foreign affairs with the countries that migrants have fled.

El Paso County, Las Americas Immigrant Advocacy Center, and American Gateways were given a chance to present their claims as well. Representing El Paso County and the nonprofits, American Civil Liberties Union staff attorney Anand Balakrishnan argued the provision allowing state judges to order the removal of people in the U.S. illegally means some may not be allowed the right to pursue asylum. Moreover, the law could keep non-citizens from reporting crimes to local law enforcement out of fear of being arrested and prosecuted. 

U.S. District Judge David Ezra only asked a few questions from the plaintiff's counsel during their respective arguments. This changed wihen Texas Assistant Attorney General Ryan Walters began his argument.

"No federal immigration statute has been pointed to that is at conflict with [SB4]," Walters told the court. "There is no evidence that SB4 is going to operate any different than federal immigration laws."  

But Ezra called it "troublesome" that a non-citizen's claim of asylum will not abate their prosecution in state court under SB4. Only people who have already been granted asylum are exempt from prosecution under the law. Ezra asked Walters about the subsequent fallout if he rules in favor of the state and allows SB4 to take effect and other states in turn enact their own immigration laws. 

"That then turns us, the United States of America, into a confederation of states, all with their own laws," Ezra said. "That is the kind of thing the Civil War said you could not do. What a nightmare."

Walters answered that before federal enforcement of immigration law, states regulated the issue. Unswayed, Ezra told Walters that the government noticed that the historical system was not working so it stepped into its current role. 

Elissa Steglich, clinical professor and co-director of the Immigration clinic at the University of Texas at Austin, said in an interview that Texas has begun to tread new legal ground with its passage of SB4.

"I think throughout court precedents, it's been clear that there can only be one cook in the immigration kitchen," Steglich said. "Texas is just unhappy about that and has stepped in the role of sous chef, following some other recipe, as the federal chef is still trying to prepare a good meal."

As an immigration law expert, Steglich believes the law will put judges across the state in an impossible position by having them practice immigration law and believes the plaintiffs' supremacy clause arguments are on solid legal ground

Judge Ezra is not new to handling disputes between the federal government and the state of Texas. In 2023, the judge sided with the federal government over Abbott's decision to deploy a 1000-foot buoy barrier in the Rio Grande near Eagle Pass. Ezra, in a preliminary injunction ordered the state to move the barrier to the Texas side of the river and blocked it from placing further barriers in the water. The state has since appealed the ruling to the Fifth Circuit.  

Most recently, the U.S. Supreme Court ruled against Texas in its bid to stop federal border officials from cutting concertina wire barriers placed as part of Abbott's $10 billion border security initiative, Operation Lone Star. State officials have remained defiant after the court's order, even going as far as to continue blocking access to a park in Eagle Pass.

At the conclusion of Thursday's hearing, Judge Ezra said that he will work to issue a ruling as quickly as he can, likely before SB4 is set to take effect on March 5. 

"This will go to the Supreme Court, I am sure," Ezra said.

Follow @KirkReportsNews

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit