Tough Texas immigration law nears. Residents have questions.

At the edge of the Texas-Mexico border last week, beneath the shade of towering trees, immigrant advocates convened in a Brownsville park to protest a new state law.

“No SB4!” they chanted, rallying in English and Spanish, calling the bill “anti-immigrant.” Two months earlier in Brownsville, Republican Gov. Greg Abbott had signed that Texas Senate Bill 4 into law. 

As the Biden administration and Texas continue to clash over illegal immigration, the Lone Star State seeks to expand its own immigration enforcement powers through SB4, in a test of traditional state and federal roles. Barring a court ruling expected soon, the law goes into effect March 5. 

SB4 empowers local law enforcement to arrest individuals suspected of entering the state illegally, and extends deportation powers to Texas judges. Beyond raising fear and due process concerns in immigrant communities, SB4 is also sparking questions around the logistics of enforcement. 

After all, legal experts say, immigration enforcement has long been understood as a primarily federal authority upheld by the Constitution. During an election year when many Americans rank immigration as a top concern, a win for Texas could open a new legal era.

“It would mean you now have a federal immigration system and a state immigration system, and they’re going to be interacting in chaotic and confusing ways,” says Denise Gilman, co-director of the Immigration Clinic at the University of Texas at Austin School of Law. The constitutional tradition of federal authority “would be called into question.”

Will the law go into effect? 

Generally, U.S. law allows individuals to apply for asylum even if they entered the country between official ports of entry. Another part of immigration law, however, makes “improper entry” a federal crime. 

Along the southern border, Border Patrol encounters with migrants between ports of entry have swelled to historic highs – more than 2 million a year – under the Biden administration. However, due to border policy changes during the pandemic, some people who crossed unlawfully are counted more than once.

Texas authorities have made thousands of migrant arrests for trespassing through a border security program called Operation Lone Star, launched in 2021. SB4 goes further, making illegal entry into Texas from a foreign nation a state crime. It also authorizes state judges to deport individuals who violate the new law. 

The law may not go into effect, however. In January, the U.S. Department of Justice sued to block SB4 from taking effect, arguing that it violates the Constitution and is preempted by federal immigration law.

In 2012, the department noted in its complaint, the U.S. Supreme Court ruled that the federal government “has broad, undoubted power over the subject of immigration and the status of” noncitizens. That case involved a similar attempt to create state immigration crimes in Arizona. 

Federal Judge David Ezra, who will decide whether to block the law’s rollout, meanwhile, voiced concerns about the prospect of Texas setting up a state immigration system parallel to the federal system. A victory in court for Texas could open the door to other conversations about states’ rights, says Huyen Pham, a professor at Texas A&M University School of Law.

For instance, if a local jurisdiction wanted to grant work authorization to immigrants, which is currently a federal power, “what keeps them from granting that?” If Texas’ laws are upheld, she says, “I don’t see where this ends.”

Texas will “fend for itself” 

Though the case may land at the U.S. Supreme Court, logistical questions remain about SB4’s rollout on the ground. In Eagle Pass, the epicenter of the Abbott-Biden showdown in recent months, Police Department spokesperson Humberto Garza says regular operations are already strained. The border city of roughly 30,000 is in the process of hiring more police officers, which he says Eagle Pass needed even before SB4. 

More personnel and other resources are needed for police to assume new immigration duties, says Mr. Garza, who adds that officers aren’t trained in immigration law.

SB4 is “going to stretch us even thinner than what we already are,” he says. Under current operations, “our main objective here is to the citizens of our community.”

Allowing Texas judges to issue deportations also requires cooperation with Mexico, which is not guaranteed. The Mexican president has called the new law “inhumane.” 

Texas lawmakers contend that SB4 is lawful, and necessary, because the federal government hasn’t properly exercised its own immigration enforcement powers.

“President Biden’s deliberate inaction has left Texas to fend for itself,” said Governor Abbott when he signed SB4. The law, he added, “will help stop the tidal wave of illegal entry into Texas.” 

Meanwhile, an affidavit by a Texas Department of Public Safety official sheds some light on the state’s vision for implementing SB4. Unauthorized immigrants, the official wrote, will primarily be held and processed in state-owned facilities, rather than in county jails. 

And a Republican state lawmaker who helped draft SB4, Rep. David Spiller, told a podcast in November that he envisions officers enforcing the law mostly along the border, within sight of illegal crossings. “We’re not going after someone’s grandmother that’s been here for 50 years,” he said. 

Concerns among immigrant communities 

The passage of SB4 and Governor Abbott’s increasingly sharp rhetoric – he’s called the levels of illegal crossings an “invasion” –  concern Texas immigrants and their allies. That includes people with a legal basis to live here, like one medical assistant in Austin who declined to have her name published for fear of legal consequences. 

After being brought to the United States as a baby from Mexico, she gained Deferred Action for Childhood Arrivals status – or DACA – in 2015, and has two American-born children of her own. While SB4 creates a carve-out for certain DACA recipients like her, she worries about her unauthorized parents, who’ve lived here for years. She says her family wanted to celebrate her mother’s birthday in March, but canceled plans due to fear of the new law.

“My mom is scared to plan something. ... She’s afraid of driving because she might be stopped and asked her immigration status,” says the Austin woman, whose family is considering moving out of state due to SB4. “I even cry sometimes just thinking about it. It’s just really stressful.” 

A separate law signed by Governor Abbott in December increased minimum sentences for people found guilty of smuggling immigrants. The suite of new legislation raises racial profiling concerns for Fernando García, the executive director at Border Network for Human Rights, an organization that co-led the Brownsville rally. Mr. García encourages Texans to resist answering questions about immigration status if stopped by police.

“You give your name and your date of birth. But when it comes to immigration status, you have the right to remain silent,” the U.S. citizen tells the Monitor, his sunglasses patterned with the stars and stripes of the American flag. “If you’re asking me if we will disobey an illegal law,” he says. “Yes, indeed. Because we believe that is illegal.”

In at least one city, Tyler, in eastern Texas, local law enforcement told residents last week that they wouldn’t ask for citizenship status during routine traffic stops, or arrest people simply transporting an immigrant relative. 

Still, immigrant advocates like the Rev. Julio Vasquez are preparing. He plans to track any reports of abuse by law enforcement through a new “human rights office” at his church. The Lutheran pastor also co-directs Eagle Pass Frontera Ministries, which offers immigrants free clothing, shoes, food, and occasionally bus fare to San Antonio.

His house of worship, Iglesia Luterana San Lucas, sits some 3 miles away from an Eagle Pass city park, now occupied by state forces and ringed with wire and shipping containers to deter illegal crossings from the Rio Grande. 

“I only see families seeking asylum,” says the soft-spoken man in Spanish. “I don’t see the invasion.”

View from a rural county 

Other officials and residents in Texas are concerned about what they see as a lack of federal action and support the goals of SB4, even if questions linger about its implementation. 

Sixty percent of Texas voters support “making it a state crime for an undocumented immigrant to be in Texas in most circumstances,” according to a poll this month from the Texas Politics Project at the University of Texas at Austin. 

About 170 miles up the border from Eagle Pass, Sheriff Thaddeus Cleveland pulls his truck off the highway and walks into a patch of scraggly brush. In his white, wide-brimmed hat and dark-blue jeans, he squats by a thin metal fence and points. 

“You can see where they’ve crossed it,” says the sheriff. “It’s kind of bent.”

The White House has done “absolutely nothing” on border security, says Sheriff Cleveland. Yet he’s also frank about limited resources. He’s one of four deputies working for rural Terrell County, whose jail can hold seven people. 

That won’t be enough bandwidth to arrest all migrants who unlawfully cross into his county. Instead, the former Border Patrol agent regularly calls up – and will continue to rely on – his former agency for close collaboration. Last fiscal year, he says his office assisted Border Patrol with more than 800 apprehensions, which is more than the population of Sanderson, the county seat. 

“It’s another tool we have in our pocket, for sure,” he says of SB4. However, with “the Border Patrol resources that we have, I don’t foresee us changing the way we conduct ourselves.” 

Editor's note: This story was updated to correct the name of the Iglesia Luterana San Lucas church.