James Pittman: Welcome to Immigration Uncovered, the docket wise video podcast where we dive deep into the world of immigration law with the latest developments, practice management strategies, and the transformative impact of legal technology. I'm James Pittman. This is episode 28, and I have, with me today Justin Estep, who is the senior director of immigration and refugee services for Catholic Charities of Central Texas. We're gonna be discussing the Texas law SB 4. Justin, welcome.

Justin Estep: Thank you. Thanks for

James Pittman: having me. Okay. So, Justin, let's I mean, this is such an evolving situation. Can you, tell us first of all, let's for those who haven't been following it closely, can you provide an overview of, Texas Law SB 4 and what it is about it, what are its key provisions?

Justin Estep: Sure. So the Texas law s p 4, came about last legislative session, in the Texas legislature 2023. The idea behind it was that, the Texas legislature as a whole, felt that the federal government wasn't doing their job as far as, managing the border. So, in lieu of the federal government in their eyes stepping in, or lack thereof stepping in and, enforcing immigration laws, they felt that it was necessary for the state to enact, some new regulations. And so over the course of both the regular legislative session and then up to the 4th special session, which, we had multiple of them after the normal session, they passed eventually, basically, 2 parts of the same bill of s p 4. The first part that went into effect, back in February was an enhancement for laws already on the books. So human smuggling, pretty much illegal everywhere, federal and state level. But what they did to the human smuggling laws in Texas is enhance the mandatory minimum punishments. Up to this point, it had really reflected the federal, mandatory minimums, but enhanced those from 2 years up to 10 years, for a standard situation, as well as for those operating stash houses and things of that nature. So all of that has already gone into effect, and that was passed in the 3rd special session.

Justin Estep: But in the 4th special session, the final part of s b 4 was passed, which did create 2 new laws. Both of these laws had to do with the idea of creating an illegal entry into Texas, from a foreign nation. So if someone comes into the state of Texas from a foreign country around a point of entry, then they can fall under the, enforcement and prosecution of this law. The first offense, just illegal entry into the state of Texas from a foreign nation, would essentially come about where a person who is arrested due to the fact that either an officer sees them crossing the river into the state of Texas or somehow can get probable cause that they have entered the state somewhat recently. They are arrested for a legal entry. They go in front of a judge, or a magistrate. And then once that occurs, 2 things can happen. Either they can go forward with the, legal proceedings as any normal criminal case, or the judge or magistrate, if they meet certain qualifications, can offer them, to not move forward with the legal proceedings, but that the law enforcement officer, at least this is our assumption, because the law is really clear on a lot of its parts, would then take that individual to the, border with Mexico and order them to to cross. Now the second part of the law that passes part of part of illegal entry was illegal reentry. So illegal reentry essentially says, a, if you go to the border under a legal entry and you're ordered to leave and you do not, then you can be arrested for a legal reentry, which now instead of a misdemeanor as a felony with a, sentence up to 20 years. And then illegal reentry also is classified as someone who has been previously ordered, moved from the country, deported, whatever the case may be, and then reenters the country, again, around a point of entry. They can be prosecuted under the illegal reentry law even if they weren't originally arrested, and prosecuted by state law enforcement. So that's s p 4 in a nutshell, essentially. And while, like I said, the enhancements to the smuggling portions of the law have gone through and aren't being challenged in court, the, two new laws that are have been created, have been challenged and are currently on hold.

James Pittman: Okay. There's a lot to unpack there, and this has such enormous consequences. I mean, it's been in the news continuously. And because, you know, you have the immigration statute, the federal immigration statute, I mean, arguably, is a situation of field preemption where, you know, you can argue that congress has really intended to legislate across the board and and and have the entire, you know, sort of immigration law across the country uniform. And that obviously will conflict if states start additionally making their own laws with regard to entry into the United States.

James Pittman: Before we go deeper, are you aware of any other situation where a border state has, specifically enumerated a state crime for entering from a foreign country?

Justin Estep: Yeah. The last time this was attempted was, in Arizona a little over a decade ago where they essentially tried to pass the same law and enforce the same law, except it went a little bit farther in that particular situation and was eventually declared unconstitutional. And that and that law and this is whenever myself and several other folks were against the law last year, pointed out is the law, you know, was declared unconstitutional due to the supremacy clause, the things that you've mentioned. And the Texas legislature is arguing that, well, what's different is the Arizona law specifically said they would deport, like, somehow transport individuals, either pay for plane tickets or drive them in a bus across the border, and that in and of itself was reason enough to declare the law unconstitutional, and that particular element was kind of what the court hung its hat on. So what Texas has done is essentially said, no. We're not deporting anyone. We are just asking them to go to the border. And if they don't, you know, cross once we've asked them to under the conditions I already enumerated, then we can rearrest them and then prosecute them with a felony. But since we're technically not transporting them over the border, that's what's difference between our law and the Arizona law, from, I believe, 2011. So it has been attempted before and failed, but Texas is trying to get around the, like I said, the element that cut that the Supreme Court hung its hat on previously to justify this particular law.

James Pittman: Understood. But is that a distinction without a difference? Correct. Well, I mean, how does this work in pride? Let's just understand what they what they envision here, and then we'll get to the the legal posture in the case. Sure. I mean, you so we're gonna have, you know, sort of the Brownsville, you know, police department or the Texas state troopers kind of put someone in a car and nicely drive them to the border checkpoint in a friendly way, and in a friendly way say, you know, would you please leave now? Is that I mean, is that really where? And then so they they they do envision the law enforcement taking the person to the US side of the border and then sort of letting them out and saying, you're supposed to leave now. And that if they don't, they're supposed to be charged with a crime on the spot? Or if they hang around, or or do they even know what they expect?

Justin Estep: No. They don't. That actually came up in the, in the court cases here in the last few days. I I believe it was, at the 5th Circuit, but it might have been the Supreme Court. But, essentially, a Texas solicitor was asked solicitor general was asked, how is this exactly going to play out? And that was questions that we had as attorneys and immigrant advocates at the legislative level of, like, well, how is this actually going to work? And they really can't articulate exactly how it works, but this is essentially what we've been told is that, yes, they would essentially drive them to the border if they were originally arrested for for illegal entry. They would ask them to go across. And at that point, if they didn't go across, they would rearrest them under the probable cause for well, now that's illegal reentry because they're refusing an order to to leave, and then they would go and be prosecuted, for the felony. But that it brings up several issues. A, this is not for folks from Mexico. This is could be anyone. It could be from Guatemala or Brazil or Cameroon, and they're gonna tell you to go back to Mexico. And Mexico has very specifically said that we will not accept these folks if you try to do that. So that's the first issue. And then secondly, if I was this particular immigrant, then I the first thing I would do would be walk straight up to a CEP officer and ask for asylum. And then at what point, you know, then again, we get this conflict of federal and state law. So in practicality, it seems hard to see how it'll play out, and the law is very much leaving that up to the interpretation of the law enforcement officers themselves and the judges and magistrates, which is, again, another concern.

James Pittman: This sounds like a dumpster fire. I mean, let me let's hear me out here. All the things that can go wrong and all of the glaring, gaping chasms in how the the law is actually supposed to treat people that this introduces. First of all, how are local law enforcement or state troopers supposed to find ascertain whether someone is in the country illegally or not? I mean, does it do they have to see the person having crossed, or do they assume that? They can they ask for papers? Secondly, if they're asking for papers or proof that the person's in the US legally, whether it's a visa it's a I ninety four record or or what have you or green card, for for are they trained? Is there training being implemented so that they understand and know what they're looking at since local law enforcement is not trained for immigration law. It's hard enough to get immigration agents to apply the law in the correct manner, let alone tasking personnel for whom there is no training to try to do it on the fly. So that's that's the next question. Thirdly, as you said, you could be apprehending or stopping people from other countries and then enticing them to go to Mexico? And what provisions on the Mexican side are there for conducting normal border control and passport control, on the Mexican side. I mean, if it's if they are their nationals, assume that they would take their own nationals back. I mean, but, people from 3rd countries who just happen to be found in Texas and then enticed to go without authorization to Mexico introduces problems in a practical level. It introduces probably, you know, problems of a diplomatic nature between the US and Mexico, which we can speculate on how on how that might play out. And then as you mentioned, it introduces the the problem that there are people who, let's I mean, let's we're gonna get into this. Talk about people who have potential legitimate claims for asylum, withholding of removal, what have you, who could potentially be denied if you're having, them, transported to Mexico without the chance to I mean, the local law enforcement are not able to conduct credible fear interviews. They're not authorized to, you know, keep people in detention pending an asylum hearing or anything like that. Where are those rights going to go? I mean, are those rights gonna be just sort of ignored by the implementation of the state law? So there's many, many problems here that will arise, and I don't think and this has been done really without having thought thought this through. So let's let's first before we get to all of those issues, what's the status right now of the legal charge? A couple days ago, we saw the supreme court had, said that they were gonna allow it to go into effect, and now we're back in the 5th Circuit Court of Appeals. And at latest news, there has been a stay granted by the US, quarter of appeals for the 5th Circuit. So where where else are we procedurally? So and you're exactly right.

Justin Estep: It was, to quote professor Steven Vladek who was interviewed on the on the situation, a whiplash situation. And in less than 24 hours, we went from having the law not being enforced to being enforced for about 4 to 6 hours to not being enforced again. So in practicality, it was never enforced. Appealed again up to the Supreme Court. And the Supreme Court basically did not rule on the constitutionality, but said that the state could go ahead with the law, with enforcing the law. That was in the morning. And then by the afternoon, the 5th Circuit had gotten the case back and said, actually, in a 2 to 1 decision that we are going to keep the pause on s b 4. We're going to schedule arguments for yesterday, which they did have, and we're gonna keep the pause indefinitely. And at this moment, right now, it's gone back into a pause into it into the injunction, and we don't know when it's gonna come back. Ostensibly, it would be whenever the 5th Circuit, makes their decision.

Justin Estep: And then, of course, it will be almost certainly appealed again by whoever loses up to the Supreme Court. And we don't know if it'll go into effect in that interim. But as of right now, it's with the 5th Circuit. They've heard the arguments, have not issued a decision, but are pausing the law again.

James Pittman: Alright. Let's let's try to unpack some of these really thorny problems that this sort of a law introduces. So you we we just mentioned people could have legitimate potentially legitimate claims to asylum or other, immigration statuses. They might, you know, potentially be let's say you have people who could theoretically be eligible for asylum, could be eligible for a T Visa, a U Visa. I mean, you know, it's the border, and there's a lot of there's a lot of activity that goes on that gives rise to potential claims. So let's so if you have the Texas law enforcement asking people to cross the border, and they instead would like to approach an immigration officer, CBP officer, at one

Justin Estep: of the border stations and ask for asylum. What what theoretically is supposed to happen next? I mean, they're are they still breaking Texas law, but the federal the the federal officers can can give them a credible fear interview? Or what what what's supposed to happen there? Do you know? Well, first of all, no one really knows. Like I said, that's been the main problem with this law since it was proposed, back in the legislature last year, but we're just trying to read between the lines. Essentially, what would happen in your scenario is that the officer and just for a a note, law enforcement officer under the bill includes 20 26 different law enforcement organization groups in Texas, which also happens to include, like, the, Texas Insurance Commission and the State Parks and Wildlife Commission. So, literally, this could be anyone, not even state trooper or, you know, a local police department, which, of course, brings its own issues. But they would ask that person to leave, and they could walk right over to a, a CBP officer and, you know, ask for asylum, go through their Credible Fear interview. Now under the way the law is written, since this would be now illegal reentry, the felony, what would happen if that officer, let's say, decided to camp out outside of that CBP office and wait till that person was, you know, released on their own recognizance, let's say, they would walk out. And even though they may have passed a credible fear interview, that is no bar to being arrested under the illegal reentry. And even more, disturbing is the fact that part of s b 4 under, again, the illegal reentry is having a status after you have been ordered deported or either by the federal government or the state of Texas. Even if you achieve a a legitimate status, the Texas law states that you can still be arrested and prosecuted under a legal reentry. You know, essentially, that officer could just wait outside that CPB office, arrest this person again, prosecute them under, illegal reentry, all while they're going through their asylum process in immigration court, which, of course, again, is why you have the supremacy clause so you don't have these contradictions between the federal and the state government. But that's the only way that we can see it work out, and, like, right off the bat, you see an issue with it.

James Pittman: So that's a huge a gigantic problem right there. First of all, you'd have somebody who had made an asylum application, and they're either gonna be incarcerated by the state of Texas, or else if they're removed by the state of Texas, they're gonna be basically abandoning their asylum claim because they'll have right. Exiting the country without advance parole to get back in. So has the state government has it really debated the number of people who could the number of additional people who could potentially be incarcerated by the state if this law were really applied. Because it seems like there could be an enormous number of people arrested under these and and without in other words, there could be an enormous number of people arrested. So first of all, has that been has had has that been a part of the debate, the number of people that could be incarcerated?

Justin Estep: It has been, actually. It was brought up not only by, again, immigration advocates and attorneys, but law enforcement officials who came to testify during the the debates. And, essentially, they would, you know, they wouldn't even come as for or against the law. They come as neutral. And their statement was just simply, like, looking at the amount of of entries into the United States recently and multiplying that out over years, you're talking about tens of thousands, if not hundreds of thousands of people, and there is no money in this bill. It is completely unfunded. So their question was, well, if you're gonna ask us to do this, our you know, our our jails and our prisons are already, you know, at capacity in many situations. How where are we gonna put these folks if they are arrested and then eventually convicted especially of the felony, which literally is years in prison. So there was there that was brought up, but it was never resolved. So, essentially, it would just be, well, hey. Y'all have to figure it out because we're not giving you any money for it, at this time. That's that's essentially what the sponsors of the bill that was their their company line as far as that particular issue.

James Pittman: Okay. Now you mentioned 28 work law enforcement organizations in the state of Texas who would have the authority to enforce this law. And I can imagine that there would be, like, the Texas, you know, Wildlife and Game Commission or

Justin Estep: Correct.

James Pittman: Equivalent. And you can imagine a lot of scenarios where people will encounter law enforcement that might otherwise not be, an incident or an or or or law enforcement interaction situation per se. Like, people go to family court for a trial custody hearing or something like that, and there are state law enforcement officers in the courthouse. Now if they have reason to believe that people coming to attend, let's say, their, you know, child custody hearing are potentially in the country illegally. Are they supposed to stop those people while, you know, they're they've entered the court, or what was the debate like? I mean, that that must have come up as to when the police are gonna be on the lookout for potential illegals.

Justin Estep: Yeah. So the essentially, the way that it was boiled down in in the debates, and this was, you know, just kinda sussed out between all of the issues that, you know, we've discussed here in the back and forth, is that you have one of 2 scenarios where you could have the probable cause to arrest someone under this law. 1, you have to literally physically see them cross the river around a point of entry. That's the easy probable cause. Most of the time, that's not what cops are doing. They're not sitting at the border, you know, looking for for folks to cross. That's never been part of their their deal. But the second part of that is, like you said, probable cause, but how? And the only way that you can get probable cause without that, without physically seeing them cross the border is some sort of racial profile. It's just there's no other way to go about it. You know, do they look like they're undocumented? Do they sound like they're undocumented? I mean, it's it's not even a slippery slope. It's you're already there with just the first step, to identify folks unless, again, you physically see them crossing the border. So, yeah, courts are definitely like, state courts, family courts are are have been an issue, not just with this law, but, since the previous administration. As part of the know your rights presentations we gave, we let folks know, listen. The the court is not a protected place. Like, there were ICE officers many times across the country waiting for folks at court houses to arrest them and put them in detention and then, you know, into some form of removal. So that is 100% a a risk that folks have. And, again, kind of the what we believe as as advocates and attorneys, part of the reason for the law, if not the main reason for the law, is the intimidation factor to keep folks from participating in the day to day activities that they would, sending their kids to school, going to their court, you know, dates, that sort of thing. So yeah. No. That's something that we definitely think would be a a part of it. And the big ish the big difference that's even a larger issue is you don't have, you know, ICE being alerted through some form or fashion. This individual is gonna show up for a court, hearing that day.

Justin Estep: You just have to have the local law enforcement, you know, be aware that they're undocumented, and they can at least arrest them under the auspices of this law. So it's it is it is a concern for for sure. And while you know, because the initial, arrest is a misdemeanor, the the statute of limitations doesn't go, you know, back in indefinitely into time. So a lot of folks, you know, may after they are found to be undocumented and even if they did go around the point of entry, if they came here 10 years ago, you know, there's not going to be really any any leg from the stand on, but it doesn't stop them from being arrested. That, you know, there's enough probable cause for an arrest there. They just won't eventually, be prosecuted successfully. So it is a major concern, with all the kind of interactions, that a person has to have with the government or otherwise that they could be racially profiled and possibly removed from the country without, you know, any sort of physical proof that they ever came in, undocumented and around a point of entry.

James Pittman: How about in the public welfare offices? I mean, people may apply for, assistance, you know, food assistance, for their children, etcetera. They may be undocumented, but their kids might have been born here. You know, if that fact were revealed in requesting any type of state services, let's say, for their family members, are any of the public welfare offices authorized, do you know, to to make referrals or otherwise enforce this law?

Justin Estep: That's not it wasn't specifically included. And operating in in the nonprofit space, I just I get I have a feeling, and, again, this is not confirmed, but with the level of confidentiality that's required for many of these programs, more likely than not, that wouldn't be an issue. But that doesn't mean that a you know, again, a police officer can't find out, like, oh, this person lives at this address and, you know, we have beliefs that they might be undocumented. We don't have enough to get a warrant to go in their house and arrest them, but, you know, we can follow them to a public place like a public welfare office or a McDonald's and then walk in and arrest them. But there has been no indication that I've seen that there is even there's definitely not a requirement or even an encouragement for for folks to do that, but they're really also outside of a few enumerated places, which are elementary, middle, and high schools, hospitals, if you're receiving treatment, not if you're, like, visiting someone getting treatment. An acronym, SAFE, places, which are locations where they do, like, rape kits and things like that. Unless you are, like, one of those locations or or a place of worship, then, essentially, law enforcement is if they are otherwise allowed to detain, interrogate, arrest someone, then they can do it anywhere else in the state of Texas.

James Pittman: Let's say, someone's undocumented, but they have a child or children who were born in the United States. Let's just return to that scenario for a minute. Sure. What can happen if they if somehow they come in contact with Texas law enforcement, and it does become they the police ask for ID. The person doesn't have any ID or the person speaks very little English or something, yet they have a child born in the United States. So under Texas' law, the Texas police can take them, but but what do they what would they theoretically do with their children? Because if they're just taking people to the border and asking them to go across, that's that's analogous, right, loosely analogous to an expedited removal. Right? Yes.

Justin Estep: I would say the tria.

James Pittman: There's no hearing. There's no judicial hearing there. So and ICE only does expedited removal like that in certain circumscribed situations. But if you're if you have sort of open season to do that across the board, what's gonna happen to these, US citizen children? They're gonna be forced to go to Mexico. They don't have authorization necessarily to be in Mexico. I mean, who theoretically, they might have the right to be a Mexican citizen if their parents were from there or something. But let's, you know, say they don't have proof of that fact. They don't have the required documentation of that. Then you're having a situation where people are being forced into a situation where they can either cross to Mexico, take their children who may or may not have authorization to go across, or remain and be charged with a felony. Am I get is that right? No. You're you're absolutely right. I mean, the there's several ways, I guess, it could play out.

Justin Estep: I mean, technically, there is a a judicial proceeding because if someone is arrested, then they're taken in front of a judge or a magistrate who offers this, hey. You can be you can go through the whole court case, and you if you're convicted, you can get up to 6 months in jail, and then, you know, we would turn you over to ICE is the idea. Or you can take this offer of if you, you know, haven't committed another crime in accordance with this whole situation, this is you know, you haven't entered previously, then we can just drive you to the border and you can leave, and we won't prosecute. So the issue that presents is, of course, if you do have a US citizen child, if you go to this judge or magistrate at whatever time of day and you haven't been able to communicate with your family, you could just end up going to the border and your kids are just left here. And the idea would be, well, then they would end up somehow with other family or in, you know, with the foster care system, but there is no prescribed solution. Well, Yeah. There's not there's none of that's included. That would just be in the normal course of of, you know, business, essentially. Well, their parent's not here, so they're being neglected. So now they're, you know, wards of the state, state, and they go into the foster care system. Or well, we've been, I've been doing lots of know your rights presentations around this. And this is just a good idea in general even without us before ever going into effect. Is getting folks to get what's called here in Texas a, chapter 34 guardianship agreement, which is a like, a form you can download off of, the state's website and fill it out, and it would essentially kick into kick into, a place if and when certain things happen. You can either set it for dates or for if you're removed from this country and then this would terminate if you ever able to return to this country. In that way, folks can place their kids with it doesn't even have to be a family member, just someone who they need one parent that is willing to sign it out of the 2, then you need the person who would be receiving the child, and it needs to be notarized. But if you can get that completed, then you at least that person who you've designated could take over guardianship of your child, and they wouldn't go into the foster care system. But, again, that that's the besides, like, the moral quandary of the law in and of itself, the mechanics are complete, as you put it, dumpster fire because there's these thousands of scenarios and none of the solutions to these problems are enumerated. And because the state has never enforced immigration laws, there's no, you know, backup infrastructure that's already in place to deal with these situations. So, basically, law enforcement, like I said, is just as confused as to what they're supposed to do in general as everyone else is.

James Pittman: Okay. Two important questions. First of all, how much of this do you think is is politics in the sense of Texas trying to adopt an extreme position to try to force the the national debate on the border in in its in a direction So let's take that one first.

Justin Estep: A 100% politics, 0% ready to enact the law. It's it is simple political posturing. That's been evident from the fact, like, I've already mentioned and we've discussed that the mechanics of the law really don't make any sense if you try to apply it, let alone the constitutional argument, the supremacy clause. And I I I even think you're giving, our folks here in Texas, our legislatures a little more credit than I would that it would be used to drive the conversation. Because as we just saw, you know, there was a a bipartisan agreement on immigration law in the senate, and it was it was torpedoed before it ever got to the house because and I even whenever I testified, I can't remember the second or the third time because it came up every special session. One of the times I testified, one of the the the legislators asked me, you know, as, like, Catholic charities, you know, like and then I was testifying on behalf of the Texas Catholic Conference of Bishops. Like, well, why don't y'all, you know, advocate for, you know, immigration reform? I'm like, that's all we do. I'm like, ever since I came into immigration law 15 years ago, comprehensive immigration reform at that point was, you know, only a day or a month or whatever away, and then it never never happened. And I ever since I've been in the nonprofit world, we've been advocating for it either Catholic Charities or AILA or the Texas Conference of Bishops, both on the state and national level, or the US Conference of Catholic Bishops. And what I've I answered, and I think I was unfortunately proven right by the the senate bill that got torpedoed is I honestly don't think that there is a desire to come to a solution because if you have a solution, then you no longer have a problem. And this is a problem that is very successful for, in particular, Republicans to campaign on. That, like, look. It's it's chaos. It's pandemonium. I mean and everyone would even agree on every side of the spectrum. I think that it's a humanitarian crisis. But the problem is if you solve it, especially with the current president who is not a Republican in office, then it reflects poorly. And it's just that was my straight answers. I honestly don't think that there is enough momentum on either side of the aisle to get anything done. And then whenever there was actually you know, I thought, hey. Maybe I'm wrong. You know, we got as far as the as, you know, the senate and not even out of the senate completely, and it was already killed. So, no, it's been political posturing from day 1. I think that you know, the folks in in the legislator, they are very much aware of what the of the most of them are attorneys. They're very much aware of what the constitution entails as far as the United States government negotiating treaties and regulating its own borders and the long history of precedent with the supremacy clause. But now they can go out and say, look. We are getting tough because, you know and this is the literally their argument that Texas is being invaded. So under the constitution, clauses, essentially, is therefore if the federal government couldn't react fast enough in a time before, you know, not even telephone is just, you know, Morse code even, that that the state could react to being invaded without having to wait for the federal government to to to tell them it's okay. And so they're essentially using that particular loophole as an argument. Well, we're being invaded, and so we don't need the federal government's permission to defend ourselves from this invasion. So it's it's a busted flesh argument from from the jump, and I think everyone's aware of that. And that is why we testified against it because, again, it's not a solution whatsoever. It's if it's anything, it's more of a burden on Texas as we've discussed with the law enforcement agencies, the prisons, the jails. But it now is, you know, made national news, and it's got, you know, all several other states on board, and now it's a, you know, a talking point for an election year. So I I think it's 100% political posturing, 0% actually trying to solve the problem.

James Pittman: I didn't have doubts that much that the border states of Texas and other border states really wanted to to solve the problem. I thought that in good that they did, in good faith, wanna solve the problem. But after that compromise failed, it it did seem to give credence to the, voices that were saying, hey. This is really a grievance machine that they that the the far right doesn't wanna give up on. This is a a cash generating you know, like, a fundraising tool, by been part of the politics of grievance. So, you know, you they don't wanna solve this problem. At least if they don't wanna solve it, they don't wanna solve it under, the Biden administration. So just let's hold this problem unsolved despite what we say in public. We're gonna hold this problem unsolved until, you know, after the election, and then maybe then maybe we'll solve it after we've milked it. So, I mean, that, you know, that seems like that lends credence to people who who are saying that. Just having it on the books is such a a tool of fear. What do you think about that, that having a having a law like this on the books, just like if you have, let's say, in the reproductive rights, if you have very, very stringent, you know, laws, on reproductive, freedom and, etcetera, it has a chilling effect or it has a fear inducing effect on the community at large. You know, how much of how much of that do you think is at play? It's like we have this, you know, club that we can hit you with. Even if we don't a 100% intend you to hit hit you with it now, you you should know that we have it. And that fear is also, you know, part of the, political climate. That's another question I have. And then thirdly, how does ICE feel about, you know, having the state as a partner in its in its mission as a general proposition? I mean, have they have they made any any statements? Obviously, they must have. But what has ICE been saying as far

Justin Estep: as you know? Sure. So as far as I know, ICE has remained somewhat neutral on it, kind of the the statements of, you know, we are always happy to accept any assistance as long as it's coordinated effectively with, you know, federal authorities. But, you know, that leaves it open to, we don't we're not saying that you're coordinating this but we're also not saying that we wouldn't take any help if you were willing to provide it. But, I mean, there have been interactions on the border, particularly between DPS, Department of Public Safety, and Customs and Border Protection, like, over the razor wire and things. But ICE has kind of tried to play both sides of it so far because, again, they haven't been forced to do anything as of yet because the law hasn't gone into effect. And then, I mean, as far as, like, a chilling effect, it absolutely is. The issue we saw, I what I've been comparing this to over the last decade was the, changes to the public charge rule or the proposed changes to the public charge rule under the previous administration where folks were literally pulling their kids out of their US citizen kids out of public school, taking them off of of food stamps or other, public welfare systems that their children were entitled to as US citizens because even though there was no way that they could even obtain these because they were have documented the these benefits, it was, you know, not laid out clearly that their children receiving them wouldn't affect them. We, as, you know, attorneys and, again, advocates pouring over the law and making sure, you know, that we understood that they couldn't be prosecuted for that. It didn't matter. And, especially, and this is another issue we run into. Anytime there is a law that does have a chilling effect or a change in policy that does have a chilling effect, it turns into a a a multiplied exponentially multiplied game of telephone through social media. And every that's where everyone, I feel, gets their news these days, or if it's not everyone, a large portion of folks. And so they'll hear something that, you know, someone drops on Facebook or Instagram or even TikTok, and at faster, you know, the I forget the exact phrase, but, you know, the a lie can circumvent the world before, like, the the truth even gets out the door, and that's what'll happen. It's not even a lie. Just misinformation can get out the door, and that just increases the chilling effect within the community itself because they are rightly terrified based on the fact of, you know, what they hear. And it's not just what's in the law. It's the rhetoric that goes with it. And I think that's what really contributes to that chilling effect is even though folks, you know, might not who have been here for 5, 10, 20 years undocumented, you know, that the law, again, ostensibly would not apply to them the illegal entry law. They think, you know, well, because they're passing passing this law, I could be racially profiled and, you know, arrested and and they don't understand those little nuances. So what they do is they, you know, completely shut down, take their kids out of school, try to move, you know, across the the country without, you know, having the means to do so, and so putting themselves in a and their families in a worse financial situation than they were already in. So, yeah, it definitely has a chilling effect, and we've seen that happen before. And I've seen it happening already without this law even going into effect as of yet.

James Pittman: Right. It's a it it it you were referring to the the telephone effect where each person hears a piece of news, and they put their own spin on it. And it gradually gets the information gets warped and, distorted as time more and more distorted as time goes by. And Absolutely. That tends to happen in society. It happens a lot among immigrants, etcetera. So, but, yes, it's a tool for further marginalizing an already marginalized community, and, you're generating a climate of fear which has the effect of causing people to shrink from contact with anyone associated with the government, with the state government. So, like you said, take their kids out of school or not apply for benefits, let's say, that their children might be entitled, that they might actually need because they're afraid of coming in contact with anyone associated with the government. I mean, all these fears can cause people to change their behavior whether or not their fear has a whether or not there's really a reason for them to be afraid realistically or not. How about the relationship between the community and local law enforcement? That, I guess, is just burned down when you're talking about and you need to take an area, and I've spent my share of time in South Texas and take an area like Harlingen Yeah. Texas or Brownsville or something where, you know, there are majority of the people in those areas have Mexican or Central American ancestry. I mean, you

Justin Estep: know, local law enforcement to investigate crimes in general, you know, relies on interacting with the public to gather information. What does a law like this do to the community's trust in police? I mean, it devastates it. It's it's already you know, it's a 10 historically, there's already a tenuous relationship between immigrant communities and police officers, and that's even immigrants that are here lawfully because many of them come from countries where the police forces are incredibly corrupt and, you know, might be in the pocket of of different, you know, terrorist groups or or criminal gangs or whatever the case may be. And it's, you know you'll be you're aware of this, but, I mean, the the reason the U Visa was created wasn't at the behest of, you know, primarily anyone but law enforcement agencies because they were having so much difficulty trying to get information from these immigrant communities that they thought, hey. And, you know, let's offer a carrot if you will or willing to help us by reporting these crimes and being whatever we classify as, you know, helpful in assisting and arresting and or prosecuting them, you know, we can we can perhaps provide you a pathway to permanent residency and and citizenship. So it's very counterproductive. And like I said, you know, that's that was created for a reason, and this is just enhancing it further, the the alienation between law enforcement and the immigrant communities. And, again, even the the leak the the the immigrant communities where folks might be here lawfully or might have mixed status families, you know, that this US citizen children might not wanna report that, you know, their, parent is being attacked by someone because their parent's undocumented, and this is what they've heard on the news. So, yeah, it's a it's a major concern. And like I said, it's very strange how things have changed in the 20 some odd years since UVs have existed that, you know, originally, law enforcement agencies were looking for ways to break into those insular communities and try to try to prosecute criminals, where now they're just enacting legislation that's going to push those folks deeper into the shadows.

James Pittman: Now has the state thought about now there is a section of the federal law which authorizes I'm paraphrasing a little bit, but it might be section 287, which authorizes the federal government to essentially deputize state law enforcement to assist with certain immigration functions. Has I mean, has that been explored as an alternative to, you know, the state trying to bring people to the border on its own? Why not have if Texas wants to utilize its state law enforcement to help immigration enforcement, why not cooperate and allow ICE to be in the driver's seat, you know, rather than trying to do it yourself when you're not trained for it? It.

Justin Estep: For sure. And there have been several municipalities that have signed those MOUs with the federal government, since that that partnership was, you know, made available. That's been controversial in many communities here in Texas, but that has been going on. The problem is is that, as you said, ICE is in the driver's seat. That means in in the eyes of the Texas legislature, at least is how they're portraying it to their constituents, that's putting the federal government, not not a particular ICE officer, ICE the organization, but the federal government in the driver's seat. And the whole point of this is that the federal government has failed us. And if we let them steer the the boat, then they're gonna drive us onto the rocks just like they have, you know, for the last however many decades that we've needed comprehensive immigration reform. So while that has been explored in the past, now that there is a an administration that is at least open to exploring certain comprehensive immigration reform, like more, immigration judges at the border, like, work authorization, much sooner for folks who are going through asylum processes and willing to give some enforcement, you know, concessions that not necessarily everyone in their convention or have their constituency that would be a 100% supported of, it doesn't matter because it's the federal government, and that is that is the boogeyman in the room.

James Pittman: Okay. What's where has the Mexican government come out on SP4? What have its statements been? And, you know, has it made any statements about what actions Mexico might take where this law actually to go into?

Justin Estep: Oh, yeah. No. They've been they've been vocal. We partner with the Mexican government through their local consulate. And, you know, we've had discussions with them about this law when it was being proposed and once it passed and as things have developed. And the Mexican government, in general has made statements that if this was to go into effect, they have no intention of just allowing anyone who we want to send over, as you said, outside from maybe, Mexican nationals. And, again, only through a process to where they can make sure that this person, you know, doesn't have outstanding warrants in Mexico or whatever the case may be. But they've made it very clear that they have no intention of honoring this law as far as accepting people coming across the border. So, again, that's just one out of a 1000 mechanics of this law that doesn't where, you know, it's it's got a 1,000 points of failure, and you only need one point for the whole thing to fall apart, and that's another huge one. It's like, we're gonna try to send someone over, and then the country we're trying to send them to is going to tell us no. And now you've got literally law enforcement standing off against law enforcement across an international border, and it's not even the federal government on our side that's engaged in the standoff, which, again, brings up a whole, hornet's nest of of issues with diplomacy and international treaties and things of that nature.

James Pittman: So, Justin, as best you can tell, where do you think the 5th Circuit is

Justin Estep: gonna come out on this issue, based on the arguments? I think that they will most likely decide, probably, 2 to 1 that the, law is unconstitutional, just again because the the argument that that the that an invasion justifies these laws being enacted, that that's the loophole they're trying to to fit this through. But I don't know if that's wishful thinking, to be honest, because the reason it got appealed up to the Supreme Court was because the, the Circuit Court of Appeals, you know, basically said that we're not going to declare the law unconstitutional. So I think the 5th Circuit most likely will probably declare the law as unconstitutional after the full arguments. And I my hope is that the Supreme Court would, but I don't have a lot of confidence that they will given how they reacted the first time that it made it up to the Supreme Court, that they would let the law continue as is until, you know, the full court case made its way, through the 5th Circuit and then back up to the Supreme Court. It's just it's I find it mind boggling because I have spoken to attorneys criminal attorneys across the political spectrum, and, basically, everyone looks at it and says, on this face, this looks like it violates the supremacy clause fairly clearly. But I I don't know. I've been surprised by, you know, Supreme Court decisions over the last few years or maybe not surprised, but kind of I've seen them coming and been surprised that we got to this point, but given how the Supreme Court's made up, at this point, I don't think you can guarantee that it would be found unconstitutional even though it seems to me every criminal attorney I speak with, you know, even looking at it in the outside of immigration context, like someone who has expertise in the criminal area, that this does not in any way comport with the constitution and having the separation of powers or something that is very clearly stated to be a purview of the federal government. So district court said it was unconstitutional. I think it's probably a 5050 shot that the court of appeals will will declare it unconstitutional. But given how the Supreme Court reacted, my opinion, I think it shifted on that that I think there is a, you know, 51% chance that they will declare this this as a constitutional law. Whereas, you could ask me that, like, 3 or 6 months ago, and I would have said no, almost or, declare it constitutional. But now I'd say that that's closer to a 50 50 shot.

James Pittman: Let's assume the worst case scenario. Let's let's say the law were to go into effect. You know, what what's the on the ground response been like so far as far as, let's say, Catholic Charities, other advocacy organizations, civil rights groups? I mean, what what are they planning let's say, curtail some of the possible very negative effects? Sure. So, I mean, from

Justin Estep: the start, like I mentioned, we've been testifying at the legislature since this law was proposed. And, that includes Catholic Charities in Central Texas, American Gateways. It's one of the the parties in the lawsuit, a local immigrant legal services and advocacy group, as well as, several other immigrant advocacy groups across the state. So it began right when when we saw, you know, on the horizon this being an issue. And then as far as practical things we've done on the ground, many of us have gotten together and pulled resources and essentially come up with add ons for know your rights presentations to educate the public and also service providers, whether it's public schools or, nonprofits or even local churches. I've given presentations to essentially laying out this is what s p 4 is. This is what it is not. This is, you know, what someone should do to prepare for the worst case, you know, getting their emergency plan together. These are the requirements under the law in Texas and going over know your rights that, you know, if you are you don't have to show your ID in Texas, if a law enforcement officer just asked for it. If you're arrested, you do have to identify yourself, but you do not have to, again, have to provide paperwork. You just have to provide your name, your date of birth, and your address, and that way you can't also be charged with a failure to identify. And just really stressing that to folks and then trying to encourage them to not take their kids out of school and not stop living their lives, especially given the fact that s p four hasn't gone into effect yet and really encouraging them to avail themselves of resources like the chapter 34 guardianship agreement to try to prepare for the worst case scenario while advocating, you know, whether it was at the the state legislator legislature or now, you know, through either filing, one of the lawsuits or supporting them in the community, trying to inform the public both, again, the the the community that could be affected as well as the folks they interact with, whether it's their teachers or or the nonprofits they work with. And, just trying to stay up on it because as we saw this week, literally, you can have, go there and back again in less than, you know, 14 hours. So that's what we're trying to do is keep everyone informed and make sure they have the best information to protect themselves, should the law go into effect. But and to to be honest, protect themselves regardless if s p four ever goes into effect, just make sure they know what their rights are.

James Pittman: Yeah. We could I mean, it's we're it's it's very turbulent. It's it's really a very, very volatile situation legally, constitutionally, and, obviously, practically on the grounds in terms of its humanitarian dimensions. Certainly, it's gonna be a bit of a roller coaster ride until we get, you know, a final decision from, eventually, the Supreme Court on this issue, and we'll see we'll see, you know, what what is the current Supreme Court's idea about the supremacy clause? I mean, could we be in for a rethink on on the parameters of the supremacy clause kind of the the way we're in for a rethink on Chevron deference, which was a a doctrine that, you know, was around for quite a long time, deference of courts to agency federal agency decisions, and then that that is now being, you know, scaled back, significantly. So we we will see. But, Justin, we we do very much appreciate you engaging in this really thought provoking and and informative discussion about Texas law as before, a an an immigrant a state law that would affect the rights of immigrants and would affect, really, the rights of all Texas residents. Before we leave, let us just, give give a shout out to Catholic Charities of Central Texas. You are the senior director of immigration services and refugee resettlement. Just tell us real quick. Tell us a little bit about the services provided by your organization. Sure. So, my two programs, as

Justin Estep: you mentioned, immigration legal services and and refugee support services, we both provide representation for folks going through just about any type of immigration process, whether that's, an immigration court or affirmative, applying for naturalization, DACA renewals, family based immigration, where we can, for example, for with the refugee grant, we provide our services, free of charge. Otherwise, we make sure that we have enough funding to where we can charge a low cost fee to our clients. Typically, it's about, 20 to 30% of what a for profit private attorney would charge, for a similar service in the Central Texas area. And we walk them through the entire process from beginning to end. We don't just help them fill out the applications. We make sure that, you know, whatever the outcome of their particular case may be, that we're gonna be there, from start to finish. And then as far as our refugee support services, we opened that, officially a year ago this month. And those services include everything for, from refugee cash and medical assistance for the 1st year that someone's in the country or the 1st year of their, particular status, like asylee status, the medical being a form of Medicaid, social adjustment services, which are just generally helping folks integrate into the American community, the local community, employment services, helping those, with work authorization either get employed or get, more gainful employment, you know, that actually has benefits and other parts of our employment, system that we enjoy, as well as, refugee school impact, which is a particular program helping families, refugee families, with school age children, with homework assistance, school orientation, educating the educators essentially on different issues that these folks run into either, you know, with their, legal proceedings in immigration law or just generally they run into, being in a new country. So, those are the services we provide under my programs. And then we also have other programs such as, financial assistance, mental health counseling, as well as, veteran services. So we, you know, can refer folks, that are our program to their programs, and we receive referrals, from those other programs as well. But our idea is to essentially, our mission statement is to assist those that are typically underserved or marginalized to provide them the dignity that they deserve. And, hopefully, that whenever they leave our organization, however many programs they take advantage of, that they'll not only be better off than when they came in, but that, hopefully, they won't need our services anymore and can go out and stand on their own two feet and be able to, you know, be a productive member of society and have worked through all of their issues.

James Pittman: Okay. Well, that thank you very much for that wonderful summary about Catholic Charities of Central Texas. Thank you, Justin. And, that's all we have for today. Please join us next time on the Immigration Uncovered podcast, and thank you. Thanks for having me.

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