Texas governor signs law making it a state crime to cross the border illegally

Republican Gov. Greg Abbott of Texas signed a controversial immigration bill Monday afternoon, which makes unauthorized border crossings a state crime. When the new state law takes effect in March of 2024, Texas law enforcement officers will have the authority to arrest people suspected of illegally crossing the Mexican border into the Lone Star State.

A first-time conviction carries a sentence of up to six months in jail. For a second-time offender, the penalties are much steeper: up to 20 years in prison. After offenders serve their sentences, a judge would be required to issue an order for police to transport them to a port of entry. They could face a felony charge for refusing to return to Mexico.

Those convicted can have their sentences waived by agreeing to be deported to Mexico — regardless of whether or not they emigrated from Mexico in the first place.

The legislation prohibits law enforcement from arresting migrants in schools, places of worship, and healthcare facilities. It doesn’t prohibit arrests on college campuses.

The legislation, which passed both chambers of the Texas legislature in November, will likely be challenged. A federal law already makes it illegal to enter the U.S. without permission.

Republican state Rep. David Spiller, who sponsored the House bill, said the federal government hasn’t done enough to stop illegal immigration, necessitating this state law.

“It’s a landmark bill that allows Texas to protect Texans and to send illegal immigrants back, and to prosecute and incarcerate those that refuse to leave,” he said during debate on the bill.

Opponents say the law will result in racial profiling by police.

Preparing for the law to go into effect

A week before the bill was signed into law, two dozen people met inside an office building in suburban Dallas for an informational meeting run by local immigration attorneys. Many of the attendees, including Gustavo Caballero, are immigrants worried about how the new law could affect them.

Caballero, who’s originally from Honduras, has lived in North Texas for two decades, but said the law provokes fear.

“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 temporarily let him stay and work in the country legally.

“This is just making me feel like hey, now I have to worry daily that all I built, everything I worked [for] is being threatened again,” said Hernandez.

Attorney Haim Vasquez told the group not to sign anything without an attorney present if a police officer pulls over their car and detains them.

He says the law doesn’t take into account the nuances of someone’s immigration status.

“This law is written horribly. It’s terrible,” said Vasquez, who regularly posts updates about new immigration laws on his social media accounts. “The law is not taking into consideration the current process or future process that an undocumented migrant could have in immigration court or through affirmative work, whether it’s marriage, possible asylum, work authorization under parole, or a family petition either by a sibling or a child or a spouse.”

According to U.S. Customs and Border Protection data, federal agents encountered roughly 2.5 million migrants at the southern border in 2023. That figure includes migrants who went to ports of entry seeking asylum.

Advocates warn of risk of racial profiling

Ruby Powers, an immigration attorney in Houston and 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 would know if someone has applied for asylum and has a scheduled court date, 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 gets detained and potentially deported, they might not have the resources to challenge the probable cause finding.”

Priscilla Olivarez, policy attorney with the Immigrant Legal Resource Center in San Antonio, said she is worried about the wide discretion granted to law enforcement to stop and question anyone suspected of unauthorized entry. She said the law could disproportionately affect Black and brown people, even far from the U.S.-Mexico border.

“We’re talking about Texans that do have lawful status,” Olivarez said. “We’re talking about Texans that are United States citizens that will be in danger of being racially profiled and arrested.”

Powers said the best course of action for anyone unsure of their immigration status is to consult an attorney.

“Everyone should have a plan…a place to have your documents, birth certificates, marriage, everything in one place,” she said. “Be prepared. Have a plan if something were to happen.”

Looming legal challenges

The legislation has already received pushback from Mexico.

“The Government of Mexico categorically rejects any measure that allows state or local authorities to detain and return Mexican or foreign nationals to Mexican territory,” the foreign ministry said in a November statement. “The Government of Mexico will continue its efforts with the U.S. 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 “not lawful”.

“Immigration is plainly a federal function,” the group wrote at the time. “State legislators cannot enact immigration laws for the same reasons that the United States Congress cannot enact Texas state legislation.”

Federal courts have ruled that immigration laws can only be enforced by the federal government. In 2012, the U.S. Supreme Court struck down central provisions of an Arizona law that established state-level immigration enforcement.

But Texas Assistant Attorney General Brent Webster, a Republican, has said he “welcomes laws” that would lead to a court challenge.

“We ask for you guys to consider laws that might enable us to go and challenge that [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 this new law, which could tie it up in court and possibly delay the law from taking effect.

Stella M. Chávez is KERA’s immigration and demographics reporter

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