Federal Judge Reverses Temporary Order Blocking Feds from Cutting Texas Border Barriers

by BOB PRICE and RANDY CLARK 30 Nov 2023

A federal judge in the Western District of Texas reversed her Temporary Restraining Order that stopped the Department of Homeland Security from cutting border barriers put in place by the State of Texas. The new order issued Wednesday night reverses that position after the judge heard additional evidence. The case will now proceed to a trial on the merits.

Texas Attorney General Ken Paxton and the Texas Public Policy Foundation filed a lawsuit against the U.S. Department of Homeland Security, U.S. Customs and Border Protection, the U.S. Border Patrol, and multiple Biden administration appointees to stop the federal government’s interference in the State of Texas’s efforts to stop illegal border crossings, Breitbart Texas reported on October 30.

U.S. District Judge Alia Moses granted a Temporary Restraining Order (attached below) directing the federal government from “disassembling, degrading, tampering with, or transforming” border barriers put in place by the State of Texas under Governor Greg Abbott’s Operation Lone Star. The judge carved out a small exception where the federal government may “take immediate action to obtain medical attention” for a migrant in distress or who suffered injury.

Border Patrol agents cutting and moving razor wire near Eagle Pass, Texas. (Photos: Breitbart Texas and State of Texas)

On November 7, the judge heard additional testimony from the plaintiff and the defense regarding the actions taken by Border Patrol agents and other federal officials to cut the concertina wire and allow migrants to enter Texas from Mexico.

On November 30, Judge Moses issued a new order (attached below) reversing the TRO and ordering the case to proceed to a trial on the merits of the law.

“Here, based on the evidence presented at the November 7, 2023 hearing and the documents submitted thereafter, the Court finds that there is insufficient evidence at this juncture to support a substantial likelihood of success” on the Plaintiff’s claims, Judge Moses wrote. She added, “The possible harm suffered by the Plaintiff in the form of loss of control and use of its private property continues to satisfy the irreparable harm prong of preliminary-injunction analysis. The public interest calculation reflected in the Court’s TRO decision stands.”

The judge, in the 34-page ruling, cited multiple matters that will need to be addressed in trial. Those include a claim by the plaintiffs that the actions taken by the agency constitute a “final agency action.”

Border Patrol Agents Cut Razor Wire in Eagle Pass. (Randy Clark/Breitbart Texas)

The judge said the issue of border wire cutting appears to be “unique to the Del Rio Sector.” This sector is currently the busiest border crossing area in the five Texas-based Border Patrol Sectors. The Defendants argued this proves this is not an “agency-wide directive.”

“The Defendants admit that supervisors in the Del Rio Sector have provided “guidance” to agents along the following lines: “(a) if there are no exigent circumstances, the agents should call a supervisor before any wire-cutting; and (b) if a supervisor is unavailable or exigent circumstances exist, the agents should use their judgment in determining how best to apprehend noncitizens or provide medical assistance,” the judge wrote.

“The Plaintiff argues that the sheer volume and regularity of similar incidents, together with repeated public statements from DHS itself, demonstrates an institutional policy, practice, or pattern of sanctioning Border Patrol agents’ cutting or moving the fence even absent exigent Case 2:23-cv-00055-AM Document 57 Filed 11/29/23 Page 29 of 34 30 circumstances,” she stated.

A key issue raised in the preliminary arguments centers around whether “an alien who is detained shortly after unlawful entry cannot be said to have ‘effected an entry.’ The judge noted that federal officials historically have taken steps to turn migrants back across the border into Mexico.

The judge cited Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 163 (1993) (finding that aliens could be repatriated “without giving them any opportunity to establish their qualifications as refugees”).

She wrote that Border Patrol officials assess agents’ performance based upon the number of migrants repelled.”

“Thousands of migrants have, in fact, been ‘turned back’ after crossing the Rio Grande,” Moses stated.
This appears to contradict the federal government’s position that once a migrant has stepped on U.S. soil, they must be processed for an asylum claim.

Breitbart Texas reached out to Texas Governor Greg Abbott’s office for a reaction to the judge’s order. An immediate response was not available by the time of this publication.

A trial date has not yet been set for the matter.