National Guard troops are arresting migrants in Texas. Critics say they're not qualified to do it.
Texas Governor Greg Abbott continues to ramp up his controversial border security initiative. The state has sent troopers and National Guard members to the U.S./Mexico border to arrest migrants.
In November, Texas officials called members of the media to the border to show off what they called a “steel curtain.”
Shipping containers, law enforcement vehicles, humvees, and curls of concertina wire lined the Rio Grande next to the international bridge that connects Eagle Pass, Texas with Mexico. Aircraft circled low overhead before dropping off National Guard teams in riot gear.
The demonstration wasn’t just for the news media. The border had just reopened after a 20-month COVID shutdown, and Texas National Guard spokesman Maj. Mike Perry wanted to send a message to migrants: Don’t come over illegally.
“So you just witnessed the contingency reaction force coming in on five different helicopters,” he said, explaining the maneuvers as they unfolded. “It is large groups of military police…and they're going to go up simulating where there would be a breach or a caravan trying to come through — or illegal activity— and they're going to close it off.”
Enforcing immigration law is a federal responsibility, and the federal government has around 10,000 agents patrolling the Texas border. But Republican Gov. Greg Abbott said in an October news conference that the state initiative, which he calls Operation Lone Star, fills enforcement gaps along the 1,200 mile stretch. He accused President Joe Biden of ignoring the problem.
"While Biden continues to dither, Texas and other states are taking action to do the federal government's job," Abbott said, "to arrest and jail people who are illegal immigrants coming into Texas and trespassing on private property."
Over the summer, Abbott deputized state police and military to arrest migrants - not for immigration charges, but for state offenses, such as trespassing. That way, they are jailed and prosecuted in Texas courts instead of being turned over to federal authorities right away.
But some say the initiative oversteps federal law and violates migrants’ due process rights. Democratic Congressman Joaquin Castro is calling on the U.S. Department of Justice to investigate.
"It's unprecedented what the Texas governor has done in militarizing the border this way and giving the National Guard the ability to arrest people and keeping them in prison for two three weeks at a time without giving them a lawyer,” Castro said. “He's violating people's constitutional rights and he's misusing the National Guard.”
Critics argue the National Guard may not be familiar with the Texas criminal code nor the proper procedure to make arrests.
“They can't possibly all be trained in criminal law,” said Ari Sawyer, a border researcher with Human Rights Watch. “They're not trained in asylum law, and they're not immigration enforcement agents. They're just really not qualified to be working with this population.”
After they're apprehended, many migrants are detained in converted state prisons, where it’s difficult for attorneys to consult with them.
“We see a whole host of issues, including very punitive and harsh treatment by the guards,” said Kristin Etter, an attorney with Texas Rio Grande Legal Aid, which has represented more than 700 apprehended migrants since Operation Lone Star launched. “We have had significant complaints about their treatment and the conditions of confinement. Not to mention they're being detained in remote areas that make attorney access difficult.”
Etter said she has also seen improper arrests involving the National Guard. In some cases, Guard troops detained migrants and transferred them to a separate location where state troopers performed an arrest. Because of that transfer, state troopers can’t legally testify to where the detention was made — which should render the arrest null.
So far, Texas has arrested about ten thousand people under the operation – more than 2,000 for criminal trespassing — primarily on private ranchlands and rail yards.
Once released from state custody, migrants are turned over to U.S. Customs and Border Protection or Immigration and Customs Enforcement, where they either face expulsion or get released into the United States to await immigration hearings.
It's not clear whether Operation Lone Star is leading to fewer crossings or more deportations.
Prosecutors concede that aspects of the border crackdown could be refined. Val Verde County Attorney David Martinez said in mid-November that he’d rejected or dismissed more than half of the 335 misdemeanor cases presented to him until that point.
Procedural errors during arrest — or failure by law enforcement to give migrants adequate notice that they were trespassing — contributed to cases getting tossed out. Many of the border crossers were from Central and South America and the Caribbean, and they indicated to law enforcement that they were seeking asylum. Martinez often dismissed their cases.
“In almost every one of these instances, there are no residents on these properties,” Martinez said. “So [the migrants] weren't disturbing anyone. They weren't harassing anyone. There didn't appear to be a real victim.”
“Technically speaking, was there a violation? Perhaps," Martinez said. "I just didn't feel that it was fair to the taxpayers in Val Verde County, and in the state of Texas, to hold these people for days, weeks, or months on end at taxpayer expense.”
Still, Martinez sees the need for the operation. He works in the Del Rio area, where large groups of Haitian migrants sheltered in squalid conditions in September. He called that a humanitarian crisis and said local residents are feeling the effects of border crossings.
“Who wouldn't be concerned if you have strangers crossing your property in the middle of the night or you hear noise?” he said. “In some instances, we were hearing reports of vandalism and things of that nature. So without a doubt, with the increase in numbers, this issue needed attention.”
The National Guard and the Texas Department of Public Safety declined to provide details about how they train their personnel to arrest border crossers under Operation Lone Star.
This story was produced by the American Homefront Project, a public media collaboration that reports on American military life and veterans.Funding comes from the Corporation for Public Broadcasting.