MCALLEN, Texas – A dizzying volley of courtroom maneuvers over a Texas law that would allow the state to arrest and deport people who enter the U.S. illegally sowed confusion at the nation's border with Mexico on Wednesday as sheriffs, police chiefs and migrants waited for direction.
Texas faced skeptical questioning during a hearing before a three-judge panel of the 5th U.S. Circuit Court of Appeals that ended without a ruling, leaving the new law on hold for now. It was part of a flurry of activity that included a decision from the U.S. Supreme Court that allowed the law to take effect for several hours Tuesday. And regardless of how the three-judge panel rules, the legal saga over Texas Republican Gov. Greg Abbott’s latest escalation to prevent illegal border crossings won't be over.
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Yolanis Campo, 42, who traveled from Colombia and crossed the Rio Grande to enter the U.S. from Mexico with her 16-year-old daughter, recommended other migrants take another route because of the confusion over Texas’ law. She was processed by Border Patrol agents who released her with an ankle bracelet to pursue her immigration case.
“It’s more complicated because (federal authorities) tell us we can move on, but this new rule, this new law complicates everything because it says we can’t move on,” said Campo, who was staying at a shelter in McAllen.
During Wednesday's hearing, 5th Circuit Chief Judge Priscilla Richman questioned how the state law would be carried out, including how Texas would respond if federal authorities don’t cooperate with a state judge’s order to deport someone. No arrests were reported while it was in effect Tuesday.
The U.S. Department of Homeland Security has said it would not have authority to deport under the state law.
“This is uncharted because we don’t have any cases on it,” said Texas Solicitor General Aaron Nielson.
The Justice Department has argued that Texas’ law is a clear violation of federal authority and would create chaos at the border.
The department's lawyers faced a grilling from Judge Andrew Oldham, who was appointed by Republican President Donald Trump. The third judge on the panel, Judge Irma Ramirez, an appointee of Democratic President Joe Biden, previously voted to keep the law on hold.
Richman, who was appointed by Republican President George W. Bush, challenged Texas’ assertion that it is exercising a “core police power,” getting Nielsen to acknowledge that deporting people has been a federal responsibility. But Nielsen denied that Texas is “trying to take over the field” on border enforcement and said the state wants to cooperate with the federal government to address the issue.
Nielsen also said he did not know how the law would affect someone who entered the country illegally but came to Texas from another state.
Republican legislators wrote the law so that it applies in all of the state’s 254 counties, although Steve McCraw, the director of the Texas Department of Public Safety, has said he expects it will mostly be enforced near the U.S.-Mexico border.
Dozens of sheriffs met in Austin on Wednesday to rally support for Abbott, but they offered varied explanations about how they would enforce the law. Those farther from the border said they expected to have little to do with it.
“We’re not going to be targeting minorities or anything like that.” McLennan County Sheriff Parnell McNamara, whose office is a few hundred miles from the border. “Our good citizens don’t need to be worried about the police, especially in McLennan County.”
The Supreme Court did not rule on the merits of the law. It instead kicked back to the lower appeals court a challenge led by the Justice Department. The 5th Circuit has been considering the state’s appeal of a scathing injunction from a lower-court judge that put the law on hold.
Under the Texas law, once migrants are in custody on illegal entry charges, they can agree to a judge's order to leave the U.S. or face prosecution. However, Mexico has said it would refuse to take back anyone who is ordered to cross the border.
“Of course we’re against this draconian law, completely opposed,” Mexican President Andrés Manuel López Obrador said Wednesday during his daily press briefing.
Other GOP-led states are already looking to follow Texas’ path.
In Iowa, lawmakers on Tuesday approved a bill that would also give its state law enforcement the power to arrest people who are in the U.S. illegally and have previously been denied entry into the country. If Republican Gov. Kim Reynolds signs it, it would take effect in July.
The confusion in Texas resembles other immigration battles during the Trump and Biden administrations, fueled by congressional inaction. In 2020, the 9th U.S. Circuit Court of Appeals blocked a Trump policy to make asylum-seekers wait in Mexico for hearings in U.S. immigration court but said its order applied only in California and Arizona and not in New Mexico or Texas because those border states were outside its jurisdiction. The Supreme Court later said the policy should remain in effect across the border.
Arrests for illegal crossings fell by half in January from a record-high of 250,000 in December, with sharp declines in Texas. Tucson, Arizona, has been the busiest corridor in recent months, followed by San Diego in January, but reasons for sudden shifts are often complicated and are dictated by smuggling organizations.
When Biden visited the Rio Grande Valley for his second trip to the border as president last month, administration officials credited Mexico for heightened enforcement on that part of the border. They said conditions were more challenging for Mexican law enforcement in Sonora, the state that lies south of Arizona.
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Whitehurst reported from Washington. Also contributing were Associated Press writers Acacia Coronado in Austin, Texas; Elliot Spagat in San Diego; Christopher Sherman in Mexico City; and Scott McFetridge in Des Moines, Iowa.