‘A scary time for undocumented immigrants’

Experts unfold the lawsuit on controversial SB 4

An immigration attorney and a UTRGV political science assistant professor explained the lawsuit the U.S. Justice Department filed against Texas on Jan. 3 over Senate Bill 4, a law that aims to establish state crimes and penalties for migrants who illegally enter the state.

SB 4 prevents police from arresting migrants in public or private schools, churches and health-care facilities. However, it does not restrict arrests on college or university campuses.

Patrick Gonzales, UTRGV vice president for Marketing and Communications, said UTRGV is still seeking official guidance on how to implement SB 4.

“Obviously as a state public institution, you know, we must adhere to all Texas laws,” Gonzales said. “How specifically it will impact UTRGV operations still remains to be seen. We are monitoring the situation and discussing it. But, you know, we are still waiting to see what the final version is going to look like. And I think it’s stuck in the courts right now. But we are monitoring it and working with UT System.”

He said he does not think the law will impact the university.

Because the Brownsville campus is close to the border, Gonzales said UTRGV’s action is to call the U.S. Border Patrol and make them aware of the matter.

Texas law enforcement officers do not have legal authority to stop or arrest someone based on their immigration status, according to the Immigrant Legal Resource Center. It is legal for Texas law enforcement to inquire about immigration status in the course of enforcing Texas criminal laws. However, it is not required.

On Jan. 3, the U.S. filed a lawsuit against the state of Texas, Gov. Greg Abbott, the Texas Department of Public Safety and its director, Steven C. McCraw, complaining that SB 4 “creates purported state immigration crimes for unlawful entry and unlawful reentry, permits state judges and magistrates to order the removal of noncitizens from the country, and mandates that state officials carry out those removal orders.”

The lawsuit alleges SB 4 “intrudes on the federal government’s exclusive authority to regulate the entry and removal of noncitizens, frustrates the United States’ immigration operations and proceedings, and interferes with U.S. foreign relations. SB 4 is invalid and must be enjoined.”

State laws are also preempted when they conflict with federal law and that the Constitution tasks the federal government with regulating immigration, foreign affairs and foreign commerce and that the Supreme Court has confirmed that the removal process must be entrusted to the discretion of the federal government, according to the lawsuit.

The law is set to take effect March 5.

Edinburg immigration attorney Dania Pulido said she believes signing the bill into law is a way to test the court system because SB 4 is unconstitutional. 

“People are under the impression that if we just have more agents and more people that are guarding the border, that if we have higher border walls, or if we are able to just stop migrants from coming and putting them in jail and detention centers that it will deter people from coming,” Pulido said.

A Nov. 16 report by the Pew Research Center states Texas has the second-highest population of unauthorized immigrants in the United States. The report states that Texas had about 1.6 million unauthorized immigrants in 2021.

“If you start undermining constitutional law then the entire system that we base our government on gets diminished little by little, and so that’s very scary, not just for immigrants, but for everybody,” Pulido said. “I also believe that more money for enforcement is not the way to solve the immigration crisis or to deter people from coming.”

She said the funding used on SB 4 should be used to hire more people to process immigration applications.

“You always hear people talking about, ‘Well, if only immigrants did it the right way’ … Well, the right way is very, very broken,” Pulido said. “And so, there is no money going towards restructuring the current immigration system. 

“The answer is not to just keep forcefully sending people back, it’s to fix the process that we have right now. … If somebody were to petition for you, the wait is 20 years. And so, it is crazy backlogged and the reason that it is backlogged is because nobody’s putting resources into any of this.”

On Dec. 18, Gov. Greg Abbott signed two immigration bills, SB 3 by state Sen. Bryan Hughes (R-Mineola) and SB 4 by state Sen. Charles Perry (R-Lubbock), which led to a complaint from the Justice Department.

SB 3 will allocate more than $1.5 billion for border security measures, while SB 4 makes it a state crime to cross into Texas from Mexico illegally, according to a Dec. 18 news release from the governor’s office. 

On Nov. 14, the bills passed during a special Texas legislative session.

“So on … a person’s first offense, if they were to do this once and be caught by law enforcement, that would be classified as a class B misdemeanor, which carries, you know, six months in jail,” said Álvaro J. Corral, an assistant professor in the UTRGV Department of Political Science. “And then if someone were to do it again, it would increase to a felony in the second degree, which actually has a maximum penalty of 20 years in prison.” 

Corral said Abbott and his office have stated that they are willing to continue this as a “legal fight all the way to the Supreme Court if they have to.”

Pulido said a red flag on sending undocumented immigrants to Mexico is that it will affect their immigration record and they will not be able to “fix their papers, quote, unquote, the right way.”

SB 4 allows a judge to drop the charges if a migrant agrees to return to Mexico.

“The moment that that person steps foot outside of the United States, their immigration record is pretty much tarnished,” Pulido said. “If there was a chance for them to fix their papers, it’s usually ruined, especially when that person comes back. They have a permanent bar on their case.”

“The foreign-relations concerns are exacerbated because the purpose and effect of SB 4 would be to remove noncitizens to Mexico, regardless of their nationality,” the Justice Department complaint states.

Pulido said Texas is “allowed to send undocumented immigrants back to Mexico, but Mexico doesn’t have to accept them.”

“When [Donald] Trump was in office, he made this rule that people had to wait outside of the United States and they had to wait in Mexico,” she said. “And so, then it just causes all of this chaos on the border because Mexico does not want them, either. And so, these people were pretty much in no man’s land and are being detained in Mexico or living also, you know, on the border and just dealing with a humanitarian crisis.”

Looking ahead, Pulido said we are going to see a “really long legal battle” on SB 4.

“They are already being sued, and they will likely be enjoined, because constitutional law is very hard to touch and hard to mess with,” she said. “And we have seen this before, too, in U.S. v. Arizona … and they lost because at the end of the day, the U.S. government has sovereign power over immigration law. So it is a federal issue. And federal and state do have to remain separated.”

The Justice Department argues Texas cannot run its own immigration system.

“The Constitution assigns the federal government the authority to regulate immigration and manage our international borders,” the Justice Department stated in a news release on Jan. 3. “Because SB 4 is preempted by federal law and violates the U.S. Constitution, the Justice Department seeks a declaration that SB 4 is invalid and an order preliminarily and permanently enjoining the state from enforcing the law.”

In the news release, Principal Deputy Assistant Attorney General Brian M. Boynton, head of the Justice Department’s Civil Division, said Texas is not permitted to ignore the established Supreme Court precedent or the U.S. Constitution.

“We have brought this action to ensure that Texas adheres to the framework adopted by Congress and the Constitution for regulation of immigration,” Boynton states.

At the end of the complaint, the U.S. asks the court to declare that SB 4 violates the rules of the Supremacy Clause and Foreign Commerce Clause and, therefore, should not be enforced. 

It also requested the court to stop the defendants and anyone else associated with them from enforcing SB 4, and to award the U.S. its costs in the lawsuit. Additionally, the U.S. requested the Court to grant any other relief the Court deems just and proper.

Mexico’s Ministry of Foreign Affairs published a news release Jan. 3 on behalf of the Government of Mexico taking “favorable note of the lawsuit” filed by the Justice Department.

“The Foreign Ministry expressed its opposition to implementation of the anti-immigrant law, which aims to stop the flow of migrants by criminalizing them, and by promoting the separation of families, discrimination and racial profiling, which violate the human rights of the migrant community,” the news release states.