On Sunday, 14 people got off a bus at the Port Authority bus terminal in midtown Manhattan. New York City was the final destination of their three-day bus trip from Texas. The undocumented migrants had crossed the border between U.S. and Mexico, and according to Politico, they’re among thousands of people who have been sent to either Washington, D.C., or New York under the direction of Gov. Greg Abbott.
According to the governor, the policy is a response to the Biden administration’s failure to secure the border. Moving the migrants is unprecedented but necessary to keep Texas communities safe, he said. That’s also what’s behind another policy involving the transportation of migrants: Since July, state troopers have also taken migrants to ports of entry along the border, and handed them over to federal authorities.
But that’s not normally how it works. The federal government is responsible for enforcing immigration law and taking custody of migrants. Now, the American Civil Liberties Union has asked the Department of Homeland Security to look into the policy.
Elissa Steglich, co-director of the Immigration Clinic at the University of Texas at Austin’s School of Law, joined Texas Standard to share more about the legal questions surrounding these policies.
This transcript has been edited lightly for clarity:
Texas Standard: So why is the ACLU doing this? What’s behind their questions of this policy?
Elissa Steglich: Well, since early mid last year, Governor Abbott has announced several initiatives to have local officials really directing immigration enforcement in the state of Texas, mostly for political reasons. And these programs include the arrest and detention of migrants under state trespassing laws, a program that’s been widely criticized. It also included a measure last year that would have prevented most movement of migrants around the state, and court found that to be legally invalid. So this is just the most recent iteration of the governor of Texas wanting to step into what has traditionally been what the Supreme Court has held to be at the federal landscape.
So what are they worried might happen? What are the potential bad outcomes that the ACLU is concerned about that could result from this policy of the state transporting these folks?
Just to be clear, so the announcement in July encourages DPS and Texas National Guard to detain and transport people thought to be undocumented migrants to the southern border. And the ACLU has raised concerns with the federal government’s cooperation with what appears to be these unilateral actions of the state to detain migrants. And as I said, the Supreme Court clarified in 2012 that states cannot enforce civil immigration law on their own. So the ACLU reiterates complaints of racial profiling and other discriminatory practices in not only this, but other implementation of these Operation Lone Star policies. And numerous civil rights organizations, including the ACLU, have made repeated calls for the Department of Justice to cut funding to state law enforcement because of the discriminatory practices.
Practically speaking, the ACLU points out some real health and well-being concerns, because the way it seems to be operating is that the state is bringing numerous, 100-plus individuals to an outdoor staging area and leaving them there for several hours before Border Patrol arrives to then transport them to the Border Patrol station. So obviously, in the 100-plus degree heat, we have experienced people sitting outside – and not only men; women, children – and can cause huge health concerns.
On the other policy of busing migrants to Washington, D.C., and New York City – what kind of legal issues are involved there?
Well, I think the key legal issue is voluntariness. Nothing prohibits the state – or the federal government, for that matter – from providing transportation to people already given documents by the Department of Homeland Security. They’re free to move. But given the context of how this busing program was announced and the political pressures and the optics of it, we really need to make sure that migrants understand that they have a choice whether to board the bus or not.
Is there evidence that folks are being forced onto these buses rather than just getting on voluntarily?
We need to be vigilant and make sure that those who are welcoming folks in D.C. and New York City have a clear understanding as to what happens. There’s not a lot of oversight that’s being provided at these buses, and getting on the buses are happening in areas where service agencies usually are not. And so it’s unclear exactly what is being told to individuals as they get on the bus.