Texas Judge Questions If State Is Really Impeding US Border Work

DEL RIO, Texas—In the second day of a hearing on Texas’ southern border, a federal judge who has lived on the border most of her life questioned whether the state’s actions to take control of illegal crossings were actually interfering with the federal government’s own work there.

Interrupting testimony from US Border Patrol’s chief of law enforcement operations, US District Judge Alia Moses of the Western District of Texas asked, “Who gets to decide when it’s impeding you or not? What constitutes impede?”

David BeMiller of the US Border Patrol was testifying that the turf war between Texas and the US impedes the federal government’s enforcement measures which are aimed at tamping down illegal crossings.

The increasingly hostile relations at the border between Texas Gov. Greg Abbott (R) and the Biden Administration places front-line officers “in direct opposition” to each other, BeMiller said, adding that he is concerned about the potential for “blue-on-blue conflicts” and “the use of force against each other.”

In response to Moses’ question about impeding, he said the answer is “self-evident.”

The hearing before Moses Monday and Tuesday was one action in a series of border enforcement cases that pit Texas against the federal government. This case specifically involves razor wire that Texas put along the border, and whether US Border Patrol can cut that wire.

BeMiller was the first witness called by the US Department of Justice on Tuesday, the final day of a two-day hearing on razor wire that Texas put up near the park to discourage crossings in the Rio Grande, causing a conflict that’s gone all the way to the US Supreme Court.

The purpose of the hearing Monday and Tuesday was to elicit evidence for the US Court of Appeals for the Fifth Circuit to use when it reviews Moses’ decision in November that temporarily allowed the Biden administration to remove the wire.

But for the second day in a row, Moses said she was confused about why the circuit court sought evidence on Texas’ takeover of 46-acre Shelby Park, emphasizing that it happened in January, almost two months after her ruling. As such, evidence collected in the hearing can’t be used to review that decision, she said.

“I don’t know what facts the Fifth Circuit wants,” Moses said.

Department of Justice attorney Christopher Eiswerth said the hearing was “virtually irrelevant.”

‘Let Texas Stop Them’

Moses, a George W. Bush appointee, was at times combative with lawyers. She halted BeMiller’s direct examination when Jean Lin, an attorney for the US Department of Justice, suggested border crossings are on the decline after a record surge in December.

“Are you really serious with that question?” Moses said. The 62-year-old Moses said, referencing crossings in the past year or two, “I’ve never seen it like this.”

After BeMiller left the stand, Moses heard from a Border Patrol agent who testified that two days after Texas’ takeover he was denied access to the park to respond to a drowning in the river.

That incident ignited a firestorm when US officials blamed the deaths of three migrant swimmers on Texas blocking the agent from the park. But testimony from multiple witnesses revealed the swimmers had drowned two hours before the federal agent requested access.

During closing arguments, Ryan Kercher, lawyer with the Texas Attorney General’s office, addressed testimony from BeMiller about the potential for combat between state and federal personnel. He pleaded for the Biden administration to more aggressively enforce the border, echoing remarks from Abbott and other Republican governors.

“If you won’t stop migrants from violating federal law, let Texas stop them from violating state law,” he said.

During his turn to speak, Eiswerth questioned the decision to boot the US agents from the park. As a result, Border Patrol agents have less visibility of the river and of migrants trying to access American land.

“The stakes are too serious to be inviting conflict between two law enforcement agencies,” he said.

The hearing was the first notable development in the case since the Supreme Court in January vacated an injunction the appeals court issued in favor of Texas. The high court’s decision effectively allows the Biden administration to cut the razor wire. But in court this week, DOJ lawyers said there has been no wire destruction since early November.

In a separate case on border enforcement, the federal government is challenging a state law authorizing Texas officials to arrest and remove migrants suspected of entering the country illegally. On Monday, the Fifth Circuit paved the way for the law to go into effect Tuesday, only for the Supreme Court to intervene by the end of the day. The high court said the law won’t go into effect until March 13, pending review of the appellate decision.

That case is being tried in Austin, as is a fight from the federal government to remove floating barriers that Texas had put in the Rio Grande. In Del Rio, Moses is presiding only over the razor wire case.

The case is Texas v. US Dep’t of Homeland Sec., W.D. Tex., No. 2:23-cv-00055, 3/5/24.