DPS has charged hundreds of migrants who rushed a border gate with rioting. A judge has thrown out the charges.

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EL PASO — Twice in recent months, hundreds of migrants have rushed a border gate in El Paso in an effort to push past state troopers and National Guard and get into the U.S.

The Texas Department of Public Safety responded by arresting hundreds of the migrants en masse on misdemeanor rioting charges. Now that strategy is being tested in local courts.

Earlier this week, a judge in El Paso dismissed 211 of the rioting cases related to one incident; the same judge had previously dismissed 140 other cases from another border-rushing incident — those cases were revived when the local district attorney took the unusual step of presenting the misdemeanor cases to a grand jury, which indicted all the migrants.

Typically grand juries only review more serious felony cases, while prosecutors present misdemeanor cases directly to judges who must determine if there’s enough evidence to support charging someone with a crime.

El Paso District Attorney Bill Hicks has defended his move and says that it is about maintaining law and order, not anything to do with an individual’s legal status. Gov. Greg Abbott appointed Hicks to the job after the previous district attorney left office following an effort to oust her amid allegations of incompetence and official misconduct.

“This, at least from the prosecutor’s point of view, has nothing to do with immigration,” Hicks said this week. “This is a matter of people committing a crime and destroying property and endangering lives.”

At news conference on Thursday, Hicks defended his decision to present the cases to a grand jury and said his office will appeal Judge Ruben Morales’ ruling. He added that the 211 migrants would be released on Thursday. He said that if an appeal’s court reverses Morales’ ruling he would issue arrest warrants for the 211 migrants whose cases the judge dismissed this week.

“It's proper to take those cases to a grand jury of 12 people in our community and ask those 12 people in our community what do they think,” he said. “It's appropriate that our community has the opportunity to speak.”

Hicks said he is not prosecuting the cases to make any political statement about immigration. He said he is doing so because anyone that “breaks the laws in our community, we will file charges and make sure that that person faces justice in our courtrooms.”

“These cases are not about immigration. These cases are not about politics,” he said. “These cases are clearly about law and order.”

Elissa Steglich, co-director of the University of Texas School of Law’s immigration clinic, said the rioting charges appear to be tied to the state’s recent push to deter migrants from crossing into Texas — an effort that has put it in conflict with the federal government, which has primary jurisdiction over immigration laws.

“It’s hard not to see the arrests as an attempt to enforce immigration law while using state criminal provisions,” Steglich said. “It raises the real tension in that people under the law have the right to seek asylum.”

DPS did not respond to a request for comment about the latest case dismissals. A spokesperson earlier referred inquiries to Hicks’ office.

The first border gate rush occurred in March when, according to Hicks, nine migrants at the front of a group of roughly 1,000 asylum-seekers cut through concertina wire and allegedly assaulted National Guard members.

At Abbott’s direction, DPS arrested more than 200 of those individuals on misdemeanor rioting charges.

It’s a rare criminal charge: Fourteen people were charged with rioting in El Paso County over the last decade before this year’s mass arrests, according to county figures. The crime is punishable by up to 180 days in jail or a $2,000 fine.

“If this is their new strategy, I’m hoping they will quickly learn that it’s a poor one,” said El Paso County Public Defender Kelli Childress, who is defending many of the migrants. “Arresting people against whom you have evidence that they committed a crime is one thing, but arresting people for the purpose of harassment to add to some sort of deterrent would be a really bad mechanism to curb migration.”

DPS arrested 141 migrants on the same charge following another border gate rush in April.

Morales dismissed 140 of the cases shortly after, ruling that DPS had insufficient probable cause to continue detaining the migrants, who were then turned over to federal authorities.

Following the dismissals, Hicks presented the same cases to a grand jury, which indicted the migrants on the same charges. That led federal authorities to send the migrants back to county custody so they could be served warrants. But the future of the new cases remains unclear after this week’s dismissal of the cases against the other migrant group.

On Wednesday, Morales dismissed the cases related to the March incident because prosecutors had convened a grand jury in state court, then took the cases to a county court without a required order transferring the cases between jurisdictions.

“I can't just randomly take cases and hear them without proper orders,” Morales said during a hearing this week. “That's just not the way it works.”

Childress, the public defender, said she is raising the same issue to challenge the charges against the migrants who rushed the border in April.

Immigration-related cases don’t end up in Texas courts frequently: U.S. Border Patrol agents typically detain migrants who illegally cross the border and either charge them with suspicion of entering the country illegally — which are handled in federal courts — or send them through an administrative process to quickly deport them. Migrants can also request political asylum.

But in different parts of the Texas-Mexico border, including in El Paso, the state has set up barriers aimed at preventing migrants from surrendering to Border Patrol after they’ve crossed the Rio Grande.

The El Paso arrests occurred amid the state’s ongoing, multibillion-dollar border security initiative, Operation Lone Star, and an escalating fight with the federal government over immigration enforcement. DPS troopers deployed to the border as part of Operation Lone Star have arrested migrants on state trespassing charges since July 2021.

Lawmakers last year approved a new law that would let Texas police arrest people suspected of entering the country illegally on state charges. The law, Senate Bill 4, remains locked in a legal battle between the federal and state government.

Legal experts said the mass arrests like those carried out by DPS on the border can be challenging to prosecute in court.

“The issue in all of these mass crime cases is you need to figure out who did what, which can be very difficult,” said Thomas P. Hogan, a former prosecutor currently teaching at South Texas College of Law Houston. “You need to figure out exactly what conduct each individual engaged in and whether or not it violated the law.”

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