SAN ANTONIO — A new Texas bill would let judges order migrants to return to across the border if those migrants entered Texas illegally.
State lawmakers say their new statutes mirror federal law and, at the same time, they aren't technically deporting anyone. Opponents argue the bill still has plenty of problems and now Congressional Democrats are calling the bill "anti-immigrant."
So how does the State of Texas remove people without actually deporting them? Read on.
SB 4 creates criminal offenses for entering the State of Texas illegally and separate offenses for re-entering the state illegally. If a migrant enters the state illegally for the first time, they can be arrested by a police officer, taken before a judge, and charged with a Class B misdemeanor. A person who re-enters the state can be charged with a Class A misdemeanor.
Then, under SB 4, the judge can give the migrant an option to avoid prosecution if they agree to an order to leave the country and "return to the foreign nation from which the person entered or attempted to enter."
If the migrant doesn't agree, or the judge doesn't grant the option, the migrant will then serve an initial sentence. Afterwards, the judge can then order the migrant to return across the border again. The order must include how the person will be transported to a port of entry and what law enforcement agency is in charge of monitoring the migrant. If the migrant still refuses to comply with the order to return to the country from which they entered, Texas can then charge the migrant with a second degree felony.
This means the bill effectively gives migrants who enter the country illegally a choice between leaving Texas or eventually being incarcerated as a felon.
Texas District 68 Representative David Spiller laid out the bill in the Texas House of representatives on Tuesday before the body passed it later that day. Democrats expressed frustration that the bill's language does not make it clear exactly when Texas police officers would be able to arrest migrants suspected of being in the country illegally.
The bill does state that the arresting agency is required to collect "identifying information of the person" and required to cross reference state and federal criminal databases to, presumably, determine the persons legal status. The bill does not address when a police officer should initiate an arrest.
"How does this work in the real world?" Texas Representative Trey Martinez Fischer asked Spiller. "You mentioned a standard of probable cause but I don't see 'probable cause' in this bill."
Fished wanted to know how a police officer would determine that an individual entered the state illegally or has been previously deported if that officer simply saw them on the street in a Texas city.
"Under Texas law it is very clear you cannot arrest anyone without probable cause. The officer would have to have reasonable suspicion or probable cause to make a stop," Spiller said. "They would have to have some good faith belief based on fact. There would have to be some evidence."
Spiller did not give an example of what probable cause would be. He did state officers could not simply see a construction worker on a road and arrest them without evidence. Fisher said he still wanted an amendment that would require probable cause.
Wednesday, U.S. Congressmen Greg Casar and Joaquin Castro joined Texas House Representative Victoria Neave Criado for an online press conference where the lawmakers claimed the new bill was "dangerous and xenophobic."
"Make no mistake, this turns every law enforcement officer in the state of Texas into an immigration officer. It gives them wide latitude to question and challenge the citizenship of just about anyone in Texas," Castro said. "Brown-skinned people, dark skinned people, will be targeted. People who are seen speaking foreign languages in public are likely to get targeted."
Castro said, if Governor Abbott signs the bill, the will ask the Biden Administration to get involved.
"We will absolutely ask the Department of Justice and the Biden Administration to do everything the can to stop Greg Abbott and his unconstitutional actions."
Like many state lawmakers in Texas, Castro and Casar also said the bill was unconstitutional.
Representative Fisher also asked Spiller on Tuesday why Texas law enforcement wouldn't cooperate with Immigration and Customers Enforcement (ICE) if a state agency determined that a person entered the country illegally. Spiller said that law enforcement could still contact ICE in this situation but did not believe this created a conflict.