Texas on the verge of making illegal border crossings a state crime

Dec. 1 (UPI) --

Texas lawmakers last month approved Senate Bill 4, an immigration law that would allow Texas police to arrest people for illegally crossing the border from Mexico.

SB 4, which Gov. Greg Abbott has said he will sign into law, has sparked intense debate, with opponents saying it will lead to racial profiling by police and supporters saying Texas needs to step in because the federal government isn't doing enough to stop illegal immigration.

When Abbott signs the bill, it's scheduled to take effect in early March.

Abbott has taken a series of actions since March 2021, such as sending troopers and National Guard members to the 1,200-mile-long Texas-Mexico border to apprehend immigrants crossing the Rio Grande.

According to U.S. Customs and Border Protection data, federal agents encountered nearly 2.5 million migrants at the southern border in fiscal year 2023, which ended in September, breaking the record set in 2022. Those encounters included migrants who went to ports of entry to request asylum.

It is already illegal to enter the United States without permission under federal law. Without a state law against illegal crossing, state law enforcement has been charging migrants with trespassing when they cross the Rio Grande into private property.

Here's what to know about the proposed new state law.

What is Senate Bill 4?

The bill would make it a state crime to cross the Texas-Mexico border between ports of entry. If a police officer has probable cause to believe a person crossed the Rio Grande, that person could be charged with a Class B misdemeanor, which carries a punishment of up to six months in jail. If the person has been previously convicted of entering Texas illegally under SB 4, the charge could be increased to a second-degree felony, which carries a punishment of two to 20 years in prison.

The bill allows a judge to drop the charges if a migrant agrees to return to Mexico.

If the migrant is convicted and has served their sentence, a judge would be required to issue an order for police to transport them to a port of entry -- and they could face a felony charge for refusing to return to Mexico.

SB 4 prohibits police from arresting migrants in public or private schools; churches and other places of worship; healthcare facilities; and facilities that provide forensic medical examinations to sexual assault survivors. The bill doesn't prohibit arrests on college or university campuses.

According to a state House report on SB 4, police are allowed to turn over migrant families to Border Patrol agents to avoid separating children from their parents instead of arresting them.

Can Texas enforce immigration laws?

Federal courts, including the U.S. Supreme Court, have ruled that immigration laws can only be enforced by the federal government.

In a landmark 2012 case, Arizona vs. U.S., the U.S. Supreme Court ruled that local police didn't have the authority to arrest someone solely based on their immigration status; that responsibility falls to the federal government. That case stemmed from a 2010 Arizona law known as Senate Bill 1070, which made it a state crime for legal immigrants not to carry their immigration papers and required police officers to investigate the immigration status of any person they come into contact with.

State Rep. David Spiller, R-Jacksboro, sponsor of SB 4 in the Texas House, has said he believes the proposal is constitutional because it simply follows federal immigration law. He said the intention of the bill is not to spark another Supreme Court case that would overturn the 2012 decision.

"People have asked me that: Are you trying to overturn Arizona vs. U.S.? And my answer is no," Spiller said.

But other Texas Republicans have indicated that they hope the law will lead to a showdown before the Supreme Court.

Last year, a lawyer for the Texas Attorney General's Office, which has repeatedly sued the Biden administration over its immigration policies, told lawmakers the office would "welcome laws" that would spark a court challenge "because the makeup of the Supreme Court has changed."

"We ask for you guys to consider laws that might enable us to go and challenge that [2012 Supreme Court] ruling again," Texas Assistant Attorney General Brent Webster said.

Will SB 4 allow police to arrest any undocumented immigrant in Texas?

Spiller has said this law is meant to target people who recently crossed the border, not undocumented immigrants who have been living in Texas for years.

Because the statute of limitations on misdemeanor crimes is two years in Texas, and three years for many felonies, undocumented immigrants who have been in the country longer than that could not be charged with a state crime, the bill's authors said.

The bill does not limit arrests to the border area and allows police to arrest undocumented immigrants anywhere in the state.

How will this affect asylum seekers?

Anyone who enters the United States, legally or illegally, has up to a year to request asylum.

The federal government is asking migrants to not show up at a port of entry and instead make an appointment on the CBP One app to meet with an immigration officer. But the 1,450 appointments available each day across the entire U.S.-Mexico border fill quickly and many migrants opt to cross the border away from ports of entry and surrender to U.S. authorities.

Under SB 4, if Texas police arrest a migrant before they surrender to Border Patrol, it would affect any future asylum claim, said Kathleen Campbell Walker, an El Paso immigration lawyer and the former president and general counsel of the American Immigration Lawyers Association.

When an immigrant applies for any type of benefit to be able to stay in the country, including asylum, federal agents research whether the applicant has a criminal history that would disqualify their application, such as serious misdemeanors and felonies.

"This person has been arrested under a state law, and under U.S. immigration law, if I've been charged with and convicted of a state crime, there are state crimes that cause me to be subject to removal from the United States," she said.

How has the Biden administration responded?

Neither President Joe Biden nor any official in his administration has made any public comments about SB 4.

How has Mexico responded?

Mexican Foreign Minister Alicia Bárcena's office said in a statement that it "categorically rejects any measure that allows state or local authorities to detain and return nationals or foreigners to Mexican territory." The statement did not explicitly say that Mexico would refuse to accept migrants removed under the Texas law.

Immigration experts have said that Mexico is not obligated to receive immigrants from Texas who are not Mexican citizens. In fiscal year 2023, about 83% of the 1 million immigrants encountered by Border Patrol on the Texas-Mexico border were not Mexican citizens. Many are coming from Central and South America, Asia or Eastern European countries.

Tonatiuh Guillén López, the former chief of Mexico's National Immigration Institute, said that like in the United States, Mexico's immigration policies are set at the federal level and Mexico doesn't negotiate agreements with individual U.S. states.

"Texas can't do this because Texas doesn't have a diplomatic relationship with Mexico," Guillén López said.

This article originally appeared in The Texas Tribune. The Texas Tribune is a member-supported, nonpartisan newsroom informing and engaging Texans on state politics and policy. Learn more at texastribune.org.