Texas Border Case Remand From Fifth Circuit Vexes Busy Judge

DEL RIO, Texas—A federal judge in Texas said she was confused Monday by the purpose of an appeals court’s demand that she hold a follow-up hearing in a border enforcement case involving Texas’ use of razor wire.

US District Judge Alia Moses of the Western District of Texas said evidence sought from the Fifth Circuit Court of Appeals stems from events that occurred in January, two months after she denied Texas’ preliminary bid in November to stop the US Department of Homeland Security from destroying wire it had constructed along the banks of the Rio Grande.

“You can’t review a court’s record on an issue that didn’t exist at the time it was issued,” she said from the bench.

Department of Justice attorney Christopher Eiswerth said the Justice Department was “somewhat confused as well.”

Moses was still fuming by the end of the day-long hearing. Her docket includes 2,600 defendants and had to be put on hold for this issue, which boils down to a turf war involving only two miles of the 242-mile long border in the region.

“That’s what y’all are having me listen to for two days,” Moses said, shortly before dismissing the lawyers for the night.

Moses’ frustration escalates a feud brewing between Texas’ federal district court judges and the New Orleans-based circuit court reviewing their decisions in a series of border enforcement cases that pit Texas against the federal government.

Last month, judges on the US Court of Appeals for the Fifth Circuit blasted Senior US District Judge David Ezra of the Western District of Texas for scheduling a trial before the circuit court had a chance to review his injunction requiring Texas to remove floating barriers from the Rio Grande. That drew a testy response from Ezra, who suggested one of the judges, James Ho, should be disqualified from the case for prematurely addressing its merits.

Incidents at Shelby Park

The appeals court ordered Monday’s hearing to further develop evidence on two incidents near a public park in Eagle Pass, located about an hour south of Moses’ Del Rio court.

On Jan. 10, state officials seized control of Shelby Park without warning. Federal Customs and Border Protection had been operating a staging area to process migrants on the 46-acre property. The takeover was an escalation of Texas’ efforts under Gov. Greg Abbott (R) to more aggressively enforce the border. Abbot has said the federal government’s policies are lax.

Two days after Texas officers moved into the park, three migrants drowned in the river attempting to enter the US. In court Monday, several witnesses called by the state sought to discredit a declaration filed in the case from a federal Border Patrol chief who said his agents were denied access to the park to search for the swimmers.

The swimmers had drowned two hours before Border Patrol had requested access, said Texas lawyer Ryan Kercher, pointing to an email from Mexico officials that established the timeline.

Robert Danley, chief agent for the Del Rio sector’s Border Patrol, conceded it was a “breakdown in communication” emphasizing his declaration to the Supreme Court included the information he had available to him at the time.

The hearing will continue Tuesday morning, with the Justice Department scheduled to call three witnesses. Moses is then to make factual findings, ones that will apparently guide the circuit court in deciding whether the feds can remove some or all of Texas’ 29 miles of wire.

The circuit in December granted an injunction against the wire’s destruction pending appeal, reversing Moses. But in January, the Supreme Court vacated the injunction on a 5-4 vote, effectively allowing the Biden administration to cut the wire. In court Tuesday, DOJ lawyers said there has been no additional wire destruction since then.

The hearing comes after former President Donald Trump visited the park with Abbott last week and railed against Biden’s inattention to the border crisis.

The number of migrants attempting to cross into Texas near the park has dramatically dropped since the state’s takeover, down from thousands a day to a handful, testified Mike Banks, the state’s border czar. However, Danley of Border Patrol said the feds lost 90% of their “situational awareness” in patrolling the area since losing access to the park, including diminished visibility of the river. They’ve since regained half of it, he testified.

The case is Texas v. US Dep’t of Homeland Sec., W.D. Tex., No. 2:23-cv-00055, 3/4/24.