Governor Abbott Commandeers Park in Eagle Pass in Fight against Illegal Immigration

FAIR Take | January 2024

In an attempt to stop illegal immigration into his state, Texas Governor Greg Abbott ordered the Texas Military Department to take control of Shelby Park, which lies along the Rio Grande River in the city of Eagle Pass.  On January 10, the Texas National Guard shut down the park, denying border patrol agents access to it.

Shelby Park, a 47-acre park owned by the city, had been employed by Border Patrol agents to hold the illegal aliens in an outdoor staging area before being transported elsewhere to be processed. In December, thousands of illegal aliens crossed every day into Eagle Pass. The January numbers remain high with 400-500 migrants crossing the border each day.

Right now, the Texas Department of Public Safety (DPS) is the only agency with full access to Shelby Park.  The Texas National Guard has now fenced off 2.5 miles of territory along the Rio Grande which serves as a common border crossing spot for illegal aliens. Several days ago, DPS started arresting migrants who cross illegally into Shelby Park for criminal trespass.

Instead of praising Governor Abbott for addressing the border crisis, Eagle Pass Mayor Rolando Salinas complained the closure of Shelby Park is “not something that we wanted.” “This is not something that we asked for as a city.”

Critics intensified their attacks on Governor Abbott when three border crossers, a woman and her two children, drowned in the river, and two other individuals needed to be rescued from the water. Immediately after the drownings, President Biden’s Department of Homeland Security issued a statement condemning the Governor, claiming, “Tragically, a woman and two children drowned last night in the Shelby Park area of Eagle Pass, which was commandeered by the State of Texas earlier this week.” Homeland Security further asserted that federal agents were prevented from helping the aliens in distress: “[R]esponding to a distress call from the Mexican government, border patrol agents were physically barred by Texas officials from entering the area” and, that “Texas’ blatant disregard for federal authority over immigration poses grave risks.” However, the Biden administration later acknowledged that the three individuals died before Border Patrol agents even tried gaining access to Shelby Park, and the Mexican government said the aliens never entered U.S. territory.

Biden and Secretary Mayorkas’ DHS is considering legal action against Texas.  Homeland Security General Counsel Jonathan Meyer sent a letter to Texas Attorney General Ken Paxton contending that “Texas’s actions are clearly unconstitutional and are actively disrupting the federal government’s operations.” The letter also demanded that “Texas cease and desist its efforts to block Border Patrol’s access in and around the Shelby Park area and remove all barriers to access in the Shelby Park area.”

General Counsel Meyer also accused the State of Texas of violating federal law.  Under 8 USC §1357(a), Border Patrol agents have the authority to access private land within 25 miles of the international border without needing a warrant to interrogate and arrest any alien who, in the agents’ view or presence, is entering or attempting to enter the United States in violation of any law.

Attorney General Paxton, however, disputes this argument.  Paxton points out that the statute only authorizes the federal government to access private land within 25 miles of the border “for the purpose of patrolling the border to prevent the illegal entry of aliens into the United States.” This administration, he argues, has never sought to prevent illegal immigration, but has instead been facilitating it by processing and releasing illegal aliens into the U.S.

Paxton further declared that Texas will continue utilizing its constitutional authority to defend the state’s own territory, and [he] will vigorously represent those lawful efforts in court. Paxton further maintained, “by instructing your agency and others to ignore federal immigration laws, [President Biden] has breached the guarantee, found in Article IV, § 4 of the U.S. Constitution, that the federal government “shall protect each of [the states] against invasion.” Texas, in turn, has been forced to invoke the powers reserved in Article I, § 10, Clause 3, which represents “an acknowledgement of the States’ sovereign interest in protecting their borders.”

National Border Patrol Council President Brandon Judd praised Governor Abbott’s approach, commenting, “I’m glad for what Governor Abbott is doing, because what it’s allowing us to do, we’re able to deploy our resources to other areas that we haven’t been able to patrol for several years now. And so, that’s allowing us to go after the gotaways—that segment of the people that cause a great deal of problems here in the United States.” Judd went on, “What he is doing is operating as a force multiplier. It is very good what he is doing for the American people. It’s something that President [Joe] Biden should be doing but he refuses to do because, again, he cares more about his base than he does about the American people.”

The closure of Shelby Park is just the latest dust-up between Governor Abbott and the Biden administration in the Eagle Pass area.  The first incident was a dispute over buoys placed in the Rio Grande intended to deter illegal aliens from crossing the border.  This case is now before the full 5th Circuit Court of Appeals, and for now, the buoys remain in place.

A second point of contention stems from the enactment of SB 4, which created a state crime of illegal immigration.  The Department of Justice (DOJ) has challenged the law in federal court, arguing that it violates the Constitution’s Supremacy Clause.

Finally, Texas and the federal government have been battling over the razor-wire barriers Texas installed along the border to stop the surge of illegal aliens into the state.  After the Biden administration sued, a federal district court issued an order permitting border patrol agents to cut the wire.  However, Attorney General Paxton appealed the ruling and the 5th Circuit ordered the Biden administration to cease cutting the wire barriers. In response, the Biden administration has filed an emergency request with the Supreme Court to vacate the order.

With respect to Shelby Park, the Biden administration has now asked the Supreme Court to consider the legality of Texas barring access to it as part of the razor wire case.  For the moment the park remains under the control of Texas.