The Washington PostDemocracy Dies in Darkness

Hundreds of migrants held for weeks without charges as Texas’s border crackdown overwhelms justice system

Texas Department of Public Safety vehicles parked near a migrant encampment on Sept. 23 in Del Rio. (Julio Cortez/AP)

BRACKETTVILLE, Tex. — Deriding the Biden administration’s border policy as a fruitless “catch and release” strategy as illegal crossings soared, Texas Gov. Greg Abbott vowed this summer to “start arresting everybody.”

The federal government is in charge of immigration enforcement. But the state, said Abbott (R), could lock migrants up for trespassing. Now, the crackdown has overwhelmed the criminal justice system at Texas’s southern border.

Critics see a move to please the governor’s conservative base that has created a whole new crisis without solving the first one. Hundreds of migrants have been detained in repurposed state prisons without formal charges, many in limbo for so long that they legally must be released. Prosecutors are backlogged with unprecedented caseloads as more arrests roll in each day. Alarmed defense attorneys accuse the state of creating a “separate and unequal” legal system for undocumented immigrants deprived of due process.

“Essentially people are disappearing in the system without case numbers, without documentation that’s publicly accessible,” said Kathryn Dyer, a professor at the University of Texas School of Law’s criminal defense clinic. She said that she worries about the migrants’ access to legal counsel and that her clients found aid through the efforts of family. “It’s just really scary,” she said.

Authorities know they cannot keep up with all of the arrests, Dyer said, “but they think that they can get away with it.”

A state district judge Tuesday approved the release of about 250 migrants on no-cost bail after lawyers with Texas RioGrande Legal Aid argued that authorities blew past their deadline to prepare a case — leaving them without formal charges for over a month. But more than 900 remain imprisoned, state officials said Wednesday.

A spokeswoman for Abbott, Renae Eze, said that migrants arrested under Operation Lone Star are “turned over to ICE for processing” when discharged. But it is not clear how many people Immigration and Customs Enforcement might choose to take into custody, and the agency did not immediately clarify. Defense lawyers said many of the migrants have detainers, meaning ICE has asked that they be held temporarily while the agency decides what to do.

“While the Biden Administration refuses to do their job and ignores the pleas of border communities for help, Governor Abbott continues working with state and local partners to provide critical personnel and resources to secure the border and protect Texans,” Eze said in a statement.

Leaders from both parties have raised alarms about a humanitarian crisis at Texas’s border with Mexico but disagree sharply on how to respond. The Biden administration faced particular backlash last week over border agents’ treatment of Haitians who had crossed the U.S.-Mexico border, with Democrats denouncing the tactics and deportations as inhumane while Republicans called for stricter enforcement to keep people away.

Abbott announced the broad Operation Lone Star border initiative in March as an effort to “deny Mexican Cartels and other smugglers the ability to move drugs and people into Texas.” The former state attorney general, now facing primary challengers for the governorship, has made illegal crossings a top issue while criticizing President Biden — and he recently promised jobs to any Border Patrol agents fired over their treatment of the Haitian migrants, actions captured in viral photos and video.

The agents “wouldn’t have been in that situation had the Biden administration enforced the immigration laws and secured the border in the first place,” he told Fox News’s Chris Wallace.

As Abbott signaled that migrants would face widespread arrest for misdemeanors such as trespassing — punishable by up to a year of jail time — authorities scrambled to prepare.

Texas cleared out a state prison and worked to convert it to hold people yet to be convicted, even installing air conditioning to meet a requirement that jails stay below a certain temperature. The Texas Indigent Defense Commission, which oversees public defense throughout the state, was told to expect as many as 200 arrests each day, according to a planning document. The group projected that it could cost nearly $30 million annually to give everyone legal representation.

The Texas Department of Public Safety estimated the weekly overtime, travel and fuel costs for Operation Lone Star at more than $2.3 million, according to public records obtained by the nonprofit American Oversight and shared with The Washington Post. Promoting the operation this month, Abbott said the state has deployed thousands of members of law enforcement and also seeks to build a wall.

As of last week, the Texas Department of Public Safety had made more than 6,000 criminal arrests for alleged violations of state law since Operation Lone Star began, agency spokeswoman Ericka Miller said in an email. Cases include trespassing, criminal mischief, smuggling and human trafficking, Miller said, and more than 3,000 felony charges have been filed.

The Lubbock Private Defenders Office, hundreds of miles from the southern border, was enlisted to help appoint attorneys for migrants as cases mounted. Philip Wischkaemper, chief defender with the Lubbock group, likened the sudden burden on resources to “Pearl Harbor 2.”

“Nobody was prepared for it,” he said. Last he heard there were about 160 people waiting to be assigned attorneys, and advocates worry that others have slipped through the cracks and may not even have requested counsel.

Petitions to dismiss cases say that some of the largely non-English-speaking detainees were handed documents that said they declined appointed lawyers — and told to sign without having the papers explained in their native language. Court filings also argue that authorities violated migrants’ rights by moving them up to hundreds of miles away from their counties of arrest, “hours away from people able to provide help.” With more than 650 migrants in the first converted prison — Briscoe Unit in the tiny town of Dilley — authorities have started to send people to a second state prison: Segovia Unit in Edinburg.

The governor’s office did not respond directly to questions related to concerns about the treatment of detained migrants. Local officials said they ask people whether they want counsel, use interpreters and have worked hard to provide people with resources in an unprecedented situation. Some blame the federal government for not keeping migrants away in the first place.

Val Verde County Attorney David E. Martinez said all migrants in his area are appointed counsel before they head to the converted state prisons. In Kinney County, in contrast, County Judge Tully Shahan said that “every one of them is going to have an attorney, but we have to catch up.” A prosecutor there said earlier challenges ensuring access to legal counsel have been resolved.

“They are illegal aliens that are breaking the law,” Shahan said of the migrants, warning of crimes beyond trespassing and saying their resources are increasing now. “And … Kinney County cannot afford to stop prosecuting them.”

Texas RioGrande Legal Aid argued successfully that hundreds of migrants were kept beyond the legal limit — 15 or 30 days, depending on the type of trespassing alleged — and called the state prison conditions “substandard to those that any other pretrial detainee faces outside of Operation Lone Star.”

Some attorneys have challenged not just detainees’ prison stays but also their initial arrests. Prosecutors agreed to drop two cases this week when they were unable to produce evidence of trespassing in court, said Dyer, the law professor, who is helping represent the men. Lawyers also argued that Operation Lone Star unlawfully targets “males who appear to be Mexican or Central American nationals.”

“Really what is under attack under Operation Lone Star is due process,” said Alicia Torres of the criminal justice nonprofit Grassroots Leadership. The group celebrated the move to dismiss this week but said the men could still be transferred to federal immigration authorities. Another attorney, Kevin Herrera of Just Futures Law, said Thursday it remains unclear that everyone who is released will enter ICE custody and suggested the federal government has a choice to make about whether it will “facilitate and reward” Texas’s actions.

Nearly 800 of the migrants currently detained were arrested in Kinney County, Texas Department of Criminal Justice spokesman Robert Hurst said Wednesday. But prosecutors there had filed charges in fewer than 200 cases at that time, according to county officials, though the pace has picked up this week.

In neighboring Val Verde County, Martinez said the biggest delays in filing charges have stemmed from sometimes weeks-long waits for arrest reports from the Department of Public Safety. Miller, the agency’s spokeswoman, responded that the department is “submitting reports in a timely manner” and working with county attorneys to “ensure there are no gaps,” but she did not provide details on timing.

Martinez, a Democrat, said he believes “a lot of this work has been necessary” amid complaints from residents fearful of trespassers. But he said his office is not prosecuting many cases in which migrants appear eager to turn themselves in and pursue asylum claims.

Kinney County Attorney Brent Smith acknowledged delayed charges in an interview last week and said authorities are working out kinks in a new system. Not every case has the required probable-cause affidavit it needs, Smith added, and sometimes troopers neglect to provide the details necessary for Smith to make a charging decision.

The county prosecutor, who took office in January, said he needs an interpreter, a docket coordinator and more staffers. But the governor had not delivered, he said.

“It’s a mess,” he said. “Normally, this office does nothing close to 600 cases in a year, and I have 700 right now.”

Smith said he speaks regularly to fellow ranchers whose expensive property fences have been cut and whose high-priced exotic game has escaped through holes made by wandering migrants or speeding smugglers. He called his county the “epicenter” of the border crisis. As some migrants are released on bond, Smith noted that he can still prosecute and that any legal trouble for missing court dates could harm people’s immigration cases.

But “I don’t know if jailing them will fix the issue,” he said. “It’s a bad issue all around.”

David Ortiz, an attorney for some of the migrants, said he doubts the new arrests are having the deterrent effect many seek. People “don’t know what they’re getting into until they actually show up,” he said, recounting clients’ confusion. Two of them got their cases dismissed, he said, and Ortiz was hopeful another would continue on to try for asylum.

He sees the Operation Lone Star arrests as simply adding a costly step in the process for those who cross the border.

“It’s basically a show of force by the governor’s office,” said the attorney from Del Rio. “Is it really doing, accomplishing anything?”

Satija reported from Austin. Knowles reported from Washington.