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Legal groups file lawsuit to stop Texas law that makes illegal entry a state crime

A Texas trooper talks with migrants as they walk along concertina wire and try to cross the Rio Grande at the Texas-U.S. border in Eagle Pass , Texas, Thursday, July 6, 2023.
Eric Gay
A Texas trooper talks with migrants as they walk along concertina wire and try to cross the Rio Grande at the Texas-U.S. border in Eagle Pass , Texas, Thursday, July 6, 2023.

Texas-based civil rights groups on Tuesday filed a lawsuit to stop an immigration-enforcement law that would make unauthorized entry a state crime.

The lawsuit by the American Civil Liberties Union of Texas and the Texas Civil Rights Project to halt Senate Bill 4 comes just one day after Gov. Greg Abbott held a bill-signing ceremony in Brownsville touting the state’s response to what he’s called federal inaction on border security.

The legislation makes unauthorized entry a misdemeanor for a first offense, and penalties increase to a felony for subsequent violations. The bill also permits a local judge or magistrate to order a person back to Mexico, regardless of their nationality.

The lawsuit was filed in federal court in Austin on behalf of El Paso County, El Paso-based Las Americas Immigrant Advocacy Center and American Gateways, which has offices in Austin, San Antonio and Waco. It names Texas Department of Public Safety Director Steve McCraw and El Paso County District Attorney Bill Hicks as defendants.

“We’re suing to block one of the most extreme anti-immigrant bills in the country,” Adriana Piñon, the legal director of the ACLU of Texas, said in a statement. “The bill overrides bedrock constitutional principles and flouts federal immigration law while harming Texans, in particular Brown and Black communities. Time and time again, elected officials in Texas have ignored their constituents and opted for white supremacist rhetoric and mass incarceration instead.”

The lawsuit was expected as opponents of the bill have argued all year that immigration enforcement is solely the responsibility of the federal government.

“S.B. 4 creates a new state system to regulate immigration that completely bypasses and conflicts with the federal system. It allows state officers to arrest, detain, and remove individuals from the United States,” the filing states. “[It] mandates removal for those who are convicted of the new state crimes of illegal entry and reentry—all without any input or involvement whatsoever from federal officials.”

Abbott on Monday conceded the law will be challenged but said he thought it would survive. If not, he added, he’s looking forward to a showdown at the U.S. Supreme Court.

“We think that Texas already had the constitutional authority to do this,” he said.

On Tuesday afternoon, he stood by his belief the courts would side with Texas.

"President Biden has repeatedly refused to enforce federal immigration laws already on the books and do his job to secure the border," he said in a statement. "In his absence, Texas has the constitutional authority to secure our border through historic laws like SB 4. Texas will take this fight all the way to the U.S. Supreme Court if necessary to protect Texans from President Biden's dangerous open border policies."

If it makes it to the high court, the focus will likely be on whether the justices will revisit a 2012 decision in an Arizona case that upheld the federal government’s authority on immigration issues. Although the conservative court last year overturned Roe v. Wade, the landmark 1970s decision that granted a person’s right to have an abortion, legal experts say immigration is a separate issue.

While abortion, gun control and heath care are areas that states can control, immigration is in a different category because it also involves communication with foreign governments, ACLU of Texas attorney David Donatti told The Texas Newsroom last month.

“The state of Texas can pass its own laws about marketing tobacco products, for example, about how to regulate Medicaid, about traffic laws,” he said. “Immigration controls, deportation absolutely are outside of that window of what the states are usually free to legislate.”

This story has been updated with a comment from Gov. Greg Abbott.

Got a tip? Email Julián Aguilar at jaguilar@kera.org.You can follow Julián on Twitter @nachoaguilar.

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Julián Aguilar | The Texas Newsroom