By Uriel J. García, The Texas Tribune, and Davis Winkie, Military Times

The Texas National Guard and state troopers are still rolling out concertina wire and preventing Border Patrol agents from accessing most of Shelby Park, a 47-acre Eagle Pass park that sits on the bank of the Rio Grande where thousands of migrants have crossed.

Those continued efforts come despite the U.S. Supreme Court earlier this week vacating a lower court’s decision that prevented Border Patrol agents from cutting the state’s concertina wire to apprehend people who already crossed the river.

The Supreme Court’s 5-4 order didn’t give any reason and didn’t explicitly say Border Patrol agents were allowed to access the park or that the state had to remove the concertina wire. So the state has doubled down and some Republican lawmakers have said Texas should defy the Supreme Court’s ruling.

On Wednesday, Gov. Greg Abbott, defended his actions, saying Texas has the right to continue doing what it's doing. He added, without providing evidence, that President Biden has been refusing to enforce current immigration laws.

"President Biden has violated his oath to faithfully execute immigration laws enacted by Congress," Abbott said in a statement. "Instead of prosecuting immigrants for the federal crime of illegal entry, President Biden has sent his lawyers into federal courts to sue Texas for taking action to secure the border."

According to NBC News, the U.S. Department of Homeland Security, the federal agency that oversees the Border Patrol, sent a letter to Texas Attorney General Ken Paxton’s office Tuesday demanding that immigration officers be allowed access to the park.

“To our knowledge, Texas has only permitted access to Shelby Park by allowing public entry for a memorial, the media, and the use of the golf course adjacent to Shelby Park, all while continuing to restrict U.S. Border Patrol’s access to the park. Please clarify the scope of access Texas permits to the public,” says the letter from DHS general counsel Jonathan Meyer , according to NBC News.

The Texas Military Department’s top officer also signaled quiet defiance in remarks made to agency staff during a Tuesday morning meeting, according to a source familiar with his comments. Military Times and The Texas Tribune verified the identity of the source, who requested anonymity due to potential reprisal from state officials because they are not authorized to speak publicly.

Air Force Maj. Gen. Thomas Suelzer was appointed by Abbott to oversee the Texas National Guard and Texas State Guard as the agency’s adjutant general. He told staff that he believes the ruling only permits Border Patrol to cut through obstacles to retrieve stranded migrants, the source said. Suelzer added that his troops will repair any obstacles destroyed by federal agents, and that his troops won’t allow the feds to set up migrant processing centers in areas they’ve blocked.

“The Texas Military Department continues to hold the line in Shelby Park to deter and prevent unlawful entry into the State of Texas,” the agency said in an unsigned statement Tuesday. “We remain resolute in our actions to secure our border, preserve the rule of law, and protect the sovereignty of our State.”

On social media, U.S. Rep. Chip Roy, R-Austin, said Texas should ignore the ruling on behalf of the agents represented by the Border Patrol’s rank-and-file union.

“This opinion is unconscionable and Texas should ignore it on behalf of the @BPUnion agents who will be put in a worse position by the opinion and the Biden administration’s policies,” Roy wrote.

Jeremy Carl, a former deputy assistant secretary of the interior under the Trump administration and current senior fellow at the Claremont Institute, a right-wing think tank, expressed a similar sentiment on social media.

“If Greg Abbott wants to have a future on a national ticket he will defy this lawless Supreme Court and protect the Texas border from invasion,” he wrote.

On social media Wednesday, Abbott posted a picture of four guards rolling out concertina wire with a statement: “Texas’ razor wire is an effective deterrent against the illegal border crossings encouraged by Biden’s open border policies. We continue to deploy this razor wire to repel illegal immigration.”

Texas Attorney General Ken Paxton sued the Biden administration in October, claiming that the Border Patrol illegally destroyed state property when its agents cut through concertina wire on the banks of the Rio Grande to “assist” migrants to “illegally cross” the border. The Biden administration has said agents cut the wire in order to arrest migrants that were already on American soil as that is what federal law requires.

District Judge Alia Moses, a George W. Bush appointee, eventually ruled in favor of the Biden administration, saying Border Patrol agents didn’t violate any laws by cutting the wire to take into custody people crossing the river illegally.

Texas appealed and the 5th U.S. Circuit Court of Appeals vacated the lower court’s ruling until a panel of judges could hear arguments. The Biden administration took the case to the Supreme Court asking the federal judges to vacate the appeal court’s ruling.

The standoff between Texas and the federal government escalated when earlier this month state troopers and National Guard members took over Shelby Park in Eagle Pass against city officials’ wishes.

On Jan. 12, National Guard members at the park blocked a Border Patrol agent from accessing the river after three migrants drowned while crossing the Rio Grande and two other migrants were still struggling in the water, according to a court filing by the U.S. Department of Justice.

According to the filing, Mexican immigration officials alerted Border Patrol agents at 9 p.m. that night that two migrants were in distress on the American side near the boat ramp at Shelby Park. An hour earlier, a mother with two children drowned in the same area, according to the Justice Department. When a supervising Border Patrol agent told National Guard troops at the park gate about the migrants in distress, one of them responded that they had orders to deny Border Patrol entry.

The Border Patrol agent asked to speak with a National Guard supervisor, who told the agent that “Border Patrol was not permitted to enter the area even in emergency situations,” according to the court filing.

Since then, National Guard has given Border Patrol access to the boat ramp at the park, but the agents have to give their names, and the time they entered the park is recorded, according to a statement by Robert Danley, lead field coordinator for U.S. Customs and Border Protection for the Del Rio area, that was filed with the Supreme Court.

The state has denied the Justice Department’s version of events, saying that the supervising agent who alerted National Guard members at the gate about the drownings didn’t indicate it was an emergency and that “Mexican officials had the situation under control,” according to a court filing by Paxton’s office with the Supreme Court.

On Wednesday evening, Lt. Chris Olivarez, spokesman for the Texas Department of Public Safety, reported that two adult males from Honduras and Guatemala were rescued from the Rio Grande earlier in the day by the Texas Military, DPS and U.S. Customs and Border Protection marine units.

A third migrant, identified as a 35-year-old man from Nicaragua, was lost in a river current. In the post, Olivarez stated “Search efforts yielded no results.”

Texas Tribune reporter Nina Banks contributed to this report.

This article originally appeared in The Texas Tribune at https://www.texastribune.org/2024/01/24/texas-border-wire-supreme-court/.

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