Texas, Biden administration take their battle over new immigration law to federal appeals court

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A federal appeals court heard arguments Wednesday from Texas and the federal government about whether it should continue blocking a new Texas law that would let state police arrest migrants suspected of entering the U.S. illegally.

The three-judge panel from the 5th U.S. Circuit Court of Appeals in New Orleans now has to rule on the appeal of a lower court’s injunction that stopped Senate Bill 4 from going into effect. The same panel decided to keep SB 4 on hold a week ago until it could rule on whether the law is constitutional.

The Biden administration and civil rights organizations sued Texas to stop the law, claiming SB 4 is unconstitutional because it interferes with federal immigration laws. The law’s proponents have argued that the law simply mirrors federal law, which they claim is not being enforced by federal authorities.

Texas Solicitor General Aaron Lloyd Nielson told the appellate panel on Wednesday morning that the law was crafted in a way that “goes up to the line of Supreme Court precedent,” and conceded it may have crossed that line.

Gov. Greg Abbott has said the law was written to be consistent with a dissenting opinion in a landmark 2012 case in which the U.S. Supreme Court ruled that local police do not have the authority to arrest someone solely based on their immigration status because that responsibility falls to the federal government.

“To be fair, maybe Texas went too far,” Nielson told the judges Wednesday. “That’s the question this court is going to have to decide, but that’s the context of which we are here.”

SB 4 makes illegally crossing the border a Class B misdemeanor, carrying a punishment of up to six months in jail. Repeat offenders could face a second-degree felony with a punishment of two to 20 years in prison.

The law also requires state judges to order migrants returned to Mexico if they are convicted. A judge could drop the charges if a migrant agrees to return to Mexico voluntarily.

Nielsen said Wednesday that under the law, Texas “doesn’t deport anybody.” He said police would take migrants to a port of entry, which are controlled by the federal government.

“Texas takes them to a port of entry and the United States then decides what to do,” Nielsen said. “That’s critical about this … it’s portrayed as Texas is ourself just like flying people off to some other place and that’s not accurate.”

Mexican officials have said they won’t accept repatriations from Texas. Mexico has agreements with the federal government detailing which migrants it will accept after they’re deported by U.S. immigration officials.

Biden administration lawyer Daniel Bentele Hahs Tenny pointed to a part SB 4 that requires a person to be returned to the country from which they entered the U.S.

“They now say, I guess, that you don’t actually have to do that, that maybe you just go to the port of entry and that’s good enough,” Tenny said.

Judge Andrew Oldham, a Trump nominee who dissented in last week’s ruling that continued blocking SB 4, grilled Tenny about what authority states have and where that authority ends due to the federal government’s jurisdiction.

The hearing Wednesday was the latest chapter in a saga of contradicting rulings from different courts that briefly let the law go into effect for roughly nine hours, resulting in confusion about enforcement and panic among immigrant families across the state who remain on edge about how the law will be enforced.

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