By Fernando Tafoya 

On Dec. 19, 2023, soldiers of the Texas National Guard ignored the cries of a baby and her mother yelling for help for fear of drowning as they negotiated the Rio Grande on the Texas-Mexico border. 

Less than a month later, Texas agents operating under Gov. Greg Abbott’s Operation Lone Star mandate, ignored two children and a woman who were in distress near Eagle Pass’ Shelby Park in the Rio Grande. The Texas Military Department officers blocked access to the migrant children and woman as Border Patrol agents tried to help. The result was two children drowned along with the  woman that was with them. 

These are two examples of how  Abbott’s “Texas immigration policy” is endangering and in some cases ending the lives of people who come in search of the “American dream.”  

Texas Senate Bill 4 passed last year would establish Texas’ own immigration law. A federal judge has blocked it from taking effect this month. 

SB 4 allows Texas law enforcement officers to arrest and deport any individual they suspect is a migrant unlawfully within the Texas border. But once families are apprehended, what proposal does SB 4 have for keeping migrant families together? When families are arrested, where will they be detained?

The immigration policy of the Trump administration provides some clues. The zero-tolerance family separation plan became the official policy of the nation when it was announced in the spring of 2018.  

The policy was implemented with such glee that government officials failed to develop a plan to eventually reunite children with their parents after their parents were released from jail.

The result was that children were “lost in the system” and parents were told their children could not be located.  Meanwhile, many parents were deported to their home country without their children.  

When the children asked for their parents, immigration officials created a myriad of fictional stories to try to keep the children from learning their parents were not coming for them.

As the children remained in detention without their parents or family, the  Department of Justice celebrated the “success” of their zero-tolerance family separation policy.  The Trump administration bragged that to be humane, one had to be cruel so that a migrant who left persecution in their home country would know the safety of our nation was not available to them. So, don’t come!

Fortunately, the checks and balances of the Constitution allowed legal advocates to challenge the family separation policy. The U.S. government entered into a settlement agreement ordering the government to re-unite the missing children with their families.  The numbers were in the thousands.  

A trans-national search was launched to find the deported parents and reunite them with their detained children.  The search to reunite families continues today.

If the federal government with all of its resources was unable or unwilling to keep track of the children separated from their families, what provisions are in SB 4 to make sure the family separation errors are not repeated in Texas? 

A plain reading of the statute provides no proposals, and  it will be left up to Texas enforcement agencies to handle that issue.  The Abbott administration has not addressed this problem. 

If Texas state juvenile justice facilities are to be used, such facilities are already full and wrought with staffing and funding issues.  Where will  migrant children who are not criminal offenders be detained? Local jails? Surplus state buildings? Tents? Tender age centers?

As the governor and his supporters boast that they are tough on “illegal and criminal aliens,” the question remains, where will the children stay?

Fernando Tafoya is an attorney and professor of law who grew up in El Paso.