On April 12th, 2023 the House committee for State Affairs laid out HB 20 and HB 7, Texas’s most recent attempt to criminalize migrants. Texas Impact joined dozens of other grassroots groups to protest the bills and testify against them in the hearing, which was best encapsulated by one witness who said “God’s heart is breaking for us – we’re a mess.” Several Texas Impact members gave testimony including Rev. Robert Mueller, Rev. Katy Miles Wallace, and board member Abel Vega. The bills contain extreme “invasion” rhetoric and stand on shaky constitutional grounds by trying to subvert federal authority over immigration policy. Not only are they not constitutional, but they clearly seek to dehumanize the humanitarian crisis at the border as this post will demonstrate.
International Law and U.S. Federal Law Enshrine the Right to Seek Asylum
The right for people to flee their home and seek protection and safety in another country was born out of the aftermath of the Holocaust. “The right to seek asylum was incorporated into international law following the atrocities of World War II. Congress adopted key provisions of the Geneva Refugee Convention (including the international definition of a refugee) into U.S. immigration law when it passed the Refugee Act of 1980.” The spirit of asylum law is to protect people from being returned to their persecution and possible death, as such, seeking asylum within the United States or at a point of entry is a legal right. Recent tools used by the current and past administration to deny asylum seekers the right to request asylum at points of entry have been the Migrant Protection Protocols (MPP), Title 42 expulsions, and most recently the required use of the CBP One mobile application to request processing at a point of entry. However, it is crucial to reiterate that under current U.S. asylum law, the Immigration and Nationality Act 8 U.S.C. §1158(a)(1) states anyone regardless of how they entered the United States may seek asylum.
To qualify for asylum in the U.S. an asylum seeker must meet the international law definition of a refugee. A refugee is defined as “a person who is unable or unwilling to return to his or her home country, and cannot obtain protection in that country, due to past persecution or a well-founded fear of being persecuted in the future “on account of race, religion, nationality, membership in a particular social group, or political opinion.” Asylum is not a slam dunk win, in fact, it is a discretionary protection, meaning an immigration law judge may deny asylum protection even if the individual meets all of the requirements under the definition. Additionally, the burden is on the asylum seeker to provide evidence of their suffered past persecution on account of the above reasons or their well founded fear of future persecution in their home country.
Immigration law is complex and being granted asylum is not an easy feat. In fact data has proven that asylum seekers without representation are rarely granted asylum, “statistically, only one out of every ten win their case. With representation, nearly half are successful.” Access to counsel is a vital factor in whether someone is more likely to win asylum yet, data shows as of February 2023, only “22.9% of immigrants, including unaccompanied children, had an attorney to assist them in Immigration Court cases when a removal order was issued.” Another factor that contributes to the difficulty of asylum cases is the immigration court backlog of pending immigration cases. For example, there were “2,135,074 active cases pending before the Immigration Court” as of February 2023.
Policies that deny asylum seekers the right to seek asylum such as MPP and Title 42 completely circumvent asylum law. Instead these policies have forced people fleeing danger into further precarious situations in Mexico and have completely denied them access to counsel. To keep in line with the spirit of asylum law of not returning people back to dangerous situations, the United States must fully reinstate asylum processing at points of entry, provide better access to counsel, and address the immigration court backlog.
Root Causes for Migration and the Journey
Today, people are fleeing their home countries and seeking asylum protection in the United States for a multitude of reasons and oftentimes, more than one reason at the same time can push people out of their homes. “Some of the most obvious are gender-based violence, poverty, instability, and corruption in their home countries, as well as impunity for violent offenders.” A further contributor to the displacement of people is climate change. “United Nations climate panel, the IPCC, said with “high confidence” that the future impacts of a warming climate on Central America are likely to include “some coastal areas affected by sea level rise, weather and climatic variability and extremes.” The complex and multifaceted nature of these push factors are going to keep displacing people throughout the world and we need to work on addressing the root causes and on processing asylum seekers with efficiency and humane dignity.
People who are forced to leave their homes or need to flee for survival also face grave danger and risk their lives on their journey to seeking asylum protection. For many, the journey may mean crossing through the Darien gap, the Panama mountains, climbing aboard “La Bestia” in Mexico, all while being targeted by criminal organizations for extortion and even kidnapping. Once they reach the southern border under current asylum law, they have a right to request asylum at a point of entry or within the U.S. However, current policies in place are circumventing asylum law and instead forcing asylum seekers to remain trapped in dangerous circumstances in Mexico with little to no resources while they seek to request processing with the CBP One app.
Humanitarian Border Crisis Created by Current Immigration Policies
Due to the current policy still in place, Title 42, a public health law used to expel asylum seekers back to Mexico without providing them an opportunity to claim asylum, many asylum seekers are forced to remain in Mexico as they have no other place to return to safety. In January 2023, the Biden administration announced a new parole program for asylum seekers from Cuba, Venezuela, Nicaragua, and Haiti, however, to request processing at a port of entry, asylum seekers must do so using CBP One mobile application. Getting appointments on this CBP One app has come with further complications such as technical glitches, not enough appointments causing de facto family separations, not in a language accessible to some, not being able to capture their photo due to dark skin complexion, among many others.
As of December 2022, in Matamoros, only about a 10 minute walk past the US-Mexico bridge, is one major encampment of about 1,000 or so asylum seekers. They live with no infrastructure, no electricity, no running water, and no food. Asylum seeking families with children live in makeshift tents made with garbage bags and cardboard boxes as their sleeping grounds. I personally heard an asylum seeker say living here (at the encampment) is “el infierno” (is hell). The Matamoros encampment is only one of many that exist throughout the different border regions along the southern border. These encampments are a direct result of policies like MPP, Title 42, and enforcing the CBP One app as the main means to request processing at a point of entry.
Local border community U.S. based non-governmental organizations (NGO’s) with the help of their funds and donations have taken the charge and been able to feed, clothe, and provide some sustenance for asylum seekers at this encampment that are otherwise left to their own demise. For example, in the Matamoros encampment, NGOs were able to install water tanks to provide some potable water and installed some porta potties. However, NGOs are also running out of resources to keep sustaining the level of needs for asylum seekers and are struggling to maintain the help afloat. Regardless, NGOs and border communities have stepped in to pick up the remnants of the crises caused by immigration policies that entrap asylum seekers in these inhumane conditions. I have seen the NGO staff welcome with dignity and extend a helping hand to all asylum seekers in their care whether it’s for an extended period of time or for a fleeting moment.
Despite the inhumane conditions that these asylum seekers are forced to wait in before they can request processing at a point of entry, I have seen them be a community and treat each other with respect and dignity. I have seen some asylum seekers practicing their barbering skills and have been offered a bowl of hot soup as I walked in their encampment. All of this speaks to the inherent dignity we are all entitled to as simply human beings. Contrary to political anti immigrant rhetoric, there is no open border policy otherwise there would not be thousands of asylum seekers trapped in dangerous conditions in Mexico where their lives are in danger as proven with the recent fatal fire in a Mexican detention center. Immigration policies must shift from a purely border enforcement priority to humane and efficient processing of asylum seekers with the correct infrastructure and mechanisms in place to do so.
Response to Humanitarian Border Crisis Created by Current Immigration Policies: Texas State House Bills, HB 20 and HB 7 Circumvent Federal Asylum Law and Endanger Border Communities
House Bill (HB) 20
House Bill (HB) 20 filed on March 10, 2023 with high priority from state leadership claims to be an innovative approach to border security. This proposed bill would create a new enforcement agency, “Border Protection Unit”, dedicated to the targeting, expulsion, and incarceration of migrants by force, possibly throughout the entire state, partly staffed by deputized unregulated militia, for an indefinite period of time. This bill would essentially codify Operation Lone Star by providing more funding for further policing of border communities, and even worse now, inviting unregulated militia into our border communities. This bill would only exacerbate the policing and incarceration of already overly-policed communities not only in border regions but throughout the entire state. In fact, this bill places our communities at risk of grave harm at the hands of individuals empowered and incentivized with full immunity from the law.
- Deputizes a new “Border Protection Unit” (BPU) within the Department of Public Safety (DPS) with the power to recruit civilians to arrest, detain, and repel migrants crossing the border.
The creation of a new BPU staffed by untrained unregulated militia dedicated to arresting and returning asylum seekers crossing the border is essentially creating a state level immigration enforcement agency tasked with enforcing immigration law by their own hands. As such, the state is clearly infringing on federal powers by attempting to regulate immigration. Since federal immigration law is a power consistently reserved for the federal government “local laws that attempt to regulate immigration violate the Supremacy Clause of the U.S. Constitution and are therefore preempted by federal law.” Additionally, the federal government’s third largest cabinet, the Department of Homeland Security, celebrating its 20th anniversary this year, has various agencies already tasked and trained for immigration enforcement at the border and beyond. Adding a state level immigration enforcement unit staffed by untrained unregulated militia is not only duplicative, and a waste of state funds, but will also cause dangerous confusion and conflict with real trained border enforcement agencies.
This illegal state created BPU infringes on federal immigration powers and would interfere with the much needed uniformity of immigration processing as conducted by federal agencies. The Immigration and Nationality Act 8 U.S.C. §1158(a)(1) states anyone regardless of how they entered the United States may seek asylum. This means that people seeking asylum at ports of entry, in between ports of entry, and within the United States have the right to claim asylum and to be processed for such a claim. Under current asylum law this protection exists and people cannot be simply returned back without their right to seek asylum being infringed.
For example, if I have crossed the southern border into the United States by crossing the river, once I have stepped foot into the United States, and expressed that I have a fear of returning to my home country, then federal immigration authorities have a set procedure in place to process me. When Title 42 was not being used to arbitrarily expel migrants, the process for an asylum seeker involved a credible fear interview and an appeal process before an immigration judge. As HB 20 is currently written, it would be the case that if an untrained unregulated militia saw me cross the river and step foot into the US, said unregulated militia would arrest me and then return me back without a process for my asylum claim. This would not be in uniform with federal immigration processing and would violate my right to seek asylum under US and international asylum laws. Each state making piecemeal immigration enforcement decisions is unproductive because it would mean no uniformity of immigration law and therefore each state would treat asylum seekers differently. The importance of having a uniform immigration law is that consistency is maintained no matter what state you have an immigration case in process.
- Members of BPU and their civilian counterparts would be guaranteed full immunity from criminal and civil liability.
Despite this bill claiming to be for the protection of its Texan citizens, this very provision does the exact opposite of making anyone feel safe at the hands of unregulated militia who will go unpunished for any harm done to community members. No community member is safe if we have untrained unregulated militia policing our communities with complete impunity to do harm. In fact, border communities are already some of the safest. “Communities along the U.S.-Mexico border are among the safest in the country, according to the latest crime reports published by the Federal Bureau of Investigation.”
Guaranteeing untrained unregulated militia full immunity from criminal and civil liability is a complete and utter reckless disregard for the safety and human life of all of our community members. The possible abuse of power by an untrained and rogue unit armed with not only weapons, but full criminal and civil liability is guaranteed to be the outcome of the deaths of innocent community members with no justice in sight. We are a country of laws and demand that no rogue unregulated militia actor be allowed to police our communities and instead ask the state to stop interfering with federal immigration law because doing so is putting our communities at risk of grave harm.
- Additionally, it would heighten trespass charges to a third degree felony for people apprehended while entering the States.
This provision is using state criminal law to effectively practice the enforcement of immigration law. This provision, again, interferes with the uniformity of immigration law because it would mean that all migrants detained while entering the United States in the state of Texas, would instead be criminalized as trespassers rather than be processed as asylum seekers as they have a right to claim under asylum law. A judge has already ruled “criminal trespassing charges against migrants unconstitutional.”
In practice, it would mean that a BPU unregulated militia can detain and arrest an asylum seeker and then charge that asylum seeker with a felony for trespassing under state law. As this bill is currently written, it is unclear whether the asylum seeker will then be expelled out of the U.S. or would be allowed to be processed by real federal immigration authorities. If an asylum seeker is charged and convicted as a felon, and later is allowed to make an asylum claim, this felony conviction could possibly have a negative effect when applying for asylum or may even be a bar to applying for asylum protection.
Rampant criminalization and incarceration of asylum seekers does not solve the immigration problem that this bill claims to solve which is to stop fentanyl poisoning and keep Texans safe. Rather more funds for state courts and locking up of asylum seekers costs this state money and that is wasted money that can instead be spent on addressing access to drug dependence and rehabilitation programs for many Texans.
- Codifies a State-level “Title 42” in Title 2 of the Texas Health Code – to stop and remove anyone entering Texas by land without appropriate medical review.
This provision of the bill is very vague and broad with the potential to affect anyone seeking to enter the state at land points of entry. This could possibly mean that both U.S citizens and legal permanent residents who are returning to Texas by land, at any point of entry throughout the entire state, would be stopped and removed if they do not have appropriate medical review.
Again, in practice this provision is essentially having state law enforcement practicing immigration enforcement.
This is a very broad provision with the potential to be used against communities that are already over policed and racially profiled not just in border regions, but the entire state of Texas. Using health laws to further keep people in fear and possibly violating their rights in the name of “health” is a complete and utter disregard for the real well-being of Texans.
House Bill (HB) 7
House Bill (HB) 7 this proposed bill creates and funds a “Border Protection Court program” and a Legislative Border Safety Oversight Committee, mirroring language in HB 20. Creates a statutory framework for the state’s continued funding of construction of border walls and other barriers, and would place border wall construction under the new “Border Protection Unit” of DPS.
- Allow Texas counties to establish special “border protection” courts with money from the State and private donors.
The creation of a separate court for border enforcement purposes is the state seeking to enforce their own immigration rules through the use of a state court system. There is already a federal immigration court system in place that seeks to enforce immigration law in uniformity. In fact, the use of a separate criminal court to process those accused under Operation Lone Star resulted in due process violations such as high bond amounts, held in repurposed jails, and denied fair trials. This is a dangerous and broad provision that would only continue to criminalize asylum seekers and potentially other community members due to the broad language in place.
In practice, this would mean that asylum seekers would be funneled through this separate court system where violations of their due process are bound to happen and without legal remedies for seeking asylum. Funding for these border protection courts can instead be used to fund real solutions that would in fact help Texans.
- Establish a fund to compensate property owners for real or personal property damaged by people crossing the border
Compensation for damaged property is only necessary if there is no viable alternative to asylum seekers who are denied their right to seek asylum at points of entry. This fund would not be needed if asylum seekers were processed with efficiency and dignity at points of entry along the southern border. Most asylum seekers want to follow the law and seek asylum the proper way which is why thousands of asylum seekers are currently stuck in encampments along the southern border.
- Awards funds to border jurisdictions to construct and maintain “facilities related to border safety.”
This provision incentivizes and puts the focus on infrastructure related to border security rather than addressing the real issue of providing infrastructure for proper processing of asylum claims at points of entry. Detracting and funding away from the real solution is not the answer.
- Creates a “Border Institution” educational grant program
Funding for educational programs is always a vital investment but funding for specific border institutions that will further keep southern border residents tied to making a career out of persecuting asylum seekers is not the answer. Instead invest in health education programs that are needed to maintain health professionals in remote areas such as many Texas border communities.
Conclusion:
Address a Humanitarian Crisis with the Appropriate Resources and Infrastructure
The above bills HB 20 and HB 7 only serve to further criminalize and incarcerate asylum seekers while putting our communities in peril at the hands of rogue unregulated militia groups who will be armed with full immunity from any wrongdoing. This is a state militarized enforcement response to a humanitarian crisis at the border created by immigration policies that are denying asylum seekers the right to seek asylum. Asylum seekers are already fleeing their home countries for various reasons, have endured trauma during their journey to safety, and are further forced to stay in dangerous situations in Mexico. This response is not innovative and does not make our communities safer. Operation Lone Star has been in effect to address the same issues. Border cities are already some of the safest places in the country. What we need is legislators that listen to the needs of their communities, and write legislation based on the needs of the community. We need real innovative solutions to address a humanitarian crisis that needs funding for infrastructure to process and welcome asylum seekers at points of entry with dignity, as seeking asylum is a legal right under our country’s immigration laws.
UPDATED APRIL 18, 2023
The above image illustrates the currently proposed anti-immigrant Texas legislative bills, although introduced separately, in reality they work in concert with each other to provide the state with the power to create and enforce their own immigration laws, that if passed would affect all of Texas