Federal judge extends restraining order prohibiting state troopers from stopping migrant transports

National & World News

Shadows of migrants lined up at an intake area are cast along the side of a bus after turning themselves in upon crossing the U.S.-Mexico border Tuesday, May 11, 2021, in Roma, Texas. (AP Photo/Gregory Bull)

EL PASO, Texas (KTSM)  — A temporary restraining order blocking Texas Gov. Greg Abbott’s executive order prohibiting the transportation of migrants throughout the state has been extended for two weeks.

The extension comes after lawyers from the state of Texas filed a motion Thursday night to transfer the proceedings to North Texas.

District Judge Kathleen Cardone of El Paso issued the extension that will prevent state troopers from stopping vehicles believed to be transporting migrants.

Abbott’s order claims it was issued to protect public health across the state by limiting the movements of migrants.

“How is this different from an executive order that would prohibit the movements of all unvaccinated people in the state?” Cardone asked.

“Just because Texas could make additional executive orders doesn’t mean it must,” said William T. Thompson, Deputy Chief of Litigation Unit, working for the defense.

The division between the state of Texas and federal government was made clear inside the courtroom Friday morning.

Thompson and Patrick K. Sweeten, Deputy Attorney General for Special Litigation for the state of Texas, sat unmasked at the defense’s side of the courtroom despite mask mandates inside federal buildings. 

Attorneys from the Justice Department (DOJ) and Department of Homeland Security (DHS) pored over binders of documents, some wearing two masks. 

The state was originally set to call one live witness and the U.S. three, but the U.S. decided to forgo its witnesses after the state said they would not be calling its own.

Texas objected to the DOJ’s witnesses’ declaration without first performing a cross-examination on the basis of hearsay.

“Your ability to prepare is not impeded by their declarations,” Cardone determined.

“Things changed when Texas decided not to bring witnesses on Wednesday night,” she added.

Lawyers for the U.S. argued that Abbott’s executive order unfairly targets migrant populations, while also authorizing state troopers to make immigration determinations that it is not authorized to do. 

Migrants released by agencies like U.S. Customs and Border Protection (CPB) and Immigration and Customs Enforcement (ICE) have permission to be in the country, said Brian Boynton, Acting Assistant Attorney General for the U.S.

“We don’t require them to stay at the border. There’s no desire to have non-citizens stay at the Texas border and I don’t think the state of Texas would want that either,” he said. 

Boynton argued that that state is attempting to impede government operations that directly conflict with federal law.

The Texas Department of Public Safety (DPS) has not created a set of enforcement guidelines that would determine who state troopers could stop and question under the executive order. 

“There’s no way to operationalize this executive order,” said Boynton. “States can’t impair government operations by determining who drives migrants or regulate the federal contractors that do.”

Cardone raised the question as to how public health in the state would improve through this order, given that surges in cases are being seen across the country, largely because of the rate of people who are unvaccinated.

“For this population, they should not be transported,” Thompson said.

“Then why shouldn’t it be the same for unvaccinated people?” Cardone said.

“The danger is just different,” he said. 

Thompson argued that Texas has the authority to determine Title 42 expulsion, to which the lawyers for the U.S. laughed.

Cardone inquired how these determinations would be made, and Thompson replied he’d have more details “if and when the DPS guidelines come out.”

Texas made a request to transfer the proceedings to a court in North Texas, citing “the first-to-file” rule, and an existing case is being reviewed by a judge in North Texas as the state sues the Biden administration for allegedly failing to enforce Title 42, a Centers for Disease Control and Prevention public health order issued in March 2020 to prevent the cross-border spread of COVID-19. 

Lawyers for the state claimed that migrants are being released en masse with COVID-19 to border communities without being tested.

“How do you know they haven’t been tested while in federal custody?” Cardone asked.

“At the end of the day this is a serious public health problem,” Thompson said.

Cardone replied that cases are high across the country, not just the state of Texas and that tens of thousands of people who are not migrants are contracting COVID-19 without coming into contact with migrants or those who work with them.

“The numbers are just different,” Thompson said.

Lawyers for the U.S. concluded by stating that lawyers for the state have not sufficiently explained how Texas would be negatively impacted by an injunction to block the executive order. 

“The only question is whether transporting migrants creates a public health risk,” Boynton said.

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