Gov. Greg Abbott signs bill making illegal immigration a state crime

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

---

Gov. Greg Abbott traveled to the Rio Grande Valley on Monday to sign into law three bills that pour more money into his three-year effort to deter illegal immigration at the Texas-Mexico border and give Texas law enforcement authority to arrest undocumented immigrants anywhere in the state.

Senate Bill 3 earmarks $1.54 billion in state money to continue construction of barriers along the 1,200-mile border, and allows the state to spend up to $40 million for state troopers to patrol Colony Ridge, a housing development near Houston that far-right publications claim is a magnet for undocumented immigrants.

The money would be added to at least $1.5 billion in contracts the state has issued since September 2021 to build about 40 miles of border barrier. As of August, Texas had erected 16 miles of steel bollard barriers in Starr, Cameron, Val Verde and Webb counties.

Senate Bill 4 creates a state crime for illegally crossing the border from Mexico — a new law that is likely to force a legal showdown with the federal government.

Another Senate Bill 4 — this one passed by lawmakers during the third special session earlier this year — would increase the minimum sentence from two years to 10 years for smuggling immigrants or operating a stash house.

The laws funding the border barrier and making crossing illegally a state crime go into effect in early March. The human smuggling law goes into effect in early February.

Abbott, who was in Brownsville on Monday to sign the bills, said Texas needs to defend itself from drug cartels, blaming the Democratic President Joe Biden administration’s immigration policies.

“Biden’s deliberate inaction has left Texas to fend for itself,” Abbott said.

Immigrant rights organizations, Democrats and former immigration judges said the SB 4 that makes illegally crossing the border a state crime is unconstitutional because immigration enforcement is a federal responsibility.

Federal courts, including the U.S. Supreme Court, have ruled that immigration laws can only be enforced by the federal government. But some Texas Republicans have said they hope the new law will push the issue back before a U.S. Supreme Court that is more conservative since three appointees of former President Donald Trump joined it.

The law would make it a state crime to cross the Texas-Mexico border between ports of entry. The new crime is a Class B misdemeanor carrying a punishment of up to six months in jail. Repeat offenders could face a second-degree felony with a punishment of two to 20 years in prison.

The law allows a judge to drop the charges if a migrant agrees to return to Mexico.

“These measures not only threaten the safety and dignity of asylum seekers, but also risk undermining the foundational principles of our legal system,” said Krish O’Mara Vignarajah, president and CEO of Lutheran Immigration and Refugee Service, a national organization that helps refugees settle in the U.S. “Immigration is clearly a federal authority, and this legislation knowingly dances on the edge of constitutional cliffs at the expense of vulnerable children and families.”

U.S. Rep. Joaquin Castro, D-San Antonio, sent a letter, signed by other Democratic members of Congress, asking the U.S. Department of Justice to sue Texas to stop the law from taking effect.

“We urge you to assert your authority over federal immigration and foreign policy and pursue legal action, as appropriate, to stop this unconstitutional and dangerous legislation from going into effect,” the letter says.

In another statement, 30 former immigration judges appointed by both Republican and Democratic administrations said the bill is unconstitutional.

“The proposed Texas legislation, which would allow a state court magistrate judge to issue a removal order, is not lawful. Immigration is plainly a federal function,” the statement says. “State legislators cannot enact immigration laws for the same reasons that the United States Congress cannot enact Texas state legislation. State magistrate judges cannot conduct immigration proceedings for the same reason that federal Immigration Judges cannot adjudicate Texas state criminal cases.”

Under the new law, migrants who decline to return immediately to Mexico would serve their sentence, then be transported by police to a port of entry — and they could face a felony charge for refusing to return to Mexico at that point.

The new law faces a potential roadblock if the Mexican government refuses to accept certain migrants when they’re deported. Professors and a former Mexican immigration official have said Mexico is under no obligation to accept non-Mexican immigrants deported by Texas.

When asked what Texas would do if Mexico does not accept migrants deported by the state, Abbott said at the news conference: “We’re going to send them right back to Mexico.”

The new law prohibits police from arresting migrants in public or private schools; churches and other places of worship; health care facilities; and facilities that provide forensic medical examinations to sexual assault survivors. The bill doesn’t prohibit arrests on college or university campuses.

Texas isn’t the first state to empower its police to pursue undocumented immigrants. In 2010, Arizona lawmakers passed Senate Bill 1070, which made it a state crime for legal immigrants not to carry their immigration papers and required police to investigate the immigration status of any person they come into contact with. In a landmark 2012 case, the U.S. Supreme Court ruled that local police didn’t have the authority to arrest someone solely based on their immigration status and said that responsibility falls to the federal government.