Given its shared Southern border with Mexico, Texas has a long immigration history and a high annual rate of traffic moving across the border. Thus, Texas has always been and always will be a focal point of the immigration debate in the US. According to the American Immigration Council, one in six Texas residents is an immigrant, while another one in six residents is a native-born U.S. citizen with at least one immigrant parent, and 1.4 million U.S. citizens in Texas live with at least one family member who is an undocumented alien.
Many people cross the border every year for legal reasons such as trade, education, and asylum from violence. Non-citizens also come to Texas every year seeking to permanently resettle in cities such as Austin, Houston, Dallas, El Paso, Fort Worth and San Antonio. However, South Texas and its ports of entry have also become an inflection point for international criminal activity related to border crossing, such as drug trafficking and human trafficking. In an effort to combat these problems, federal and state agencies have enacted many laws aimed at limiting the flow of immigration into the US via the Texas southern border. Accordingly, state and federal agencies have been charged with concurrently enforcing immigration policy in Texas.
The Immigration and Nationality Act (INA) has broadly governed US immigration at the national level. However, additional policies with more targeted focus have been enacted since then. Due to Texas’ propensity for high levels of immigration, the impact of such policies has been more concentrated in that state. One such federal law that has recently been having an effect on the immigration landscape in Texas is known as Title 42.
Title 42 is a controversial policy which allows border officials to refuse entry to any non-citizen upon a determination that allowing them to enter would be likely to spread infectious disease. Title 42 has been enforced recently based on data from the Center for Disease Control (CDC), in response to the Covid-19 public health crisis. Covid-19 has been used by US immigration enforcement officers as a basis to turn away hundreds of thousands of migrants from entering the US. This policy is having a direct impact on immigration in Texas because large groups of migrants are often held at the southern border. This in turn may increase the likelihood of Covid-19 transmission. Title 42 expulsions occur most frequently in cases involving individuals seeking to enter the US from Mexico. This controversial policy remains in effect, despite the Biden administration’s efforts to terminate it. This policy may eventually be decided by the US Supreme Court.
Some examples of federal agencies which are tasked with enforcing immigration policy in Texas include:
Department of Homeland Security (DHS)
- US Immigration and Customs Enforcement (ICE) enforces civil and criminal laws relating to customs, trade, border control, and immigration.
- US Citizenship and Immigration Services (USCIS) makes determinations regarding eligibility for citizenship and asylum, grants green cards.
- US Customs and Border Protection (CBP) patrols the border to ensure security.
Department of Justice (DOJ)
- Office of Special Counsel for Unfair Immigration Employment Practices (OSC) is tasked with enforcement of anti-discrimination provision of the Immigration and Naturalization Act.
- Executive Office for Immigration Review (EOIR) is responsible for the adjudication of all US immigration cases.
- Office of Immigration Litigation (OIL), Civil Division is the division that oversees civil litigation related to immigration rights.
Department of State (DOS)
- Bureau of Consular Affairs issues visas and passports.
- Bureau of Population, Refugees, and Migration (PRM) provides humanitarian aid abroad and administration of the US Refugees Admissions Program.
Department of Health and Human Services (HHS)
- Office of Refugee Resettlement (ORR) assists non-citizens with resettlement.
Texas Immigration Policy
Despite many federal immigration laws in effect in Texas, Texas’ state legislature has also created its own laws which influence immigration outcomes within the state. The Texas legislature has a long history of being controlled by republicans. These state laws may be enforced separately or in addition to federal laws. This set of laws is known as Texas Government Code Chapter 752. This allows Texas authorities to take immediate, unilateral actions relating to immigration enforcement, without complete dependance on the federal government.
Most importantly, Texas immigration law expressly establishes that law enforcement officers in Texas are prohibited from enforcing immigration policies based on the officer’s own subjective intent or personal beliefs. The law states in pertinent part:
Sec. 752.054. DISCRIMINATION PROHIBITED. A local entity, campus police department, or a person employed by or otherwise under the direction or control of the entity or department may not consider race, color, religion, language, or national origin while enforcing immigration laws except to the extent permitted by the United States Constitution or Texas Constitution.
In other words, this means that officers may not initiate an investigation or arrest relating to an individual’s suspected immigration status based on mere suspicion unrelated to the commission of an immigration violation. For example, officers may not detain someone only because that person “looks like” an undocumented immigrant. This practice is known as profiling. Profiling is also prohibited by federal law and individuals have the right to refuse to participate in such investigations. Officers must witness the alleged illegal activity, have substantial evidence that a crime was committed, or obtain a warrant (statement of grounds for arrest) signed by an immigration judge to seize a person or otherwise restrict their personal freedom, based on their suspected legal status.
Texas immigration authorities may also work closely with federal agencies to enforce immigration law in a secondary role. This may include sharing pertinent intelligence and data, assisting with investigations, and making complimentary immigration policy. However, in the event of a conflict between state and federal immigrations laws, federal law controls.
Each individual who is suspected to have entered the US illegally is guaranteed due process as a matter of civil rights guaranteed by the u.s. constitution. This is administered in the form of a hearing in federal court. At which time, findings will be made relating to the individual’s ability to remain in the US. Individuals who are suspected of illegal entry into the US face possible deportation. When such a hearing is granted, the individual is also entitled to advanced notice of the hearing. The detainee is also entitled to hire an attorney and have the attorney present during the proceeding.
Texas Immigration Enforcement
The state agency in Texas that assumes the primary role in immigration enforcement actions is the Governor’s Advisory Committee on Immigration and Refugees. This agency exists within the governor’s office and is tasked with, “advis[ing] and mak[ing] recommendations to the Office of Immigration and Refugee Affairs on immigration and refugee issues.” More specifically, the state committee functions to strengthen immigration policy in the following ways:
- advise and make recommendations to the Office of Immigration and Refugee Affairs regarding policy, planning, and priorities for the State Localization Impact Assistance Grants (SLIAG) program and refugee assistance programs;
(2) advise and make recommendations to the Office of Immigration and Refugee Affairs regarding coordination of the efforts of all public agencies involved in health, human services, and education matters that relate to federal immigration and refugee laws and rules or implementation of the SLIAG program or refugee assistance programs;
(3) encourage communication and cooperation among local agencies and programs, state agencies, immigration-related and refugee-related legal and service agencies, and the federal government;
(4) assist the Office of Immigration and Refugee Affairs in applying for the maximum amount of federal funds available for SLIAG-related programs and activities and refugee-related programs and activities and in identifying local programs and costs relating to immigration or refugees for which the state or a political subdivision may receive reimbursement;
(5) provide information to programs and activities that serve and encourage legalization and education of residents of this state;
(6) review federal issues regarding the SLIAG program and refugee assistance programs and make recommendations to the Office of Immigration and Refugee Affairs to encourage the development of a state response to federal issues;
(7) review and make recommendations to the Office of Immigration and Refugee Affairs and state agencies to ensure that the system of fiscal and program operations for the SLIAG program and refugee assistance programs is consistent with existing state and federal requirements;
(8) assist the Office of Immigration and Refugee Affairs in the development of an annual report on the status of the SLIAG program and refugee assistance programs in the state;
(9) advise and make recommendations to the Office of Immigration and Refugee Affairs on other related matters as directed by the governor; and
(10) assist the Office of Immigration and Refugee Affairs in the development of a spending plan for fiscal years 1993 and 1994 proposing spending priorities for SLIAG funds for services to eligible legalized aliens and for other federal funds available to benefit immigrants or refugees in the state.
Decisions relating to enforcement of immigration law such as investigations and arrests may also be carried out by local and state law enforcement agencies. For example, the Texas Rangers are tasked with “overseeing… border security.”
Texas Non-Sanctuary Status
Some US states have established policies intended to preserve the rights of undocumented immigrants. These states are known as sanctuary states. For example, California’s Sanctuary Law is designed to protect undocumented immigrants from local law enforcement seeking to deport them.
Conversely, Texas is not considered a sanctuary state, in that Texas laws are more supportive of immigration enforcement at the local and state levels. Texas governor Gregg Abbott and the Texas state legislature have advocated and adopted staunch policies to this effect. Notably, Gov. Greg Abbott recently made national headlines when he began transporting migrants from the Texas-Mexico border to Washington DC because, “[they] would have otherwise been released into small border communities with more limited resources than the nation’s capital.” The governor also claims to have made other recent efforts to “secure the border” in Texas, including:
- Securing $4 billion in funding for Texas’ border security efforts
- Launching Operation Lone Star and deploying thousands of Texas National Guard soldiers and Texas Department of Public Safety troopers
- Taking aggressive action to secure the border as the Biden Administration ends Title 42 expulsions, including busing thousands of migrants to Washington, D.C.
- Arresting and jailing criminals trespassing or committing other state crimes along the southern border
- Allocating resources that include acquiring 1,700 unused steel panels to build the border wall in Texas
- Signing a law to make it easier to prosecute smugglers bringing people into Texas
- Signing 15 laws cracking down on human trafficking in Texas
- Signing a law enhancing penalties for the manufacturing and distribution of fentanyl
- Issuing a disaster declaration for the border crisis
- Issuing an executive order preventing non-governmental entities from transporting illegal immigrants
- Signing memoranda of understanding between the State of Texas and the States of Chihuahua, Coahuila, Nuevo León, and Tamaulipas to enhance border security measures that will prevent illegal immigration from Mexico to Texas
- Activating the Joint Border Security Operations Center (JBSOC) and directing the Texas Department of Public Safety, Texas Military Department, and Texas Division of Emergency Management to coordinate Texas’ response to secure the border
- Issuing an executive order authorizing the Texas National Guard and Texas Department of Public Safety to return illegal immigrants to the border at ports of entry
- Creating DPS strike teams and establishing new vehicle inspection checkpoints targeting semi-trucks and other commercial motor vehicles
The situation at the Texas southern border is complex and multi-faceted. No “silver bullet” immigration policy exists which solves all problems relating to immigration at the southern border. Many people on both sides of the frontier have substantial and legitimate interests in continuing the flow of traffic over the border. This to some extent, will always be accompanied by illegal activity. Regardless, US immigration policy will continue to evolve in an attempt to more closely balance the state’s interest in preventing crime and the individual’s liberty interests relating to international travel.