Texas court orders release of more than 200 migrants imprisoned in Gov. Greg Abbott’s border security clampdown

A group of migrants wait near a private road after being apprehended by Department of Public Safety officers at a train depot in Spofford on Aug. 25, 2021.

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Texas is set to release nearly 250 migrants who were arrested under Gov. Greg Abbott’s “catch and jail” border security policy and sat in prison for more than a month without being charged with crimes.

A state district judge granted a motion to release the men on no-cost bonds Tuesday morning after defense attorneys challenged the continued imprisonment of hundreds of migrants, citing widespread violations of state law and constitutional rights to due process. Texas law requires criminal defendants be released from jail on no-cost or affordable bond if prosecutors delay cases by not filing charges quickly. For trespassing, the charge on which the vast majority of the migrants were arrested, that deadline is set at 15 or 30 days, depending on the charge level.

Kristin Etter, an attorney with Texas RioGrande Legal Aid, which represents the migrants, said at the hearing before state District Judge Roland Andrade that her organization had made an agreement with the Val Verde county attorney to release 75 defendants arrested there who had been jailed without charges filed for more than 15 days. Kinney County prosecutors agreed to the release of another 168 defendants who had not had a charge filed against them in 30 days or more.

“I’m glad you all worked out most of these, and hopefully everything will be streamlined a little bit more,” Andrade, a Republican, said at the end of the hearing. “It’s a learning experience for everybody, even the court here.”

It’s unclear what will happen to the men when they are released from state custody. Federal immigration authorities may choose to take them into custody or deport them, or they may be released into the United States while awaiting their criminal and potential immigration proceedings.

Etter argued that the men should be released from state custody after 15 days, as would apply to typical trespassing cases. When the legal aid group’s petition was filed on Sept. 15, that included 55 men arrested in Val Verde County. By the time of the hearing, 75 men had surpassed the deadline agreed to by the prosecutor. Kinney County, however, countered that the disaster declaration Abbott has issued for the border enhances the cases to a higher level of misdemeanor, which would give officials 30 days to file charges. The judge agreed to Kinney County’s 30-day limit.

The ordered releases are the latest stumble in Abbott’s new state criminal justice system for migrants that has been fraught with problems since he initiated it in July.

In that time, migrants have been wrongfully separated from their families during arrests, men whose criminal cases were dismissed have been released without any federal or state coordination into border towns without any documents and the justice system has been in violation of state laws in its delays to file charges and appoint attorneys.

So far, about 1,000 men, the majority Latino, have been arrested by Texas state police and accused of trespassing on private property under Abbott’s order. As of Monday, more than 900 men were jailed in two Texas prisons converted into state immigration jails this summer.

The governor’s new policy is aimed at arresting migrants accused of crossing the border illegally, but since state police and courts have no jurisdiction over federal immigration law, police arrest the migrants for state crimes, like trespassing. Abbott has ramped up his border security efforts this year and has blamed President Joe Biden’s immigration policies for a surge in border crossings.

But the influx in arrests has overwhelmed the local justice systems in the small border regions of Kinney and Val Verde counties, prompting the delays in court filings, lawyer appointments and even documenting the imprisonment of migrants. All but 11 migrants imprisoned as of Monday were arrested in the two counties.

Just after the hearing brought by TRLA on Tuesday, Andrade also heard separate cases regarding two imprisoned individuals arrested in Kinney County that challenged Abbott’s system and the arrests more broadly. In part, the attorneys argued that police were wrongly selective in their arrests on trespassing charges by only arresting men who were almost exclusively Hispanic.

Kimble County District Attorney Tonya Ahlschwede, who acted as an assistant county attorney for Kinney County Attorney Brent Smith, at first agreed to release the men on no-cost bonds, as had been decided in the other cases. But the defense challenged the underlying arrests of their clients, claiming the state illegally arrested and detained them.

Ultimately, when the judge opted not to delay the hearing, Ahlschwede offered to dismiss the criminal cases against the two men. Amanda Woog, executive director of the Texas Fair Defense Project, said after the hearing that the prosecution wasn’t prepared to argue in support of the arrests and continued detention. She added the ruling should be a call to action for other defense attorneys with migrant clients.

“It shows what a sham these arrests and prosecutions are,” she said. “When they’re actually put to the test, they fold.”

The 2021 Texas Tribune Festival, the weeklong celebration of politics and policy featuring big names and bold ideas, wrapped on Sept. 25, but there’s still time to tune in. Explore dozens of free, on-demand events before midnight Thursday, Sept. 30, at tribfest.org.

Correction, Sept. 28, 2021: An earlier version of this story misspelled the name of a Texas RioGrande Legal Aid attorney. It’s Kristin Etter, not Kristen Etter.