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Biden v. TX: Border Control

Gabriella Quesada

Edited by Sandi Perez and Vedanth Ramabhadran


On January 9, 2024, three bodies were found suspended in the Rio Grande river, identified to be migrants trying to enter Eagle Pass across the U.S.-Mexico border. Unfortunately, this is not the most horrific part of this tragedy. According to a court filing by the U.S. Department of Justice, federal border agents attempted to access the area and provide aid to migrants struggling in the water, but the Texas National Guard had blocked any federal access 2.5 miles within the border [1]. Within this contested region lies Eagle Pass, Texas, which has gained tremendous media coverage since the Texas National Guard took over on January 11, 2024 [2]. As border concerns have always been a topic of contention in Texas, the recent escalation of physical harm and lack of cooperation between state and federal officials has officially crossed the fine line between how far state legislation can impact federal immigration policy. As a result, the root of the problem is increasingly being questioned: what are the constitutional rights of both parties in handling the U.S.-Mexico border? In analyzing the historical buildup and their relations to current events at the border, one can better see that these horrific events in January can be attributed to a combination of legal statutes that have failed to provide a clear-cut solution.

Since 1952, the federal government has utilized The Immigration and Nationality Act (INA) to regulate immigration in the United States [3]. The INA contains a collection of provisions concerning immigration law, granting the federal government extensive jurisdiction over immigration. For example, the Secretary of State has the power to set visa policies, coordinate refugee assistance, and advise the President on foreign policy matters concerning immigration [4]. Additionally, the Department of Homeland Security (DHS) is the primary agency responsible for immigration enforcement, border security, and administration of immigration laws. Even with these wide-ranging federal powers, states have continued to increase their sphere of influence over the matter. In 1996, Section 287(g) was added to the INA, a pivotal program that has blurred the lines between federal and state power. The program enables state and local law enforcement officers to act as immigration enforcement agents and to exist as an extension of the U.S. Immigration and Customs Enforcement (ICE). Thus, the 287(g) program officers, rather than ICE agents, are tasked to identify and detain undocumented immigrants in state or local custody [4]. 

The 287(g) program highlights the hybrid nature of federal and state resources in handling immigration. The program begins with state and local law enforcement entering a written agreement in the form of a Memoranda of Agreement (MOA) [5]. MOAs are negotiated between DHS and local agents to ascertain the authorities granted to local officers to perform federal ICE agents’ tasks. Some specific tasks include interviewing individuals to understand their immigration status, access to DHS databases for personal information, and making recommendations for detention and immigration bonds. These agreements are commonly seen in two forms: the Jail Enforcement Model (JEM) and the Warrant Service Officer (WSO) model. The former, implemented in 2005, enables state officials to identify, interview, serve warrants, and prepare removal documents for noncitizens. The latter, implemented in 2019, is a narrower cooperative agreement where state officials are limited to serving warrants to noncitizens who have already been identified by ICE. With these differences in power, the JEM model has a longer training program of 4-weeks which state officials learn about immigration law and the usage of ICE databases. On the other hand, the officers under the WSO model only train for one day [5]. Both models give local enforcement departments the option to choose which model suits them best budget-wise and their accessibility to cooperate with ICE within their state policies.

Since the program’s creation in 1996, it has sought a streamlined process for reducing illegal border crossings through collaboration between local officials and ICE; however, the results have been adverse. The U.S. Justice Department has found multiple localities using their authority under the 287(g) program to commit constitutional violence, in particular racial profiling. For example, in 2017, in Maricopa, Arizona, Sheriff Joe Arpaio, authorized large-scale racial profiling in which  Latinx neighborhoods were targeted for checkpoints, leading to higher Latinx arrests [6]. Within the summary of the report conducted by the DOJ, it was recorded that Latinx drivers in Maricopa were four to nine times more likely to be stopped by police than non-Latinx drivers. In August 2022, the UN Committee on the Elimination of Racial Discrimination was represented by 18 independent human rights experts in a report on the U.S. government’s racial injustice record [7]. Amongst their criticisms, they specifically mentioned the practice of racial profiling by law enforcement, supported through the 287(g) program with ICE. Despite these findings, there remain 137 jurisdictions in the U.S. with 287(g) agreements, highlighting the difficulty of its removal let alone the effects from it on communities across the nation. 

Moving past the hands-on influence of law enforcement at the border, there is a more disconnected yet more powerful figure concerning immigration law – the President. An executive policy best showcasing the flexibility and power of the President regarding the border is Title 42: a section of the U.S. code that, in this particular context, enables authorities to quickly expel border crossers back to Mexico, or even to the crossers’ countries of origin. Critically, this policy overrode the Refugee Act of 1980 which set a permanent and systematic procedure for immigrants to seek asylum. Beginning in March 2020, Trump implemented this policy due to increased COVID-19 precautions. One year, including a presidential year, into the implementation of Title 42, the Biden administration continued to face overwhelming numbers of illegal border crossings. Due to the policy’s nature of bypassing due process and the immediate deportation of those apprehended,  recidivism rates have reached an all-time high [9]. With this lack of effectiveness and questionable constitutionality, the Biden administration attempted to phase out Title 42 in 2022 as COVID-19 restrictions were beginning to lift. Overcoming a lawsuit seeking to block Biden’s dismantling of Trump’s immigration agenda, Title 42 was finally lifted once the public health emergency for COVID-19 was on May 11, 2023 [10] [11]. After 38 months and around 2.8 million migrant expulsions later, the U.S. reverted back to its original immigration policies, leaving pre-existing practical difficulties faced by asylum seekers unresolved [8].  

As political agendas influence immigration policy changes, the power the President has to make these adjustments leads to high levels of instability. This lack of reliability is an integral part of the current issues between federal and state officials in Eagle Pass, Texas. Just two months after President Biden was sworn in, Texas Governor Greg Abbott created the Operation Lone Star initiative to combat the rise in illegal border crossings [12]. In May 2021, Abbott issued a disaster proclamation, declaring the influx of illegal immigrants crossing at the Texas-Mexico border an “imminent and ongoing threat” to Texas counties [13]. With this declaration’s renewal in 2023, Operation Lone Star has sparked controversy after a series of Texas legislation were passed. Customs Border Patrol agents originally could only detain individuals at border checkpoints, having to later transfer them to local officers, who could then continue the law enforcement processes of arresting, searching, and seizing. However, since Abbott’s signing of Senate Bill (SB) 602, Custom Border Patrol agents can conduct the duties of local officers under Texas or federal law [14]. On March 5, 2023, Abbott signed SB 3, granting the Office of the Governor $1.5 billion to fund border barrier infrastructure and border security operations. This bill enabled Texas officers to install floating buoys in Eagle Pass, which have since incited a lawsuit between the White House and the State of Texas. [15]. As Greg Abbott refuses to follow the statement from the U.S. Department of Justice calling for the removal of these floating barriers, the battle over federal and state jurisdiction escalates. 

As of mid-February approximately 17 migrants have drowned in the Rio Grande within Eagle Pass. Since the implementation of the 287(g) program, the following programs and initiatives, often politically charged, have created an unstable, life-threatening effect [16]. This problem will only continue to grow as the two levels of government struggle to work with one another, focusing their efforts on ineffective legislation that continues to fail to provide a clear deviation of power.

 

[1] William Melhado, U.S. Supreme Court says Texas can’t block federal agents from the border, The Texas Tribune (Jan. 22, 2024), https://www.texastribune.org/2024/01/22/texas-border-supreme-court-immigration/.

[2] Uriel J. García, In Eagle Pass, a tense border standoff between Texas and the federal government is reaching a crescendo, The Texas Tribune (Jan. 22, 2024), https://www.texastribune.org/2024/01/22/texas-border-patrol-immigration-enforcement-eagle-pass-park/.

[3] Immigration and Nationality Act (INA), 8 U.S.C. § 1101-1537

[5]The 287(g) Program: An Overview, American Immigration Council (July 8, 2021), https://www.americanimmigrationcouncil.org/research/287g-program-immigration

[6] Email from Thomas E. Perez, Assistant Attorney General for the Civil Rights Division, to Bill Montgomery County Attorney of Maricopa County Sheriff’s Office (Dec. 15, 2011), https://www.justice.gov/sites/default/files/crt/legacy/2011/12/15/mcso_findletter_12-15-11.pdf.

[7] Naureen Shan, UN Racial Justice Experts Call on Biden to End the 287(g) Program, ACLU (Aug. 31, 2022), https://www.aclu.org/news/immigrants-rights/un-racial-justice-experts-call-on-biden-to-end-the-287g-program.

[9] Nicole Ellis and Casey Kuhn, What is Title 42 and what does it mean for immigration at the southern border? PBS NewsHour (Jan. 13, 2023), https://www.pbs.org/newshour/nation/what-is-title-42-and-what-does-it-mean-for-immigration-at-the-southern-border

[10] Justo Robles, Title 42 migration restrictions have ended, but Biden’s new policy is tougher, The Guardian (May 12, 2023), https://www.theguardian.com/us-news/2023/may/13/title-42-migration-biden-new-policy-tougher#img-1

[11]What Does the End of Title 42 Mean for U.S. Migration Policy? Carnegie Corporation of New York (Jun. 5, 2023), https://www.carnegie.org/our-work/article/what-does-end-title-42-mean-us-migration-policy/#:~:text=Title%2042%2C%20a%20COVID%2D19,for%20COVID%2D19%20was%20lifted

[12] Operation Lone Star - Operation Lone Star, Texas Indigent Defense Commission, https://www.tidc.texas.gov/operation-lone-star/

[14] Julián Aguilar, Controversial legislation making unauthorized entry into Texas a state crime heads to governor, KERA (Nov. 14, 2023), https://www.keranews.org/texas-news/2023-11-14/texas-house-passes-controversial-and-costly-immigration-enforcement-bills

[15] Julián Aguilar, Abbott refuses to remove border buoys and will take battle with Biden to court, KERA (July 24, 2023), https://www.keranews.org/texas-news/2023-07-24/abbott-refuses-to-remove-border-buoys-and-will-take-battle-with-biden-to-court.

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