Eric Gay/AP Photo
Migrants walk toward Border Patrol officers after crossing the Rio Grande from Mexico into the U.S. at Eagle Pass, Texas, August 26, 2022. The area has become entangled in a turf war between the Biden administration and Texas Gov. Greg Abbott over how to police the border.
This story was cross-posted from the Texas Observer, an investigative news organization that covers Texas communities whose stories are often ignored.
A high-ranking U.S. Border Patrol official traveled from Laredo to Austin late last year to ask the senators overseeing Texas’ $4 billion border security operation to let his agents enforce state laws—highlighting the federal government’s involvement in a problem-riddled policy Texas officials are using to flog President Joe Biden.
State Senator Brian Birdwell, the committee chair at the time, laid out what was at stake. “Members, it’s my intent to bracket the discussion to address how the state of Texas can support the Border Patrol agents and operations in Texas to combat the increasing number of illegal alien crossings,” Birdwell (R-Granbury) said. “I do not want to place our Border Patrol guests in any circumstance where questions or their potential answers might be used against them in any retribution by the administration.”
Birdwell’s comment underlined the unusual circumstances of the official’s testimony before the Texas Senate Committee on Border Security. Operation Lone Star, Governor Greg Abbott’s signature border security strategy, has been plagued by due process violations and a Justice Department investigation. Abbott has been open about the political nature of Operation Lone Star, rarely making a program announcement without taking a dig at Biden. Along with building his own border wall and funding the prosecutions of immigrants arrested under state laws, the governor has sent busloads of asylum seekers to Washington, D.C., including leaving 130 people near Vice President Kamala Harris’ official residence on Christmas Eve.
At the mid-November hearing, Laredo Sector Chief Carl Landrum, the Border Patrol equivalent of an Army general, was asking the legislators who fund Operation Lone Star to give his agents a greater role in a program used to embarrass his bosses.
Seated before the senators, Landrum asked for what he called a “slight adjustment” to the Texas Penal Code.
Unlike many other states, Texas law severely limits the Border Patrol’s power. Until 2021, agents were only allowed to enforce Texas laws against driving while intoxicated, and then only at international crossings and internal immigration checkpoints. Then legislators voted in 2021 to allow Border Patrol agents to participate in its new smuggling of persons law, a key component of Operation Lone star. “And in that particular law, it allowed Border Patrol agents to directly prosecute with the State of Texas. And we have done that in the Laredo Sector,” Landrum told the senators. “This year so far we have presented 203 of those prosecutions.”
LANDRUM HAD COME TO AUSTIN seeking more power for Border Patrol agents. His suggested adjustment to the Texas Penal Code would allow them to arrest and assist in the prosecution of all state felonies and, he said, “some misdemeanors.” If “some misdemeanors” includes criminal trespass—Landrum wouldn’t agree to an interview for this story but Border Patrol agents regularly detain immigrants and hold them until state troopers can arrest them for trespassing, another Operation Lone Star prong—it would empower Border Patrol agents to present those controversial cases, and many others, directly to local prosecutors.
The ACLU of Texas found that at least 25 percent of about 350 trespassing arrests made during August involved Border Patrol agents. In some cases, agents directed troopers to immigrants on private property.
The Texas Department of Public Safety and federal immigration officials already have a long history of collaboration. That relationship didn’t end when Abbott in 2021 made state troopers the tip of the spear in his personal border crusade. The Border Patrol agents on horseback who rode down Haitian immigrants in Del Rio that year were acting under the direction of DPS. And as Landrum mentioned, Border Patrol agents bring local prosecutors cases under Texas’ smuggling of persons law.
Starting in 2021, some counties issued disaster declarations under Operation Lone Star and began prosecuting immigrants arrested on private property under Texas’ criminal trespass statute. Under the disaster declaration Abbott is using to fund Operation Lone Star, those cases can be charged as Class A misdemeanors, which carry a punishment of up to a year in jail. In practice, attorneys said, most people charged with criminal trespass elsewhere in Texas are only issued citations and aren’t detained. People charged under Operation Lone Star disappear into an ad hoc detention and court system that at times has been overwhelmed by hundreds of prosecutions a month.
Early on, people arrested on criminal trespassing charges would go weeks without seeing a judge or being appointed an attorney and spent months in jail in such clear violations of due process that it led to mass releases. The system functions more efficiently now, but many people still end up spending weeks in jail, said Amrutha Jindal, who coordinates Operation Lone Star indigent defense for the nonprofit Lubbock Private Defenders Office. If they bond out, most are deported, Jindal said. If they plead guilty, most are sentenced to time served and then deported. More recently, judges in several counties have declared the trespassing cases discriminatory because they exclusively target men.
These days, about half of Operation Lone Star arrests are for trespassing, down from about 85 percent at the start of the program, and about half are for smuggling of persons, Jindal said.
The ACLU of Texas found that at least 25 percent of about 350 trespassing arrests made during August involved Border Patrol agents. In some cases, agents directed troopers to immigrants on private property. In others, the agents detained and held people until state police officials could arrive and arrest them. In a December letter to Homeland Security officials, the organization asked them to stop working with DPS and accused Operation Lone Star of targeting immigrants from Latin America.
Lawyers representing trespassing defendants have challenged arrests initiated by Border Patrol agents. In September, a judge in Jim Hogg County found state police lacked evidence to arrest immigrants for trespassing when Border Patrol agents handed the men over to troopers on the side of a highway.
Representative Sam Harless (R-Spring) has already introduced legislation that would give the Border Patrol authority to enforce all state felonies. That Border Patrol agents would ask for such a change isn’t particularly surprising. Their national union has lobbied for stringent border policies before. Former law enforcement officials said there are practical advantages to having arrest authority under state law, including in an active shooter situation.
“Let’s say there’s a felony committed, and the agents present are obligated to do something about it,” said Victor Manjarrez, a former Border Patrol sector chief who’s now a professor at the University of Texas at El Paso. “There’s a risk to that. The agent does the right thing and it kind of goes sideways, there’s little obligation by the agency to stand up and provide the legal [protection], and you kind of leave the agent out to dry.”
What makes Landrum’s request so unusual is that it came from a border patrol sector chief in the context of a highly politicized state policy. Usually, when someone as senior as Landrum testifies to legislators, what they say is first approved by Washington officials, Manjarrez said. Past administrations, particularly Democratic, have tried to limit states’ involvement in immigration enforcement. “As little as seven years ago, you would not have seen this type of testimony,” Manjarrez said.
Border Patrol officials wouldn’t answer questions submitted by the Texas Observer. Instead, Sara Melendez, an agency spokeswoman in Laredo, provided a statement about Landrum’s state Senate committee appearance. “During the presentation, Chief Landrum provided information related to a proposed amendment to Texas Penal Code, Section 2.122, which recognizes certain named United States criminal investigators as having the authority to make arrests and conduct searches and seizures for state felony offenses and currently does not include United States Border Patrol agents. The proposed amendment would allow Border Patrol agents to have the powers of arrest, search, and seizure regarding state felony offenses.”
WHETHER THE BIDEN ADMINISTRATION actually believes Texas’ efforts at deterrence are effective, is unable to control the Border Patrol, or is unwilling to face the political consequences of challenging Operation Lone Star is unclear, said Emma Winger, a senior attorney with the American Immigration Council.
“You can’t imagine it would be in the Biden Administration’s interest for Operation Lone Star to quote ‘succeed,’ however you define that term,” Winger said.
Biden has criticized Operation Lone Star and his administration successfully sued to halt an Abbott executive order directing state police to stop government contractors transporting immigrants released from Border Patrol custody. But the president has been slow to challenge Texas and other states as they publicly mount border enforcement campaigns.
Part of the problem facing Biden and Department of Homeland Security Secretary Alejandro Mayorkas is that the current administration lacks a coherent immigration policy. Biden has rolled back some draconian border measures, bringing a deluge of criticism that he’s to blame for recent spikes in detentions. But Biden also limited access to asylum and used a public health law as an immigration enforcement mechanism to expel 1.5 million asylum-seekers without hearings. That’s enraged immigrant rights advocates, who note that federal law requires the government to hear most asylum claims.
Biden and Mayorkas could order Border Patrol to stop referring trespassing cases to state troopers or smuggling cases to local prosecutors, but have not done so.
When the state of Texas buses immigrants to ports of entry—in November, Abbott staffer Sarah Hicks told senators the state had bused 9,700 people to international crossings in just four months, presumably for deportation—the administration could instruct CBP officers to provide immigration court hearings instead. Yet the Biden administration seems to sit on its hands while Border Patrol agents work alongside DPS and Abbott pumps out press releases.
“It’s a little confusing,” Winger said.
“I think the idea the Biden administration would quietly sanction participation in a program that is discriminatory and subject to its own ongoing civil rights investigation is really troubling,” she added.
