A federal appeals court on Tuesday issued an injunction ordering the Department of Homeland Security to stop cutting holes in Texas’ razor wire border fence except in cases of a medical emergency.
The ruling is a significant victory for Gov. Greg Abbott, who has overseen a major state effort to fill in border security gaps left by the more relaxed approach from President Biden.
A three-judge panel of the 5th U.S. Circuit Court of Appeals rejected the federal government’s attempt to claim immunity from a lawsuit and said on the merits Texas had easily made its case that the Border Patrol, in cutting the concertina wire, is trampling on the state’s property.
“Defendants are enjoined during the pendency of this appeal from damaging, destroying or otherwise interfering with Texas’s c-wire fence in the vicinity of Eagle Pass, Texas,” Judge Stuart Kyle Duncan said in the court’s opinion.
The injunction will last as the case proceeds through the courts for a fuller argument and decision.
Texas has placed 110 miles of razor wire along the banks of the Rio Grande to stiffen its border against the record flow of illegal immigrants. After Border Patrol agents began cutting the wire, the state sued.
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A lower court had ruled against the state last month, finding that the U.S. government had sovereign immunity in the case.
Still, Judge Alia Moses had delivered a serious spanking to the federal government, saying it was wrong in arguing it had to cut the wire to carry out its mission to apprehend and detain migrants.
Judge Moses, appointed to the bench by President George W. Bush, sorted through the evidence in the case and said she found at least 14 incidents of wire cutting, many of which did not involve emergencies.
One she focused on came on Sept. 20, when agents cut new holes in concertina wire even though there was already a hole 15 feet away. Agents also dropped a climbing rope to help illegal immigrants surmount the banks of the Rio Grande.
A Border Patrol boat sat in the river observing the people but never attempting to interdict, question them or try to block them from coming. Instead, after the migrants reached U.S. soil, agents let the migrants walk a mile inland without any supervision, hoping they would go to a Border Patrol processing location to be officially arrested and processed.
“The court found no alien was ‘inspected’ at all. Moreover, if agents intended to inspect, they could have done so without doing anything to the wire,” Judge Duncan wrote in Tuesday’s appeals court opinion.
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He included photos in the opinion showing some of the situation, with migrants wading across the river and streaming in through a hole in the razor wire fence.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
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