New federal lawsuit seeks to halt Texas’ border trespassing arrests, give more than $5 million to illegally detained migrants

The migrant processing facility adjacent to the Val Verde County Sheriffs Office in Del Rio on Oct. 26, (Chris Stokes For The Texas Tribune, Chris Stokes For The Texas Tribune)

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In a new challenge to Gov. Greg Abbott’s controversial border security crackdown, a lawsuit filed Wednesday is asking a federal court to shut down Texas’ system of arresting migrants en masse along the Texas-Mexico border and to make the state pay more than $5 million to men who were illegally imprisoned under the system.

The lawsuit comes nearly a year after Abbott first ordered Texas police to arrest men suspected of illegally crossing the border on misdemeanor trespassing charges. The practice skirts constitutional restrictions that bar states from enforcing federal immigration law, and the lawsuit claims it discriminatorily targets mostly Black and Latino migrant men, usurps federal authority and is carried out in a way that violates the detainees’ rights.

“Under the guise of state criminal trespass law but with the explicit, stated goal of punishing migrants based on their immigration status, Texas officials are targeting migrants,” the filing stated. “Hundreds of those arrested have waited in jail for weeks or months without a lawyer, or without charges, or without bond, or without a legitimate detention hold or without a court date.”

Abbott’s trespassing initiative has drawn numerous state and local court challenges since it began in July, but this appears to be the first time attorneys are opposing it in federal court and seeking compensation for migrants swept into the governor’s “catch-and-jail” system. State and federal Democratic lawmakers and civil rights groups have also called on the U.S. Department of Justice to intervene in the Republican governor’s operation, but the federal administration has not acted.

The lawsuit was filed in federal district court in Austin by three private attorneys on behalf of 15 individual migrants and is asking for a class certification to include everyone arrested under Abbott’s trespassing initiative. The migrants are suing Abbott; the directors of the Texas Department of Public Safety and the Texas Department of Criminal Justice; Kinney County, a rural border county that accounts for the large majority of trespassing arrests; and its sheriff.

[Texas’ border operation is meant to stop cartels and smugglers. More often, it arrests migrants for misdemeanor trespassing.]

The complaint asks the court to find that the operation violates federal law and order the state to stop the arrests. It also argues each migrant illegally detained so far should be given $18,000 for each day they were imprisoned beyond what is allowed by state law. The attorneys said it is a typical amount awarded by courts in cases of over-detention. They estimated the total cost would be around $5,400,000.

Previously, state district judges have found that hundreds of men were detained illegally after trespassing arrests, locked in prison for more than a month without any charges filed against them in violation of state law. Lawyers have argued the practice is still occurring. Wednesday’s filing also alleges men have been held for days or weeks after they post bond, their charge is dropped or their sentence is complete.

Neither Abbott’s office nor the Kinney County sheriff immediately responded to questions about the lawsuit Thursday morning. DPS and TDCJ said they would not comment on pending litigation. But a prison system spokesperson said the agency is “complying with time frames for release” of migrants. Abbott has previously defended the trespassing initiative as “fully constitutional” and a way to counter a sharp rise in illegal immigration that he blames on President Joe Biden.

Abbott launched his multibillion-dollar Operation Lone Star last March, billing it as a way to combat drug trafficking and human smuggling. The governor has often touted drug seizures and arrests of people accused of violence, but a major component of the operation is arresting suspected migrants for allegedly trespassing.

Through February, more than 2,800 men were arrested only for allegedly trespassing on private property — accounting for the largest share of arrests under the operation. The large majority of trespassing arrests have occurred in only two border counties where DPS troopers got consent from some local landowners to arrest men on their property.

State police have arrested both asylum-seekers who approached law enforcement and men trying to cross the border undetected for the crime of being on private property without permission. Police are directed to only arrest men traveling alone on such charges, turning families, women and children to immigration authorities instead.

After their arrests, thousands of men have been jailed in one of two state prisons retooled to hold Abbott’s migrant inmates. And since a large majority of the arrests have occurred in Kinney County, which has few courthouse resources, detained men who can’t post bond are often imprisoned months before they can appear in court in a videoconference to enter a plea. The maximum amount of jail time for trespassing in Texas is one year.

Hundreds of arrests are also being challenged in state district court after a judge in Austin deemed one migrant’s trespassing arrest unconstitutional because it was made as part of a state effort to usurp the federal government’s job of enforcing immigration laws. The larger case is on pause while the Texas Court of Criminal Appeals weighs arguments from Kinney County that claim the Austin judge has no authority to rule on its arrest and detention practices.

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