Republicans Are Using Trespassing Laws to Arrest Migrants

Texas Governor Greg Abbott and Florida Governor Ron DeSantis have created new roadblocks to immigration reform.

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Texas Governor Greg Abbott’s efforts to arrest border crossers for trespassing has added another layer of cruelty to the Southern border—with disastrous results. He is competing with another Republican presidential wannabe, Florida Governor Ron DeSantis, to keep immigration in a Trumpian mold of fear and hate.

Governor Greg Abbott’s trespass arrests have only further traumatized immigrants trying to start a new life in the United States.

Criminal trespass arrests began in Texas in late July and, according to the Texas Department of Public Safety, reached 1,424 by October 21, as part of Operation Lone Star.

Staffed by about 1,000 state troopers and others from the Texas Department of Public Safety, Lone Star was launched last March “to combat the smuggling of people and drugs into Texas.” These trespass arrests can carry a year-long sentence in jail under the enhanced penalties provided by Abbott’s misuse of a Texas law meant for natural disasters. But these arrests have little to do with punishing smugglers and a lot to do with trampling on the rights of immigrants.

“Very few of our cases involve a person climbing a fence,” defense lawyer Kristin Etter told a committee of the Texas state legislature on October 4. She heads a project of Texas RioGrande Legal Aid that has been handling about half of these trespass cases.

On October 29, Democratic Representative Joaquin Castro and twenty-five other members of Congress submitted a letter to Department of Homeland Security Secretary Alejandro Mayorkas and Attorney General Merrick Garland. They called for an investigation of Operation Lone Star. This initiative, the letter says, “is wreaking havoc on Texas’s judicial system.”

Immigrants wading across targeted stretches of the Rio Grande can expect to be under arrest for trespassing as soon as they set foot on private property. In one case, Etter noted, an asylum seeker was arrested late at night, even though the only sign that he was on private property was a purple stick in the ground.

Val Verde and Kinney Counties, along Texas’s southwest border, have been the hub for arrests, and the Briscoe Unit of the Texas prison system has been repurposed as a giant jail for detaining trespassers, often for weeks on end.

Not surprisingly, in late September, nearly 250 immigrants arrested for trespassing were ordered to be released from detention by a state judge because they had not been formally charged with a crime. In Kinney County, Etter told the committee, the court system for trespassing cases was at a virtual standstill. That has changed, but Javier, a thirty-year-old from Mexico whose last name is omitted for privacy, has been detained at the Briscoe Unit since early September and has not been given a court date yet.

“It’s not fair,” Javier tells The Progressive. “We have not done anything bad.” Javier says he had no idea he was on private property when he was arrested for trespassing.

When Javier was still in Mexico, he worked in a hotel as a server. But, with the pandemic devastating Mexico’s tourism industry, he struggled to support his sons—ages six and ten—and hoped to find agricultural work or a restaurant job in the United States. As part of a group of nine, he crossed the Rio Grande with the bare essentials—some apples, a can of tuna, and a change of clothes, along with cloves of garlic to serve as snake repellent.

On their second day in Texas, the group was spotted by a helicopter—and then detained by law enforcement on the ground. The $3,000 that a magistrate set for bond was out of reach for Javier, who had less than $10 in Mexican pesos on him at the time.

“We’ve heard a lot from state authorities about the purpose of the program. This client certainly does not fit the bill,” says Amrutha Jindal, chief defender of the Houston-based Restoring Justice. She’s representing Javier and about fifty others arrested for trespassing. “None of our clients fit that bill. None of our clients are accused of human trafficking or drug trafficking.”

Immigration and Customs Enforcement has agents at the Briscoe Unit. When undocumented immigrants are finally released in these trespassing cases, they often end up in the hands of ICE for deportation and are sometimes allowed to pursue asylum claims, defense lawyers say.

Governor Greg Abbott’s trespass arrests have only further traumatized immigrants trying to start a new life in the United States.

Rebecca Sanchez, Austin organizing manager for Grassroots Leadership, says that in August her group’s hotline began receiving calls from migrants arrested for trespassing, wondering why they were in a state prison.

“Folks just had no idea about what was going on,” says Sanchez. “No idea who arrested them, why they were in jail and not talking to immigration.”

Border Patrol has become a participant in at least one of these trespassing arrests.

“How do you know a vehicle is coming from the Southwest border? The only way to do that is in a discriminatory fashion.”

On August 11, Border Patrol agents pulled over a vehicle suspected of smuggling people into Texas. Thirteen occupants fled on foot onto private property, according to Customs and Border Protection (CBP). The driver and two others were taken into custody by Border Patrol. The remaining eleven were taken into custody by the Department of Public Safety and arrested for trespassing.

But on September 30, Etter of RioGrande Legal Aid asked Val Verde County Attorney David Martinez to join in her Zoom call with these eleven defendants. And he did. Two Department of Public Safety officials were also present in Martinez’s office. Martinez says the Border Patrol made all the apprehensions.

The defendants presented a much different scenario. After being apprehended, they were zip-tied together in pairs of two and made to walk for about twenty minutes. They were then ordered to climb over a fence about ten feet high at a ranch. And after a K-9 unit was brought in, the men were told to climb back over the fence. They said they were then marched to an unknown destination, where they were arrested for trespassing.

CBP spokesman Dennis Smith tells The Progressive that once the eleven were apprehended, they were walked back to the site of the vehicle stop. Martinez had enough concerns about this case not to pursue prosecution. The eleven had spent about seven weeks in the Briscoe Unit before the charges were dropped. Smith would not comment on the fence issue, and ICE did not respond to any inquiries.

It’s troubling enough that the Biden Administration has failed to make a clean break with some of Trump’s punitive border policies, but why should Border Patrol lend a hand to Abbott’s attempt to make enforcement even harsher?

“We don’t have a justice system in Texas,” says Philip Wischkaemper, chief defender for the Lubbock Private Defenders Office. “We have a legal system.”

Joining Abbott in stirring the xenophobic pot in Florida, Governor Ron DeSantis issued an executive order on September 28 that authorizes state law enforcement to stop vehicles believed to be transporting undocumented immigrants from the Southwest border when the officer suspects the vehicle is being used in a crime.

And while this order says law enforcement should not participate in racial profiling in its implementation, immigrant advocates say the order is an invitation to do just that.

“How do you know a vehicle is coming from the Southwest border?” asks Paul Chavez, who is the Southern Poverty Law Center’s senior supervising attorney for Florida. “The only way to do that is in a discriminatory fashion.”

DeSantis’s order also authorizes state law enforcement to gather legally available information about undocumented immigrants who have been resettled from the Southwest border since January. The information could be anything from the names and addresses of their sponsors to court dates for their immigration proceedings.

And the order seeks to collect information about whether continued renewals and licenses granted to facilities that house undocumented, unaccompanied immigrant children are warranted.

DeSantis is peddling his executive order as a way to make clear that “Florida resources will not be used to prop up the failed open border agenda” of the Biden Administration. But members of the Haitian community say it’s aimed at them.

The Haitian community has already been mobilized by the recent Border Patrol abuses that Haitians at the Texas-Mexico border have been subjected to. Likewise, their mobilization stems from the Biden Administration’s deportation of Haitians to a homeland in turmoil. Under President Biden, there have been 114 such “repatriation” flights, according to Tom Cartwright of Witness at the Border, which tracks deportations by plane.

“People are taking precautions,” says Jude Derisme, an organizer in Palm Beach County with 1199 SEIU. The forty-two-year-old Haitian tells The Progressive how he fled the violence of his homeland in 1994. Although Derisme has U.S. citizenship, he now carries extra proof of his legal status on him. So does Anne Pierre, an organizer with Florida Rising in Palm Beach County. DeSantis’s order, she says, is meant to instill fear in the state’s growing Haitian community, the nation’s largest.

But Pierre, sixty, who fled Haiti in 1985, predicts the order is likely to have the opposite effect. “It’s time to get ready,” says Pierre, ready to call a list of activists who had recently participated in a “Stand Up for Haiti” protest in West Palm Beach.

In addition to DeSantis’s order, Florida has filed a lawsuit against the Biden Administration to seek more restrictive immigration enforcement and the detention of asylum seekers let into the United States to pursue their claims.

What’s more, these actions were taken a week after U.S. District Judge Beth Bloom found unconstitutional key sections of a 2019 Florida law—enacted soon after DeSantis took office—that required local law enforcement to “use best efforts to support the enforcement of federal immigration law.”  Bloom ruled that these provisions violate the Equal Protection Clause. 

The 2019 law created a climate of fear in various immigrant communities. For example, the Farmworker Association of Florida, with a membership of about 10,000 people, mostly Black and Latinx, began receiving reports of racial profiling. Members were also unwilling to go to health care clinics and obtain social services due to fear that they’d be targeted by law enforcement. And calls to the Florida Immigrant Coalition’s hotline skyrocketed from eighty per month in 2018 to almost 2,000 per month in 2020.

Bloom’s 110-page decision details how “allowing anti-immigrant hate groups that overtly promote xenophobic, nationalist, racist ideologies to be intimately involved in a bill’s legislative process is a significant departure from procedural norms.”  

DeSantis’s latest actions have sent an unmistakable message to Tessa Petit, co-executive director of the Florida Immigrant Coalition.

“It is definitely racial,” says Petit. “It is definitely an attack on Haitians.”