How Texas’ plans to arrest migrants for illegal entry would work if allowed to take effect

A person with two children is taken into custody at U.S.-Mexico border against a backdrop of razor wire.
People are taken into custody at the U.S.-Mexico border in Eagle Pass, Texas, in January.
(Eric Gay / Associated Press)

Texas’ plan to arrest migrants who cross the U.S.-Mexico border illegally is on hold while the Supreme Court considers a challenge to Republican Gov. Greg Abbott’s latest move over immigration.

The nation’s highest court put the law on pause over a lawsuit led by the Justice Department, which argues that Texas is overstepping the federal government’s immigration authority. Under the law, any police officer in Texas could arrest migrants for illegal entry, and a judge could order them to leave the U.S.

Justice Samuel A. Alito Jr. has ordered a stay until5 p.m. Eastern time Monday, when the law could potentially take effect.


A federal judge in Texas blocked the law in a sweeping rejection last month, calling it a violation of the Supremacy Clause of the U.S. Constitution. Texas swiftly appealed, arguing it has a right to take action over what Abbott has described as an “invasion” of migrants on the border.

Here’s what to know:

Who could be arrested?

The law Abbott signed in December allows any Texas law enforcement officer to arrest people suspected of entering the country illegally. Once in custody, those people could either agree to a Texas judge’s order to leave the U.S. or be prosecuted on misdemeanor charges of illegal entry. Those who don’t leave could face arrest again under more serious felony charges.

Arresting officers must have probable cause, which could include witnessing an illegal entry themselves or seeing it on video.

The law cannot be enforced against people who are in the U.S. lawfully, including those who have been granted asylum or who are enrolled in the Deferred Action for Childhood Arrivals program.

Critics of the law, including Mexico’s President Andrés Manuel López Obrador, have said it could lead to racial profiling and separation of families.

American Civil Liberties Union affiliates in Texas and some neighboring states have issued a travel advisory warning people of a possible threat to civil and constitutional rights when passing through Texas.


Critics say the government of Mexican President Andrés Manuel López Obrador is trying to downplay how people have disappeared in recent years.

Feb. 15, 2024

Abbott has rejected concerns over profiling. While signing the bill, he said troopers and National Guard members at the border can see migrants crossing illegally “with their own eyes.”

Where would the law be enforced?

The law would be enforceable in any of Texas’ 254 counties, including those hundreds of miles from the border.

But Republican state Rep. David Spiller, the author of the law, has said he expects the vast majority of arrests will occur within 50 miles of the U.S.-Mexico border. Texas’ state police chief has expressed similar expectations.

Some places would be off-limits. Arrests could not be made in public or private schools; places of worship; or hospitals and other healthcare facilities, including those where sexual assault forensic examinations are conducted.

Under the law, migrants ordered to leave would be sent to ports of entry along the U.S.-Mexico border, even if they are not Mexican citizens.

Amrutha Jindal, executive director at Lone Star Defenders Office, said her organization expects the law will be enforced in border counties. Her office already represents migrants who have been arrested since 2021 under a more limited Texas operation that has charged thousands of people with trespassing on private property.


Is the law constitutional?

The Justice Department, legal experts and immigrant rights groups have said the measure clearly conflicts with the federal government’s authority to regulate immigration.

U.S. District Judge David Ezra, an appointee of President Reagan, agreed in a 114-page order. He added that the law could hamper U.S. foreign relations and treaty obligations.

Opponents have called the measure the most dramatic attempt by a state to police immigration since a 2010 Arizona law — denounced by critics as the “Show Me Your Papers” bill — that was largely struck down by the Supreme Court. Ezra cited that 2012 ruling in his decision on the Texas law.

Texas has argued that the law mirrors federal law, rather than conflicting with it.

What is happening on the border?

Arrests for illegal crossings along the southern border fell by half in January from record highs in December. Border Patrol officials attributed the shift to seasonal declines and heightened enforcement by the U.S. and its allies.

Tensions remain between Texas and the Biden administration, though. In the border city of Eagle Pass, Texas, National Guard members have prevented Border Patrol agents from accessing a riverfront park on the Rio Grande.

Other Republican governors have expressed support for Abbott, who has said the federal government is not doing enough to enforce immigration laws. Other measures implemented by Texas have included a floating barrier in the Rio Grande and razor wire along the border.


Gonzalez writes for the Associated Press. AP writers Acacia Coronado and Paul Weber in Austin, Texas, contributed to this report.