Texas must remove a floating barrier it placed at the Rio Grande to deter immigrants from illegally crossing the United States-Mexico border, an appeals court ruled Friday.
The U.S. Court of Appeals for the 5th Circuit ruled 2-1 to decline a request by Gov. Greg Abbott (R-TX) to reverse a lower court decision that had ordered it to remove the 1,000-foot-long string of buoys placed at the river in July near Eagle Pass, Texas. The decision can still be appealed, but it marks a victory for the Biden administration’s efforts to remove the barriers, arguing they unlawfully block navigation and cause humanitarian concerns.
A panel of three judges held that the shallow waters where the buoys were deployed were considered navigable, thereby requiring Texas to obtain permission from the U.S. Army Corps of Engineers under environmental laws, according to a 67-page majority opinion.
Abbott blasted the panel’s decision as “completely wrong” and said he and Attorney General Ken Paxton would seek an immediate en banc hearing. If granted, it would convene all the court’s judges to rehear the case.
“We’ll go to SCOTUS if needed to protect Texas from Biden’s open borders,” Abbott posted on X, the website formerly known as Twitter.
Following the Biden administration’s July lawsuit against Texas, U.S. District Judge David Ezra ordered state officials to move the buoys to an embankment on the U.S. side of the river, which serves as the border with neighboring Mexico, pending a final ruling in the case.
Judge Don Willett, an appointee of then-President Donald Trump, was the lone dissenter. He argued the district court “tried to spin” the river’s naturally treacherous conditions as evidence that the barrier itself is dangerous. But “I cannot,” he contended.
“To support the district court’s assessment, the majority opinion cites a quote by Governor Abbott that migrants ‘risk their lives by crossing illegally through the [Rio Grande],'” Willet said, noting that the majority opinion “misread” Abbott’s quote.
“The majority opinion holds this out as evidence that ‘the floating barrier pose[s] a risk to human life.’ But Governor Abbott was talking about the danger posed by the river, not the barrier,” Willet explained.
The barrier is one of Abbott’s most recent strategies to try to block immigrants from crossing the river, and he has also deployed razor wire along the riverbank to deter crossings further. On Thursday, a federal judge rejected Texas’s bid to block federal immigration authorities from destroying wire fences.
Abbott and Republican allies have criticized the Biden administration’s handling of the immigration crisis at the southern border, and they say the federal government is not working hard enough to deter illegal immigrant crossings.
The Department of Homeland Security announced in October that it would create more sections of border wall to deter immigrants from crossing from Mexico, which marked an about-face to embrace a familiar policy position of the Trump administration.
