Republican Governor Greg Abbott of Texas signed a controversial immigration bill into law on Monday afternoon, making unauthorised border crossings a state crime. When the new state law takes effect in March 2024, Texas law enforcement officers will have the authority to arrest people suspected of crossing the Mexican border into the Lone Star State illegally.
A first-time conviction carries a sentence of up to six months in jail. For a second offense, the penalties are much harsher: up to 20 years in prison. After the offenders have served their sentences, a judge would have to order the police to transport them to a port of entry. They could be charged with a felony for refusing to return to Mexico.
Those convicted can have their sentences waived by agreeing to be deported to Mexico – regardless of whether they emigrated from Mexico in the first place.
The law prohibits law enforcement from arresting migrants in schools, places of worship and health facilities. It doesn’t prohibit arrests on college campuses.
The legislation, which passed both chambers of the Texas legislature in November, is likely to be challenged. A federal law already makes it illegal to enter the US without permission.
Republican State Representative David Spiller, who sponsored the House bill, said the federal government hasn’t done enough to stop illegal immigration, making this state law necessary.
“It’s a landmark bill that allows Texas to protect Texans and send illegal immigrants back and prosecute and incarcerate those who refuse to leave,” he said during debate on the bill.
Opponents say the law will lead to racial profiling by police.
Preparing for the law
A week before the bill was signed into law, two dozen people gathered in a suburban Dallas office building for an informational meeting hosted by local immigration attorneys. Many of the attendees, including Gustavo Caballero, are immigrants worried about how the new law might affect them.
Caballero, who’s originally from Honduras, has lived in North Texas for two decades, but said the law is scary.
“Immigrants are going to be afraid to go out,” he said. “If they don’t know their rights, they could get into more trouble or take unnecessary risks.”
For 22-year-old Luis Hernandez, it’s a painful reminder that he narrowly missed the window to apply for Deferred Action For Childhood Arrivals, or DACA – a status that would have allowed him to temporarily stay and work in the country legally.
“This just makes me feel like, hey, now I have to worry every day that everything I’ve built, everything I’ve worked [for] is going to be threatened again,” Hernandez said.
Lawyer Haim Vasquez told the group not to sign anything without a lawyer present if a police officer stops their car and arrests them.
He says the law doesn’t take into account the nuances of someone’s immigration status.
“This law is terribly written. It’s terrible,” said Vasquez, who regularly posts updates about new immigration laws on his social media accounts. “The law doesn’t take into account the current or future process that an undocumented migrant could have in immigration court or through affirmative work, whether it’s marriage, possible asylum, work permit under parole, or a family petition either by a sibling or a child or a spouse.”
According to US Customs and Border Protection, federal agents encountered about 2.5 million migrants at the southern border in 2023. This figure includes migrants who came to ports of entry seeking asylum.
Advocates warn of risk of racial profiling
Ruby Powers, an immigration lawyer in Houston and a member of the American Immigration Lawyers Association, said she has questions about how the law will be enforced. She said it’s unclear when an officer will know if someone has applied for asylum and has a court date scheduled, and whether officers will go through the time-consuming process of investigating each migrant’s background.
“I think we’re going to see a lot of lack of probable cause,” she said. “But by the time an individual is detained and potentially deported, they may not have the resources to challenge the finding of probable cause.”
Priscilla Olivarez, policy attorney with the Immigrant Legal Resource Center in San Antonio, said she was concerned about the broad discretion given to law enforcement to stop and question anyone suspected of being in the country illegally. She said the law could disproportionately affect black and brown people, even far from the US-Mexico border.
“We’re talking about Texans who have legal status,” Olivarez said. “We’re talking about Texans who are United States citizens who are at risk of being racially profiled and arrested.”
Powers said the best course of action for anyone unsure of their immigration status is to consult a lawyer.
“Everyone should have a plan… a place where you have your documents, birth certificates, marriage, everything in one place,” she said. “Be prepared. Have a plan in case something happens.”
“The Government of Mexico categorically rejects any measure that allows state or local authorities to detain Mexican or foreign nationals and return them to Mexican territory,” the Foreign Ministry said in a statement in November. “The Mexican government will continue its efforts with the US government to address the issue of migration and reiterates its commitment to protect the rights of all Mexicans abroad.”
In November, a group of more than two dozen former immigration judges, appointed by both Democrats and Republicans, called the bill “illegitimate”.
“Immigration is clearly a federal function,” the group wrote at the time. “State legislatures cannot enact immigration laws for the same reasons that the United States Congress cannot enact Texas state laws.”
Federal courts have ruled that immigration laws can only be enforced by the federal government. In 2012, the US Supreme Court struck down key provisions of an Arizona law that established state-level immigration enforcement.
But Texas Assistant Attorney General Brent Webster, a Republican, said he would “welcome laws” that would lead to a court challenge.
“We’re asking you to consider legislation that would allow us to challenge this [2012] ruling again,” he said last year.
The League of United Latin American Citizens (LULAC) and other groups say they plan to sue Texas to challenge the new law, which could tie it up in court and possibly delay it from taking effect.