Texas Gov. Greg Abbott’s border crackdown violates US Constitution, defense lawyers say
AUSTIN, TEXAS — In a case that could threaten Gov. Greg Abbott’s border enforcement initiative and spark massive court challenges, a judge in Austin will weigh Thursday whether Operation Lone Star violates federal laws requiring immigration enforcement be performed by the federal government.
Travis County District Judge Jan Soifer has scheduled a virtual hearing in the case of an engineer with no criminal history and who is one of thousands of migrants arrested as part of Abbott’s effort to combat illegal border crossings.
The defendant, Jesus Alberto Guzman Curipoma, was arrested Sept. 17 at a railroad switching yard on a misdemeanor criminal trespassing charge in Kinney County along the Texas-Mexico border. He has since been released on bond, remains in Texas and is pursuing an asylum claim.
According to a Jan. 4 court filing, the Austin attorney representing Guzman Curipoma contends that Abbott’s operation violates the Supremacy Clause of the U.S. Constitution, which stipulates that federal laws supersede state laws and that states cannot “obstruct or discriminate” with enforcement of immigration federal laws.
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“The Texas government is restraining the liberty of thousands under the guise of criminal trespass prosecutions in an attempt to usurp federal immigration legislation and strong arm the federal government into enacting policies that Governor Abbott would prefer,” the filing said.
Abbott unveiled Operation Lone Star last March, saying he was deploying thousands of Department of Public Safety officers and Texas National Guard troops to the southern border amid a sharp increase in migrants crossing from Mexico illegally or to seek asylum.
Because the defendant's case was filed in Austin, Travis County District Attorney Jose P. Garza, a progressive Democrat, and his office will represent the state of Texas in the case.
The matter will be heard by Soifer, a judge who ran as a Democrat. Unlike in some states, Texas judges can run for office advertising a party affiliation.
In a response filed with the court Wednesday night, Garza sided with Guzman Curipoma's lawyer, saying, “prosecution for criminal trespass as part of Operation Lone Star violates the Supremacy Clause of the United States Constitution and represents an impermissible attempt to intrude on federal immigration policy.”
Garza told the judge Guzman Curipoma must be granted relief.
According to the legal challenge by Austin attorney Angelica Cogliano, who represents Guzman Curipoma, courts have previously ruled against state laws that have “attempted to supplement federal laws with parallel state criminal penalties for immigration offenses.”
“The application of the state criminal trespass penalties under Operation Lone Star is pretextual and a clear attempt to regulate migration by Texas authorities acting in direct conflict with federal immigration law,” Cogliano added.
Abbott’s office did not immediately respond to requests for comment.
What is Operation Lone Star?
When Operation Lone Star launched in March 2021, Abbott said, "We will surge the resources and law enforcement personnel needed to confront this crisis,” , blaming the Biden administration for policies that invited illegal immigration and roiled the border in a growing humanitarian crisis.
A central focus of Operation Lone Star was the arrest and detention of border crossers, and Abbott's office last year committed almost $75 million to the effort, including $22.3 million allocated in December toward efforts to prosecute state crimes committed along the border.
Abbott called Operation Lone Star a state investment in security that the federal government refused to make, but opponents — including Democrats and immigration advocates — criticized the effort for militarizing the border and interfering with immigration enforcement, a federal responsibility.
If Soifer rules in Guzman Curipoma’s favor, it is not clear what would happen next, including whether Kinney County prosecutors could appeal. However, other attorneys could file similar applications in Travis and other counties to have cases against their clients dismissed.
“We are all in such unchartered waters,” said Austin attorney Kristn Etter, special project director at Texas RioGrande Legal Aid and whose organization represents nearly 800 Operation Lone Star defendants, almost all of whom are charged only with misdemeanor trespass charges. “It is clear that this is an unconstitutional operation on so many levels.”
Many of the defendants remain behind bars.
Other cases filed in Austin
In recent weeks, courts in Austin's Travis County have increasingly — and quietly — become a venue among attorneys representing defendants arrested as part of Operation Lone Star.
According to the filing in Guzman Curipoma’s case, any district court in Texas has authority over such applications and that there is no requirement they be considered in the county where the charge originated.
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It said that courts in Kinney and Val Verde counties — both along the Texas border — have been inundated with cases arising from Operation Lone Star and that it can take at least six weeks to see a judge after seeking efforts for relief.
“Here, there is an abundance of reason to look for relief outside the jurisdiction in which the applicant is facing the underlying charge,” the application noted.
Attorneys told the American-Statesman on Wednesday that in recent weeks, they had filed challenges in Travis County on behalf of 11 men arrested as part of Operation Lone Star. The applications were routed to Soifer’s court and set for a hearing.
The attorneys said that prosecutors in Kinney County then agreed to a personal bond for the men and released them from jail.