By Wayne Chen and Ashleen Herrarte
AUSTIN, TX – The American Civil Liberties Union (ACLU) has filed a complaint with the U.S. Dept. of Homeland Security (DHS) Office for Civil rights and Civil Liberties, urging them to investigate civil rights violations after Texas Gov. Greg Abbott issued an order so state police could arrest and transport migrants to ports of entry.
According to the ACLU, the order issued by Abbott is cruel and unlawful since it encourages police to profile Black and Brown people in Texas racially.
A recent report by the Texas Tribune states that police have “under the questionable legal authority, dropped off a group of migrants whom officers had identified as having illegally crossed into the U.S.”
The migrants included about a dozen men and women, who were directed toward a truck port where they sat and waited for nearly three hours. A federal agent then arrived in a white Border Patrol van picked them up and drove away. The process was later repeated with a new group of migrants.
This procedure was part of a new step in Operation Lone Star by Gov. Abbott to ostensibly slow the number of migrants crossing the Texas border. This tests the limit of the state’s ability to enforce immigration laws which is traditionally seen as a federal responsibility.
Previously it’s been the federal government’s job to pick up undocumented migrants after they’ve been arrested by state and local law enforcement.
Abbott’s decision to arrest migrants and bring them to the border shows a broadening of the state’s role in the immigration enforcement process, according to critics, who disagree on how significant it is on intruding federal responsibility and stretching the legal limits of the state’s effort.
Policy director at the American Immigration Council, Aaron Rechlin-Melnick, said “there are ongoing questions about what authority they have to bus people from one location to another. Legally speaking, is that immigration enforcement? I still don’t know.”
Although the program has been operating since July 9, it has been difficult to get answers from state and federal officials about how the program works, according to the Texas Tribune which notes it’s difficult to determine where the migrants are being transported to and from, what they’re being arrested for and what happens to them after they are turned over to the federal immigration authorities.
The only way the Texas Tribune has been able to confirm the federal authorities having migrants in custody is by staking out the Eagle Passport entry and witnessing the exchanges in person.
In early July, Abbott announced his plan to authorize Department of Public Safety troops and National Guard service members stationed at the border to be able to arrest migrants caught crossing the border illegally and return them to their ports of entry.
This raised alarms for immigrant rights advocates who charged Abbott’s plan was interfering into the federal government’s purview over immigration enforcement. They also stated that it could lead to violations of the migrants’ civil rights since it was unclear under what authority state officials were holding them under custody.
In a legislative hearing earlier this month, Texas Military Department Brig. Gen. Win Burkett declared the National Guard service is not involved in the transportation of migrants to the border.
Without a clear idea of how exactly Abbott’s order is carried out, experts disagree on the degree to which state involvement has changed in immigration enforcement.
Victor M. Manjarrez, Jr., now the associate director of the Center for Law and Human Behavior at the University of Texas at El Paso, worked for the U.S. 
Border Patrol for 22 years and then retired as Tucson Sector Chief. He argued the order is no departure from how things have always been done, saying the order is “nothing that special.”
Manjarrez stated it is common for state officers to refer migrants to Border Patrol. And, during his time in Arizona, it was also common for local law enforcement to transport the migrants to Border Patrol rather than waiting for immigration agents.
“How is this different from what’s been done in the past?” he asked. “The big difference with this is that there was an executive order that came out, and it was supposed to make a big splash.”
Denise Gilman, co-director of the Immigration Clinic at the University of Texas School of Law, disagreed.
Gilman argues the transportation of migrants to immigration authorities is a new level of state involvement in immigration enforcement, noting, “The fact that they straight up don’t take them across the border doesn’t take away the immigration enforcement nature of it.”
To stop the practice, Gilman added, the federal government would have to sue, and many, Gilman said, are surprised that the current administration has not already done so, given the unprecedented state involvement in immigration enforcement.
Gilman explained that the lack of a lawsuit may be because the order only calls for state officers to hand migrants to federal immigration authorities at the border, rather than “100 percent state unilateral action.”
Immigration rights advocates have also noted that the order could be Abbott strategically instigating a lawsuit with the goal of overturning the U.S. Supreme Court’s decision in a 2012 Arizona immigration law to increase state involvement in immigration enforcement.
Texas has had some initial success in lawsuits against the current administration that have led to the reinstatement of two of the most consequential immigration policies from Trump’s presidency—Title 42, which closes the border to most people, and Migrant Protection Protocols, which denies asylum-seekers entry while their cases are processed in U.S. courts.
Deferred Action for Childhood Arrivals, which allows younger, undocumented immigrants to get renewable work permits, has also been ruled illegal by a federal judge in another lawsuit by Texas. All three of these cases are currently ongoing in federal courts.
In his order, Abbott wrote that, in the ruling of a case in Arizona, the Supreme Court was unclear “whether reasonable suspicion of illegal entry or another immigration crime would be a legitimate basis prolonging a detention, or whether this too would be preempted by federal law.”
Rechlin-Melnick believes Abbott was looking for a loophole in the Arizona case, commenting, “Gov. Abbott says he thinks it’s an open question about whether or not state agents can enforce unlawful entry.”
Many of the restrictions from the Arizona case would be lifted if states can be involved in the enforcement of federal criminal immigration laws, said Rechlin Melnick, who believes Abbott is looking for a “test case” to push the limits on the issue.
While Abbott did not answer questions about whether he wanted the case revisited, other Texas officials have been vocal about wanting the decision reconsidered.
In 2012, the Supreme Court decided local police could not make arrests solely because of someone’s immigration status.
Brent Webster, Texas Assistant Attorney General, said earlier this year that although his office abides by the ruling, it does not agree with it, maintaining, “We welcome laws that might allow us to have a new case that we could go up on to redress this issue because the makeup of the Supreme Court has changed,” Webster said.
Abbott, nonetheless, has circumvented the ruling by ordering state authorities to arrest migrants on state trespassing charges whenever possible, critics claim.
“It’s pretty clear it’s not an open question,” Reichlin-Melnick said, adding the Supreme Court has repeatedly ruled that immigration enforcement is the duty of the federal government and that local and state enforcement cannot enforce immigration law without federal permission.
He reiterated that Abbott is looking for a loophole, adding that “it’s not a particularly strong loophole.”
The ACLU and the ACLU of Texas are calling on U.S. Border Patrol to stop collaborating with the state policy, urging DHS to investigate the reports and take action to ensure Texas state police do not enforce the orders made by Gov. Abbott. 
