Border control or racial profiling? What changes if TX immigration law goes into effect

The 5th Circuit Court of Appeals late Tuesday blocked a new Texas immigration law, SB 4, from going into effect.

The ruling came just hours after the U.S. Supreme Court allowed the law that makes it a state crime to illegally cross the Texas-Mexico border to take effect earlier in the day on Tuesday. A hearing was held in the 5th Circuit on Wednesday morning, but as of late in the afternoon the law remained inactive.

The law makes it a state crime to illegally cross the Texas-Mexico border, a shift from what has long been solely a federal violation. It was approved by lawmakers in November and signed by Texas Gov. Greg Abbott, but hadn’t gone into effect due to legal challenges. Opponents have called it unconstitutional and said will lead to racial profiling.

A federal judged in late February blocked the law from being implemented while its legality plays out in court. That ruling was stayed by an appellate court and the case was appealed to the U.S. Supreme Court. The court had delayed ruling on it until Tuesday, when it allowed the case to go into effect while the case plays out in a lower court.

Texas Gov. Greg Abbott and Texas Attorney General Ken Paxton both cheered the development in social media posts.

“BREAKING: In a 6-3 decision SCOTUS allows Texas to begin enforcing SB4 that allows the arrest of illegal immigrants,” Abbott wrote on X. “We still have to have hearings in the 5th circuit federal court of appeals. But this is clearly a positive development.”

Immigration groups and other opponents criticized the order from the Supreme Court.

“Make no mistake, this decision does not change our commitment to this fight,” said Jennifer Babaie, director of advocacy and legal services Las Americas Immigrant Advocacy Center, a plaintiff on the case, in a statement shared by the Texas Civil Rights Project. “Everyone, regardless of race or immigration status, has the freedom to move and the freedom to thrive. We will continue to use every tool at our disposal to ensure this anti-immigrant and unconstitutional law is struck down for good, and Texans are protected from its inherent discrimination.”

The law could have sweeping implications for border policy if allowed to stand.

Changes to Texas law

The law, when active, makes it so non U.S. citizens who enter or attempt to enter Texas “directly from a foreign nation at any location other than a lawful port of entry” could face a a Class B misdemeanor or state jail felony, if previously convicted of the offense.

It’s also a crime, with a higher penalty, if a person has been previously deported or denied entry, or had left the country while an exclusion, deportation, or removal order is pending.

That means state police could arrest people suspected of being in the country illegally, which has been historically reserved for federal law enforcement.

“According to SB 4, police officers themselves can ask about any person’s immigration status who they have reason to believe is here unlawfully, and it does not necessarily mean that a person has to commit a crime first,” said Rocio Martinez, a Fort Worth immigration attorney.

Police cannot make arrests at schools, places of worship, health care facilities and facilities that offer forensic medical examinations to sexual assault survivors.

Under the new state law, a magistrate could also order a person who was arrested to be released from custody and “require the person to return to the foreign nation from which the person entered or attempted to enter.” The person would have to agree to the order and not be facing other crimes, according to the law.

Police already can ask people under arrest about their immigration status and share that information with U.S. Immigration and Customs Enforcement for eventual deportation proceedings, Martinez said.

Both Martinez and Huyen Pham, a university distinguished professor at the Texas A&M University School of Law in Fort Worth, expect the law to have more of an impact on border communities than North Texas, they said Tuesday, before the law was again halted. Transporting people back from the border they entered from is expensive when could limit local enforcement, Martinez said.

“I don’t know what plans or what’s been put in place by the law enforcement agencies to effectuate that,” she said.

The system will take time to set up in Texas, Pham said Tuesday afternoon.

Pham described the law as creating “parallel system” to the federal process for both arrests and deportations, a move that is “pretty astounding.”

“Allowing this law to take effect, even on the sort of temporary grounds that the Supreme Court articulated, is a really huge decision, and it suggests that there is more support on the merits for the Texas law than I would have thought possible, given the centuries of law that support the plaintiffs’ position,” said Pham, who focuses on immigration law.

Concerns about racial profiling

Opponents of the law have raised concerns about racial profiling.

State Rep. Victoria Neave Criado, a Dallas Democrat who chairs the House’s Mexican American Legislative Caucus, called the bill “an extreme law and reckless attempt to circumvent our US Constitution,” in a Tuesday statement. Police and sheriff departments across the state lack the training to enforce immigration law and the state isn’t equipped to process migrants like the federal government, she said, criticizing Republican statewide officials.

“To pursue their political stunts, they are playing with Latino lives and using us as a political football,” Neave Criado said. “Giving police powers to arrest and deport people is going to result in wrongful arrests of American citizens, racial profiling, and numerous consequences that MALC Legislators have warned about all year long.”

Martinez said she’s not sure how much racial profiling will happen. She has clients who are asked about their citizenship status when stopped by police or at the jail. Martinez assumes and hopes local police would pull people over when they believe they have cause for things like speeding or a broken taillight, not just because they think a person may be in the country illegally, but that’s not required under the law, she said.

“Anytime you have a law that lets you ask about people’s immigration status just based on a hunch or based on your suspicion that they don’t have status — I mean, anytime you have something like that, it’s ripe for racial profiling.”

Those who are stopped by a police officer should know that they are obligated to give their name, birthdate and address, but have the right to remain silent on other questions, including those related to immigration status, Martinez said.

Tarrant County Sheriff Bill Waybourn previously told the Star-Telegram that the office isn’t concerned about the new law leading to racial profiling or impacting community-officer relations.

“We have no concerns of racial profiling because this bill will be focused on illegal border crossings and we know of people from all over the world coming into this country illegally by way of the southern border,” Waybourn said at the time. “As far as affecting an officer’s relationship to the community, I would hope members of the community would like to see individuals involved in criminal activity taken off the streets of their neighborhoods.”

North Texas law enforcement

Waybourn and Fort Worth Police Chief Neil Noakes were not available for an interview Tuesday.

In a Wednesday interview at the Texas Capitol, Waybourn said the law wasn’t enforced by the Tarrant County Sheriff’s Office during the few hours it was in effect Tuesday.

“I think right now that we just need to watch and see what the courts do with it, because it’s too early to say what the outcome is going to be,” Waybourn said.

He and other sheriffs from across the state met with Abbott in Austin Wednesday, where Waybourn said they discussed the border and delivered a letter to show support for Abbott.

Waybourn in a written statement Tuesday said the court’s decision to let the law go into effect “allows Texas to do what the federal government won’t.”

“Texans are frustrated by the continued onslaught of illegal entry into this country and the federal government’s unwillingness to act,” he said, calling the law a “a tool for Texas law enforcement along the border to detain anyone they see crossing into the country illegally.”

Waybourn previously told the Star-Telegram the law would be more heavily enforced in other areas of the state, particularly on the border.

“We don’t really see there will be a need for enforcement in Tarrant County. SB 4 mainly applies to counties on the border. The arresting officer has to see the illegal crossing happen in order to make an arrest,” Waybourn said.

In the Tuesday statement he said, “it is unlikely that law enforcement in North Texas will have knowledge of an individual’s illegal entry status to enforce SB 4, due to this being primarily an on-view offense.”

Noakes commented on the law in a video shared on X on Monday. In it, he said immigration enforcement should be left to state and federal law enforcement.

“It is the mission of the Fort Worth Police Department to serve every member of our community, and our day-to-day commitment to that mission will not change with the passage of Senate Bill 4,” he said. “Although we will always follow the law, the primary responsibility for immigration enforcement and border protection should be left to our federal and state partners. In light of the vibrant growth of our city and the diversity of our communities, our department remains unwavering in its commitment to community policing and making Fort Worth the safest city in the country for all who call this community home.”

The Texas Department of Public Safety did not immediately return a request for comment.