A temporary restraining order blocking Gov. Greg Abbott’s efforts to bar non-governmental vehicles from transporting migrants released from government custody will be extended another two weeks, an El Paso federal judge ruled Friday.
U.S. District Judge Kathleen Cardone’s original temporary restraining order was issued Aug. 3 and expired Friday. She has said the U.S. Justice Department, which sued to block Abbott’s order as a violation of federal supremacy on immigration issues, was likely to prevail in its challenge.
At Friday’s hearing, Justice Department attorney Brian Boynton argued that Texas has no authority to impose its own immigration laws. And he told Cardone that the state would impede federal contractors transporting migrants in custody as well as non-profit groups who provide services for migrants released from custody and en route to other cities for immigration hearings.
“All of that would be impaired by the Texas order,” said Boynton.
He told the court that Sister Norma Pimentel of Catholic Charities of the Rio Grande Valley was visited by Texas Department of Public Safety officers after Abbott issued his order on July 28. The governor directed Texas state troopers to stop anyone suspected of transporting migrants who had been released by Customs and Border Protection or Immigration and Customs Enforcement.
“The day the Texas executive order was signed, DPS came to her and told her they could no longer transport migrants.” And she was told DPS would have troopers “staked outside of their facility,” Boynton said.
Will Thompson, an attorney for the state of Texas, said DPS troopers “gave her a heads up” before they began to enforce the migrant travel ban.
Attorneys for Abbott and the state of Texas told Cardone at an Aug. 3 hearing that the executive order had not been implemented because DPS hadn’t worked out plans for how it would be enforced.
Boynton said the executive order was in conflict with federal law because state officials would have to make an immigration status determination. Further, Texas doesn’t have the authority to just “target migrants” he said.
During a public health threat, any mitigation effort should be imposed across the board, Boynton argued, and he said the travel restrictions enforced by DPS troopers would lead to “targeting people, profiling and harassing people.”
Thompson told the judge that Texas is dealing with a major public health crisis and COVID is “skyrocketing” at the border because of migrants. Cardone asked, “Isn’t it skyrocketing everywhere?”
Thompson said the “danger for migrants is greater.” Cardone asked, “Isn’t that true of all people who are unvaccinated?”
He told the court migrants are more vulnerable to the virus because they come from and travel through countries with lower vaccination rates before they arrive at the U.S. border. He said that’s led to a spike in COVID on the border.
“To my knowledge it’s not spiking in El Paso and we’re certainly on the border,” Cardone said.
In Friday’s hearing, Cardone said she would decide in the next two weeks whether to consolidate the Justice Department’s lawsuit with one filed by the American Civil Liberties Union on behalf of non-governmental organizations that provide services to migrants.
The judge will also consider the “first to file” argument from the state of Texas. A separate lawsuit in federal court in Fort Worth should be the deciding case for border enforcement, state attorneys argued.
In that case, Texas is suing the Biden administration to force full enforcement of a pandemic health order known as Title 42, which expels most migrants who cross the border without documentation but allows some to enter the country. The Justice Department argued that the Title 42 lawsuit and the executive order lawsuit about transporting migrants involve completely different issues.
