Texas’ border operation is meant to stop cartels and smugglers. More often, it arrests migrants for misdemeanor trespassing.

By Jolie McCullough, The Texas Tribune
April 4, 2022

“Texas’ border operation is meant to stop cartels and smugglers. More often, it arrests migrants for misdemeanor trespassing.” was first published by The Texas Tribune, a nonprofit, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues.

This article is co-published with ProPublica, a nonprofit newsroom that investigates abuses of power, and with The Marshall Project, a nonprofit news organization covering the U.S. criminal justice system. Sign up for newsletters from ProPublica and The Marshall Project.

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For the past year, thousands of Texas National Guard members and state troopers have been sweeping through brush along the Rio Grande and cruising border-town roadways. Their eyes scan the horizon for the cartel operatives and smugglers whom Gov. Greg Abbott vowed to hold at bay when he launched his multibillion-dollar campaign to secure the border.

But more often, the troopers arrest men like Bartolo, a Mexican farmworker who came to the United States looking for work, according to his lawyers. They’ve also slapped cuffs on asylum-seekers like Gastón, a human rights attorney who said he fled Venezuela after being targeted by the Maduro regime for defending political opponents.

Though they don’t fit the specter of the hardened criminals that Abbott conjured when launching his border security initiative, men like Bartolo and Gastón are typical of the thousands arrested under Operation Lone Star, which is intended to combat drug and human smuggling.

In July, four months after the operation started, Abbott announced that, with the permission of landowners, the state for the first time would punish people suspected of illegally crossing the border by arresting them on suspicion of trespassing on private property. The unprecedented “catch-and-jail” system allowed the Republican governor to skirt constitutional restrictions that bar states from enforcing federal immigration law.

The misdemeanor charges quickly became a major piece of the governor’s border security crackdown. While Abbott has publicly focused on arrests of people accused of violence and drug trafficking, an investigation by The Texas Tribune, ProPublica and The Marshall Project found for the first time that trespassing cases represented the largest share of the operation’s arrests.

Of the more than 7,200 arrests made by state police over seven months, about 40% involved only charges of trespassing on private property, according to an analysis of Texas Department of Public Safety data by the news organizations. In February, the majority of the border operation’s arrests were of people booked solely for trespassing.

Trespassing arrests may help boost statistics for the operation, but they don’t deter cartels or gangs, said Victor Manjarrez, a former Border Patrol sector chief. Instead, he said, they hurt people who cross the border on their own, without using smugglers.

“I would rather have people like that spend time away,” Manjarrez said, referring to smugglers, “as opposed to someone who was just unlucky and an economic migrant.”

Under Abbott’s operation, men like Bartolo and Gastón are thrown into state prisons for weeks or months. There they languish in cells where they are given little food and face poor conditions and harsh treatment, detained men and their family members claim. Prison officials deny the accusations.

“As a migrant, I never imagined such a thing,” Gastón said in Spanish about his arrest and imprisonment, adding that he fled Venezuela to run away from a regime that was “going to lock you up and deprive you of your liberty.”

(The Texas Tribune, ProPublica and The Marshall Project agreed to identify those who were arrested by their first names alone because they fear publicity may affect their pending immigration or criminal cases.)

Last year, at Abbott’s urging, Texas lawmakers set aside nearly $3 billion for border security efforts, including nearly $24 million to retool state prisons as jails for people rounded up in Operation Lone Star, and more than $36 million for the related defense attorney, prosecutorial and court costs. Nearly $250 million was parceled out to DPS to pay for overtime and new troopers to police the border.

Abbott celebrated a year of the massive initiative last month by touting seizures of high levels of fentanyl and more than 11,000 criminal arrests. An investigation by the Tribune, ProPublica and The Marshall Project found that the state’s reported success has included both arrests that had nothing to do with the border or immigration and statewide drug seizures by troopers who are not part of the operation.

There is also little evidence that trespassing arrests have lowered the levels of illegal crossings, which remain at record highs along the southern U.S. border, including in the regions heavily targeted by the operation. The governor’s office, however, claims his approach deters potential caravans of people seeking entry to the U.S., and he measures success in arrests and drugs seized.

“Arrests and prosecutions both increase public safety and act as a deterrent to other potential law breakers,” Nan Tolson, an Abbott spokesperson, said in a statement.

Republican state leaders and some local border officials hail the operation as a necessary and tough stance against a continuing rise in illegal immigration. Hunting ranch managers and riverfront property owners said they hoped the arrests would eventually lead to fewer people trudging through their open fields, slashing fences and occasionally stealing or breaking into houses, as some residents have reported to police and media.

“It has turned into a new way of life. You have to go check your fences all the time because illegals are cutting them and you’re going to have livestock getting out,” said Cole Hill, property manager of an 8,000-acre hunting ranch that sits about 30 miles from the Texas-Mexico border in Kinney County, a small, conservative region where the majority of the trespassing arrests have been made. DPS reports obtained by the news organizations show at least a handful of foreign nationals have been arrested and accused of trespassing on Hill’s property and damaging a vehicle.

Eight months of mass arrests in Kinney county, however, doesn’t seem to have had the intended effect of keeping people from crossing the border there.

Chris Olivarez, a DPS lieutenant, said on Twitter last month that the county “continues to see an uptick in illegal immigrants trespassing on private ranches.” Abbott’s office said the mass trespassing arrests secure the border and protect local communities, even though they may not slow immigration. DPS did not respond to questions about the initiative’s effectiveness.

Hill, who hoped the arrest tactic was working when he began seeing fewer people he suspects had just crossed the border on his property at the end of last year, was disillusioned when activity picked up again shortly thereafter.

“I was thinking that Operation Lone Star in general had been slowing some of the traffic, but I think at this point it just seems a perpetual game of cat-and-mouse,” he said last month.

The trespassing arrests have led civil and migrants’ rights groups to level accusations of discriminatory arrest practices and overreach, and the operation has drawn legal challenges and legislative calls for federal investigations. President Joe Biden’s administration has not announced any action in response to the concerns, and constitutional court battles are ongoing. State courts have ruled that the system illegally imprisoned people accused of trespassing by violating due process laws.

Still, the operation is expanding. Though some officials in the most populous border counties called for more humanitarian aid instead of law enforcement when border crossings began climbing last year, the governor’s office has funneled millions in grant dollars to border counties willing to prosecute crimes like trespassing. In recent months, several south Texas counties began facilitating trespassing arrests, with more expected to join.

For men like Bartolo swept up into Texas’ criminal system, the operation’s impact is clear. In most cases, after spending as much as several months locked up with little information about what is happening, they shuffle through prison halls to sit in front of a camera for their virtual introduction to the Texas courts.

With concrete walls behind him, Bartolo stared dully into the camera in December and asked to be free from the state’s grasp, even if it meant he had to plead guilty and be deported. He cast his eyes down to his orange jumpsuit and swallowed hard.

“I’ve been in 103 days today,” he said in Spanish. “I want to get out.”

Prison for asylum-seekers

In July, state troopers were given new orders in two border counties where the number of border crossings was sharply increasing: capture anyone suspected of crossing into Texas illegally who can be tied to a state criminal offense.

The mass arrests began in Del Rio, a small border city about 150 miles west of San Antonio. It hadn’t been a hot spot for crossings for decades, but immigration authorities in the area encountered more than 300,000 border crossers last year, with crossings spiking to record highs in March and climbing throughout Operation Lone Star. The uptick has overwhelmed local resources and pushed Republicans to ramp up rhetoric against illegal immigration.

“President Biden turned our southern border into a porous mess where illegal immigrants wandered across the Rio Grande without anyone there to interdict them,” Abbott said last month in a video promoting the anniversary of Operation Lone Star. “I refused to stand by and let our state be overrun by criminals, deadly drugs like fentanyl and victims of human trafficking.”

The Biden administration did not respond to questions about Abbott’s claims. While Biden has sought to change some immigration policies enacted by former President Donald Trump, the current president has been criticized by members of his own party for continuing others. That includes Title 42, a provision of public health law enacted during the pandemic that allows the federal government to immediately send back the majority of foreign nationals encountered near the border; the rule is expected to remain in effect until May.

But most people returned under Title 42 were sent to Mexico, which only agreed to accept citizens of Central American countries. In Del Rio, many people were coming from countries like Venezuela, Haiti and Cuba and did not face immediate expulsion.

With Del Rio’s official port-of-entry bridge closed during the pandemic, many of those seeking entry to the U.S., sometimes hundreds a day, would wade the river and trudge in sweat-soaked clothes toward several gates along a wrought-iron border fence. The men, women and children who knew to approach these gates as entry points into Texas were detained by Border Patrol agents and either processed for asylum claims or quickly returned to Mexico or their home countries.

Under international and U.S. law, people who flee their countries to escape persecution on account of their race, religion, nationality, membership in a particular social group, or political opinions can apply for asylum, which, if granted, allows them to legally stay in the country.

But many people crossed elsewhere along the river, where Texas troopers waited with orders to arrest and imprison any man who was on private property and not in a family group — and sometimes took men into custody even if they were with relatives. State police were directed under the operation not to arrest women, children or families and instead refer them to Border Patrol. Asylum requests were not considered by the troopers making arrests, Olivarez, with DPS, said in October.

Gastón learned that the hard way.

A longtime defender of political protesters and government opponents in Venezuela, the 57-year-old lawyer said he fled to the United States after he began getting threatening phone calls from police and witnessed his client arrested by Venezuelan military officials during a softball game last summer. President Nicolás Maduro’s government and its security forces have been accused by human rights organizations of jailing, torturing and killing political opponents, and last year officials made a high-profile arrest of another human rights defender.

After multiple trips on planes and buses, Gastón arrived in Ciudad Acuña, the Mexican city across the border from Del Rio. At midday on Aug. 8, he waded through the ankle-deep Rio Grande — stopping to help a family nervous to cross the river with their young daughter, he says. He stepped onto an open road in sight of police, which he was later told was on private property.

Calmly, he told officers he was seeking asylum from persecution in his home country. He stared in shock as handcuffs were snapped onto his wrists.

“As a lawyer and defender of human rights, never in my life had I been handcuffed. Never,” Gastón said.

State trooper Serapio Flores wrote in his arrest report that Gastón emerged from the river onto property marked with a “No Trespassing” sign. The owner, like many in the area, had agreed to let DPS make trespassing arrests on the private land. Gastón said he saw no sign.

After a long night on a metal bench in a large tent, quickly erected outside the local jail to process the new swell of arrestees, Gastón was loaded into a van heading to a state prison more than 100 miles away.

The Briscoe Unit, a medium-security prison between Laredo and San Antonio that previously housed Texas felons, had been emptied to serve as a jail for those arrested under Operation Lone Star, mostly for those expected to be charged with trespassing.

In the prison, the detained men sat in cells unsure of when or how they would be able to leave or what would happen to them after they did, they and their families said. Many men and their family members begged for the detained men to be released and deported. Groups gathered nightly to pray.

Gastón said that during his stay in prison he lost 14 pounds and his faith in America’s compassion.

“It’s a wound that’s there, something you will never be able to forget,” he said.

Still, Gastón had it easier than many of those arrested for trespassing. He was picked up in Del Rio’s Val Verde County, the birthplace of Abbott’s trespassing effort, where a local Democratic prosecutor has since said he would not pursue cases against people seeking asylum under federal laws.

About a month after Gastón’s arrest, Val Verde County Attorney David Martinez dropped the charge against him “in the interest of justice,” according to the dismissal document.

Since then, Martinez said he’s dismissed or rejected many more — about two-thirds of trespassing charges in his county. He credited his decision to DPS Director Steve McCraw’s comments to lawmakers in August. Despite his agency’s arrests of numerous asylum-seekers, McCraw told lawmakers that state troopers on the border “were not looking for anyone who’s trying to give up, who are looking for asylum.”

DPS did not respond to questions about the discrepancy between McCraw’s statements and the arrests of asylum-seekers.

The prosecutor dropped other charges linked to questionable arrests, including those of 11 men who said they were marched to private property by authorities. State police and Border Patrol officials have denied the allegation. Another man’s case was dropped after Martinez said an officer’s body camera footage showed a trooper stepping aside from an open gate to private property, as if inviting the man forward, and then arresting him when he crossed the threshold.

After his release from prison, Gastón was processed by federal immigration authorities in September and eventually released into the United States to await an asylum hearing, which has not been scheduled. The treatment he faced, and which he said others still endure, troubles him not only as an asylum-seeker but also as a human rights lawyer.

“What we are seeing is terrible,” he said. “That in the 21st century we are seeing how human beings crossing the river to seek protection from the U.S. government are being criminalized by the Texas governor.”

“I want to get out”

With Martinez routinely tossing out state charges against people seeking asylum, trespassing arrests dwindled in Val Verde County before nearly stopping altogether in November, according to the prosecutor and DPS arrest data.

“In counties where there is not a willing local partner, arresting more individuals does no good because the local prosecutor will not prosecute,” Tolson, Abbott’s spokesperson, said.

Abbott’s operation found a more accommodating criminal justice system in the sparsely populated, conservative county next door.

Kinney County is home to about 3,100 Texans spread over nearly 1,400 square miles, about 15 miles of which are on the vast Texas-Mexico border. More than 70% of the county’s voters opted for Trump in the 2020 presidential election. Along the main two-lane highway, numerous metal gates are adorned with letters identifying ranches, many offering private exotic game hunting. Aside from the county seat of Brackettville and a railroad ghost town, ranches cover most of the county’s plains.

It was here that Bartolo was arrested.

He and five other people suspected of crossing the border were spotted in September by state troopers in the brush of a Kinney County hunting ranch about 10 miles from the international border. If he’d been apprehended by or turned over to Border Patrol, the 27-year-old Mexican looking for work would likely have been immediately deported.

His journey through Kinney County’s court system took much more time and taxpayer money than a fast expulsion would have, but it ultimately led to the same result.

Unlike in Del Rio, both the Kinney County judge — who handles county administerial duties and all misdemeanor proceedings — and the lone prosecutor for low-level crimes have publicly supported Operation Lone Star. The county sheriff has said that law enforcement has engaged in high-speed pursuits in human smuggling cases, and some police reports have depicted property damage ostensibly caused by people crossing the border.

“As the County Attorney, the residents of Kinney County are who I work for. Not Austin or Washington, DC,” Brent Smith, the newly elected Republican prosecutor who has no prior experience in criminal law, said in a statement. “The residents of Kinney County have demanded meaningful action in the face of the lawlessness and destruction of private property.”

Though the county supports Abbott’s goals, its minuscule court system quickly became and has remained overwhelmed with the massive caseload. Bartolo was one of about 2,500 men arrested in Kinney County on trespassing charges between July and February.

By September, more than 100 men had been kept in prison for weeks without being assigned attorneys, and hundreds more spent more than a month in the lockup without having any charges filed against them. The delays violated state laws meant to protect detainees’ due process rights, a state district judge found, and the men were released from prison on no-cost bonds and sent to immigration officials.

The state sent in a slew of defense attorneys, prosecutors and judges to help, but the arrests continue, stranding men in prison for months before they have a chance to go before a judge and enter a plea. Illegal imprisonments are commonplace, defense attorneys said in a court filing last month. They estimated that the lag between an arrest and an initial court date would soon widen from months to a year, the maximum sentence for trespassing in Texas. Kinney County officials, including Smith, have not responded to questions about the claims of prolonged and illegal detentions.

Bartolo first appeared in court through a video camera inside the Briscoe prison in December. He had languished in prison for more than 100 days, unable to pay a $2,500 bond. At that point, he simply wanted out.

One of his meals that day had largely consisted of raw chicken, he told the judge, and it was one of many times over the last few months when he’d been left hungry. His attorney asked the judge to let Bartolo out without having to put up cash — or at least to lower his bond — while his case wound through the overburdened court.

After listening to the request, newly assigned Judge Allen Amos furrowed his brow. A former county judge whom Kinney County had called in to help from a town about 150 miles north, Amos said he wasn’t confident Bartolo would come back to court if there was less money on the line. He found that $2,500 — which would have to be posted in full because bond companies have not taken on cases linked to border crossings — was “not that much money.”

But there was another way out. If Bartolo pleaded not guilty, Amos said he would push the man’s case along to a hearing more than a month away and possibly set a jury trial further out, all while the farmworker remained in prison. If Bartolo entered a guilty plea, the judge said, “you can possibly get out today, maybe tomorrow.”

It had to be Bartolo’s decision though, the judge stressed. “I’m not going to twist your arm.”

“Well, I want to plead guilty,” Bartolo responded in Spanish, quickly adding, “I want to get out.”

His last words lost him the plea bargain. His lawyer argued his plea was being coerced since he said “in the same breath” that he wanted to plead guilty to be released, not because he felt he was guilty. (To be found guilty of trespassing under Texas law, a person must have had an indication that they were on private property, like a fence or sign.) After a quick one-on-one conversation with his lawyer, Bartolo came back online and stated flatly he would plead not guilty.

He was sent back into the prison corridors without any indication from authorities of how much longer he would be stuck there.

Nine days later, the legal group representing him raised enough money to post his bond. On Christmas Day, he was released from the prison where he had been held for 111 days and delivered into the hands of immigration officials, his lawyers said.

He was deported the same day.

Perla Trevizo of ProPublica and The Texas Tribune contributed reporting, and Andrew Rodriguez Calderón of The Marshall Project contributed data analysis. Source images for photo collage from Lauren Witte/The Texas Tribune; Chris Stokes for The Texas Tribune; Verónica G. Cárdenas for ProPublica/The Texas Tribune; Jordan Vonderhaar for Texas Tribune; Eddie Gaspar/The Texas Tribune

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This article originally appeared in The Texas Tribune at https://www.texastribune.org/2022/04/04/texas-border-operation-imprisons-thousands-accused-only-of-trespassing/.

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April 4th, 2022 | News