A group of migrants accused of rioting near a border wall crossing in El Paso last month remained in either federal or county custody Tuesday – and none have been released onto the streets even after a local magistrate judge last week ruled to release those jailed on state charges. 

Texas Department of Public Safety troopers arrested more than 200 asylum-seeking migrants on misdemeanor riot charges after an incident on March 21 when about 435 migrants overran a razor-wire barrier erected by Texas National Guardsmen and rushed the border fence. A handful of migrants allegedly assaulted the soldiers. 

Following the fracas, 214 migrants were arrested and booked into the El Paso County jail, Sheriff Richard Wiles said in an interview with El Paso Matters on Tuesday. 

Every one of the arrested migrants had a federal immigration “detainer” placed on them. A migrant with a detainer is released from jail in El Paso within 48 hours of booking, and then handed to federal immigration authorities to be detained.

As of Tuesday, Wiles said 111 of the migrants connected to the so-called “border riot” were detained and then picked up by officers with U.S. Immigration and Customs Enforcement. ICE officers should pick up another 64 migrants from the jail soon, Wiles said.  

“We will notify ICE: ‘Hey, they posted bond. You have 48 hours to come pick them up.’ And ICE will,” Wiles said.

Law enforcement authorities considered nine of the migrants “instigators”, and seven of them were arrested and remain under federal indictment on felony riot and assault charges, Hicks said. The other two are at-large. 

The remaining 39 migrants who are still in El Paso’s county jail may stay in lockup for some time.

Kelli Childress, a public defender who’s representing those charged with misdemeanor rioting, said she waived the right to a bond hearing for the 39 migrants so they would stay locked up in the Downtown jail, where she can still meet with each defendant. 

If her clients were detained by ICE, Childress wouldn’t be able to communicate with any of them. So the 39 migrants will remain in the Downtown jail on state charges until a trial date is set – potentially a months-long time period, Wiles said.

“Everything it takes for somebody to pretty much live in a jail until their court case, it’s going to be over $100 a day,” Wiles said. “So now it’s only 39. But it’s still 39 times 100.”

Presiding Magistrate Judge Humberto Acosta on Easter Sunday ruled that the state had to release the 200-plus migrants because, he said, the District Attorney’s Office was apparently not ready to go to trial.

Hicks during a press conference Tuesday pushed back on that claim, arguing that his office didn’t need to be prepared for trial on Sunday and only had to be prepared for a bond review hearing. Hicks attempted to reschedule the hearing for this week so his staff could spend Easter with family, he said. Acosta denied the motions.

“We categorically deny that the state was not ready to proceed,” Hicks said. 

At a separate press conference on Tuesday, Childress, the county public defender, said the charges against her clients are “false” and said law enforcement didn’t have probable cause to arrest the migrants after the March 21 incident.

Video showing the clash between migrants and Texas national guard troops “has been widely misconstrued,” Childress said. “We’re planning to contest every one of the charges.”

The migrants involved in the incident were on the U.S. side of the border, but the wire barrier and Texas troops blocked them from reaching the border gate where they could otherwise surrender to U.S. Border Patrol agents and formally request asylum. 

Hicks said the site of the riot – Gate 36 along the border wall near Riverside High School in the Lower Valley – is commonly used as a point by Border Patrol to “funnel” migrants through. 

But there were around 1,000 migrants on March 21 waiting in the strip beyond the border wall, so Texas National Guardsmen held them back to prevent them from inundating immigration authorities, Hicks said. 

And while he’ll take a case-by-case approach, prosecuting some of the migrants involved in the riot will send a message to prevent others from acting violently or breaking the law, Hicks said.

“It wasn’t a matter of troopers stopping people from being able to seek asylum,” Hicks said. “It’s a matter of saying, ‘You can’t come through and overwhelm the system. You can’t push through in a mob-type mentality.’”

El Paso’s county jail can hold a maximum of 1,010 inmates when every bed is available, Wiles said. Until last week, three floors of the jail – with about 300 beds – had been closed while contractors repaired wastewater piping. 

The contractors serendipitously wrapped up their work on those floors last Wednesday, freeing up much-needed space before 214 migrants were arrested and detained two days later. Around 100 people are booked at the jail on an average day, Wiles said. 

Regardless of how each of the migrants’ state cases conclude – whether they’re acquitted or found guilty – “once the state charge is taken care of, they still have that detainer, and they too will be picked up by ICE,” Wiles said.