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A federal judge on Wednesday denied Texas Attorney General Ken Paxton’s request to stop Border Patrol agents from cutting concertina wire the state has laid out on the banks of the Rio Grande to stop migrants from crossing the border illegally.
In her order, U.S. District Judge Alia Moses of Del Rio said Texas didn’t provide enough evidence to show the federal government has violated the law — but she criticized Border Patrol agents’ behavior and the federal government’s immigration policy in general. She added that while she is ruling in favor of the Biden administration, it doesn’t mean Paxton’s office can’t later provide more evidence that the federal government has violated the law.
“The law may be on the side of the [Biden administration] and compel a resolution in their favor today, but it does not excuse their culpable and duplicitous conduct,” Moses wrote in her ruling.
In her order, Moses said she understands why Border Patrol agents may be cutting the wire, especially in cases of emergencies to prevent injuries or deaths at the Rio Grande, where countless migrants have died. Still, she said, those problems “are of their own creation.”
“Any rational observer could not help but wonder why the Defendants do not just allow migrants to access the country at a port of entry,” Mose wrote “If agents are going to allow migrants to enter the country, and indeed facilitate their doing so, why make them undertake the dangerous task of crossing the river? Would it not be easier, and safer, to receive them at a port of entry?”
Many of the people coming to the U.S.-Mexico border are seeking asylum. Currently the federal government is asking migrants to make an appointment on its cellphone-based application, CBP One, to meet with immigration agents at a port of entry. But the 1,450 appointments available each day across the entire U.S.-Mexico border fill quickly and many migrants opt to cross the border away from ports of entry and surrender to U.S. authorities.
Paxton sued the Biden administration last month, claiming that the Border Patrol illegally destroyed state property when its agents cut through the state’s concertina wire to “assist” migrants to “illegally cross” the border.
Within the past three years, the Texas Military Department has spent $11 million to place 70,000 rolls of concertina wire in different parts of the Texas-Mexico border, most notably in Eagle Pass, where migrants have been seriously injured trying to get through the wire. About 29 miles of wire have been rolled out in Maverick County, which includes Eagle Pass.
Paxton’s office appealed Moses’ order on Thursday to the Fifth Circuit Court of Appeals.
“I am disappointed that the federal government’s blatant and disturbing efforts to subvert law and order at our State’s border with Mexico will be allowed to continue,” Paxton said in a statement. “Biden’s doctrine of open borders at any cost threatens the safety of our citizens, and we will continue to fight it every step of the way.”
Last month, Moses issued a temporary order to stop Border Patrol agents from cutting the wire, except during emergencies that would result “in serious bodily injury or death to a person.” That temporary order expired on Monday.
During court hearings this month, Moses heard arguments from Paxton’s office and Biden administration lawyers and reviewed thousands of documents and videos before issuing Wednesday’s ruling.
Her ruling also noted that in some cases, Texas state troopers also have cut the wire to assist migrants in distress, and at one point troopers were working together with Border Patrol agents in Eagle Pass. But that “relationship has deteriorated over time, driven at least in part by at least one instance in which Texas DPS personnel threatened to criminally charge Border Patrol for cutting the wire,” Moses wrote, citing testimony provided by the federal government.
Earlier this year in Eagle Pass, a state trooper claimed the state’s concertina wire had injured people, including a woman who had a miscarriage while entangled in the wire. In an email message to a superior that was later leaked to reporters, the trooper also said that a 4-year-old girl who attempted to cross the wire “was pressed back by Texas Guard soldiers due to the orders given to them” on a day when the temperature was well over 100 degrees. The girl passed out before receiving medical treatment, the email said.
The trooper’s claims are under investigation.
