By Daniel Wiessner
(Reuters) – A U.S. appeals court on Thursday seemed open to barring the Biden administration from destroying razor-wire fencing that Texas placed along its border with Mexico while the Republican-led state pursues a lawsuit accusing the federal government of trespassing.
A three-judge panel of the New Orleans-based 5th U.S. Circuit Court of Appeals heard arguments for nearly an hour in an appeal by Texas of a judge’s ruling that said the state’s trespassing law cannot be applied to the federal government and U.S. immigration authorities were immune from the state’s lawsuit.
Texas sued the Biden administration last year after federal border agents stepped up their practice of using bolt cutters and forklifts to cut or remove wire fencing along a 29-mile stretch of the Rio Grande where many migrants cross the border illegally.
A 5th Circuit panel in December paused the judge’s ruling and barred the destruction of the fencing pending the state’s appeal, saying the Biden administration was not immune from the lawsuit. The U.S. Supreme Court paused that decision a few weeks later while the litigation proceeded.
Two of the three judges who heard arguments on Thursday were on the panel that issued the December ruling in favor of Texas.
One of them, Circuit Judge Kyle Duncan, said federal officials are immune from lawsuits involving the valid execution of their duties. But federal agents removed the fencing to facilitate border crossings, not to prevent them, he said.
“Border Patrol wasn’t cutting the fence to apprehend immigrants or prevent illegal entry, it was quite the opposite,” said Duncan, an appointee of Republican former President Donald Trump.
Melissa Patterson of the U.S. Department of Justice told the panel that border patrol agents have no authority to send migrants back to Mexico; instead, their duties are to apprehend and process migrants who can apply for asylum or other forms of relief from deportation.
Texas Solicitor General Aaron Nielson pushed back on that argument, saying agents do have the power to deter migrants from crossing into the United States in the first place.
“This isn’t even people on U.S. soil; these are people on the other side of the river and there’s no pushback whatsoever saying ‘don’t come here,'” Nielson said.
The 5th Circuit panel includes Circuit Judge Don Willett, a Trump appointee who joined Duncan in the December decision, and Circuit Judge Irma Ramirez, who was appointed by Democratic President Joe Biden.
Biden on Tuesday instituted a broad asylum ban on migrants caught illegally crossing the U.S.-Mexico border, a major enforcement move as immigration remains a top issue for voters ahead of the November presidential election.
Many Republicans have blamed Biden for an increase in illegal border crossings in recent years, and his administration is locked in legal battles with Texas and other states that have taken steps to deter and punish illegal migration.
The full 5th Circuit last month heard arguments in a separate battle between Texas and the Biden administration over whether the state can keep a 1,000-foot-long floating barrier in the Rio Grande.
The appeals court is also reviewing a judge’s order blocking a Texas law that would allow state officials to arrest, prosecute and order the removal of people in the country illegally.
The Biden administration has also sued Iowa and Oklahoma for passing similar laws, which it says interfere with the federal government’s enforcement of U.S immigration laws.
(Reporting by Daniel Wiessner in Albany, New York; Editing by Leslie Adler)
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