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US Attorney General Merrick Garland threatens to sue Gov. Greg Abbott over executive order targeting migrants

KHOU 11's legal analyst says if you get pulled over for a state trooper because of immigration status suspicion, comply and record the stop on their phone.

HOUSTON — Many Texans have questions about Governor Greg Abbott’s executive order, which he signed Wednesday. 

According to Abbott, the order restricts ground transportation of migrants who pose a risk of carrying COVID-19 into Texas communities. The executive order also directed the Texas Department of Public Safety (DPS) to stop any vehicle upon reasonable suspicion of such violation and reroute such vehicles back to its point of origin or a port of entry. DPS also has the authority to impound a vehicle that violates the executive order.

"The dramatic rise in unlawful border crossings has also led to a dramatic rise in COVID-19 cases among unlawful migrants who have made their way into our state, and we must do more to protect Texans from this virus and reduce the burden on our communities," said Governor Abbott. "This Executive Order will reduce the risk of COVID-19 exposure in our communities."

But critics, including the ACLU of Texas, say Abbott’s executive order invites racial profiling because it requires the trooper to base their suspicions on two things: that a group of people who illegally crossed into the United States are in the vehicle and that they had “been detained by CBP for crossing the border illegally or would have been subject to expulsion under the Title 42 order.”

The trooper must have those suspicions before the vehicle is stopped and its occupants questioned.

Attorney General Merrick Garland urged Abbott to immediately walk back the executive order.

“The order is both dangerous and unlawful," Garland wrote in a letter.

Abbott responded with the following statement:

"It is clear that the Biden Administration fundamentally misunderstands what is truly happening at the Texas-Mexico border. The current crisis at our southern border, including the overcrowding of immigration facilities and the devastating spread of COVID-19 that the influx of non-citizens is causing, is entirely the creation of the Biden Administration and its failed immigration policies. By choosing not to enforce immigration laws, removing sound policies like the Remain in Mexico program, and failing to make the most robust use of Title 42 authorities, this Administration has directly caused the unprecedented crisis Texas is facing. And it is increasingly a matter of grave public-health concern as unlawful migrants enter from countries with lower vaccination rates than the United States.

 "It would be of some solace if the federal government were conducting appropriate COVID-19 testing and other mitigation strategies, but to the contrary, we hear too many reports of the federal government recklessly failing to do so and instead admitting into the United States — and Texas — migrants from over 150 counties, many of whom are testing positive for COVID-19.

"In short, the Biden Administration is jeopardizing the health and safety of Texans on a daily basis by refusing to follow the law. And it’s not just Texans; these irresponsible policies and actions by the Biden Administration are endangering the lives of many Americans as well as the unlawful immigrants themselves. I will take every available step consistent with the law to fulfill my duty to protect the health and safety of all Texans."

Criminal defense attorney and KHOU 11 legal analyst Carmen Roe is concerned.

“The problem is, is that this does invite racial profiling, because there is no way to look at a person and determine whether they've previously been detained or excluded from the country," Roe said.

If you’re stopped by a state trooper for questioning about immigration status, Roe recommends you comply with the commands of law enforcement.

“The number one priority is certainly documenting with your camera phone or any other mechanism you have is going to be important to ensure your safety and, of course, to protect your rights," Roe said. “But make no mistake, this order is a direct violation of every Texas citizen's constitutional right against unlawful detentions and seizures.”

The order allows state troopers to re-route the vehicle back to its point of origin or a port of entry.

“And if they refuse to be rerouted, their vehicles will be seized under this executive order, which is also very concerning,” Roe said.

The Texas DPS has patrolled the Texas-Mexico border for years. In 2014 the state purchased tactical boats to patrol the Rio Grande. A Texas DPS spokesman told the Texas Tribune then, “whether someone is in the country illegally will be determined by the appropriate federal authorities, not DPS. Racial profiling is illegal and prohibited by DPS policy.”

In 2013 state troopers worked controversial checkpoints in the Rio Grande Valley. Lawmakers said troopers were checking for public safety issues like driver’s licenses and insurance cards. Critics argued it was an attempt at immigration enforcement.

“Immigration status is a very, very complicated thing. It cannot be ascertained quickly or easily by looking at a person, by checking their identification,” Roe said. “I think this is the first time we've ever seen an executive order that invites law enforcement officers again to violate the constitutional rights of Texas citizens.”

There is no expiration date on Abbott’s executive order.

Texas DPS released the following statement:

"The Texas Department of Public Safety (DPS) is committed to securing our border under the direction of Governor Greg Abbott and through the Executive Orders applicable to DPS. While the department does not discuss operational specifics, we will continue to monitor the situation at the border to make real-time decisions and adjust operations as necessary."