For over two years, the state of Texas has been executing its own immigration policy, with surprisingly minimal objection from the federal government. Texas Governor Greg Abbott first announced “Operation Lone Star” in a press release issued in early March 2021, less than two months after President Joe Biden’s inauguration. What began as a relatively limited deployment of 1,000 state troopers and National Guard forces, with the stated purpose of disrupting drug and migrant smuggling, has become a sprawling, multi-year, $4.5 billion operation (to date) to criminalize asylum seekers and other migrants and challenge federal authority over the border.
Despite the federal government’s clear authority over immigration under Supreme Court precedent, the Biden administration has responded to the operation with a combination of indifference, collaboration, and half-hearted attempts at pushback. The federal government’s limited response has invited Abbott to escalate further, to the point where Operation Lone Star is directly interfering with Border Patrol operations and endangering migrants’ lives. Congress and the president need to act forcefully to end these abuses, which have gone unanswered for too long.
One key escalation occurred during the summer of 2021, when Abbott announced that the state of Texas would begin an effort to prosecute migrants for state crimes, saying, “We are arresting and jailing anyone who comes across the border illegally and trespasses on private property or on public land.” Immigration law is controlled by the federal government, including the criminal penalties for crossing the border without authorization. The Supreme Court ruled in 2012 that a state’s attempt to criminalize unauthorized immigration was unconstitutional under the Supremacy Clause of the Constitution, which states that federal law “shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
Texas has tried to get around the 2012 precedent by charging immigrants under existing state laws. The most common charge is criminal trespassing — being present on private land without the landowner’s permission. (There have been arrests for more serious charges as well, but reliable data on those is scarce and, in some cases, the state has included charges completely unrelated to the border in its arrest tally.)
From the start, the arrests and prosecutions under Operation Lone Star raised serious constitutional issues. Those arrested were jailed for weeks or months without having charges filed against them or being given access to a lawyer, in violation of Texas state law as well as the constitutional rights to due process and access to counsel. When trespassing charges were filed, they sometimes lacked essential details about where a migrant allegedly trespassed, who owned the property, and what notice a defendant received that their presence was unlawful.
Defense attorneys representing migrants arrested for trespassing had some early successes in the courts. They convinced some judges to release their clients without money bail based on prosecutors’ missed deadlines or court delays and succeeded in getting some charges dismissed based on individual flaws in the cases or systemic problems with Operation Lone Star. But in rural Kinney County, which prosecuted more migrants for trespassing between August 2021 and July 2022 than any other county, officials replaced the judges who ruled in favor of migrants with handpicked replacements who kept them locked up unless they raised cash for bail. Attorneys denounced this as an effort to coerce guilty pleas. Kristin Etter, an attorney for Texas RioGrande Legal Aid, told the Texas Tribune, “The only way they’re going to make this work is if it’s a giant plea mill.”
“Those arrested were jailed for weeks or months without having charges filed against them or being given access to a lawyer, in violation of Texas state law as well as the constitutional rights to due process and access to counsel.”
Pressure to plead guilty to get out of jail prevented defendants from defending against trespass charges — even when they had strong cases that their arrests were unlawful. According to a lawsuit filed in federal court in April 2022, “in many instances, law enforcement in fact directed those arrested to a particular place or otherwise gave them the impression they had permission to be on the property, only to then arrest them for trespassing,” which is a form of “entrapment.”
Defendants being charged with violations of Texas state law were sent to two state prisons set up to hold only Operation Lone Star detainees. They reported being held under punitive conditions that included inadequate or inedible food, lack of medical care, xenophobic abuse from guards, and threats or use of solitary confinement in response to complaints. To get out of jail, migrants either had to agree to plead guilty for a sentence of time served or pay substantial cash bail — the Texas Tribune estimated the average bond at $2,200. That money was often forfeited when defendants were deported while their criminal cases were still pending. Both routes left people unable to effectively defend against the charges against them, even if they were innocent (in the case of being directed onto private land by state or federal officials, for example).
Federal Collaboration and Failure to Investigate
The ACLU of Texas, the Texas Civil Rights Project, and several other local and national groups filed multiple civil rights complaints with the Justice Department requesting an investigation into Operation Lone Star. In July 2022, newspapers reported that the Justice Department had opened an investigation, but there have been no further reports of its progress or findings.
Democratic members of Congress also wrote to the Department of Justice asking for an investigation into whether the program violated the Supremacy Clause of the Constitution, but the DOJ has never sued Texas on those grounds, perhaps fearing that a conservative-majority Supreme Court could overturn or dramatically narrow the precedent affirming federal authority over immigration. (Thus far, the Justice Department has brought two narrow lawsuits challenging limited parts of Abbott’s border operations. In response to the first lawsuit, in 2021, a federal judge blocked an executive order by the governor forbidding the transportation of migrants within Texas, which would have directly interfered with federal immigration processing. The second suit, discussed in the next section, is still pending.)
Department of Homeland Security Secretary Alejandro Mayorkas has criticized Operation Lone Star as “counterproductive,” but has not prevented DHS personnel — including agents from the Border Patrol — from collaborating with state troopers. In one extreme case early in the program, migrants told their attorneys that Border Patrol agents had arrested them near a public highway before marching them in zip-tie handcuffs onto private land to be arrested by state troopers for trespassing. (The Project On Government Oversight requested that Customs and Border Protection [CBP] investigate these allegations. To date, we have not received any response.)
“Department of Homeland Security Secretary Alejandro Mayorkas has criticized Operation Lone Star as ‘counterproductive,’ but has not prevented DHS personnel — including agents from the Border Patrol — from collaborating with state troopers.”
In another case, members of the Border Patrol were photographed charging on horseback and brandishing their reins to push back Haitian migrants across the Rio Grande near Del Rio, Texas. An internal investigation by Customs and Border Protection later found that the mounted Border Patrol officers had “carried out an operation at the request of [the Texas Department of Public Safety] which directly contravened USBP operational objectives and resulted in the unnecessary use of force against migrants.”
Despite these findings, DHS has never issued clear orders limiting the Border Patrol’s participation in Operation Lone Star arrests, and the collaboration has continued. According to the ACLU of Texas, which reviewed Texas officials’ sworn accounts of trespass arrests from late July to late August 2022, “Border Patrol was instrumental to one in every four OLS trespass arrests.”
Federal immigration authorities get involved again after a trespassing defendant’s release from custody, either on bail while the charges are pending or at the conclusion of the criminal case. In either case, defense attorneys told POGO, the state prisons where Operation Lone Star detainees are held generally transfer them into the custody of Immigration and Customs Enforcement (ICE) or CBP. At that point, whether their criminal case is concluded or still pending, they should have the same right to seek asylum and other relief from deportation as if they were never charged. In fact, for individuals who spend more than 14 days jailed in Texas, federal authorities should no longer be able to place them into a form of accelerated deportation known as “expedited removal.” In practice, though, defense attorneys have told POGO that federal officials have frequently ignored this restriction, or have persuaded people to accept removal from the country to avoid spending even more time in jail.
The number of people jailed for trespassing through Operation Lone Star remains a small fraction of the number arrested and deported by federal immigration officials, and there is no clear evidence that Texas’s actions have served as a deterrent on migration. Supporters cite data showing that migrant crossings increased more in other border states than in Texas, but that effect disappears when focusing on the rural counties that have been at the center of the operation. A Wall Street Journal analysis published this summer compared migration data from counties that had chosen to participate in the trespass arrest program and those that declined to do so. Reporters found that “illegal crossings rose faster in the counties most heavily targeted by Operation Lone Star after it began, and have been slower to decline since peaking last year. Throughout 2022, border crossings from the previous year rose 64% in the Del Rio sector, the target of the operation. Crossings fell 35% in the Rio Grande Valley, which wasn’t the focus of the operation and didn’t participate in its trespassing-arrest component.“
Despite all this, Texas’s legislature approved at least an additional $5 billion to continue and expand the state’s border operations over the next two years.
Razor Wire and Dehydration
This spring and summer, Texas escalated attempts to physically block asylum seekers and other migrants from reaching U.S. soil even if it meant endangering their lives. State law enforcement officials strung razor wire for miles along the banks of the Rio Grande and even in the river itself.
According to the Houston Chronicle, on June 26, an internal Border Patrol document from the Eagle Pass, Texas, station warned that the razor wire had been strung across gates that CBP used to access the river, increasing the risk of migrants drowning. In early July, a Texas state trooper and medic wrote superiors to describe seeing migrants caught and injured by the wire near Eagle Pass, including a 4-year-old girl who lost consciousness due to exhaustion in over 100 degree heat, a pregnant woman who was having a miscarriage, and a man with a serious laceration from the wire that he said he received by freeing his child from a “barrel trap” covered in wire in the river. The trooper also described receiving orders to push a group of 120 migrants, including children and nursing infants, back into the river from shore, and to deny people water in extreme heat. “I truly believe in the mission of Operation Lone Star; I believe we a have stepped over a line into the in humane [sic],” the trooper concluded.
The New York Times reported that at least three other officers in the area gave similar accounts, as did migrants who were bleeding after being cut by the wire.
In response, the governor’s office denied that they were endangering migrants. It also deployed a floating barrier of four-foot-wide buoys anchored to the river bottom, with spiked discs between them. Migrants who safely make their way out of the river and onto U.S. soil in the area have also been subject to family separation by Texas state troopers, although in many cases they were arrested in a public park, were following directions from law enforcement, or both.
There have been a large number of drownings in this stretch of the Rio Grande since the latest deployment of razor wire and buoys. There was also a large number of drownings the previous year. Without better data on the number of deaths or the circumstances surrounding each death, it is difficult to be certain of the exact role played by Texas’s recent actions. Regardless, the state is only increasing the danger of death and severe injury for both CBP agents and migrants.
In late July, the Department of Justice sued Texas and its governor in federal court to force removal of the buoys, which they alleged violated an 1899 law called the Rivers and Harbors Act. The complaint mentions the razor wire, also known as concertina wire, along and in the river only in passing and does not include the descriptions of it injuring and trapping migrants or obstructing Border Patrol access to the river. It requests that the court order the removal of the buoys “and any related unauthorized structures” from the river, but it does not say that the U.S. government regards the miles of razor wire as such a structure. On September 6, 2023, a federal trial court ordered the buoys’ removal, but the Fifth Circuit has stayed that order.
Meanwhile, on September 20, more than 2,500 migrants entered Eagle Pass despite the buoys and the wire. Abbott posted a video of Border Patrol agents cutting through concertina wire along the riverbank and accused the Biden administration of “opening the floodgates to illegal immigrants.” He promised to install still more razor wire. There was no evidence that the video or others like it were part of a more concerted effort to remove barriers from the river, as opposed to preventing injuries to individual migrants or agents taking them into custody.
Texas’s “Border Czar,” Mike Banks, who was hired by Abbott 10 days after he retired from the Border Patrol this January, posted a video of still more coils being installed.
There have been some recent, encouraging signs of the federal government finally taking action against the abuses perpetrated under Operation Lone Star. Two members of Texas’s congressional delegation, Representative Joaquin Castro (D-TX) and Representative Greg Casar (D-TX), introduced an amendment to deny federal funds to Operation Lone Star, which did not pass the House but did gain support from all 13 members of Texas’s Democratic congressional delegation. The head of the Border Patrol, Jason Owens, traveled to Eagle Pass in September 2023 and affirmed to reporters that agents had the authority to remove obstacles from the river when needed to reach migrants. “If they start getting swept away by the currents, if they start succumbing to the environment, the extreme temperatures, the humidity you all feel right now, and my men and women see that, they are not going to let somebody die or get into harm's way,” Owens said.
But these steps are only the beginning of the needed changes. Policymakers and federal investigators should do the following:
- Most immediately, the federal government should remove all obstructions from riverbanks and the water of the Rio Grande that pose a danger to agents and migrants. Texas law enforcement and state guard posted on federal land should also be removed.
- CBP should make clear that Border Patrol collaboration with Operation Lone Star is prohibited and ensure that any agents or officials who violate this policy or participate in Operation Lone Star arrests or family separations are held accountable.
- DHS should not subject Operation Lone Star detainees with pending cases in Texas to removal from the United States. Such deportations lead to bond forfeiture and inability of those detained to contest unlawful arrests.
- DHS must reunite families separated by Operation Lone Star.
- The Justice Department and the Department of Homeland Security’s Office for Civil Rights and Civil Liberties and Office of the Immigration Detention Ombudsman should place federal observers along the southwest border in Texas. Federal observers are critical to documenting the unlawful actions of Operation Lone Star. Non-governmental organizations should not be placed in the perilous position of documenting abuses in the dangerous conditions created by Operation Lone Star to then share with civil rights enforcement entities.
- The Justice Department should investigate illegal arrests and treatment of migrants by state and local authorities, as well as whether federal funding to law enforcement participating in Operation Lone Star violates Title VI of the Civil Rights Act, which prohibits federal funds from being used in a discriminatory manner.
- Congress should withhold federal funding to state and local law enforcement agencies involved in Operation Lone Star.
- Congress should exercise rigorous oversight of CBP concerning its collaboration with Operation Lone Star and Texas’s usurpation of federal authority over immigration. Members of Congress should visit the border and directly observe dangers, visit prisons, observe court proceedings, speak to detainees, and interview whistleblowers, as well as demand that credible allegations about misuse of federal funds by state authorities in Operation Lone Star be investigated.
- The federal government should continue to increase processing capacity for asylum seekers at ports of entry.
Border enforcement is a difficult issue, both politically and substantively, but it is the federal government’s responsibility. Operation Lone Star’s barbed wire and coercive trespassing prosecutions have not solved anything, and Congress and the executive branch have allowed them to continue for much too long.