Texas state troopers arrest thousands of migrants crossing the border. Critics call it unconstitutional.

Originally Published in USA Today

Rick Jervis – September 29, 2021

Ivan Nava and David Muñoz, friends from Guerrero, Mexico, crossed into the USA together in June without permission. They hoped to connect with relatives, find jobs and map out better lives for their families back in Mexico.

Instead, they sat in a Texas prison for seven weeks, unclear as to the charges against them or what awaited them.

They are two of thousands of migrants who crossed into Texas from Mexico this year without proper documentation and were rounded up as part of Operation Lone Star, Gov. Greg Abbott’s initiative to use state troopers and National Guard soldiers to help bolster federal immigration enforcement.

Tuesday, a Texas district court judge dismissed the charges of criminal trespassing against Nava and Muñoz after prosecutors were unprepared to present probable cause in the case. Advocates hailed it as a major victory against Operation Lone Star, which they allege is unconstitutional and flouts federal laws. Supporters of the policy claim it’s Abbott’s right to stop undocumented migrants from streaming into Texas if the federal government fails at the task.

Both men remain in custody, and it’s not clear what will happen when they’re released. State officials could hand them over to federal immigration agents, who may detain or deport them. Or they could be released into the USA to await an immigration hearing.

Tuesday, the same judge who presided over the Nava-Muñoz case ordered the release of 243 migrants arrested under Operation Lone Star on no-cost bonds after prosecutors agreed to the releases. Many of the men had been jailed without charges for more than two weeks, according to Texas RioGrande Legal Aid, which represented the migrants.

The Nava-Muñoz case and other legal challenges could have far-reaching consequences if higher courts take up the case or other states mimic Texas’ policy, said Alicia Torres of Grassroots Leadership, an Austin-based immigrants advocacy group.

“If we as a nation don’t stand up to Texas and say, ‘Enough is enough’ … we will see policies like Operation Lone Star pop up across the country,” she said.

Abbott launched Operation Lone Star in March, deploying hundreds of state troopers from the Texas Department of Public Safety, agents, rangers and National Guard soldiers to back up the Border Patrol, arrest migrants slipping through and combat smugglers. As of late August, more than 4,600 people had been arrested through the initiative for charges including criminal mischief and criminal trespassing, according to a news release from Abbott’s office.

The effort was launched as the number of migrants encountered by the Border Patrol, especially at the southwest border, soared to numbers not seen in two decades. As of the end of August, border agents had encountered more than 1.5 million migrants this fiscal year, more than the 977,509 encountered during the entire 2019 fiscal year, the last time the agency saw such high numbers.

The Border Patrol’s Rio Grande Valley Sector in South Texas has been the busiest of any other sector along the U.S.-Mexican border, tallying up 493,993 encounters, followed by the Del Rio Sector, also in Texas, with 214,993, according to statistics released by U.S. Customs and Border Protection, which oversees the Border Patrol.

The migrants have been drawn to the border to escape the aftermath of natural disasters and corruption and violence in their home countries, as well as by the perception that President Joe Biden will be more welcoming to migrants than his predecessor, Donald Trump.

The Biden administration has struggled this year to stem the flow of undocumented border crossers while attempting to roll back Trump-era policies considered harsh by advocates, such as Title 42, which expels mostly adult men to Mexico without due process to prevent the spread of COVID-19, and the “Remain in Mexico” policy, which places migrants in northern Mexico border towns to await their immigration hearing.

Abbott reaffirmed his commitment to Operation Lone Star on Sunday.

“Because the Biden administration is refusing to do its duty, to enforce the laws of the United States,” he told Fox News, “they’ve left Texas with no position other than to step up and do what we have to do.”

His critics say Operation Lone Star blatantly disregards the U.S. Constitution, which assigns immigration enforcement to the federal government, and calls to mind attempts by states to become more involved in federal immigration, such as Arizona’s SB 1070.That 2010law required state law enforcement officers to determine a suspect’s immigration status during routine stops. Critics said it led to racial profiling and other civil rights violations.

The U.S Supreme Court struck down most of the law in a 5-3 decision in 2012.

Local agencies can still communicate with federal immigration agents and let them know they have a person suspected of crossing the border illegally, said Geoffrey Hoffman, director of the University of Houston Law Center. But state agents arresting and processing migrants who enter the USA without proper documentation violates the Constitution and the Immigration and Nationality Act, he said.

“There’s no gray area – it’s very clear,” Hoffman said. “What the governor’s doing here goes beyond what’s allowed under the law.”

Abbott’s office did not respond to a request for comment. The Texas Department of Public Safety, which oversees Operation Lone Star, did not respond to a list of detailed questions about the initiative.

Thomas Saenz, president and general counsel of the Mexican American Legal Defense and Educational Fund, said he and his organization closely monitor the legal challenges to Operation Lone Star. Abbott’s policy not only leads to racial profiling and infringes on civil liberties but will dissuade Latino residents from reporting crimes, making communities less safe, especially in Texas, which is 40% Hispanic, he said.

“Whenever you ask untrained law enforcement officers to engage in immigration enforcement efforts, they are going to revert to racial profiling,” Saenz said. “That’s exactly what an initiative like this invites.”

State troopers arrested Nava, 29, and Muñoz, 41, on July 25 as the pair stood on a public highway in Kinney County, near the U.S.-Mexican border, according to a petition filed with the court by their attorneys. They were presented with a pre-filled document in English, which they didn’t understand, essentially saying they had been informed of their rights and would waive their right to an attorney, according to the petition.

The two spent a night in Val Verde County jail, then were transferred to the Dolph Briscoe Unit, a state prison that was emptied this year to make room for the scores of migrants arrested under Operation Lone Star. They were charged with criminal misdemeanor trespassing on Sept. 8 – 45 days after their arrest.

Civil rights attorneys discovered them only after Muñoz’s sister, who lives in California, received a phone call from her brother from the prison and frantically began contacting advocacy groups, said Torres, the Austin-based advocate.

“It has been very challenging,” she said. “These are two men that were arrested and spent more than 50 days in jail with minimum access to any outside news or understanding of their cases.”

Advocates applauded Tuesday’s dismissal of the case, but they worry Nava and Muñoz will be handed over to federal immigration officials and may be deported. They called on the Biden administration to allow them to stay in the USA while their immigration case is heard.

“Operation Lone Star relies on racial profiling and systemically violates due process,” Kevin Herrera, the migrants’ attorney, said in a statement. “We demand … that [Department of Homeland Security] cease any collaboration with this unconstitutional program.”

Others back Abbott’s decision to deploy state assets to the border to help stem the flow of migrants and drugs.

Jessica Vaughn, director of policy studies at the Washington-based Center for Immigration Studies, which promotes stricter control on immigration, said the state troopers mostly pick up undocumented migrants who are trying to sneak past Border Patrol agents, not the ones turning themselves into request asylum. 

She said she’ll closely watch legal challenges to the policy.

“It’s going to be interesting to see how this plays out,” Vaughn said. “We could end up with a blueprint from the courts on exactly what can be done by states to address illegal immigration.”

Follow Jervis on Twitter: @MrRJervis.