Travis County judges can’t hear appeals from migrants arrested under Texas border security push, court rules

AUSTIN, Texas - Texas’ highest criminal court has shut the door on the hopes of hundreds of migrants swept up in the state’s "arrest-and-jail" border security crackdown who tried to have their border-area trespassing charges thrown out by Austin judges.

In a significant win for Gov. Greg Abbott’s Operation Lone Star, the Texas Court of Criminal Appeals ruled unanimously Wednesday that Travis County courts can’t weigh claims of wrongful detention caused by misdemeanor arrests 200 miles away. The decision stems from the barrage of legal battles and courthouse strategies that have erupted since last summer over Abbott’s border security initiative to imprison migrant men suspected of trespassing on private property after crossing the Texas-Mexico border illegally.

Since last July, more than 5,600 men have been arrested for allegedly trespassing under Operation Lone Star, and the program has been racked with wrongful arrests, prosecutorial errors, court delays and a plethora of constitutional concerns. For months last year, local court skirmishes over individual cases focused on routine state law violations of Kinney County, a rural border county whose handful of conservative court officials quickly became inundated with thousands of migrant arrests. Migrants sat in state prisons for weeks or months after being arrested without being appointed lawyers or seeing a judge.

The battle moved to Austin when an Ecuadorian migrant asked a Travis County court to decide if he was being wrongfully detained and to toss out his trespassing charge. In January, state District Judge Jan Soifer took up Jesús Guzmán Curipoma’s case, saying the oil engineer’s arrest for alleged trespassing was unconstitutional because it was part of a state initiative meant to usurp the federal government’s job of enforcing immigration laws.

Within a day, Texas RioGrande Legal Aid flooded the Travis County courts with filings from nearly 450 other migrants, hoping to have their cases tossed for the same reasons. Kinney County officials asked the high court to step in, temporarily halting any movement in the cases while the all-Republican court considered the appeal.

On Wednesday, the Court of Criminal Appeals prohibited Travis County from taking up the cases, essentially reinstating each of the men’s cases in Kinney County at whatever stage they were in. The nine judges stated that even in cases in which the charging courts may not be able to quickly hear habeas appeals — which ask judges to consider if someone is being wrongfully detained — arrestees may only move to be heard by nearby courts.

Kinney County officials have argued migrants’ attorneys went "forum shopping" for friendlier, Democratic judges who would rule against the Republican governor’s controversial initiative.

"Absent these kinds of unusual circumstances or specific statutory authority, a trial court should never consider the merits of a habeas application for an offense arising outside its geographic boundaries," Presiding Judge Sharon Keller wrote in the unanimous opinion.

None of the nearly 450 men who filed appeals are still in the state prisons being used as jails for offenses connected to Abbott’s Operation Lone Star, according to Kristin Etter, the lead attorney for the migrants.

Etter said some of the men have had their cases dismissed for other reasons. Others have pleaded guilty to a sentence equal to the amount of time they had already been in prison and removed from the country by immigration officials. Many have posted bond and been transferred to immigration authorities, having been either released into the country pending asylum claims or deported.

The court has not yet specifically ruled on Curipoma’s case, in which the Travis County judge had ruled. In that case, lawyers have fought over whether Travis or Kinney County’s prosecutors should have represented the state in the Travis County hearing, not on whether Travis County should have held the hearing at all.

The court held oral arguments in the case last month, mainly focusing on the larger issue of the state capital district’s jurisdiction, which was the focus of Wednesday’s ruling. Curipoma attended the hearing. He now lives in the Midland area looking for work in the oil industry and working on his dissertation while awaiting his federal asylum hearing.

Immigration Travis County Greg Abbott