GOP border bill expanded to stiffen penalty for human smuggling, create border-crossing crime

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Republican lawmakers’ approach to immigration continued to evolve Thursday as a Texas Senate committee expanded a border-related bill to create a mandatory 10-year minimum sentence for human smugglers and to make it a crime for migrants to enter the state anywhere but a port of entry.

The provisions were added to House Bill 7, which would create a state border police unit and devote $100 million for new detention centers, courts, security and economic development projects for border communities.

Thursday’s changes by Sen. Brian Birdwell, R-Granbury, were the latest development in Republican efforts to stiffen the state’s response to record crossings at the Texas-Mexico border. Those attempts are also testing the limits of a state’s authority to enforce immigration laws, which have traditionally been a purview of the federal government.

The committee sent HB 7 to the full Senate on a 3-2 vote Thursday night. All Republicans were in favor, both Democrats were opposed.

Last week, Democrats in the House used a procedural tactic to kill House Bill 20 by Rep. Matt Schaefer, R-Tyler, that would have created a state border police unit with civilians allowed to serve as officers. Opponents decried it as an unconstitutional overreach that would have allowed unlicensed “vigilantes.”

But House Republicans rescued much of Schaefer’s bill by tacking it on to HB 7 by Rep. Ryan Guillen, R-Rio Grande City, although the revised bill required members of the unit to be licensed peace officers and limited the unit’s activity to border communities where county commissioners had given approval.

Also missing were provisions by Schaefer that would have created new criminal penalties for entering the state between ports of entry, plus mandatory minimum sentences for human smuggling. Guillen’s revised bill also omitted language giving officers of the new border unit the authority to “deter and repel” migrants at the border.

On Thursday, Birdwell, who leads the Senate’s Committee on Border Security, reintroduced into HB 7 the provisions related to ports of entry and a minimum sentence for human smuggling.

Birdwell did so by adding the language from two of his legislative proposals, Senate Bill 2424 and Senate Bill 600, which have been stalled in the House for more than a month.

The bill’s opponents raised concerns that creating a new crime, and allowing the border unit to enforce it, would not give potential asylum-seekers an opportunity to provide an affirmative defense by requesting asylum or providing another legal reason to be in the United States. They also worried that the new mandatory 10-year minimum sentence for human smuggling would ensnare mostly young, disadvantaged U.S. citizens who are lured by big payouts from drug cartels into driving migrants across the country after they cross the border.

Birdwell’s version of the bill also removed a House provision that would have limited the border unit’s authority to areas along the border whose local officials approved its work. That means the new state border police could work anywhere in the state.

Under Guillen’s bill, the new border police unit was called the Border Protection Unit. Under Birdwell’s, it’s called the Texas Border Force.

The bill placed the new border unit under the responsibility of the Department of Public Safety, requiring its employees to be licensed peace officers. The border unit also would be led by the chief of the Texas Rangers division.

The revised bill directs the unit to provide training and education programs for employees and agency partners, but it does not detail what would be included in the training.

Birdwell also kept out a provision from Schaefer’s bill allowing the governor to declare an “invasion” that would allow officers in the unit to deport migrants back to Mexico. That proposal has been pushed by immigration hawks on legally dubious claims that such action is authorized under the state and federal constitutions.

Similarly, Birdwell did not include language allowing the unit’s officers to “deter and repel” people trying to enter the country unlawfully. Immigrant rights advocates were concerned that the language was vague and could put migrants trying to enter the country at risk of excessive force.

“I listened carefully to what was said about this bill and I didn’t hear the word ‘repel,’” said Tom Glass, the founder of Texas Constitutional Enforcement. “I want the word ‘repel’ in this bill.”

The revised bill also allows people with prior experience as U.S. Border Patrol agents to work for the new state border unit and lets DPS hire Texas Military Department troops as contractors. Those troops could accumulate up to six months of retirement credits toward their federal pensions for time served with the border unit. The thousands of troops currently serving on the border under Operation Lone Star, Gov. Greg Abbott's border security mission, are not earning retirement credits because they are not on federal deployment.

Birdwell said the state has asked an “immense amount” from service members who were pulled away from families and jobs for a mission that’s lasted more than two years.

“The intent here is as the National Guard folks redeploy home, instead of returning as units they can be individual augmentees,” Birdwell said. “As the National Guard footprint comes down, the border unit footprint comes up. … [The] cost balance will be the same but instead of it being the National Guard with impact to employers, it’s people that have the ability to be full time without an impact to family and employers back home.”

The bill also would codify some actions that have occurred under Operation Lone Star, such as the border unit’s ability to gather, analyze and disseminate intelligence and the governor’s authority to enter into agreements with Mexico and its states.

Opponents questioned the constitutionality of HB 7.

“States cannot create or enforce immigration law because the federal government explicitly occupies the field of federal jurisprudence,” said Sen. César Blanco, D-El Paso. “So my question is, is the state creating and enforcing immigration laws in this bill by creating a new criminal offense?”

Birdwell said the bill was creating a state crime that the new police unit would enforce. If no crime was suspected, he said, the unit would turn people over to federal authorities for processing.

But opponents said the bill was a clear effort by lawmakers to challenge a U.S. Supreme Court ruling on the limits of a state’s ability to enforce immigration law.

“Empowering state officers to decide who unlawfully crosses the border with Mexico conflicts with federal immigration law,” said Samantha Serna Uribe, a staff attorney for the Mexican American Legal Defense and Educational Fund, which opposed the bill.

Birdwell said he had told Guillen about the changes he made to HB 7 and expected the two chambers would have to resolve the differences in a conference committee.

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