Fifth Circuit Looks Poised to Deal Biden Setback on Border Fence

A Fifth Circuit panel appeared set to reinstate restrictions on the US Border Patrol from cutting down razor wire placed by Texas on the southern border to try to stem illegal immigration.

Judges Kyle Duncan and Don Willett, both appointed by Donald Trump to the US Court of Appeals for the Fifth Circuit, on Thursday questioned lawyers with the state and the Justice Department about how they might be able to reinstate an injunction they issued in December against federal authorities removing the fencing along the Rio Grande near Eagle Pass, Texas.

The 29-mile fence is part of the escalating fight between the administration and Texas Gov. Greg Abbott (R) over how to manage record high levels of migration.

At Thursday’s argument, Duncan was skeptical of DOJ attorney Melissa Patterson saying the circuit should weigh the US Supreme Court’s decision vacating that injunction, saying the government presented new facts on drownings to the justices that weren’t before the appeals court.

“You think what the Supreme Court did should bear on what we’re deciding now?” Duncan asked.

Chief US District Judge Alia Moses of the Western District of Texas last year denied Texas’ request for a preliminary injunction, finding that sovereign immunity blocked it from pursuing state law claims against the US government.

But a separate panel of the Fifth Circuit, including Duncan and Willett, disagreed. They issued an injunction blocking US authorities from removing the razor wire. The US Supreme Court then vacated the order in a 5-4 ruling. The high court gave no explanation.

Patterson urged the court to find that Texas can’t apply its tort law to federal actions. She said that the prior ruling issued by the Fifth Circuit relied on cases where sovereign immunity was extended to federal causes of action, not state ones.

She also said that findings by the district court that border officials weren’t acting pursuant to federal law because they were cutting holes in the wire to let migrants further into the country “were based on a fundamental misunderstanding” of the Border Patrol’s authorities, as they can’t turn migrants away once they’re on US soil.

The panel, which also included Judge Irma Ramirez, who was appointed by Joe Biden, had fewer questions for Texas Solicitor General Aaron Nielson. He said that the prior ruling did include citations to cases involving state cause of actions, pushing back against Patterson’s earlier point.

Nielson also pointed to the Biden administration’s latest border policy which will block some asylum claims until the level of crossings significantly decrease, and will raise the bar for those seeking to stay in the country.

He said the federal government’s position in the case that people who enter the US are then entitled to seek asylum is “flatly contradictory” to the new policy, which will categorically bar some of those claims. Patterson disagreed, saying migrants are still entitled to having their claims processed even if they’re rejected.

The case is State of Texas v. DHS, 5th Cir., No. 23-50869, Oral argument 6/6/24