Fifth Circuit Blocks Admin from Cutting Texas Border Fence

I recently reported that the Fifth Circuit had granted the state of Texas a temporary stay to stop the Biden administration from cutting a border fence made of concertina wire (“c-wire” in this lawsuit’s description) along the Rio Grande near Eagle Pass, Texas. The circuit court added more permanence to its actions this week in a published decision granting the state an injunction pending appeal. That order is based on one of the oldest of common law legal principles—tort law—simply underscoring how ridiculous this whole incident has become. It raises an important question, however: If “limited resources” are the administration’s justification for not enforcing the immigration laws, why is the administration wasting those resources to remove a key impediment to illegal immigration? 

“Operation Lone Star”, Title 42, and the C-Wire Fence

In the law-enforcement void created by the Biden administration’s refusal to enforce provisions of the Immigration and Nationality Act (INA) at the Southwest border, in March 2021 Texas Gov. Greg Abbott (R) launched “Operation Lone Star”, a state effort to supplement CBP’s border-security efforts. 

As the governor explained when he launched the operation: 

The crisis at our southern border continues to escalate because of Biden Administration policies that refuse to secure the border and invite illegal immigration …. Texas supports legal immigration but will not be an accomplice to the open border policies that cause, rather than prevent, a humanitarian crisis in our state and endanger the lives of Texans. We will surge the resources and law enforcement personnel needed to confront this crisis.

In the beginning, Lone Star was largely staffed by state troopers from the Texas Department of Public Safety (DPS) and National Guard troops from the Texas Military Department (TMD). The troops would monitor movements along the border and report to CBP and to the troopers, while the troopers would pursue and interdict smugglers and illegal migrants. 

I spent two days embedded with the troopers in Del Rio and Eagle Pass in August 2021, one day in a state vehicle patrolling the highways and fields and a day in a state police helicopter. The troopers were great, but it was still a grueling and taxing experience. Again—I did it for two days, but the troopers were there, most of them far away from home, for weeks to months at a time. 

Once they apprehended smugglers, migrants, and drugs, the troopers would call in to Border Patrol to come and pick everyone and everything up. Sometimes agents responded quickly, but other times they were too overwhelmed processing illegal entrants to show up in a timely manner. 

DPS could then, and did, charge the migrants with violations of state crimes, such as trespassing on private land and drug trafficking and/or possession. Texas recently passed its own law to broaden that authority that makes illegal entry into the state across an international boundary a crime, but that law is not set to take effect for 90 days (assuming it’s not enjoined). 

Operation Lone Star expanded in the weeks leading up to the termination of Title 42 on May 11. A massive rush of migrants was expected across the border once that public-health order (which directed the expulsion of illegal entrants to mitigate the spread of Covid-19) ended, and DPS and TMD wanted to be ready. 

To prevent migrants from crossing the Rio Grande illegally post-Title 42, DPS and TMD began erecting c-wire fences along the banks of the river. As the Fifth Circuit noted in its most recent order: 

The c-wire serves as a “deterrent—an effective one at that,” causing illegal crossings to drop precipitously. “By all accounts, Border Patrol is grateful for the assistance of Texas law enforcement, and the evidence shows the parties (Texas and CBP] work cooperatively across the state, including in El Paso and the Rio Grande Valley.” 

Eagle Pass and Maverick County

That gratitude, however, does not appear to extend to Texas’ “assistance” in Eagle Pass and Maverick County, areas the circuit panel described as “the epicenter of the present migrant influx” because “nearly a quarter of migrant entries into the United States happen there”. 

Border Patrol had set up a temporary processing center in Maverick County, on a private parcel near the river, while Texas has emplaced 29 miles of c-wire barrier along the Rio Grande in the area.

All the parties to this case agree that it is appropriate to cut that wire in emergency situations, to save drowning migrants and migrants in distress. Texas claimed, however, that the c-wire was being destroyed in non-exigent circumstances and sued in federal court to stop the destruction of its property. 

The Common Law Tort of “Trespass to Chattels”

As I explained in October, one of the bases for relief presented by the state in that lawsuit (Texas v. DHS) was the common law tort of “trespass to chattels”.

Trespass to chattels is defined at common law as “an intentional act by a defendant that interferes with the chattel”, “chattel” being any personal property that can be moved (as opposed to real property, which can’t).

The chattel in this case is the c-wire, and the state alleged that by cutting it, DHS interfered with that c-wire and diminished “the wire’s utility as a barrier fence” and deprived Texas “of its use for a substantial time”. 

U.S. district court Judge Alia Moses was sympathetic to the state’s interest (her order finding for the administration was largely an excoriation of the administration’s border policies), but she held that federal “sovereign immunity” principles barred her from granting the state relief on that common-law tort claim. 

In response to that order, Texas asked the Fifth Circuit for a “temporary restraining order for the purpose ‘of preserving the status quo and preventing the irreparable harm’ that [would] occur if” DHS were “allowed to continue cutting, destroying, or otherwise damaging” Texas’s c-wire fence (internal brackets omitted).

Section 702 of the Administrative Procedure Act

Again, Judge Moses had concluded that the federal government had not waived its sovereign immunity to suits based on the common law tort of trespass to chattels. The Fifth Circuit disagreed, however, pointing to section 702 of the Administrative Procedure Act (APA).

As the Congressional Research Service (CRS) has explained, the APA, “applies to all executive branch and independent agencies, [and] prescribes procedures for agency rulemakings and adjudications, as well as standards for judicial review of final agency actions”. 

Section 702 states, in pertinent part:

A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party. The United States may be named as a defendant in any such action, and a judgment or decree may be entered against the United States . . .. [Emphasis added.]

The circuit court concluded that section 702 waived immunity for Texas’s trespass to chattels claim, inasmuch as Texas brought that claim “as ‘an action’ in federal court”, sought “relief other than monetary damages”, and stated “a claim that a federal agency’s officials and employees ‘acted or failed to act in an official capacity or under color of legal authority’”.

On that basis, the court found that Texas had a colorable claim for relief and granted the state the stay it was seeking.

The Administration’s “Alternative Arguments”

The circuit panel noted, however, that the administration did “not meaningfully engage with the plain language of § 702 or with the precedents applying it. Instead, they raise[d] alternative arguments in support of the district court’s denial of a preliminary injunction”, all of which the circuit court dismissed.

One of those “alternative arguments”, and the one most salient to this analysis, is based on section 242(f)(1) of the INA, which states: 

Regardless of the nature of the action or claim or of the identity of the party or parties bringing the action, no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of the provisions of part IV of this subchapter. . . other than with respect to the application of such provisions to an individual alien against whom proceedings under such part have been initiated.

If that provision sounds familiar, it’s because the Supreme Court referenced it in its recent opinion in Texas v. U.S., finding that courts generally lack authority to force the executive branch to enforce the INA. 

The circuit panel made short work of that section 242(f)(1) argument, however, concluding that in cutting the c-wire, DHS didn’t rely on any of its authority in “part IV of this subchapter” of the INA (sections 231 to 8 U.S.C. § 1232), but rather acted under sections 103(a)(3) (DHS’s general authority) and section 287(a)(3) (Border Patrol’s general authority at the border).

Rejection of the Administration’s Factual Claims

I will spare you an analysis of the circuit court’s determination that Texas had satisfied the necessary legal requirements to obtain a stay pending appeal (which focuses in four factors: likelihood of success on the claim; irreparable injury; injury to the other parties; and where the public interest lies) to narrow in on key factual findings of the court, affirming findings of Judge Moses below.

The administration argued that it was required to cut the c-wire to perform its statutory duty under the INA to “inspect, apprehend, and process” what were described as “incoming aliens”. 

In reality, Judge Moses concluded, and the circuit agreed, none of the aliens who crossed through the gaps were actually inspected, and even if CBP wanted to inspect those aliens, it didn’t have to cut the c-wire to do so—Border Patrol already controlled both sides of the fence. 

Nor was cutting the c-wire required to apprehend or process the aliens, either. The circuit quoted Judge Moses in explaining: 

Indeed, no one was “apprehended” or placed in “custody”—as the court found, aliens coming through the holes were merely waived along in the “hope that they will flow in an orderly manner . . . to the nearest processing center.” Moreover, agents let “some 4,555 migrants in during the September 20 [fence-cutting] incident, but only 2,680 presented themselves for processing.” Accordingly, the court found that “[n]o reasonable interpretation of the definitions of ‘apprehension’ or ‘detention’ can square with Border Patrol’s conduct.” [Internal brackets omitted.]

I reference these findings for two reasons. First, they were relevant to the circuit court’s determination. Second, and as important, they raise important questions about what the Biden administration is doing at the Southwest border generally, and at Eagle Pass in particular. 

The United States can’t secure the Southwest border unless it can deter aliens from crossing that border illegally. There’s no issue—and the circuit court expressly finds—that the c-wire fence is deterring aliens from crossing the river at Eagle Pass and along the border at the Rio Grande in Texas. 

Eagle Pass—and Maverick County in which it sits—is, as the circuit court held, “the epicenter of the present migrant influx” because “nearly a quarter of migrant entries into the United States happen there”. 

Given all that, why is the administration allowing (if not expressly directing) Border Patrol agents there to cut that wire for no better reason than to make it easier for aliens to enter the United States illegally? C-wire isn’t being cut anywhere else in Texas for anything other than emergencies—so why there? 

Which leads to the litigation itself. Why has Biden’s DOJ decided that cutting that c-wire—which is plainly a deterrent and in a major migrant crossing spot—is the hill that it wants to die on in this case? Is this simple petulance? And, doesn’t the Attorney General have anything better to do (like prosecuting drug and human smugglers) than engage in what is ultimately just a petty spat? 

The Biden administration, literally since day one, has tried to justify its non-enforcement actions by asserting its enforcement resources are “limited”. So, why is it wasting those resources fighting to remove one of the few impediments keeping aliens from entering illegally? It’s a valid question, because thus far it’s losing this fight, both in the federal courts and in the court of public opinion.