US appeals court temporarily blocks immigration officials from cutting Texas border fencing News
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US appeals court temporarily blocks immigration officials from cutting Texas border fencing

The US Court of Appeals for the Fifth Circuit temporarily enjoined the Department of Homeland Security (DHS) from cutting Texas’ wire fencing at the US-Mexico border on Tuesday. The case is an appeal from the US District Court for the Western District of Texas, which rejected Texas’ motion for a preliminary injunction.

Circuit Judge Stuart Kyle Duncan authored the court’s order. Duncan found that the district court legally erred when it concluded that 5 U.S.C. § 702 does not waive DHS’s sovereign immunity. Duncan ruled that § 702 “plainly waives” sovereign immunity for a trespass to chattels claim. This law states that:

An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party.

Additionally, Duncan found that Texas has “demonstrated a strong likelihood of success on the merits of its trespass to chattels claims.” Trespass to chattels is an intentional act by a person that interferes with another’s property.

In response to the ruling, Texas Attorney General Ken Paxton stated:

I am very pleased the appellate court has forbidden federal agents sent by the Biden administration from destroying our concertina wire fences. Given the ongoing disaster at the southern border due to the federal government’s intentional actions, more than ever it is necessary to take every step we can to hold the line. I will continue to fight against the Biden administration’s radical policies and work to make Texas a safer, more secure place to live.

The fencing’s construction was part of a Texas initiative to block irregular migration from Mexico called “Operation Lone Star.” In September, the Fifth Circuit ruled that Texas can leave a floating barrier in the Rio Grande. The floating barrier at issue in that case is a 1,000-foot-long system of buoys tethered via chains to concrete blocks placed on the riverbed of the Rio Grande along the US-Mexico border. Additionally, Texas Governor Greg Abbott signed a bill into law Monday that criminalizes illegal entry into the border state from anywhere but a port of entry, exerting state jurisdiction over what is normally a federal matter.

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