Greg Abbott, the governor of Texas, proposed the creation of a state crime of illegal entry into Texas under H.B. 4.[1] As part of his Operation Lonestar plan, Mr. Abbott proposed the bill to give police the authority to arrest migrants, or in the alternative, send them back to where they crossed over from Mexico.[2] This would be effectively giving state actors, instead of federal actors, a role in immigration enforcement.[3] Initially crossing the border without “legal status” would result in a misdemeanor conviction, punishable by up to 180 days behind bars.[4] Crossing multiple times would result in a felony punishable by up to two years. [5] Migrants could be arrested all over the state, no matter how far they may be from the border.[6] Anand Balakrishnan, a senior staff attorney at the ACLU argues that “[t]he Texas legislature can’t override federal immigration laws and replace them with outlandish schemes of its own invention.” [7]
However, on Thursday, October 26th, the Texas House approved this H.B.4. [8] In addition to creating a state crime for “illegal entry”, H.B. 4 also sets out a ten-year mandatory minimum for human smuggling.[9] Critics argue that the smuggling statute is over-broad, and the result will be that many young Texans will be punished.[10] Many worry it will inadvertently target Hispanic Texans. One critic notes that, “the breadth of the statute means that people can be charged simply for having a passenger in their vehicle; as long as police believe they had the intent of concealing that person.”[11] Critics also worry that law enforcement may target people giving rides to their undocumented friends or family to church, the doctor, or around town. [12]
This law clearly poses an issue to asylum seekers and to relations with Mexico. Asylum is outlined through the United Nations 1951 Convention and 1967 Protocol.[13]Once crossing over the border, asylum seekers may tell Customs and Border Protection officers that they fear persecution and torture if returned to their home country.[14] Thereafter, they receive a credible fear interview, where they have a chance to convince the officer that they have a “significant possibility” of establishing asylum or Convention Against Torture eligibility.[15] If they are found to have a credible fear, they are given an opportunity to apply for asylum through an I-589 form and are not deported, but moved to full removal proceedings. Those who are found by the officer to not have a credible fear of persecution may request review by an immigration judge before being deported.[16] Because the United States is a signatory to the 1967 Protocol, it has “legal obligations to provide protection to those who qualify as refugees.”[17] When migrants may be threatened with up to 180 days of jail time for crossing, it is unclear how asylum will be affected. Further, this bill could lead to increased tensions with Mexico, as it will be hard for Texas to make Mexico take people back, many of them who are not from Mexico.[18]
Having passed in the House, this bill is heading to the Senate who is projected to approve it to send off to Abbott.[19] It remains to be seen what legislation will come from its passage. In my opinion, this bill will only lead to disparate outcomes and will also jail asylum-seekers with well-founded fears of persecution.
[1] Human Rights Watch, US: Extreme Anti-Immigrant Proposals in Texas (Oct. 6, 2022)
https://www.hrw.org/news/2023/10/06/us-extreme-anti-immigrant-proposals-texas
[2] Goodman, J.David, Texas Lawmakers Vote to Let Local Police Arrest Migrants, (Oct. 26, 2023) The New York Times. https://www.nytimes.com/2023/10/26/us/texas-house-border-migrants-arrest.html
[3] Id.
[4] Garcia, Uriel, Texas house passes three immigration bills after contentious night of debate, (Oct. 25, 2023) The Texas Tribune. https://www.texastribune.org/2023/10/25/texas-legislature-house-immigration-bills/#:~:text=Under%20the%20bill%2C%20a%20first,repeatedly%20entered%20the%20country%20illegally.
[5] Id.
[6] Garcia, supra 4.
[7]ACLU of Texas, ACLU of Texas Responds to Advancement of Anti-Immigrant Border Bills (Oct. 26, 2023) https://www.aclu.org/press-releases/aclu-of-texas-responds-to-anti-immigrant-border-bills
[8] Goodman, supra 2.
[9] HRW, supra 1.
[10] Id.
[11] Id.
[12] Garcia, supra 4.
[13] American Immigration Council, Asylum in the United States Fact Sheet (August 2022) https://www.americanimmigrationcouncil.org/research/asylum-united-states
[14] Id.
[15] Id.
[16] Id.
[17] Id.
[18] Goodman supra 2.
[19] Id.
