A federal judge in El Paso on Thursday issued an injunction blocking Gov. Greg Abbott’s executive order restricting the transportation of migrants in the state.
The Department of Justice asked for a restraining order to keep Abbott from using state troopers to stop vehicles suspected of transporting migrants.
Judge Kathleen Cardone had issued a temporary restraining order that was scheduled to expire on Friday. Cardone’s injunction is in effect indefinitely.
The judge wrote that Abbott’s order disrupts federal enforcement of immigration laws and the state did not present evidence to support its claim that the order would help stop the spread of COVID-19.
"The Order seems to do little to protect public health despite its purported motivations. Texas presents no evidence that noncitizens entering the United States at the border pose a particular health risk such that restricting their transportation would improve health and safety," Cardone wrote.
The DOJ’s lawsuit against Abbott was recently consolidated with another brought by the ACLU of Texas.
"The court's blocking of Gov. Abbott's blatantly unconstitutional executive order provides welcome relief for Texans,” said Kate Huddleston, an attorney at the ACLU of Texas. Their lawsuit against Abbott over his executive order was recently consolidated with the DOJ’s. “With the court's injunction, our plaintiffs — including shelter providers, humanitarians, and immigrants living in Texas — will be able to live their lives and provide refuge for asylum seekers free from the threat of having their vehicles impounded or being forced to drive to the border. This is the first step to ensuring that this latest assault on Texans' civil rights and effort to scapegoat immigrants by the governor is unsuccessful."
Abbott responded to the injunction Thursday evening, tweeting that “I’ll continue to take every step consistent with the law to secure the border & keep Texans safe.”
"The Governor's initiative that he has put in place is legitimate, it's valid, it's necessary." – Jackson Co. Sheriff & President of TX Sheriffs' Regional Alliance A.J. Louderback
I'll continue to take every step consistent with the law to secure the border & keep Texans safe. pic.twitter.com/QsFCKMPUWH
— Greg Abbott (@GregAbbott_TX) August 26, 2021
During an early August hearing, Department of Justice attorney Brian Boynton argued Texas has no authority impose its own immigration laws. And he told U.S. District Judge Cardone the state would impede federal contractors transporting migrants in custody and non-profit groups providing services for migrants who are released and travel to other cities to await their immigration hearings.
"All of that would be impaired by the Texas order," said Boynton.
He told the court "Sister Norma" — referring Sister Norma Pimentel of Catholic charities in the Rio Grande Valley — got a visit from the Texas Department of Public Safety.
"The day the Texas executive order was signed, DPS came to her and told her they could no longer transport migrants."
Boynton said they also notified her that DPS would have troopers "staked outside of their facility."
Attorney for the state of Texas Will Thompson said DPS troopers visited to "give her a heads up" before they began to enforce the migrant travel ban.
Boynton said the executive order was in conflict with federal law because state officials would have to make an immigration status determination and Texas doesn't have the authority to just "target migrants."
During a public health threat, any mitigation effort should be imposed across the board, argued Boynton. He said the travel restrictions enforced by DPS troopers would lead to "targeting people, profiling and harassing people."
Boynton said Texas had done "nothing to explain why COVID would be better if transporting was done by law enforcement."
And he noted Texas could take other measures to reduce the spread of COVID, "like allowing localities to impose mask mandates" and providing testing and quarantine for all individuals exposed to COVID-19.
But the attorney for the state told the court Texas is dealing with a major public health crisis and COVID is "skyrocketing" at the border because of migrants. Judge Cardone asked, "Isn't it skyrocketing everywhere...including Austin, Houston and Dallas?”
Thompson told the judge the "danger for migrants is greater." Judge Cardone asked, "Isn't that true of all people who are unvaccinated?"
He told the court migrants are more vulnerable to the virus because they come from and travel through countries with lower vaccination rates before they cross and are responsible for a spike in COVID cases on the border.
"To my knowledge it's not spiking in El Paso and we're certainly on the border," said Judge Cardone.
Thompson argued the governor's executive order is not based on any effort to change immigration police but rather is "tied to the current public health crisis."
Judge Cardone asked him if DPS would determine "who has and has not been processed and released by the federal government?"
"I don't think it's confusing on the ground," Thompson responded.
The ACLU’s lawsuit was filed on behalf of Angry Tías & Abuelas of the Rio Grande Valley, a volunteer organization that aids migrants; Jennifer Harbury, a humanitarian volunteer who frequently drives migrants; and FIEL Houston, an immigrants' rights organization with members who include recently arrived migrants subject to restrictions on travel due to the executive order.
The ACLU said their lawsuit differs from the DOJ case because they are able to present the range of harms caused by the executive order to border communities, asylum seekers, their families, shelters, and drivers throughout Texas.
The case comes amid a resurgence of the coronavirus with the spread of the delta variant. The Abbott administration has restrained Texas communities from instituting mask or vaccine mandates while focusing his COVID rhetoric on the border region.
“We all know the CDC, the science, the World Health Organization, all have said that these masks help in preventing the spread of COVID-19. But then he’s gonna blame it on the migrants,” said Domingo Garcia, national president for the League of United Latin American Citizens.
Federal immigration authorities encountered migrants more than 212,000 times in July, the highest monthly total in 20 years — including almost 19,000 unaccompanied children, the most ever in a single month. Although encounters reached record numbers, they don’t represent the number of unique individuals — 154,000 — that attempted to cross. Rather, they reflect how often people are trying to cross again.
In a recent visit to Brownsville, Homeland Security Secretary Alejandro Mayorkas attributed the high number of repeat crossers to Title 42, a temporary public health policy that immediately expels migrants back to Mexico. Former President Trump implemented the measure at the start of the pandemic and President Biden has continued it.
Related: U.S. Supreme Court Requires Biden Administration To Reinstate Trump's ‘Remain in Mexico’ Policy
Mayorkas acknowledged the challenge the large numbers of migrants are creating for immigration officials and local communities. Mayorkas said that a rising number of migrants are testing positive for COVID-19. But he pushed back on the claim that migrants are driving the dramatic rise in cases across the south.
"The rate of positivity is at or lower than the rates in our local border communities," Mayorkas said. "We are building new capacity to address the situation, and we are doing so as rapidly as possible. The extent of the challenge should not be overstated. But nor should our ability to meet it."
Abbott has repeatedly said in television interviews that Texas is enforcing federal immigration law because he believes the Biden administration has not been tough enough on crossings. In May, he issued a disaster declaration because, he said, illegal crossings "posed an ongoing and imminent threat of disaster."
Weeks later, he announced he would continue to build the border wall that Trump made central to his presidency. But Abbott went a step further, saying that he would arrest as many people as possible who cross by charging them with state crimes like trespassing and vandalism. Abbott then ordered the Texas National Guard to begin assisting state troopers with those arrests.
Immigrant rights activists said Abbott's order directing state troopers to stop any vehicles suspected of transporting migrants is illegal for a number of reasons, including the fact that it invites racial profiling that that immigration policy is under the purview of the federal government.
Arizona tried to pass state laws turning federal immigration law into state violations in 2012 — most did not hold up in court.
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