DHS threatens to take 'appropriate action' against Texas over border access

The Department of Homeland Security has threatened the state of Texas -- saying the state is acting unconstitutionally in blocking Customs and Border Protection's access to Shelby Park in Eagle Pass, Texas, and if the state continues to do so, the Justice Department will take "appropriate action", according to a letter obtained by ABC News.

"Texas's actions are clearly unconstitutional and are actively disrupting the federal government's operations," DHS General Counsel Jonathan Meyer wrote to Texas Attorney General Ken Paxton. "We demand that Texas cease and desist its efforts to block Border Patrol's access in and around the Shelby Park area and remove all barriers to access in the Shelby Park area."

The Biden administration accused the Texas National Guard of blocking Border Patrol agents from accessing a 2.5-mile stretch of the southern border in Eagle Pass, Texas, including Shelby Park.

The letter from Meyer, dated Jan. 14, says Texas has until Wednesday to "cease and desist its efforts to block Border Patrol's access in and around the Shelby Park area and remove all barriers to access to the U.S.-Mexico border ..."

If not, Meyer says they'll refer the matter to DOJ "for appropriate action and consider all other options available to restore Border Patrol's access to the border."

"Texas's failure to provide access to the border persists even in instances of imminent danger to life and safety," Meyer said.

Three migrants died at the park last week and CBP accused Texas of not allowing agents to access the park for lifesaving care.

He said that on Jan. 12, 2024, upon learning from Grupo Beta, a group affiliated with the National Institute of Migration of Mexico, that a group of migrants was attempting to cross the river, Border Patrol contacted Texas officials and requested access to the border.

"Texas refused," Meyer wrote.

"Later, a rescue team from Mexico was able to rescue two individuals from the group, both with signs of hypothermia," he writes. "Three individuals drowned. Texas has demonstrated that even in the most exigent circumstances, it will not allow Border Patrol access to the border to conduct law enforcement and emergency response activities."

The Texas Military Department, which runs the National Guard say, that claims the military department blocked border patrol agents are "wholly inaccurate."

"Turns out @RepCuellar (& some media) were so eager to point finger at Texas for drowning of migrants they forgot to get the facts," Texas Governor Gregg Abbott said on X. "When BP requested access to river the drownings had already occurred & found in MX. The fact is the deaths are b/c of Biden's Open Border magnet."

Meyer said Texas recently indicated it allowed Border Patrol access to the boat ramp in this area it has done so only with restrictions such as requiring information about each Border Patrol individual agent entering the area and reiterated that this access is limited to use of the boat ramp.

The TMD says they were in "direct communication" with CBP on Jan. 12 and that when border patrol arrived, Mexican authorities had already recovered two bodies.

"Border Patrol specifically requested access to the park to secure two additional migrants that were presumed to have traveled with the deceased, though had crossed to the boat ramp," the statement says. "Two migrants were apprehended by TMD, with one turned over to DPS and the other transferred to EMS in response to initial hypothermic conditions. Additionally, TMD remained engaged with lights, night vision goggles, and thermals to ensure that no additional migrants were in the river or in distress."

Meyer said despite the deaths, Texas has "continued to this day to deny full access to the area."

"The Department of Homeland Security (DHS) is committed to securing the border and ensuring the apprehension, inspection, and proper processing of noncitizens in accordance with the law, as well as to rendering emergency assistance to individuals in need," he said. "The recent actions by the State of Texas have impeded operations of the Border Patrol."

Texas' actions "conflict with the authority and duties of Border Patrol under federal law and are preempted under the Supremacy Clause of the Constitution."

Texas officials also put up concertina wire and physically began obstructing access to the park, Meyer writes.

"Specifically, Texas National Guard is blocking entrances through federally owned and maintained border barriers with armed soldiers," he writes. "While Texas has claimed that it has re-opened the use of Shelby Park to the public, it continues to prevent Border Patrol from entering, and from using the area under the adjacent port of entry where Border Patrol has certain property stored for use when migrants are apprehended. Border Patrol is being prevented from entering any portion of the 2.5 mile Shelby Park area, with the minor exception of regulated access to the boat ramp in Shelby Park, including being unable to place scope trucks as Border Patrol determines is operationally necessary."