University of Houston Law Center Professor Geoffrey Hoffman
Oct. 27, 2021 – UHLC Clinical Professor and Immigration Clinic Director Geoffrey Hoffman spoke at a virtual meeting held by the Ministry of Foreign Affairs through the Mexican Civil Rights Advisory Group in the State of Texas on Tuesday to discuss the effects and limits of “Operation Lone Star.”
Operation Lone Star has been implemented by Texas to deter undocumented entry. It could mean Mexican nationals would not have a defense attorney promptly or be unaware they have one, have to sign documents in English without understanding their meaning or be detained in prisons without justification. In his remarks, Hoffman cited Arizona v. The United States, which was a 2012 Supreme Court case that ruled states cannot make it a state crime to work without authorization or be unlawfully present under federal law. Additionally, he said the case also showed the difficulty of determining whether someone has "illegal" status given how complex immigration law is.
“The ability of state governments to enforce immigration laws is very limited and those limits are clearly delineated,” Hoffman said.
Hoffman said other limits stem from the structure of federal laws that govern the interaction between states and federal immigration enforcement agencies, for example, the INA 287(g).
“The INA 287(g) program requires training and oversight by federal authorities, including an agreement by local entities, before they may be delegated enforcement authority,” he said. “We also know from a Texas state law which is already in place what the state has been legally allowed to do. The prime example is SB-4. That law has been largely upheld by the Fifth Circuit, and we know that no police officer can be prohibited under SB-4 from communicating with ICE. Also, police officers are allowed to question someone's immigration status, during an otherwise lawful stop.”
Hoffman said federal law permits free communication between state or local and federal agencies. However, SB-4 does not allow restriction of free speech and does not contain anything that would authorize Operation Lone Star.
“In the ‘Operation Lone Star’ context, there are many signs that the State of Texas is overstepping its bounds by arresting, charging and prosecuting people for being unlawfully present under federal immigration law on a theory of state trespass,” he said. “In addition, the federal courts have already enjoined some aspects of the operation including the attempt to require DPS to stop cars suspected of containing illegal migrants and impounding those vehicles. The measure all but required racial profiling.”
Additionally, Hoffman said the Supremacy Clause and federal preemption severely restricts what states are lawfully allowed to do to enforce federal immigration laws. This is because the federal statutory scheme "occupies the field" and there is direct conflict preemption when state enforcement is at odds with priorities and policies of federal enforcement.
Hoffman said the Mexican consulates and foreign ministry should be prepared to help their nationals if caught up in any attempted state enforcement of the federal immigration laws. His proposed actions include legal counsel for expected state criminal prosecutions for trespass or other alleged crimes and federal prosecutions for illegal entry or re-entry; legal counsel for expected removal proceedings in immigration court; advice and or other legal help; and advising people to have a family plan in case they are detained and incarcerated.
Hoffman specializes in immigration-related federal court litigation, deportation defense, asylum cases and appeals before the Board of Immigration Appeals. He has represented numerous immigrants in a variety of settings including before the Department of Homeland Security and in the federal courts.
For further information, see Notice & Comment published by Professor Hoffman in the Yale Journal on Regulation and ABA Section of Administrative Law & Regulatory Practice Blog.
