ACLU files lawsuit challenging new Texas law that authorizes police to arrest migrants

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(AUSTIN, Texas) — The ACLU of Texas filed a lawsuit in federal court Tuesday challenging the state’s new law that authorizes Texas law enforcement to detain and arrest migrants suspected of crossing the southern border illegally.

The lawsuit was filed on behalf of the County of El Paso and advocacy groups Las Americas Immigrant Advocacy Center and American Gateways. It names Steve McCraw, director of the Texas Department of Public Safety, and Bill Hicks, a district attorney for the 34th District of Texas, as defendants.

By creating new state crimes, including one of “illegal entry,” SB 4 allows local and state law enforcement officials to arrest migrants suspected of crossing into the state illegally from Mexico and allows judges to direct migrants to be transported to ports of entry and ordered to return to Mexico, regardless of nationality. The state crime carries a penalty of up to six months in jail for first offenses and up to 20 years for repeat offenders.

The law is the latest attempt by Abbott, a hardline Republican opponent of the Biden administration’s immigration polices, to enact and enforce immigration laws.

“President Biden has repeatedly refused to enforce federal immigration laws already on the books and do his job to secure the border,” Abbott said in a statement after the lawsuit was filed Tuesday. “In his absence, Texas has the constitutional authority to secure our border through historic laws like SB 4. Texas will take this fight all the way to the U.S. Supreme Court if necessary to protect Texans from President Biden’s dangerous open border policies.”

Representatives for McGraw and Hicks did not immediately respond to ABC News’ requests for comment.

“The goal of Senate Bill 4 is to stop the tidal wave of illegal entry into Texas,” Abbot said at a signing ceremony set up against the backdrop of the border wall in Brownsville, Texas.

For months, immigration advocates have claimed that the new law could cause widespread racial profiling and the imprisonment of migrants who may have crossed into the country in between ports of entry, but have the legal right to stay while their asylum claims are processed.

The law does not allocate funding or mandate training for law enforcement officials who will now be tasked with enforcing immigration law. Immigrant rights advocates have said this would leave the fate of a migrant’s path to asylum in the hands of untrained officers.

“There is no U.S. federal analogue to a lone officer in their own discretion escorting someone to the border and saying get out. That is a very scary prospect that is categorically different from what the federal government does. In addition to that, in the federal system people would be able to present their claims to an immigration officer and an immigration judge,” David Donatti, a senior staff attorney with the Texas ACLU, told ABC News in November after the bill was passed by the Texas House of Representatives.

In the filing, the lawyers representing the county of El Paso, which has grappled with constant migrant surges, say SB 4 would pose a threat to mixed status families who are an “integral part of the El Paso community” and pay an approximate $591.8 million in taxes. The county also claims it would overburden its county jail, the main detention facility for undocumented immigrants by adding an additional 8,000 arrests per year.

“Given that number of anticipated arrests, the County will incur nearly $24 million per year in additional costs to simply house these additional defendants. The County estimates it will need to authorize and spend a further $162 million to build additional jail and bed space,” the complaint obtained by ABC News says.

The lawsuit claims Las Americas, which provides legal services to migrants in federal immigration detention, would be prevented from reaching people who may have a legal basis to stay in the country because of the law’s expedited removal process.

“In intention or effect, the state will preclude the communities Las Americas serves from ever coming into contact with the federal immigration process. To continue to pursue its mission, Las Americas will need to develop an entirely new system of tracking, counseling, and representing individuals held in state and county jails and prisons to ensure that they are screened and advised of their eligibility for federal immigration relief, and are assisted in applying for relief,” the filing says.

Immigration advocates have previously voiced concerned that if parents are arrested, they may be separated from their children.

The lawsuit claims SB 4 violates the Supremacy Clause of the United States Constitution, which states that immigration falls under the federal government’s responsibilities, not the states.

“This is an extreme law that will make communities in Texas less safe. Generally speaking, the federal government — not individual states — is charged with determining how and when to remove noncitizens for violating immigration laws,” White House spokesperson Angelo Fernandez Hernandez told ABC News in a statement.

“The law is incredibly extreme,” White House press secretary Karine Jean-Pierre told ABC News’ Mary Bruce on Tuesday about SB 4. “It does not make communities in Texas safer.”

She added, “Communities should not, should not be individually targeted and put into … harm’s way and this is what we’re seeing.”

At the bill signing ceremony, Abbott praised former President Donald Trump’s immigration policies and claimed these polices helped lower illegal entries. The governor endorsed the former president for his 2024 presidential run.

“Now under President Biden, he has eliminated all of those policies and has done nothing to halt illegal immigration. Joe Biden’s deliberate inaction has decimated America,” Abbott said.

Abbott signed two other immigration-related bills on Monday. One bill earmarked $1.5 billion in funding for his border security initiative Operation Lone Star and to build more barriers along the border. Another bill increased the minimum sentence for smuggling immigrants.

On Monday, Rep. Joaquin Castro, D-Texas, and members of the Congressional Hispanic Caucus sent a letter to U.S. Attorney General Merrick Garland asking the Department of Justice to intervene before the law takes effect on March 5, 2024.

“This bill is set to be the most extreme anti-immigrant state bill in the United States; it is clearly preempted by federal law and when it goes into effect will likely result in racial profiling, significant due process violations, and unlawful arrests of citizens, lawful permanent residents, and others,” the lawmakers wrote.

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