A 2023 Texas law that lets state police arrest people suspected of entering the country illegally can go into effect after a federal appeals court lifted a lower court ruling that had stopped it for years. The Fifth U.S. Circuit Court of Appeals’ decision means that Texas Senate Bill 4 — which had been blocked by a district court — can now be enforced by state and local law enforcement.
What changed
The Fifth U.S. Circuit Court of Appeals lifted the temporary injunction without weighing in on the underlying legal questions because the plaintiffs lacked standing to sue. The court ruled in a 10-7 decision that immigration advocacy organizations — Las Americas Immigrant Advocacy Center, American Gateways, and El Paso County — could not pursue the lawsuit because they had “voluntarily incurred costs to advocate for clients,” which the court found insufficient to confer legal standing under recent Supreme Court precedent.
SB 4, passed during a special legislative session almost three years ago, creates a state misdemeanor for illegally crossing the border into Texas and lets authorities arrest people suspected of having violated it. The law also requires state magistrate judges to order people arrested for illegal entry to leave the country for Mexico in lieu of prosecution or if they are convicted.
The appeals court specifically noted it was deciding the case “without addressing the merits” of the constitutional challenge — meaning it made no determination on whether SB 4 actually violates federal law or the U.S. Constitution.
Why it matters
For practitioners, SB 4’s enforcement now means clients face dual exposure: federal immigration consequences plus Texas state criminal liability. Immigration law has historically been enforced solely by the federal government. Texas lawmakers sought to challenge that precedent with the law, which quickly drew constitutional challenges from immigrants’ and civil rights groups who argued the policing of immigration is under the federal government’s purview alone.
Key risks for your clients:
- State misdemeanor charges for suspected illegal entry, adjudicated by state magistrate judges who lack immigration law expertise
- Magistrate-issued deportation orders that operate outside the federal immigration system, creating conflict with pending federal cases
- Re-entry consequences if clients attempt to return to Texas after a magistrate order, even if they later obtain lawful immigration status or federal permission
- Disrupted federal proceedings — magistrates may be required to continue prosecution even while a client has a pending case before USCIS or immigration court
The standing ruling is also significant: it limits the ability of immigrant advocacy organizations to mount future legal challenges, though individual plaintiffs or other parties may still have avenues to litigate the law’s constitutionality.
Way forward
Immediately:
- Brief all clients in Texas, particularly those in border counties or with a history of recent border crossing, on the new state-law exposure
- Document any statements clients have made about their manner of entry, as these may be used in state criminal prosecution
- Flag clients’ cases for potential conflict between state criminal proceedings and federal immigration adjudication
Strategically:
- Monitor federal litigation (a separate lawsuit by the ACLU and others remains pending before U.S. District Judge David Alan Ezra)
- Coordinate with local criminal counsel if SB 4 enforcement begins
- Preserve appellate arguments that the law preempts state action in the immigration arena, even though the 5th Circuit did not rule on them
For future filings:
- Anticipate that state law enforcement may refer cases or share information with federal immigration authorities, and prepare accordingly
Disclaimer
This article summarizes a federal court order but is not legal advice. The analysis reflects public reporting on the 5th Circuit’s decision; the full order and any subsequent developments may contain details not covered here. Immigration law and policy change frequently and without notice. Verify all information against the primary source linked above and consult a licensed immigration attorney about your specific situation. Fola provides software for immigration practitioners; we are not a law firm and cannot provide legal advice.