The U.S. Court of Appeals for the Fifth Circuit issued a temporary stay of a lower court order blocking the implementation of a newly enacted Texas law that would allow for the prosecution of migrants illegally entering the state. The new law provides a mechanism for the State of Texas to remove migrants from the country.
The temporary order, issued on Saturday by the federal appeals court will allow the law to be enforced after seven days if the U.S. Supreme Court does not intercede.
Last week, Austin’s senior U.S. District Judge David Ezra halted the implementation of Senate Bill 4, which was to take effect on March 5, citing the federal government’s supremacy over the enforcement of immigration laws. In his decision, Ezra stated “For the past century, Texas has relied on its expansive police powers afforded to it under the Constitution to regulate crime within its borders. Texas may continue to do so, but I cannot regulate the federal field of unlawful entry and removal.”
Texas filed an appeal of Ezra’s ruling on the matter leading up to Saturday’s federal appeals court ruling, granting a seven-day hold barring enforcement of the law to allow the Biden Administration to elevate the matter to the United States Supreme Court.
Absent intervention by the Supreme Court, the law will go into effect upon the conclusion of the pause on March 9.
Texas SB4 is similar to a current federal statute under Title 8 of the United States Code 1325, which makes illegal entry into the United States a misdemeanor offense for a first-time offender and a felony for a second offense. Under the Biden administration, the federal statute is not pursued to any significant degree.
Under the new law, migrants may agree to return to their home country as part of sentencing agreements. A similar process in federal courts is known as Stipulated Removal, where a migrant may waive their right to a separate administrative immigration hearing agreeing to removal from the United States as part of the sentencing process.
The State also increased penalties for other immigration offenses normally reserved to the federal government. The Texas Legislature passed bills, signed by Abbott, that created a mandatory ten-year minimum prison sentence for smuggling of persons and continuous smuggling of persons. That law enhances the criminal penalties for operating a stash house and creates a mandatory five-year minimum prison sentence. It also further enhances criminal penalties for victim-related offenses that occurred during the commission of smuggling, such as assault and burglary.
The latest ruling will likely face review by the Supreme Court which struck down a similar state law in Arizona. In a 2010 law signed by then Governor Jan Brewer, Arizona attempted to make illegal presence by a migrant and a migrant’s unlawful employment in the state a misdemeanor crime. Justice Kennedy ruled in the majority opinion that these two provisions of SB 1070 infringed upon the supremacy of the federal government to regulate and enforce immigration laws.
Randy Clark is a 32-year veteran of the United States Border Patrol. Prior to his retirement, he served as the Division Chief for Law Enforcement Operations, directing operations for nine Border Patrol Stations within the Del Rio, Texas, Sector. Follow him on Twitter @RandyClarkBBTX.