Migrants Detained in Texas Border Operation Are Fighting Back — and It’s Not Going Well for Gov. Greg Abbott

A Texas judge ruled that the state’s arrests of migrants caught crossing the border is an unconstitutional encroachment on federal authority.

A Texas Department of Public Safety trooper taking part in Operation Lone Star patrols the Rio Grande at the U.S.-Mexico border in McAllen, Texas, on March 23, 2021. Photo: John Moore/Getty Images

Texas Gov. Greg Abbott’s crusade on the southern border is under fire. Earlier this month, a state judge ruled in favor of an undocumented Ecuadorian man who alleged that his treatment in the governor’s militarized Operation Lone Star campaign was the product of a constitutional train wreck that is upending the relationship between the federal government and the state. With backing from the county district attorney in Austin, the decision opened the door to similar challenges, which began coming in less than 24 hours later and now threaten the continued existence of the controversial policing experiment at the heart of Abbott’s bid for reelection.

For nearly a year, a patchwork of state police troopers, members of the Texas National Guard, and local law enforcement agencies operating under Abbott’s orders have delivered thousands of undocumented men arrested on state trespassing charges into a shadow legal system rife with problems, lawyers for Jesus Alberto Guzman Curipoma argued in a January 13 hearing before District Judge Jan Soifer. Despite being housed within the Texas criminal justice apparatus, Abbott’s operation is expressly designed to prosecute migrants and migrants alone, the defense attorneys told the Travis County judge, thus undermining bedrock constitutional principles that delegate immigration enforcement to the federal government.

In a filing ahead of the hearing, Travis County District Attorney José Garza told the court that he agreed with Guzman’s constitutional claims and that his office would not put on a defense for the state in the case. “After careful consideration, the State agrees that Applicant’s prosecution for criminal trespass as part of Operation Lone Star violates the Supremacy Clause of the United States Constitution and represents an impermissible attempt to intrude on federal immigration policy,” Garza said. A private attorney contracted by Kinney County, where Guzman was arrested, argued that Soifer did not have jurisdiction over the case and told the court that he received a text message during the hearing from Texas Attorney General Ken Paxton’s office urging him to halt the proceedings.

Both efforts failed to convince Soifer, who became the first Texas judge to rule that the governor’s program is unconstitutional. The ruling set off a flurry of legal filings throughout the state, marking what could be the beginning of a major legal battle in the weeks ahead. The following day, January 14, Texas RioGrande Legal Aid filed a writ before the Travis County Court on behalf of more than 400 clients claiming violations of their constitutional rights as a result of Operation Lone Star. By January 17, Brent Smith, the attorney for Kinney County, had appealed Soifer’s ruling, informing the court that he would seek a trial in the case. Garza’s office filed a motion to dismiss the appeal the following day.

“On its face this is a horrific program, and their duty is to do the right thing.”

An engineer with no criminal record currently seeking asylum in the U.S., Guzman was arrested in a Kinney County rail yard in rural West Texas on September 17. His nearly five-hour hearing was conducted virtually. When the judge finally rendered her decision, he pressed his palms together in a gesture of grateful prayer.

Guzman was jailed for nearly a month as result of Operation Lone Star, much of that time after his family had posted bail, and remained under court supervision heading into the hearing. Paxton, too, vowed to appeal the ruling in Guzman’s case, though so far that has not happened. In a tweet, the state attorney general framed the judge’s ruling in political terms, casting Garza as an operator dispatched by billionaire George Soros and Soifer as his liberal enabler; the judge previously served as chair of the Travis County Democratic Party, and the district attorney was elected in the wake of the George Floyd protests with vows to rein in police abuses.

Guzman’s attorneys contend that because the attorney general failed to intervene in the case while it was being litigated, he has no legal standing to appeal. The lawyers, Angelica Cogliano and Addy Miró, have spent the past seven months representing clients swept up in Abbott’s border blitz. In joint interviews, the defense attorneys said that while the Travis County District Attorney’s Office deserves credit for refusing to defend the governor’s operation, that credit should be tempered by the facts.

“I know everybody’s trying to turn this into political theater, but on its face this is a horrific program, and their duty is to do the right thing,” Cogliano told The Intercept. “It’s impressive, but it’s also right.”

Governor Abbott Holds Press Conference On Border Security

Gov. Greg Abbott arrives for a news conference in Mission, Texas, on Oct. 6, 2021.

Photo: Sergio Flores/Bloomberg via Getty Images

Abbott launched Operation Lone Star in March. Since then, the governor, citing a state-level disaster declaration, has drastically ramped up the program to include 10,000 state troopers in the Texas Department of Public Safety and members of the Texas National Guard.

From his announcement of his candidacy through the kickoff of his reelection campaign earlier this month, Abbott has put the border at the center of his messaging, arguing that the federal government has lost control of the U.S.-Mexico divide under President Joe Biden and that Texas has been forced to respond. Bolstered by $3 billion in border security spending that the Texas Legislature approved last year, Lone Star is the operational centerpiece of that effort.

DPS Director Steven McCraw said at an event in Austin last week that under the governor’s program, his troopers have arrested more than 10,000 undocumented immigrants in the past nine months. Whether those arrests are doing anything to achieve Operation Lone Star’s stated objective is up for debate. In November, the Wall Street Journal reported that just 3 percent of the roughly 1,500 individuals arrested in the operation by that point had actually been convicted and that of 170 cases that were resolved, roughly 70 percent “were dismissed, declined or otherwise dropped, in some instances for lack of evidence.” In fact, in some cases, lawyers noted that a client’s processing through Operation Lone Star gave them an opportunity to stay in the country and pursue their asylum claim on U.S. soil, whereas the Trump-era mandatory federal expulsion programs that the Biden administration continues to enforce would not.

Legal concerns over the implementation of Operation Lone Star have exploded in recent months. In September, a network of Texas defense attorneys discovered a major constitutional failing of the program: Hundreds of men — Operation Lone Star exclusively targets men — arrested as a result of the governor’s program were being held on state-level criminal trespassing charges without access to counsel. Cogliano and Miró were among that group of attorneys. At one point, their office phone number was circulated inside the Briscoe Unit, a state prison in South Texas that Abbott cleared out for Operation Lone Star prisoners. The pair estimated that they received more than 300 calls in a matter of two hours. Within a week, that number soared into the thousands.

The voices on the other end of the line repeatedly described having paid their bond only to remain in jail for days, weeks, even months. “Everybody started calling our office,” Miró said. Guzman was among those callers, reaching out in early October, more than two weeks after his family posted cash bail in his case. Like others prosecuted under Operation Lone Star, Guzman was apprehended by DPS troopers, charged with misdemeanor trespassing under state law, and transferred to state custody; this stands in contrast with the federal charges, processing, and detention that would normally result from an undocumented migrant’s encounter with a Border Patrol agent.

As the lawyers dug deeper into Guzman’s case and others like it, what they found shocked them. The rural counties where Operation Lone Star arrests were taking place were at best incapable — and in some cases seemingly unwilling — of providing the bare minimums of due process in response to the deluge of low-level cases brought on by the governor’s campaign. “They are completely backlogged,” Miró said. Obtaining basic public documents like a probable cause affidavit proved virtually impossible. The men in custody were routinely presented with plea deals, written in English and without translation, and encouraged to sign. Hearings were sometimes held en masse, outdoors, in a parking lot.

The defense attorneys also observed a pattern, later corroborated by video evidence, of DPS troopers leading individuals onto private property and then arresting them for trespassing.

“Even as criminal defense attorneys that deal with the criminal justice system every day, this boggled our minds,” Cogliano said of the scope of the constitutional and civil rights violations embodied in Operation Lone Star. “We’ve never had a client pay cash bail anywhere in the state or country that was charged with any kind of crime that didn’t get out of jail when he posted the cash bail, or where we got pushback about letting him out of jail when he paid cash bail.”

“Even as criminal defense attorneys that deal with the criminal justice system every day, this boggled our minds.”

Guzman’s lawyers were particularly alarmed by what happened after his family posted bond on September 20. Typically, if state or local authorities take an undocumented person into custody on the border and the federal government wants to begin deportation proceedings against them, U.S. Immigration and Customs Enforcement will place what’s known as a “detainer” on the individual. Federal deportation officers will then have 48 hours to retrieve that person. In Guzman’s case, a detainer did not appear until after that window had closed and his bond had been paid. What’s more, according to an affidavit Kinney County Sheriff Brad Coe submitted in July, ICE informed his office that even when detainers were issued, the agency would not be picking up individuals arrested on trespassing charges alone.

“They needed to let him go,” Miró said. Guzman remained in state custody until October 10, when he was driven to an ICE facility in San Antonio. In early November, after being transferred to the South Texas Detention Complex, a for-profit immigration jail, Guzman was granted bond in his immigration case. Who exactly facilitated the initial drive that delivered Guzman from state to federal custody, which Miró and Cogliano argue was a clear violation of Texas law, remains unclear. “We tried to find this out,” Cogliano said. “Nobody will admit it.”

Though he was out of jail, Guzman remained under court supervision with an open case. He wanted to fight the charges, so the two attorneys sought a trial in Kinney County in late December. “Everybody looked at us weird — like, ‘What?’” Miró said. Prior to Operation Lone Star, Kinney County hadn’t held a trial in seven years. “Nobody knew what to do with us,” Miró said. The lawyers decided to take the case elsewhere.

Cogliano noted that under Texas law, habeas corpus claims — in which an individual calls upon the government to justify its continued deprivation of their liberty before a judge — can be heard anywhere in the state, not just the jurisdiction where the arrest in question took place, and so the pair filed Guzman’s claim in Travis County, home to the state capital, Austin. “Everyone’s been saying we were creative, and it’s not. It’s just allowed,” Cogliano said. “It’s not like we twisted anything. It’s black-letter law.”

While defense attorneys in Texas have challenged Abbott’s program in the courts, Democrats in Congress have called for a federal response to the governor’s operation.

In October, Texas Rep. Joaquin Castro and more than two dozen Democratic lawmakers sent a letter to Department of Homeland Security Secretary Alejandro Mayorkas and Attorney General Merrick Garland demanding an investigation into Operation Lone Star and arguing, like the lawyers in Guzman’s case, that the governor’s campaign likely violated the supremacy clause of the Constitution.

Last month, the American Civil Liberties Union, the Texas Civil Rights Project, and the Texas Fair Defense Project, with support from more than 100 legal organizations, echoed that demand in a complaint to the Justice Department that described Operation Lone Star as “riddled with civil rights violations.”

The advocacy groups added that in Kinney County, local officials have explored hiring private contractors with experience in Iraq and Afghanistan to bolster Operation Lone Star and encouraged armed militias to join in the effort. “By fostering governmental relationships with armed vigilante groups that seek to target migrants, Kinney County leadership is discriminating against migrants,” the groups wrote. “These efforts increase the chances of violence against Black and Brown individuals in Kinney County. If effectuated, they will continue to lead to unlawful and discriminatory actions on the basis of race and national origin by vigilante groups functioning as state actors.”

A parallel federal deployment of National Guard members to the Texas border, separate from Operation Lone Star, has also drawn extensive concern in recent weeks following an Army Times investigation that revealed widespread problems involving troops assigned to the mission, including arrests, rampant drug and alcohol abuse, DUIs, and a pattern of mysterious deaths and suicides. In a subcommittee hearing in Washington last week, Rep. Veronica Escobar, a Democrat who represents El Paso, which is home to the Fort Bliss Army base, described the reports as “shocking” and “deeply alarming.”

MCALLEN, TEXAS - MARCH 23: U.S. Border Patrol agents take asylum seekers into custody as seen from a Texas Department of Public Safety helicopter near the U.S.-Mexico Border on March 23, 2021 in McAllen, Texas. Texas DPS troopers are taking part in Operation Lone Star in supporting U.S. Border Patrol agents to "deny Mexican Cartels and other smugglers the ability to move drugs and people into Texas." (Photo by John Moore/Getty Images)

U.S. Border Patrol agents, seen from a Texas Department of Public Safety helicopter, take asylum-seekers into custody near the U.S.-Mexico border in McAllen, Texas, on March 23, 2021.

Photo: John Moore/Getty Images

For Eric Gamino, an assistant professor of criminology and justice studies at California State University, Northridge, Operation Lone Star is following a familiar script.

Nine years ago, Gamino was a police officer participating in then-Texas Gov. Rick Perry’s Operation Strong Safety, another deployment of state and local police to deter migrants from crossing the border, while at the same time finishing a dissertation on race, policing, and immigration in South Texas. As part of his doctoral research, Gamino’s supervisors agreed to allow him to document his job and interview his colleagues so long as he used pseudonyms for his subjects (a common practice in academic social research). Conducted from 2012 through 2015, a span that included the beginning of the ongoing influx of unaccompanied Central American children into the Rio Grande Valley, Gamino’s interviews and firsthand experience became the basis of a paper that was published in March of last year and a forthcoming book.

“You look at the terminology that’s utilized; it’s this narrative that there’s this onslaught.”

A lifelong resident of South Texas with more than decade of experience on patrol, Gamino’s work traces the long history of politicized policing deployments to his region of the country, from Operation Border Star to Operation Drawbridge to Operation Linebacker to Operation Strong Safety. “You look at the terminology that’s utilized; it’s this narrative that there’s this onslaught,” Gamino told The Intercept. This narrative is the basis for a performance of border theater that in Gamino’s experience plays out on two stages: The first, where politicians like Abbott perform, is public facing. The second, where Gamino spent his time as a participant and observer in Operation Strong Safety, is not.

Within this backstage setting, Gamino found a widespread view among his fellow officers that an operation pitched as a massive, critical quasi-military campaign to secure the border was fundamentally just another avenue for overtime, one that entailed sitting in a patrol car parked along the Rio Grande for hours on end, doing nothing. In his paper, Gamino describes a pre-shift roll call in which his supervisor acknowledged that officers had taken to calling the detail “Operation Netflix,” on account of all the streaming they were doing. The supervisor warned the officers not to fall asleep on the job because there were politicians in town, which meant that there were media in town as well. “Last thing you want them to do is catch you asleep while working Operation Strong Safety,” he said. According to Gamino’s account, the warning did little to stop the streaming and sleeping underway.

When officers did encounter undocumented migrants in Operation Strong Safety, Gamino writes, they had a choice: call Border Patrol or don’t. Some would. Some wouldn’t. The “overwhelming majority” of migrants Gamino encountered were Central Americans, mostly mothers and kids, fleeing a myriad of factors. “Violence, poverty, political instability, all these things,” he said. “All they wanted was just a chance to apply or seek asylum here in the U.S.”

What sets Operation Lone Star apart from its historical antecedents is the fact that the discretion Gamino had as an officer is now gone. State and local law enforcement officers are now making arrests themselves, and the arrestees are being funneled into the Texas criminal justice system. “With Lone Star, they upped the ante,” Gamino said. He added: “It doesn’t surprise me because Gov. Abbott is up for reelection.”

Like the initiatives that came before, Gamino argued, the point of Operation Lone Star is not the stated objective, it’s the storytelling. He described it as “the same poison in a differently labeled bottle.” In his paper, Gamino recounts the visits from lawmakers based outside the Rio Grande Valley during the so-called surge of unaccompanied minors in 2014, with Republicans doing their obligatory ride-alongs with border law enforcement officers and Democrats visiting the local migrant shelters.

“I see it as a borderland resident,” Gamino said. “You have these politicians that parachute to the Valley do their little one-day tour, do their little photo op, do their little press conference, and then what happens? They either fly back to Austin or they fly back to Washington, D.C.”

Through his research, Gamino argues that border theater is not only ineffective, but also a waste of taxpayer money that could be better spent assisting the local communities and nonprofits that provide aid in the face of an obvious humanitarian crisis. “Who ends up losing is these Central American asylum-seekers who have a legitimate case,” he said. “It gets overshadowed by the whole optics of border life.”

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