The Law That Would Let Texas Police Arrest and Deport Suspected Undocumented Immigrants Is Worse Than You Think
When I met Ira in January, her top priority was getting out of Texas before S.B. 4, a new state law that authorizes state forces to take over immigration enforcement, took effect.
Ira currently has a few months remaining on a one-year parole—a legal status that offers temporary authorization to live in the United States—and is working on her asylum application to defend her and her children against deportation. She told me she had escaped Mexico after she took a bullet in her abdomen protecting her daughter from a cartel shooting. Yet Ira, resolute and deeply competent, could not figure out how to leave Texas. She said her savings were drained by the medical bills from the shooting and the journey to the United States. (Slate is not identifying her by her full name because her asylum case is ongoing.)
“If you don’t have a job, you don’t have a shot [leaving]; without a work permit, you don’t have a shot at a decent job,” she told me. It costs $410 to apply for a work permit in the United States.
Ira is afraid that if she and her six children—three of them her own, three her partner’s—do not make it out of the state before S.B. 4 is fully implemented, she could be jailed or deported, even though she has a temporary status and a strong asylum claim. “When you’re Mexican, people think you’re illegal,” she told me. (I’ve translated her interviews from Spanish.) “They won’t stop you,” she paused, pointedly—I’m a white naturalized citizen—“you have the face of an American, the speech, everything. But imagine me! I follow the law, but they can stop me because I look illegal.”
Priscilla Orta, director of Project Corazon, has been advising people to leave Texas if they can. New immigrants may be able to cross the border into Texas, she said, but “they just won’t leave. It’s Hotel California up in here.” (I worked with Orta at Project Corazon, which is run by Lawyers for Good Government, in an independent clinic as a law student this winter. I met Ira after she messaged Project Corazon on Facebook, and am currently working on her asylum case.)
Before S.B. 4, people who crossed could—if they fled a credible threat and found legal assistance within one year of arriving—apply for asylum as a defense against deportation. Those who could prove that they had been persecuted had a shot at a permanent status; at the very least, while their cases were pending, they could live and work in the United States.
If S.B. 4 takes hold, these limited rights would be crushed.
S.B. 4 allows state forces to police immigration by creating three new Texas state crimes—“Illegal Entry,” “Illegal Reentry,” and “Refusal to Return to Foreign Nation”—with penalties ranging from up to six months in jail for a first offense to up to 20 years in prison for repeat offenses. Those convicted are to be deported by the state of Texas to Mexico after serving their sentence. Unlike current federal immigration law, S.B. 4’s state deportation process could apply to people in the middle of their immigration proceedings—like those applying for a family visa because they have a U.S.-citizen child, or soliciting protection from removal because of a high likelihood of post-deportation torture. Someone like Ira—whose parole expires in just a couple of months—could be deported while waiting for a hearing to prove that she will be killed upon return.
S.B. 4 will produce a second radical departure from the status quo—one that worries Ira even more. While S.B. 4’s author has claimed the law is targeted only at recent arrivals, as written it allows police to question the status of anyone suspected of being a non–U.S. citizen. Immigrants and immigrant rights advocates fear that this will lead to unfettered racial profiling across the state.
“There’s something very strange in the S.B. 4 law,” Ira told me over a WhatsApp voice message after a flurry of research on the bill. “What is a police officer going to base stopping you and asking about your immigration status—what are they going to base it on? On my face, on how I look? Do I look like an illegal?”
Over the past month, the law has wavered in and out of effect as it’s worked its way through the courts. S.B. 4 was signed in December of 2023 and blocked by a district judge in Austin. The U.S. Supreme Court temporarily allowed its enforcement in March 2024 despite ongoing challenges in lower courts; hours later, the 5th Circuit issued a stay, blocking the law again while litigation proceeded. S.B. 4 is currently dormant, and advocates expect an expedited ruling on its legality this summer.
But while the law was briefly in effect, it was already destructive to immigrant communities in Texas—as Orta put it, “the chaos is its own damage.” Ira told me that the immigrant families she spoke to at the border are afraid to leave their homes. They’re scared that police could stop them and arrest them—especially, she told me, people in mixed-status families, who could be deported while their children remain in Texas.
It’s unsurprising that families at the border are wary of S.B. 4. They’ve been living through Operation Lone Star, a multibillion-dollar campaign in which Gov. Greg Abbott, citing the failure of federal immigration enforcement, sent thousands of Texas troopers to the border in a sort of on-the-ground rough draft of S.B. 4. The Texas troopers who were mobilized under the operation arrested tens of thousands of brown and Black immigrants putatively for trespassing violations; in reality, the scheme allows Texas troopers to arrest immigrants for the act of crossing into Texas. This “catch and jail” system allowed for the mass incarceration of immigrants under the auspices of existing state trespassing laws.
Operation Lone Star paints a dark picture of the future that awaits immigrants detained under S.B. 4. Under Operation Lone Star, the state put thousands of immigrants in prison to wait indefinitely for slow, capricious criminal proceedings. Detainees languished in cells for months as they waited for an overwhelmed and ad hoc criminal system to even file charges against them; even if they received release orders or finished serving their trespassing sentence, they were often kept in jail long after.
As detailed in a 50-page complaint filed with the Department of Justice, under Operation Lone Star, detained immigrants often did not receive counsel—a mandate for indigent criminal detainees. They also faced unchecked racial harassment by state prison officials, and lived with what the Texas Jail Project concluded was an “essentially nonexistent” medical care system.
The judges in the small courts in charge of Operation Lone Star cases—courts accustomed to serving small rural populations and suddenly flooded with thousands of trespassing cases—did not have the capacity to hear the cases. Despite massively constrained resources, three rural county judges were fired in retaliation for authorizing the release of some Operation Lone Star detainees.
Advocates believe that S.B. 4 will significantly increase arrests from Operation Lone Star, which already strained the system well past its breaking point. They also fear that the magistrate courts—which, under S.B. 4, will replace the county judges—are even more rogue. The Texas magistrate system is the Wild West of adjudication, according to Orta, who has had clients with sudden magistration hearings that took place at 2:30 in the morning. In “rural impoverished areas like the [Rio Grande] Valley,” Orta explained, magistrates are usually not attorneys, and are not necessarily knowledgeable about immigration law.
In Texas, magistrate courts are tasked with making custody termination (setting a bond or bail) and determining whether there was probable cause for an arrest. What worries advocates the most is that at magistration, those subjected to S.B. 4 will be offered two options: voluntary return to Mexico, or prosecution and detention—and they won’t have a lawyer to explain the legal implications of either choice, or consider the best course of action in their individual case.
S.B. 4 seems designed to enshrine—and enlarge—the reality of Operation Lone Star: people being detained for months or years without understanding the criminal charge that got them there; without talking to a lawyer or learning their rights and due process protections; without medical care, phone access, or protection from racial harassment.
Yet in one critical regard, it’s even worse. Advocates worry that without knowing their full rights and faced with a lengthy sentence, even people who could face serious harm if they return voluntarily will choose to do so. Even those who stick it out will, after their sentence is served, face state deportation anyway.
This is where things get really sticky. Texas is proposing that it will take over the federal business of deportation—but deportation is done at the federal level rather than the state level for a reason. It’s is built on extensive negotiations with other countries, who have to agree to accept and process U.S. deportees. Texas has no such agreements in place; the Mexican government has stated that it would refuse to accept anyone deported by Texan authorities.
“Right now, the U.S. government is the one that has agreements and procedures in place to execute deportations,” Denisse Molina, an organizer and outreach coordinator at the Texas Civil Rights Project, told me. It’s unclear how, exactly, Texas plans to pull off the complex binational deportation process. “To this day, [Texas] will not give us exact procedures of how this law is supposed to be enforced,” she said.
If Mexico holds firm, its border officials or police could turn back those ordered to cross the bridge. Those who are turned back could, under S.B. 4, face Texas state prosecution for reentry or refusal to comply with the deportation order, which carries a sentence of up to 20 years.
In other words, the act of crossing the border to seek asylum could end in decades of incarceration. Or, as Orta put it, “Mexico says no; Texas says 20 years. … Twenty years in prison because a country that you can’t control—that you’re maybe not a citizen of—won’t take you back.”
Texas has said that it will prosecute refusal to comply with a deportation order only for those not forced to return by Mexico. Nothing in S.B. 4’s text, however, ensures that those turned around by Mexico will not be prosecuted—even inadvertently.
According to Aron Thorn, a senior attorney at the Texas Civil Rights Project working on the S.B. 4 litigation, it’s impossible to know what will happen “without seeing the way that it’s actually enforced on the ground.” Regardless of how Texas enforces their proposed reentry or refusal to return laws, Thorn explained, leaving the United States “has a ton of immigration consequences.”
Thorn is concerned not only about the potential carceral consequences of state deportations, but the federal law consequences for people Texas pressures into voluntarily departing (or actually deports) from the United States—who most likely do not know that they are incurring a lifelong ban on entering the United States. “People have a lot to lose, and they don’t always realize that,” he said.
The threat of S.B. 4 has already transformed immigrant communities in Texas. A Supreme Court ruling in favor of it could change the realities of immigrant communities throughout the nation.
Gabriela Mata, an Austin-based migrant- and Indigenous-rights activist, warned that Abbott is already setting off a “Rube Goldberg machine–style” chain reaction into the rest of the country. In fact, at least 7 Republican-controlled states are attempting to pass similar bills. Iowa has already passed a bill that would make it a crime to enter the state after having been deported or denied entrance into the United States.
Texas will not be the last to try to take over immigration policing—nor is it the first. S.B. 4 has sparked some comparison with Arizona’s S.B. 1070, and for good reason. Both bills order state police to check the immigration status of people suspected of being undocumented; both attempt to create a state crime targeting undocumented immigrants, and to give police the power to arrest people suspected of being in the United States undocumented.
In 2012, the Supreme Court struck down most of Arizona’s S.B. 1070, allowing Arizona police to demand proof of status but prohibiting Arizona from arresting people or creating state crimes for failure to carry papers. In the resulting opinion, Arizona v. United States, the Supreme Court held states cannot take over the federal government’s control of immigration, articulating the principle of federalism that has been at the center of lawsuits over S.B. 4.
This precedent is critical, but it’s not the whole story. As S.B. 4 teeters on the edge of taking effect, it’s important to recognize that this law, like S.B. 1070, is not just about federal versus state functions. It’s about the final erosion of the limited rights—due process, criminal defense, access to asylum proceedings for those who fear persecution or death—that immigrants receive in the United States. That these protections are threadbare now does not undermine the massive impact that their removal will have on a community already at the margins, and the massive damage their newly exposed frailty has already caused.
The Supreme Court may well strike down S.B. 4—after all, the law directly contradicts its holding in Arizona v. United States. Whatever the Supreme Court decides, however, the damage of S.B. 4 is ongoing—and will continue as long as immigrants in Texas face a future in which their basic rights to be free of arbitrary detention and discrimination are not secure.
Most importantly, those currently in Texas without a permanent immigration status are in no position to wait for the vagaries of judicial intervention.
S.B. 4 “is a very strong law because many families are going to be broken, and it’s supposed to be that here in the United States, one protects the unity of the family,” Ira told me. “What will happen to the children born here once their parents go?”
A few weeks ago, Ira mobilized the resources to leave the Texas border and relocate to Houston with her partner and their six children. It’s not enough—she wants to make it to Massachusetts or Illinois—but she’s closer, and while S.B. 4 remains dormant, she has a little time.
