Texas urges Fifth Circuit to lift block on law criminalizing unlawful entry

(CN) — The state of Texas argued before the U.S. Fifth Circuit Court of Appeals Wednesday seeking to reverse a lower court’s injunction blocking it from enforcing a law criminalizing unlawful entry into the state and rejecting the federal government’s claims that the law is unconstitutional.

A week after a panel of three judges from the New Orleans-based federal appeals court denied the state's request to stay the injunction pending appeal, the same judges once again took up whether Senate Bill 4 should remain blocked. 

The law, which was set to take effect on March 5, makes it a state crime to enter the state from a foreign nation outside of a legal port of entry. State and local law enforcement are given the authority to arrest suspected violators and state courts are tasked with adjudicating them. People who have not been granted asylum, or are a part of the Deferred Action for Childhood Arrivals program, can be ordered to be removed from the state. Going against such an order carries up to 20 years imprisonment in a state jail. 

Texas Solicitor General Aaron Nielson explained on Wednesday what the state has attempted to accomplish through its controversial statute. 

“What Texas has done here is they have looked at the Supreme Court's precedent and tried to develop a statute that goes up to the line of Supreme Court precedent that allows Texas to protect the border,” Nielson said.

Challenging the law, in addition to the U.S. Department of Justice, are immigration advocacy organizations Las Americas Immigrant Advocacy Center and American Gateways and El Paso County. They have have in separate lawsuits claimed that the field of regulating immigration is solely the responsibility of the federal government, according to the supremacy clause of the U.S. Constitution.

U.S. District Court Judge David Alan Ezra agreed with the plaintiffs in February when he granted their motion for a temporary injunction, finding SB 4 to be “antithetical to the Constitution.”

Nielson argued that “inaccurate factual premises” led both the federal court and the very panel he argued before Wednesday to rule against allowing the law to go into effect.

The state says one area SB 4 has been misrepresented is the provision allowing for the removal of undocumented persons, which was a point of contention for Chief U.S. Circuit Judge Priscilla Richman, a George W. Bush appointee, in her opinion denying the state's motion for a stay.

“Texas does not deport anybody,” the solicitor general said. Rather, under SB 4, an individual subject to a removal order will be taken to a port of entry and turned over to federal agents. Through this process, the state claims that the rights of the federal government to regulate immigration would be respected. 

Justice Department attorney Daniel Tenny refuted the solicitor general’s explanation of the removal provision, calling it an “attempt to rewrite SB 4 from the podium.”

Tenny argued that the lower court’s temporary injunction and the panel’s denial of the stay pending appeal were based on a reading of the statute and declarations by the state stating how it planned to enforce SB 4.  

“[SB 4] says that there will be an order that requires the non-citizen to return to the country from which the non-citizen entered the United States,” Tenny said. "They now say, I guess, that you don't have to do that and maybe you just go to the port of entry and that's good enough.” 

U.S. Circuit Judge Andrew Oldham, a Donald Trump appointee, asked Tenny if the law still would be preempted by the federal government if SB 4 permitted state officials only to return migrants to a port of entry.

Tenny didn't give a yes-or-no response, but said that the state prosecuting someone for unlawfully entering the state is preempted, thus making any consequences from that prosecution, including an order to return to the port of entry, to be preempted by federal law.

Oldham dissented from the circuit court’s opinion denying the state’s motion for a stay and was critical of his fellow judges and the plaintiff’s argument that the Supreme Court’s ruling in Arizona v. United States shows that the federal government has the exclusive right to regulate immigration. That sentiment reemerged during arguments when he said that the high court’s ruling in that case does not give the federal government preemption over a state law before it has gone into effect. 

Tenny responded to Oldham’s assertions on Arizona saying that SB 4 is a criminal provision, much like the provisions of the state of Arizona’s law that were challenged, that intrudes in the immigration space. 

“Our submission, and the court properly accepted, is that the criminal provisions of SB 4 are field preempted,” Tenny said.

The circuit judges also heard from an attorney representing Bill D. Hicks, a district attorney representing parts of West Texas, and the American Civil Liberties Union, who are representing the immigration advocacy organizations and El Paso County in their suit against Hicks and the director of the Texas Department of Public Safety, Steven McCraw.

Chief Judge Richman and Judge Oldham were joined by U.S. Circuit Judge Irma Carrillo Ramirez on the bench Wednesday. The Biden appointee, who previously joined Richman in denying the state’s motion for a stay, did not ask any questions of the parties during arguments.

Based on the circuit court’s majority opinion, Texas has an uphill battle making its case that SB 4 does not conflict with federal immigration law. Richman wrote that the law would essentially allow Texas to achieve its own immigration policy.

However, even if the state were to succeed before the Fifth Circuit, the United States would certainly appeal the decision to the United States Supreme Court, setting the high court up to consider in case for a second time.

Meanwhile, immigrant rights experts fear that if SB 4 is held to be constitutional, it could lead to other states enacting similar laws, further complicating an already complex area of law. 

Vanessa Ruiz, an immigration attorney at De Castroverde Law Group, said in a statement to Courthouse News that the law may also lead to further exploitation of undocumented migrants in Texas. 

“Every immigrant in this country deserves to be treated fairly under the law,” said Ruiz. “The implementation of SB4 would only create more chaos, ambiguity, and complexity in our already overburdened and backlogged immigration system.”

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