In a recent development, the US Court of Appeals for the Fifth Circuit has issued a temporary injunction preventing the Department of Homeland Security (DHS) from cutting wire fencing at the US-Mexico border in Texas. This order challenges a previous ruling from the US District Court for the Western District of Texas. The district court had denied Texas’ request for a preliminary injunction.
Circuit Judge Stuart Kyle Duncan authored the injunction. He posited that the district court erred in its legal judgement when it held that 5 U.S.C. § 702 does not waive DHS’s sovereign immunity. In Duncan’s interpretation, § 702 “plainly waives” sovereign immunity regarding a trespass to chattels claim. He argues that Texas “demonstrates a strong likelihood of success” on the merits of trespass to chattels claims. Trespass to chattels refers to the intentional interference of property owned by another.
In response to the appeal court’s ruling, Texas Attorney General Ken Paxton expressed his satisfaction and intention to continue opposing what he deems the “radical policies” of the Biden administration.
This fencing dispute is a part of the larger “Operation Lone Star” initiative, the Texas response to irregular migration from Mexico. Previously in September, the Fifth Circuit had ruled in favor of Texas regarding a floating barrier in the Rio Grande. Further highlighting the state’s assertive approach towards migration control, Texas Governor Greg Abbott signed a bill into law that criminalizes illegal entry into the state outside a port of entry, taking state jurisdiction over an issue typically dealt with at the federal level.
This ongoing dispute and the wider issues it encompasses serve to highlight the complexity and tension surrounding immigration policies and enforcement at both federal and state levels. This case further underscores the ever-changing face of immigration law in the United States.