Texas Wavers on Immigrant Arrests While Defending Deportations

Texas made a case for narrowing a sweeping immigration law to allow for the removal, but no longer the arrest, of non-citizens who enter the country illegally, at Fifth Circuit oral arguments Wednesday.

During the arguments on a district court’s preliminary injunction, Texas Solicitor General Aaron Nielson urged the court to keep the removal provision if it decides the rest of the law violates the federal government’s sole authority to set immigration policy.

“To be fair maybe Texas went too far,” Nielson acknowledged.

Later he added: “The answer isn’t to enjoin the entire statute. The answer is to sever the return order.”

Texas’s attempt to salvage portions of the law comes after a recent defeat before the same three-judge panel that heard Wednesday’s arguments. On March 26, two of the judges, Chief Judge Priscilla Richman and Judge Irma Carrillo Ramirez, outnumbered a dissenting opinion from Trump-appointed Judge Andrew Oldham in extending a stay blocking the law pending Wednesday’s proceedings. In that opinion, Richman wrote Texas’s law likely interferes with federal immigration policy—a seemingly devastating blow that prompted Texas to taper its argument to the removal provision.

However, Richman near the end of the hourlong argument offered some skepticism to Texas’s revised argument. She emphasized that states aren’t permitted to remove non-citizens, as the US Supreme Court decided in mostly striking down an immigration law from Arizona in 2012.

“It’s on the books,” Richman said.

Richman is thought to be the deciding vote on whether to allow all, some, or none of Texas’s law. Ramirez, who joined the court last year via a Biden appointment, is likely to rule against Texas. Oldham, the Trump appointee, appeared to side with Texas.

In an aggressive line of questioning, Oldham went back and forth with Justice Department lawyer Daniel Bentele on whether federal law preempts the removal provision. Specifically, Oldham asked if Texas officials can take a noncitizen to a federal point of entry to be processed by US Customs and Border Protection.

Bentele said Texas can’t do that. Texas, he said, can cooperate with federal authorities by notifying them of an unlawful entry. But Texas can’t remove that individual, he said.

Texas is “intruding on an area the federal government has authority over,” he said.

State, Federal Conflict

Texas’s law, known as S.B. 4, authorizes state officials to arrest, detain, and deport non-citizens who enter the country illegally. It has gotten a full-throated endorsement from Texas Gov. Greg Abbott (R), who says the federal government under President Joe Biden has failed to protect Texas from a crush of immigrants arriving from Mexico.

In February, S.B. 4 got swatted down for the first time by a district court judge in Austin who said it “would amount to nullification of federal law and authority.” Texas appealed to the US Court of Appeals for the Fifth Circuit, one of the country’s most conservative intermediary courts.

But in last month’s order extending the stay, Richman noted several areas where Texas’s law contradicts federal law. Under S.B. 4, but not federal laws, a noncitizen can be removed from the country before the conclusion of federal asylum proceedings. Additionally, Texas, unlike the feds, wants to preclude a noncitizen from staying in the country even if they show they’d likely be tortured in their country of origin.

“Texas removal provisions bestow powers upon itself that are likely reserved to the United States,” Richman wrote.

Nielson sought to address that criticism Wednesday. He said the state’s position is it can’t arrest someone the federal government had previously said could stay in the country. He also answered a hypothetical the panel posed at a March 20 hearing about whether an undocumented immigrant who enters Texas from another American state faces criminal consequences.

Wednesday, Nielson said an arrest would be unlawful, because the Texas officer didn’t witness that person crossing into the US.

Bentele reduced those comments to an attempt to “rewrite S.B. 4.” He urged the court to examine the law by its text, which orders a person to be removed to the country where they entered the US.

Texas’s likely next step if it fails to overturn the injunction is to request a hearing from the entire court, or to appeal to the US Supreme Court.

The federal government’s lawsuit against Texas was consolidated with one from a border county and immigration groups.

The case is United States v. Texas, 5th Cir., 4/3/24.