Update, 10 p.m. March 19: A panel of judges from the 5th Circuit Court of Appeals issued an order late Tuesday that blocks the state of Texas from enforcing Senate Bill 4. Oral arguments in an appeal before the three judges of the 5th Circuit are scheduled for Wednesday.

Original Story

The U.S. Supreme Court on Tuesday lifted its temporary block on Senate Bill 4, allowing Texas to enforce the law that makes unauthorized border crossing a state crime, giving local law enforcement the power to arrest and potentially deport people who cross the border without authorization.

An unsigned order by the highest court allows the law to take effect at least until the 5th Circuit Court of Appeals hears further arguments. The next hearing for the New Orleans-based appellate court is April 3. The Supreme Court’s three Democratic-appointed justices dissented in Tuesday’s order.

Las Americas Immigrant Advocacy Center, which brought the case challenging the Texas law, vowed to press forward with its efforts to block it.

“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,” Jennifer Babaie, director of advocacy and legal services for Las Americas, said in a statement after the high court released its order. 

A first time offense under SB 4 is a class B misdemeanor carrying a punishment of up to six months in jail, while for subsequent offenses a person could face a second-degree felony charge and up to 20 years in prison.

The law’s author claims SB 4 is intended to target recent migrants, but police could arrest someone who is undocumented – the statute of limitations in Texas for misdemeanors is two years after the offense occurred.

An estimated 52,000 undocumented people, mostly Mexican nationals, live in El Paso, according to 2019 data analysis by the Migration Policy Institute. That doesn’t include undocumented people who are passing through as El Paso is a major entry point for migrants and asylum seekers into the United States. Nationally, people from Central America, and South and East Asia, made up the largest increases in unauthorized immigration from 2007 to 2021, according to the Pew Research Center.

People have the legal right to present themselves to immigration officials, request asylum and remain in the United States while their asylum case is pending, even if they’ve crossed the border illegally. But under SB 4, police can arrest migrants before they have the chance to turn themselves into federal authorities.

The El Paso County Sheriff’s Office responded to questions about how it would prioritize and enforce SB 4 by directing El Paso Matters to a March 5 press conference.

“I don’t see a change in the way we do business, the way our patrol officers do business when they encounter undocumented immigrants. … We’re prohibited, and rightfully so, to racially profile so we cannot stop somebody because of the way they look and assume they might be an undocumented immigrant,” said outgoing Sheriff Richard Wiles said on March 5.

Typically when the Sheriff’s Office encounters undocumented people, officers will arrest and charge someone identified as a smuggler, but will turn anyone else over to federal authorities. 

The Sheriff’s Office does not train nor have time to train officers in civil and criminal immigration law, Wiles said. Officers are busy responding to day-to-day issues, traffic situations and service calls from citizens. The county jails already house a high number of state inmates, he said.

By shifting the responsibility from federal to county police, officers are more liable to lawsuits if they enforce immigration law incorrectly, which then puts an unfair burden on El Paso taxpayers, he said. Furthermore, SB 4 erodes county officers’ relationship with the community and the ability to get undocumented victims of crime, or witnesses of crime, to speak with law enforcement, Wiles added.

Wiles said he cannot speak for DPS or the El Paso Police Department, which sometimes places arrested people in holding cells until they’re transferred to county jail.

“We will have a better understanding of SB4 once all litigation is final,” EPPD spokesperson Robert Gomez wrote in an email prior to the court’s decision. Police officials would not comment further.

In late February, Marisa Limón Garza, executive director of Las Americas Immigrant Advocacy Center in El Paso, tied SB 4 to the Texas Attorney General Office’s ongoing lawsuit to shut down Annunciation House, an El Paso humanitarian organization that provides temporary shelter and care to migrants.

Immigration law falls under federal jurisdiction and is enforced by agencies under the U.S. Department of Homeland Security. Critics of SB 4 say the new law is an unconstitutional attempt to usurp the federal government’s authority while forcing local police to reallocate already strained resources.

But Gov. Greg Abbott and Republican lawmakers have complained the federal government is not doing an adequate job. Since taking the gubernatorial office in 2015, Abbott has removed Texas from the federal refugee resettlement program, expanded U.S.-Mexico border wall construction and commenced Operation Lone Star, which deploys National Guard members and Department of Public Safety troopers to the border.

U.S. Rep. Tony Gonzales of San Antonio, who faces an upcoming runoff election in the Republican primary, voiced support for the court’s SB 4 ruling.

“I represent over 800 miles of the southern border — we are tired of the chaos, destruction, and death this border crisis has caused,” he wrote in an emailed statement. “SB4 will give Texas the ability to enforce against illegal immigration and do what President Biden refuses to do.”

U.S. Rep. Veronica Escobar of El Paso denounced the court’s decision.

“The federal government has sole authority over immigration matters, and it’s long past time that Congress reforms outdated immigration laws that can both better secure the border and open up legal pathways for immigrants,” she said in a press release. “But over and over, it’s been Republicans who – since 2006 – have walked away from bipartisan solutions on this issue. Most recently, Republicans single-handedly derailed what they themselves called the ‘toughest border bill’ in any Congress.”

Abbott signed SB 4 into law in December 2023 after it passed both the Republican-majority Texas House and Senate.

In response, the American Civil Liberties Union, the ACLU of Texas and the Texas Civil Rights Project sued Texas on behalf of two immigrant rights organizations, Las Americas Immigrant Advocacy Center in El Paso and American Gateways in Texas.

El Paso County joined the ACLU lawsuit in December and the U.S. Department of Justice also sued Texas before the two lawsuits were combined.

“The law is unconstitutional, and if allowed to stand would infringe on civil rights and cost our community tens of millions of dollars for arresting, jailing and adjudicating people – essentially, the state charging local taxpayers,” El Paso County Commissioner David Stout wrote in an emailed statement. 

“We want our community to be safer and criminalizing people, pushing them further into the shadows of society, does not make us safer,” he continued. “We don’t need the heavy hand of the state harassing residents of this community, putting them in danger with tactics like high-speed pursuits.” 

U.S. Supreme Court Justice Samuel Alito Jr. blocked SB 4 from going into effect on March 4. The Supreme Court extended the temporary stay on March 12, and again on March 18, before ultimately ruling in a 6-3 decision the law could go into effect while the case is being litigated.