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Judge rules Texas’ criminal trespassing charges against migrants unconstitutional

Texas Department of Public Safety special agents apprehend a group of five men from Honduras who were caught on private property as part of Operation Lone Star in Kinney County near Brackettville in November 2021.
Verónica G. Cárdenas for ProPublica/The Texas Tribune
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Texas Department of Public Safety special agents apprehend a group of five men from Honduras who were caught on private property as part of Operation Lone Star in Kinney County near Brackettville in November 2021.

A Kinney County Judge ruled an Operation Lone Star policy to be unconstitutional for being discriminatory against migrant men.

A Kinney County Judge ruled that a policy under Governor Greg Abbott’s controversial border security program, Operation Lone Star, is unconstitutional because it directs law enforcement to arrest only migrant men under criminal trespassing charges.

In his ruling, Judge Dennis Powell said that “the policy of Operation Lone Star, as it now stands, has a discriminatory effect and is motivated by a discriminatory purpose.” Now, cases that have already been heard will be thrown out.

Operation Lone Star Indigent Defense brought the matter to court. According to the organization’s legal director, Doug Keller, this decision was important because allowing the policy sets a dangerous precedent.

“If the state could discriminate based on sex in these cases it could also then discriminate based on race in the criminal justice system or discriminate based on religion,” Keller said.

Additionally, he said, arresting migrants on criminal charges is ineffective in preventing illegal crossings.

“They've already risked a tremendous amount to come here,” Keller said. “So the idea that the threat of a misdemeanor prosecution is going to deter them just seems silly, that's not gonna be what keeps them from coming.”

Legal experts have also criticized Operation Lone Star for creating a separate legal system that treats migrants differently from others charged with the same crime.

Keller said that under the program, migrants are tried in courts out of the alleged crime’s jurisdiction and are held in a repurposed jail rather than a pretrial facility. While defendants are appointed an attorney, most interactions occur over Zoom.

Lastly, he said, the system deprives defendants of their right to a fair trial because the border patrol turns in migrants to the Texas Department of Public Safety (DPS) to be charged with criminal trespassing and then Texas DPS surrenders them to border patrol after they bond out of custody.

“In these cases, what happens is the person is thrown across the border. They have no legal right to return to the United States. And then as a practical, not as a legal matter, they can’t exercise their right to trial,” Keller said.

Earlier in the year, this collaboration between state and federal entities over immigration matters also led a Travis County judge to throw out cases. The judge ruled that the policy infringed on federal jurisdiction over immigration and was therefore unconstitutional.

Keller said while there is obviously a real issue at the border that merits concern, Abbott’s current strategy is not the answer.

“The solution to this problem is not to try to throw poor people in jail to try to deter them from making a better life for themselves,” Keller said.

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Carolina Cuellar