Court fight brews over constitutionality of Texas governor’s border arrests

Sign up for The Brief, our daily newsletter that keeps readers up to speed on the most essential Texas news.

After months of preliminary courtroom skirmishes, the lines are being drawn for a full-blown legal battle to determine if hundreds of migrants have been illegally arrested under Texas Gov. Greg Abbott’s border security crackdown.

A judge in Austin laid the groundwork last week when she ruled that one Ecuadorian migrant’s arrest by Texas state troopers for allegedly trespassing was unconstitutional because it was part of a state initiative meant to usurp the federal government’s job of enforcing immigration laws.

It took less than a day after state District Judge Jan Soifer’s decision for a group of defense attorneys to rush to the same courthouse seeking dismissal of charges against nearly 450 other migrants swept up in the governor’s operation.

Abbott and Texas Attorney General Ken Paxton have decried Soifer’s ruling as an overstep by a liberal Austin judge, but initially had no clear legal avenue to challenge it. The mass filing by Texas RioGrande Legal Aid for the hundreds of migrants it represents opens the door for the state to jump into the fray.

The litigation is the latest in a string of legal challenges to Abbott’s initiative to arrest and imprison men suspected of crossing the border illegally on state criminal charges, most often trespassing on private property. Since its rollout in July, more than 2,100 men have been arrested only for allegedly trespassing, and the program has been marred by wrongful arrests, prosecutorial errors, court delays and a plethora of constitutional concerns for the men who often languish in prison for months.

Last week’s ruling, though limited to one migrant, was the first time a judge dismissed a criminal charge because she found it violated the U.S. Constitution. Jesús Guzmán Curipoma’s lawyers argued his imprisonment and criminal trespassing charge were unconstitutional because Abbott’s initiative defies the Supremacy Clause, which specifies that the U.S. Constitution and federal laws supersede conflicting state laws.

On Friday, an Abbott spokesperson promised a fight from Paxton and the prosecutor in Kinney County, where the trespassing arrests occurred.

“Travis County officials want to give a get-out-of-jail-free card to illegal aliens in every corner of our State,” Nan Tolson said in a statement. “They have no legal authority to do so.”

In the meantime, Tolson said, state police deployed to the border region will continue to “protect Texans from President [Joe] Biden’s catastrophic open-border policies.”

In the hearing before Soifer last week, an attorney for Texas RioGrande Legal Aid said the state’s effort to imprison thousands of men suspected of illegally crossing the border for the low-level, nonviolent crime of trespassing is a way for Texas to force the start of deportation proceedings for migrants who aren’t a priority of the federal administration.

“It’s in direct conflict with the stated priorities of the federal government,” said Kristin Etter, the group’s lead defense attorney for Operation Lone Star cases.

The new challenge, mostly copied and pasted from Guzmán Curipoma’s earlier petition, has not been assigned a court date. If it is picked up, as expected, it’s unknown if Soifer or another Travis County judge will hear it. The legal group is also filing individual challenges for each of the 444 migrants, Etter said.

More than 50 of the men were still in prison as of last week, all having been locked up for more than 100 days on a charge that at most could land them a year in jail, according to the filing. The rest of the men have been released on bond and either deported, held in immigration detention or released in the United States.

The petitions are unusual, with defense attorneys seeking court rulings in progressive Travis County — far removed from Kinney County, the conservative border region where the alleged crimes occurred. The attorneys argued that any state district judge can weigh a constitutional challenge to a criminal charge, not just the judge presiding over the defendant’s case. They argued that lengthy delays in the small-town court overrun by trespassing arrests should allow them to seek relief outside of Kinney County.

Etter also noted that Kinney County Judge Tully Shahan had recently moved to dismiss judges assigned by the state to help process his caseload after they agreed to let migrants out of prison on no-cost bonds at their first court hearing, sometimes months after their arrest. A new set of judges, picked by Shahan himself, have since often refused to reduce bail amounts or grant other relief for migrants. Defense attorneys have condemned the new system as a way to force guilty pleas.

Still, the defense attorneys’ court-shopping tactic was slammed by Republicans last week. An Abbott spokesperson called Soifer’s ruling “flawed and collusive” and certain to be overturned. Paxton deemed the legal challenge and ruling “ridiculous” and said on Twitter that he’d fight it on appeal. Paxton’s office did not answer emailed questions about the ruling last week, and did not respond to questions about the new challenge Friday.

Initially, it was unclear how, if at all, Paxton could challenge Soifer’s ruling for Guzmán Curipoma. The 36-year-old Ecuadorian oil engineer’s petition slipped by without attempted intervention from the state until a hearing was already underway, and then it was too late. With the progressive Travis County district attorney’s office representing the state and siding with the migrant, the prospect for an appeal was murky at best.

The new mass filing affords Paxton’s office an opportunity to get in the courthouse door before similar cases are decided without hearing his defense of Abbott’s operation.

It’s also unknown what role the prosecuting border county will play. Kinney County Attorney Brent Smith notified the court he would appeal Soifer’s ruling last week, but his ability to actually do so is also in doubt. The Travis County district attorney’s office quickly filed a response seeking to dismiss Smith’s appeal, stating the Austin prosecutors are the ones representing the state and don’t wish to appeal the ruling.

Smith has since indicated that he will simply ignore the ruling and continue prosecution against Guzmán Curipoma, who has bonded out of the state prison holding migrant detainees.

“Kinney County does not recognize any jurisdictional authority from the Travis County District Court order,” Smith said in a statement Thursday. “Unless ordered differently by a higher court of competent jurisdiction, Kinney County will continue judicial proceedings for said Defendant and set a trial date in the near future."

Angelica Cogliano, one of Guzmán Curipoma’s attorneys, said Thursday that Smith had not told them he planned to ignore Soifer’s ruling.

“When he makes that position in some official capacity we will certainly respond, but he does not have the authority to [decide] what court orders should be or not be recognized,” she said in a text message.