Federal Court Denies Abbott and Paxton’s Motion for Preliminary Injunction Against U.S. Border Patrol for Cutting of Concertina Wire at the Border
By: Ricardo E. Calderon, Eagle Pass Business Journal, Inc., Copyright 2023
Texas’ Governor Greg Abbott and Attorney General Ken Paxton federal lawsuit against the United States Department of Homeland Security, the U.S. Border Patrol, U. S. Customs and Border Protection, Secretary Alejandro Mayorkas, CBP Acting Commisioner Troy A. Miller, U. S. Border Patrol Del Rio Sector Chief Jason Owens, and U. S. Border Patrol Del Rio Sector Acting Chief Juan Bernal suffered a legal setback as Chief U.S. District Judge Alia Moses denied the State of Texas’ Motion for a Preliminary Injunction or Stay of Agency Action seeking the Defendants to cease cutting the military grade concertina wire fence placed along the banks of the Rio Grande River by the Texas Department of Public Safety (DPS) and the Texas National Guard as part of Abbott’s Operation Lone Star to deter undocumented immigrants from crossing into the United States from Mexico on Wednesday, November 29, 2023.
The State of Texas sought preliminary and permanent injunctive relief to enjoin Defendants, particularly U. S. Border Patrol agents, from “seizing or destroying” Texas’ razor sharp concertina wire fence on the Rio Grande; a stay of the federal agencies action against the property of the State of Texas; a declaration that the federal agencies’ cutting of the concertina wire and actions are unlawful; and award Texas’ court costs.
Texas claims that the federal agencies’ cutting of the concertina wire fence along the Rio Grande “is intended to allow migrants to enter the country illegally’ and “demonstrates an institutional policy, practice, or pattern of sanctioning Border Patrol agents’ cutting or moving the fence even absent exigent circumstances.”
The federal agencies, defendants, deny that their cutting of the concertina wire fence constitutes an unofficial policy to allow migrants to enter the country illegally, but rather the Border Patrol agents’ cutting of the concertina wire fence is for purposes of discharging their duties to inspect, apprehend, and detain individuals entering the United States and to prevent or address medical emergencies.
In a 34 page Memorandum and Order issued on November 29, 2023 after several court hearings, Chief Judge Alia Moses found that the federal agencies’ cutting of the concertina wire fence “for medical emergencies is a narrow, partial legal justification for their conduct,” but found that the federal agencies’ have failed to deter, prevent, and halt unlawful entry of migrants into the United States.
Chief Judge Moses states in her Memorandum and Order that “the evidence presented amply demonstrates the utter failure of the Defendants to deter, prevent, and halt unlawful entry into the United States. The Defendants cannot claim the statutory duties they are so obviously derelict in enforcing as excuses to puncture the Plaintiff’s attempts to shore up the Defendants’ failing system. Nor may they seek judicial blessing of practices that both directly contravene those same statutory obligations and require the destruction of the Plaintiff’s property. Any justification resting on the Defendant’s illusory and life-threatening ‘inspection and apprehension’ practices or lack thereof, fail.”
Chief Judge Moses found that Texas “has not, at this preliminary stage, shown a substantial likelihood that it will establish the existence of a final agency action. Of course, the Court does not suggest that the Plaintiff cannot establish final agency action when this case proceeds to be heard on the merits. As the Defendants note, the documents within the federal government’s possession that mention the Plaintiff’s concertina wire potentially number in the millions. Discovery may produce information that sheds new light on the nature of the directives to cut or otherwise interfere with the Plaintiff’s concertina wire. But at this early stage of the case, the Court finds insufficient evidence of final agency action. Absent such final agency action, the Court need not address the Plaintiff’s claims that the Defendants are engaging in arbitrary and capricious action or exceeding heir statutory authority.”
Chief Judge Moses concluded denying Plaintiff’s Motion for a Preliminary Injunction or Stay of Agency Action.
The State of Texas federal lawsuit will now proceed to further discovery and absent a settlement by the parties a scheduled trial will be held at a future date to be determined by the Court.
