Judge temporarily bars federal government from cutting razor wire along the Texas border

Judge Alia Moses granted the state’s request for a temporary restraining order.

October 30, 2023, 5:07 PM

A federal judge has temporarily barred the federal government from removing or cutting concertina wire Texas authorities have placed in areas near the U.S. - Mexico border.

Judge Alia Moses granted the state’s request for a temporary restraining order as part of a lawsuit Texas filed last week, but left an exception if cutting the wire would prevent "serious bodily injury or death."

"The Court shall grant the temporary relief requested, with one important exception for any medical emergency that most likely results in serious bodily injury or death to a person, absent any boats or other life-saving apparatus available to avoid such medical emergencies prior to reaching the concertina wire barrier," Judge Moses wrote in the filing on Monday.

The temporary restraining order is part of a lawsuit that Texas filed last week against key Biden administration agencies tasked with enforcing immigration laws, including the Department of Homeland Security and U.S. Customs and Border Protection.

The state of Texas is suing the Biden administration over what they call CBP’s practice of "cutting, destroying, or otherwise damaging Texas’s concertina wire that had been strategically positioned for the purpose of securing the border and stemming the flow of illegal migration."

As part of Governor Abbott’s Operation Lone Star, Texas authorities, including the Texas National Guard, have been installing fencing and barriers, sometimes made of concertina wire.

Placed along the U.S. side of the Rio Grande, CBP agents have at times cut through, lifted, or removed portions of the fencing to allow migrants to be apprehended, processed and sometimes disentangled from the razor wire.

Gov. Greg Abbott, a staunch Republican and opponent of President Biden’s immigration policies, accused the Biden administration of cutting through razor wire in an X (formally known as Twitter) post in September.

"Texas installed razor wire in Eagle Pass to stop illegal crossings. Today the Biden Admin CUT that wire, opening the floodgates to illegal immigrants. I immediately deployed more Texas National Guard to repel illegal crossings & install more razor wire," he posted on X.

But the lawsuit filed last week goes farther in its accusation of wrongdoing, claiming federal agents are destroying the wire to "encourage and assist thousands of aliens to illegally cross the Rio Grande."

The lawsuit is also likely to affect the relationship between CBP and Texas state authorities that Gov. Abbott has attempted to authorize to enforce federal immigration law, like Texas DPS and the Texas National Guard. It also comes as Texan lawmakers are close to approving House Bill 4, which would authorize local and state law enforcement officials to arrest migrants and return them "to the foreign nation from which the person entered or attempted to enter."

"This is just another example of Texas refusing to accept the fact that it's the responsibility of the federal government to enforce the immigration laws and secure the border, not the responsibility of the state," said Tom Jawetz, a senior fellow at Center for American Progress and former deputy general counsel for DHS.

The lawsuit raises several legal questions about whether Texas can prevent federal agents from enforcing immigration and asylum laws. In areas like Eagle Pass, Texas, the concertina wire is placed on the northern and U.S. side of the Rio Grande River, which means migrants who reach it are already on U.S. soil and legally allowed to enter through for apprehension and processing.

"You find actually, a lot of the actual wall structures in Texas are well within U.S. territory. Even for the portion from the international boundary line, up to that wall, anyone standing in that area has equal rights under the law to seek asylum as someone standing north of whatever boundary line," said Elissa Steglich, a clinical professor and co-director of the Immigration Clinic at the University of Texas School of Law.

The Department of Homeland Security declined to comment on the lawsuit, but added that it would abide by the court’s order.

"We do not comment on pending litigation. Generally speaking, Border Patrol agents have a responsibility under federal law to take those who have crossed onto U.S. soil without authorization into custody for processing, as well as to act when there are conditions that put our workforce or migrants at risk. We will, of course, comply with the Order issued by the Court this morning,” a DHS spokesperson said.

During an interview with ABC News correspondent Matt Rivers in September, USBP Chief Jason Owens alluded to the fact that agents can’t simply prevent people from entering the U.S.

"So I think there's a lot of misunderstanding about what Border Patrol agents can and can't do. We see a lot of a lot of folks say just push people back, just don't let them cross or send them back immediately. The U.S. Border Patrol is a law enforcement agency, we enforce the laws that are on the books, we don't have the right, nor should we, to deny somebody due process once they are on American soil…you don't want a law enforcement agency that goes rogue and doesn't adhere to those principles," he said.

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