How Texas’ Proposed Criminalisation of Immigration Jeopardises Human Rights Commitments

by | Mar 28, 2024

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About Kendra Cornelis

Kendra Cornelis is a JD Candidate at NYU School of Law. She has a BA in Political Science from CUNY Hunter and a MSc in Refugee and Forced Migration Studies from the University of Oxford. Her previous research has covered the illegal deportation of American Citizens and the effects of offshore asylum processing in the Mediterranean on the rights of refugees.

Senate Bill 4 (SB 4) —which is currently blocked from taking effect— is the latest in a long line of repressive strategies that the state of Texas is using to suppress migration. Immigration offenses have historically been considered civil offenses in the US. However, SB4 would make crossing the border at an unofficial port of entry a Class B misdemeanor, which could mean up to six months in jail for first-time offenses and up to twenty years in prison for individuals who have been arrested multiple times.

The Rights of Migrants at the US-Mexico Border

Texas has developed a cruel and aggressive array of tactics to discourage people from crossing the US-Mexico Border outside of official ports of entry. Texas National Guardsmen have laid down razor wire along the banks of the Rio Grande to both deter and ensnare migrants, some as young as four years old. Texas officials have encouraged border patrol members to withhold water and have denied rescue assistance to migrants suffering from injuries and heat exhaustion. According to some reports, state border agents have even been directed to push people back into the river to prevent them from entering Texas soil.

Most people who decide to make the treacherous journey across are driven by urgent social, economic, or safety concerns. Primary drivers of migration include economic collapse, gang violence, political instability, and climate-induced displacement.

Under the United Nations’ 1951 Refugee Convention, individuals fleeing persecution based on their race, religion, nationality, political opinion, or membership of a particular social group are robustly protected from deportation and guaranteed certain rights to membership and resettlement in the US. However, even those who are not always eligible for asylum (for example, people fleeing gang violence, climate change, and economic disaster) are still protected from certain treatment based on international human rights law.

Under the UN Convention on Torture (CAT)— to which the US is party—states are prohibited from transferring any person, regardless of their reasons for migrating, back to a country where they are at serious risk of facing torture, serious human rights violations, or “irreparable harm.” This has become known as the principle of non-refoulement. Additionally, under both the International Covenant on Civil and Political Rights (ICCPR) and the Universal Declaration of Human Rights (UDHR), migrants are protected from cruel, inhuman or degrading treatment and have an affirmative right to both life and dignified treatment. Texas’s current border policies have flagrantly violated these international human rights laws and norms. SB 4 is only the latest in a long line of creative strategies being deployed by the state of Texas to deter migration, without regard for the rights of migrants and refugees.

SB 4: Increased Risks for Migrants and Citizens


Prior to the enactment of SB 4, Texas Troopers and National Guardsmen groups were limited in their ability to detain migrants on federal immigration charges, instead using trespassing laws as the basis for arrests. SB 4 would give Texas police new latitude to surveil and detain individuals suspected of crossing the border illegally, intensifying the risks to migrants and citizens alike.

It may also embolden law enforcement agents to engage in risky enforcement practices, like the high-speed pursuits that have already killed 74 people. And it will incentivise racial profiling of all Texas residents regardless of their status, as law enforcement agents attempt to identify who among them may be unlawfully present. Lastly, criminal convictions often create serious complications for individuals who are facing deportation. As a result, individuals detained on charges under SB 4 may be at an increased risk of being deported to countries where there are serious threats to their safety, dignity, and human rights, in violation of the principle of non-refoulement.

What SB 4 Means for US Human Rights Obligations

Despite having initially put the law on hold, the Supreme Court voted last week to allow the law to go into effect. Hours later, the 5th Circuit issued a new ruling, blocking the law once more.

The judicial vacillation of the last few weeks demonstrates just how fraught the border has become in the United States. However, while policymakers and judges continue to make and unmake immigration laws, real people are experiencing the violence of the border and its legal uncertainties every day. Without clear and decisive immigration reform that would end Texas’s reign of terror over migrants, the U.S. cannot uphold its international commitments to human rights.

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