Trump Deputizes Texas National Guard to Make Immigration Arrests

On January 31, Acting CBP Commissioner Pete Flores entered into a Memorandum of Understanding (MOU) with Texas Gov. Greg Abbott (R) to deputize specified members of the state National Guard to investigate, arrest, and transport aliens for civil immigration violations. If this authority sounds familiar, it may be because I explained in early January how an overlooked power in the Immigration and Nationality Act (INA) permits such agreements — and apparently somebody was listening.

“Operation Lone Star”. For the past four years, Abbott has been offering his state’s resources to help DHS secure the border. Under the Biden administration, however, he received something between indifference and outright hostility in response.

Back in March 2021 — two months into the Biden-Harris administration — Abbott launched “Operation Lone Star”, pursuant to which troopers from the Texas Department of Public Safety (DPS) and National Guard troops from the Texas Military Department (TMD) were detailed to the Southwest border to supplement increasingly overwhelmed Border Patrol agents.

The governor explained at the time:

The crisis at our southern border continues to escalate because of Biden Administration policies that refuse to secure the border and invite illegal immigration. … Texas supports legal immigration but will not be an accomplice to the open border policies that cause, rather than prevent, a humanitarian crisis in our state and endanger the lives of Texans. We will surge the resources and law enforcement personnel needed to confront this crisis.

As my colleague Todd Bensman reported shortly thereafter, from the outset that operation “doubled the state’s law enforcement presence in” the easternmost Border Patrol sector, Rio Grande Valley. Lone Star thereafter expanded all the way west, to El Paso.

Here’s how that state operation worked at the outset: TMD National Guard assets were positioned close to the Rio Grande to identify and surveil smugglers and migrants crossing the river illegally. DPS troopers would then respond to incursions and hold illicit entrants for Border Patrol agents to pick up.

Of course, if those smugglers and migrants were also violating Texas law — bringing drugs and other contraband, trespassing on private property, committing traffic offenses, etc. — the troopers would hold them in state custody for prosecution.

The state followed those deployments up in June 2021 with a strategy to erect fencing at spots along the state’s border with Mexico, after Biden had “paused” federal wall construction.

Next, as Bensman reported in October 2021, TMD National Guard troops were specially trained and given authority to make state arrests at the border. DPS Director Steve McGraw explained:

Nobody’s ever really used the guard before in this capacity. … We’re going to use them to actually secure the border. The governor, the legislature, and the citizens of Texas have made it very clear; they want the border secure. It is good for our federal partner as well. The federal government should be thanking the state of Texas, and it’ll make the rest of the country safer as we increase the level of security.

Finally, in the spring of 2023, with Title 42 set to expire, DPS and TMD began placing concertina wire (“c-wire”) barriers along the banks of the Rio Grande to deter illegal entries from Mexico.

That c-wire initiative triggered a spat between the state and the Biden administration after CBP began tearing out portions of those barriers along the river in Maverick County to allow migrants to enter, a legal dispute the White House took all the way to the Supreme Court.

In January 2024, the justices sided with the Biden administration’s c-wire demolition efforts, but the whole affair was a PR disaster for a White House claiming that it was doing all it could to secure the border, and — not surprisingly — the c-wire barriers were largely undisturbed thereafter.

Texas v. U.S. In addition to Operation Lone Star, the state of Texas also engaged on multiple fronts in litigation to force the Biden administration to comply with Congress’s immigration detention and enforcement mandates in the INA.

The most notable of those cases was Texas v. Biden, wherein Texas and Louisiana challenged the Biden DHS’s criminal alien non-detention policies.

That case also made it to the Supreme Court, and in June 2023 a majority of justices ruled that the states lacked standing to bring their challenge.

Section 103(a)(10) of the INA. Biden administration policy aside, likely the biggest impediment to the state of Texas doing more to secure its 1,254-mile segment of the Southwest border is that under our federal system, state officers generally lack the authority to sua sponte make civil immigration arrests — power largely reserved to the U.S. government.

My use of the words “generally” and “largely” there was intentional, because there are two specific exceptions in the INA itself that allow state and local officials to actively assist in immigration enforcement.

One of those exceptions can be found in section 287(g) of the INA, which allows ICE to delegate certain immigration-enforcement authorities to state and local officials.

As the agency explains:

The 287(g) Program enhances the safety and security of our nation’s communities by allowing ICE Enforcement and Removal Operations (ERO) to partner with state and local law enforcement agencies to identify and remove incarcerated criminal aliens who are amenable to removal from the U.S. before they are released into the community.

By my count, more than 27 Texas county Sheriff’s Offices participate in the program, but this latest MOU isn’t premised upon that 287(g) authority.

Instead, it’s a delegation of authority under section 103(a)(10) of the INA, which I categorized in January as an “overlooked power” that allows for state and local assistance in immigration enforcement.

Under that provision, the executive branch can authorize state and local authorities, with the consent of their bosses and other government officials, “to perform or exercise any of the powers, privileges, or duties conferred or imposed by” the INA upon CBP and ICE “officers or employees”.

That power is modeled after authority the U.S. Marshals Service (USMS) has been given to deputize federal, state, and local law enforcement officers — as well as “selected employees of private security companies” in limited situations — “to perform the functions of a Deputy U.S. Marshal”.

USMS utilized that authority as recently as last month, when 3,800 local cops were deputized to assist with security in D.C. during the inauguration.

Under the terms of section 103(a)(10) of the INA, only “state or local law enforcement officers” can perform immigration-enforcement duties, but as noted above, Texas has already given authority to TMD troops to act as state law-enforcement officers at the border. This is just the next logical step in that process.

Under the MOU, only specifically identified troops will be able to exercise this authority, and even then they can only investigate, arrest, and transport aliens “under the supervision and direction of a CBP official”.

That control should mitigate any threat that troops will go rogue and start rounding up random border-adjacent individuals, but you can still expect such risks will be raised by migrant advocates and those opposed to border enforcement.

This may be just the start of an expansion in the use of section 101(a)(13) of the INA as part of Trump’s overall immigration-enforcement push. If Texas National Guard troops can perform civil immigration functions at the border, why couldn’t state troopers and local police nationwide not do the same in the interior?

To fulfill their boss’s immigration-enforcement promises, Trump’s DHS is diving deep into the expansive powers in the INA. Or perhaps they are just following the Center’s research. In the interest of modesty, I’ll assume it’s the former.