By: Cassandra Whall*

Recently, the news is dominated by discussions of a broken immigration system that has been straining the South, and the South’s belief that taking immigration into its own hands is the only appropriate and effective solution.^[1] For months, Florida and Texas have been sending buses and planes filled with migrants to sanctuary cities, citing their inability to provide for the unprecedented rate of land border crossings.^[2] Those concerned for the health and safety of migrants were shocked when Texas officials began constructing barriers of razor wire across the Rio Grande in July 2023,[3] which have led to the unnecessary deaths of a woman and two children.^[4] Tensions heightened further when the federal government instructed border patrol agents to cut these barriers, which the Supreme Court permitted in early 2024.[5] This has culminated in a large-scale dispute where Texas, supported by over 25 other states, challenged President Biden’s execution of his executive duties.^[6] Greg Abbott, Governor of Texas, specifically asserted Texas’s authority to protect itself from what Abbott deemed an “invasion” from the southern border.^[7]

It is well-established that immigration is a field of law solely within the federal government’s authority to regulate.^[8] However, supporters of Texas’s position in this debate argue for more state power to arrest and detain individuals suspected of immigration violations.[9] Although 61 local law enforcement agencies across 17 states already possess the authority to arrest and detain for immigration violations through 287(g) agreements, these are individual contracts made between the federal government and county sheriff’s offices.[10] Texas supports far more extensive state control, where all police across the state could arrest people they suspect of committing unlawful entry whether or not the officers have been deputized by the federal government.[11] Proponents of state control over

Empowering State authorities to enforce immigration policy “threatens severe damage to the social fabric of communities across the nation.”^[13] Mutual trust between the police and the communities that they serve is critical to effective policing.[14] When undocumented persons are aware that local law enforcement officers work with Immigration and Customs Enforcement (ICE) or have the authority to become involved in immigration matters, this trust is undermined.[15] For example, undocumented individuals state that they are less likely to report crimes that they have been victims of, or have witnessed.[16] This chilling effect is found to extend to immigrants who are lawfully present in the United States, out of fear that their status would be questioned in any way.[17] If residents, regardless of their status, do not feel they are able to work with local authorities, they may not provide information to ensure that bad actors are held accountable for their actions.[18] The Department of Justice also notes how it is a well-established fact that criminals will target undocumented people because of their reluctance to inform police of their victimization.[19] Distrust in state and local law enforcement could create communities that are under-protected by police, where crime thrives, affecting the lives of all residents.[20]

In addition to chilling community engagement in public safety, states taking a role in policing immigration could contribute to the ever-present issue of pretextual and race-based policing. State law enforcement agencies have long been criticized by activists, lawmakers, and legal professionals for racial profiling and how this practice informs whose lives intersect with the criminal justice system.[21] Just last year, national leaders of the NAACP and local activists called for the Department of Justice to investigate the New Jersey State Police following concerns of racist police conduct in the field and internally.[22] Specific to immigration, Arizona State Police have been painted as “suspicious of drivers who were listening to Mexican music,” as described by the experience of a U.S. citizen, Catalina Veloz, when she experienced two traffic stops in one day which she believes were demonstrative of racial profiling.[23] Social psychologists assert that at the heart of racial profiling is inherent bias, meaning possible solutions may be understanding and combatting these beliefs through quality information and expectations.[24] Despite greater training and higher standards for specialized agents such as ICE agents, federal immigration authorities are known to engage in significant racial profiling that leads to inconsistent enforcement against individuals who appear to be racially or ethnically diverse.[25] If state troopers and local police broadly possessed the authority to stop, arrest, and detain those suspected of immigration violations, this could create greater opportunities for law enforcement to exercise biases and affect the lives of those who fit an officer’s expectation of an illegal immigrant.

Texas’s success in taking immigration under its own control could cause damaging practices to proliferate across the United States. State and local law enforcement, organizations already distrusted for their disparate treatment of non-White persons, could be empowered to arrest and detain more individuals who would otherwise be outside of their authority. Allowing states this power could institutionalize significant harms to migrant communities, and further strain the relationship between police and migrants, immigrants, or anyone authorities believe could be present in the United States unlawfully.

*Cassandra Whall is a Staff Writer on JLI Vol. 42.

^[1] See generally J. David Goodman, Texas Will Expand Effort to Control Land Among Mexican Border, Abbott Says, New York Times (Feb. 4, 2024), https://www.nytimes.com/2024/02/04/us/texas-border-abbott-governors.html; Lauren Gambino, Andrew Witherspoon, Marcus Peabody & Chris Michael, The Unprecedented Situation at the US-Mexico Border, The Guardian (Feb. 7, 2024), https://www.theguardian.com/us-news/2024/feb/07/mexico-border-explained-chart-immigration.

^[2] Seth Wessler, Bused From Texas to Manhattan, an Immigrant Struggles to Find Shelter, ProPublica (Feb. 7, 2024), https://www.propublica.org/article/bused-from-texas-to-nyc-immigrant-struggles-to-find-shelter.

[3] Valerie Gonzalez & Acacia Coronado, Texas is Using Disaster Declarations to Install Buoys and Razor Wire on the US-Mexico Border, AP News (July 23, 2024), https://apnews.com/article/immigration-texas-border-buoys-wire-abbott-5f138e354e88fc319f46c55344d7335c.

^[4] Jonathan Allen, Three Migrants Drown at U.S. Border as Texas, White House Feud, Reuters (Jan. 16, 2024),  https://www.reuters.com/world/us/three-migrants-drown-us-border-amid-dispute-between-texas-white-house-2024-01-14/.

[5] Mark Sherman & Paul J. Weber, Supreme Court Allows Federal Agents to Cut Razor Wire Texas Installed on the US-Mexico Border, AP News (Jan. 22, 2024), https://apnews.com/article/supreme-court-immigration-texas-razor-wire-9daef6bd316211b6633ece718e505187.

^[6] Sam Cabral, 25 Republican Governors Back Texas in Escalating Border Standoff with US Government, BBC (Jan. 25, 2024), https://www.bbc.com/news/world-us-canada-68101927.

^[7] Greg Abbott, Statement on Texas’ Constitutional Right To Self-Defense, (Jan. 24, 2024).

^[8] Arizona v. United States, 567 U.S. 387 (2012) (finding that Arizona laws in conflict with federal alien registration requirements are preempted and therefore unconstitutional).

[9] Patrick Svitek & Renzo Downey, At Texas-Mexico Border, Ron DeSantis Unveils Immigration Platform with Trump in Mind, The Texas Tribune (June 26, 2023) (describing how the Florida governor called for deputizing more local law enforcement to manage the border).

[10] U.S. Customs and Immigr. Enf’t, Delegation of Immigration Authority Section 287(g) I.N.A., https://www.ice.gov/identify-and-arrest/287g (Feb. 2, 2024).

[11] Uriel J. Garcia, Gov. Greg Abbott Signs Bill Making Illegal Immigration a State Crime, The Texas Tribune (Dec. 18, 2023), https://www.texastribune.org/2023/12/18/texas-governor-abbott-bills-border-wall-illegal-entry-crime-sb3-sb4/#:~:text=Greg%20Abbott%20signs%20bill%20making,billion%20for%20more%20border%20barriers.

[12] Leticia M. Saucedo, States of Desire: How Immigration Law Allows States to Attract Desired Immigrants, 39 Immigr. & Nat’lity Rev. 215, 234 (2018) (highlighting legislation passed in California using state authority to protect immigrants in areas of employment, housing, and education).

^[13] Michael J. Wishnie, State and Local Police Enforcement of Immigration Laws, 6 U. Pa. J. Const. L. 1084, 1095 (2004).

[14] Dep’t of Just., Cmty Relations Servs. Toolkit for Policing, (2015).

[15] Laura Munoz Lopez, How 287(g) Agreements Harm Public Safety, Center for Am. Progress (May 8, 2018), (explaining the chilling effect that 287(g) agreements have had on undocumented Mexican immigrants, and Latinos generally, regardless of immigration status), https://www.americanprogress.org/article/287g-agreements-harm-public-safety/.

[16] Id.

[17] Id.

[18] Id. (telling the story of an individual who provided key testimony in a murder case, who was subsequently detained and reported that he would not have assisted law enforcement if he had known his own safety and freedom was on the line).

[19] Matthew Lysakowki, Albert Anthony Pearsall III & Jill Pope, Policing in Immigrant Communities, U.S. Dep’t of Just. 4 (2009).

[20] Id.

[21] David A. Harris, Racial Profiling: Past, Present, and Future? A.B.A. (Jan. 21, 2020), https://www.americanbar.org/groups/criminal_justice/publications/criminal-justice-magazine/2020/winter/racial-profiling-past-present-and-future/.

[22] Sophie Nieto-Munoz, Activists Call for Federal Oversight of N.J. State Police Over Racial Discrimination Allegations, N.J. Monitor (July 12, 2023), https://newjerseymonitor.com/2023/07/12/activists-call-for-federal-oversight-of-n-j-state-police-over-racial-discrimination-allegations/.

[23] Mary Romero & Marwah Serag, Violation of Latino Civil Rights Resulting From INS and Local Police’s Use of Race, Culture, and Class Profiling: The Case of the Chandler Roundup in Arizona, 52 Clev. St. L. Rev. 75, 89–90 (2005).

[24] Jack Glaser, Suspect Race: Causes and Consequences of Racial Profiling 45 (2015).

[25] Michael J. Wishnie, State and Local Police Enforcement of Immigration Laws, 6 U. Pa. J. Const. L. 1084, 1102 (2004).