The Texas legislature’s ongoing debate on Senate Bill 4 (SB 4) is at another critical stand still. Scheduled arguments in the 5th Circuit Court of Appeals took place last week where the court further considered the legal and moral reasoning behind the controversial law. A recent 2-1 vote by SCOTUS permitted SB 4 to pass for a second time in March before being blocked within hours of the court’s ruling. That lead to Wednesday’s appellate hearing involving Texas Solicitor General, Aaron Nielsen, Deputy Director at ACLU Immigrants’ Rights Project, Cody Wofsy, U.S Government Attorney Daniel Bentele Tenny, and defendant-appellant Francisco Javier Ortega defending the state’s support of SB4 to a three-judge panel including Chief Judge Richman and Judges Oldham and Ramirez.
The SB4 law makes it a misdemeanor to illegally cross the border outside of designated ports of entry, plus gives law enforcement and judges the authority to arrest and deport anyone they assume is not a U.S citizen, using their citizenship status or appearance as probable cause for arrest. Supporters of the bill claim this motion helps protect the Texas border without any foreseeable risks of abuse of power.
In January, the Department of Justice filed a lawsuit against the State of Texas on behalf of the United States, the Department of Homeland Security, and the Department of State.
None of these efforts have deterred Texas from being hyper-focused on prosecuting unlawful entry by any means necessary. During the 5th Circuit Court of Appeals session, Nielson stated that Texas has no intention of using the SB4 law to deport anyone, since, essentially Texas law enforcement are not the decision makers for who gets deported.
“Texas does not remove anybody. These are Return Orders. Texas will take the person to the port of entry, the US Border Patrol decides what to do next. It (has been) portrayed as if Texas, ourselves, are just flying people off to some other place, and that’s not accurate. How Texas understands and intends to enforce SB 4, that’s not how it’s going to be. It’s going to be, people are taken to ports of entry, and the U.S controls the point of entry.”
It was clear that Neilson, representing Texas, took no accountability for how their decision to move people to ports is essentially setting them up for deportation according to the framing of SB 4’s standards. Judge Priscilla asked Nielson directly, what happens after Texas law enforcement escorts suspected illegal immigrants to a point of entry.
“Presumably, the U.S will then put them in the U.S system. Process them, give them a hearing date to appear for federal proceedings. Tx wouldn’t be able to prosecute them again bc they haven’t committed a second crime.”
Neilson made it sound as if those arrested at the border with reasonable cause will simply be recorded, then seen in court at a later time; when in fact, this directly contradicts Section D of the SB4 Act which reads “a person convicted of an offense under chapter 51, Penal Code, the judge shall enter in the judgment in the case an order requiring the person to retune to the foreign nation from which the person entered or attempted to enter.”
Neilson’s well-calculated word salad gave weak reassurance to those concerned with being unfairly deported. Enforcing laws that violate the constitution and current immigration law puts many people at various stages of becoming US residents at an unfair risk. If passed again, this law would apply to all Texas counties, not just the bordering counties, and nearly guarantees those arrested and brought before a judge will be deported. Shifting the blame onto Border Control is a complete avoidance of accountability by the State of Texas. Using language such as “that’s not how we understand the law,” throughout Neilson’s defense shows how supporters are turning a blind eye to how this law makes room for racially motivated decisions that encourages the separation of families who have lived in Texas for generations.
This isn’t the first time we’ve seen debate over questionable immigration laws. In 2004, Senate Bill 1070 made it a state crime for unauthorized immigrants to not carry registration papers. Latina grassroots organizations joined together to demand it be struck down. Similarly, there are over 70 community based organizations today making a joint effort to demolish SB 4 from becoming a new norm that other states copy-paste into their own jurisdictions. Other major opponents to the law include the Biden Administration, District Courts, El Paso County, each expressing how the proposed changes interferes with federal immigration laws and are completely unconstitutional.
Mexico’s Foreign Affairs has taken a stand against the SB 4 efforts, refusing to enable these unconstitutional efforts by allowing those being deported to enter their country.
“On behalf of the Government of Mexico, the Ministry of Foreign Affairs condemns the entry into force of Texas law SB4, which seeks to stop the flow of migrants by criminalizing them, and encouraging the separation of families, discrimination and racial profiling that violate the human rights of the migrant community. Mexico is deeply concerned that SB 4 will be applied in a discriminatory manner and fears that its enforcement will lead to improper harassment, detention, removal and criminalization of Mexican citizens and individuals of Latino appearance. Enforcement of SB 4 would also interfere with Mexico’s right to determine its own policies regarding entry into its territory, undermine U.S.-Mexico collaboration on a legal migration framework and border management, and hinder U.S.-Mexico trade.”
So even if SB 4 gets passed, with a strong statement like this from Mexico, the battle is far from over. There would have to be further legal actions for Texas to fully enforce their plan of “protecting the border”.
Earlier in 2024, Texas governor Greg Abbott deployed state and military resources to the border, placing razor wire in the rio grande and repairing border barriers. In a press release after the 5th Circuit Appeal decision, Attorney Ken Paxton stated, “Today, my office was proud to defend SB 4, Texas’s new border security law, in the U.S. Court of Appeals for the Fifth Circuit. As counsel explained, Texas has gone as far as Arizona v. United States allows by using the State’s sovereign police power to protect the border in a way that mirrors rather than conflicts with federal law.”
According to government stats presented in the 5th Circuit Court, there are currently 1.3 million outstanding orders of removal. Texas’s role in the unnecessary deportation of local immigrants clearly ignores the blaring, consistent outcries for fairness and mercy towards immigrants in the southern state. The back and forth over this law the past few months has been a roller coaster to say the least. There are no anticipated dates for further hearings or appeals at this time.
Texans now wait patiently as the ultimate decision will be made by the Supreme Court.
