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Hundreds ordered released as Texas border operation comes under fire

Despite the release, Gov. Greg Abbott’s program continues to be criticized by attorneys and others who say the operation is unconstitutional and illegal.
Migrants continue to cross into Texas from Mexican border
Migrants cross the Rio Grande from Mexico aboard a small boat, in Roma, Texas, on April 9.Tayfun Coskun / Anadolu Agency via Getty Images file

More than 200 people jailed under Texas Gov. Greg Abbott’s border enforcement operation are being released after weeks of detainment in state prisons without charges and far from lawyers.

Despite the release, Abbott’s program remains under fire from attorneys and others who say he is running an operation that is unconstitutional and illegal.

They allege the operation is targeting Mexican and Central American men, that officials are speeding detainees through proceedings without proper translations of hearings and documents and that they are moving the men to state prisons where they are held without charges beyond legally allowed times.

The attorneys for two men who have been held for more than 50 days in a state prison declared victory after a state district attorney dropped criminal trespassing charges against the men.

In the Tuesday hearing, the state could not provide witnesses and evidence to back up the charges that were eventually filed.

The governor's office did not immediately respond to a request for comment after the hearings.

“This is absolutely a complete victory,” Kevin Herrera, one of the attorneys for Ivan Ruano Nava and David Muñoz Vega, said after the hearing in the state 63rd District Court.

In an earlier hearing in the same court, Texas Rural Legal Aid attorneys secured the release of 243 people on personal recognizance bonds because formal charges had not been filed within 15 days, as prescribed by state law for the Class B misdemeanor. Charges remain pending against their clients. 

The attorneys said along with failing to file charges, county and state officials have been slow to provide documents spelling out the alleged trespassing. The lawyers said they've also had to deal with delays in getting documents that they file officially processed, as well as other logistical problems.

Abbott, a Republican who is considered a potential presidential candidate for 2024, launched what he dubbed Operation Lone Star in March by executive order, using state troopers, the state National Guard and sheriff’s offices to arrest people for criminal trespassing at the border.

Federal law prohibits state officials from enforcing federal immigration laws. There have been increased arrests of immigrants on the border, although many arrive and request asylum.

Many of the arrests are occurring in Val Verde and Kinney counties, two rural counties that do not have large court and county staff offices. 

The attorneys questioned the charges against Nava and Muñoz in their petition. They stated the men were on public land, adjacent to Texas Highway 90, which is a busy public thoroughfare. They were arrested when they asked for food and water.

Hundreds of people have been similarly arrested and are being prosecuted for “enhanced criminal trespass,” a charge that is not applied in areas beyond the U.S. border and not to people who are not presumed to be foreign nationals, the attorneys said.

“In essence, Operation Lone Star has created a new and separate crime based on impermissible classifications. By doing so, Texas has engaged in blanket selective prosecution of people grouped together based on national origin, race and gender,”the attorneys stated in a writ of habeas corpus petition.”

“This is a mix of officials in this county [Kinney] not wanting to give us the things we need and do things on time combined with Gov. Abbott putting the cart before the horse here,” Angelica Cogliano, an attorney for Nava and Muñoz, told NBC News after the Zoom hearing.

“He created this giant project without providing the infrastructure needed both to prosecute and protect the rights of each defendant, and because of that” clerks and courts are overwhelmed, she said. She also said the county attorney has not wanted to provide materials they generally are able to get.

The Zoom hearing Tuesday faced logistical problems including participants having to figure out how to use a translator without having her audio disrupt the hearing.

'Separate and unequal criminal legal system'

Recently, hundreds of Haitians seeking asylum arrived in Del Rio, Texas, in Val Verde County, where many of the criminal trespassing arrests have been made.

To handle the thousands of people the state has been detaining on trespassing charges, Texas cleared a state prison in Dilley, the Dolph Briscoe Unit, to house them, Texas Public Radio reported.

The attorneys said Abbott’s operation directs officers to only arrest men who appear to be foreign nationals, making it unconstitutional. It specifically exempts women and families, they said.

They also said Abbott’s operation is violating state law regarding how long the state can hold people without charges. Nava was arrested July 25, but charges were not filed until Sept. 8. 

Nava and Muñoz have been held more than 50 days in the Dolph Briscoe Unit, where they were transferred from the Kinney County Jail along with others arrested through the operation. The prison is more than 100 miles from their arrest site.

Alicia Torres, an advocate with Grassroots Leadership, which opposes mass incarceration, said the group learned about the men through family members who started getting calls from them from prison and wanted to know what was happening.

"It was then we started getting a lot more calls from across the country, particularly from California and Florida, from folks wanting to confirm where their loved ones were at," Torres said.

The attorneys said the detainees could only be sent to a prison if it's determined that the jail in the county where they were arrested doesn’t have enough beds. No such determination was made for many of those who have been sent to that prison or another in the Rio Grande Valley, they said.

The men were held without charges at the prison until the 45th day, when they were charged with the misdemeanor trespassing. Under state law, they are required to be charged by 30 days after arrest, the attorneys said.

"The program has resulted in a separate and unequal criminal legal system for individuals suspected of entering the United States unlawfully," Nava and Muñoz's attorneys said in the petition for their clients' release. "In this farcical alternative, constitutional rights are suspended, and due process is non-existent."

The attorneys said they are still awaiting return of the petition with the stamp that denotes it was officially processed by the court. 

To accelerate processing and detention, magistrates have held proceedings via Zoom or in parking lots. The Kinney County Sheriff’s Office posted video of a parking lot proceeding on its Facebook page.

The attorneys said many of the detained men are being told to sign documents written only in English that waive their rights to an attorney and say they've been informed of their rights.

During Nava’s magistrate hearing, a sheriff’s deputy, Eric Ortiz, who is believed to be the officer who arrested him, served as interpreter, the attorneys said.

The attorneys for Nava and Muñoz said they were not able to raise the constitutional arguments in the hearing Tuesday but that those arguments will be raised with other clients.

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