Case 2:23-cv-00055-AM Document 57 Filed 11/29/23 Page 1 of 34 FILED

November 29, 2023

CLERK, U.S. DISTRICT COURT
WESTERN DISTRICT OF TEXAS

IN THE UNITED STATES DISTRICT COURT JAW

BY: ________________________________
DEPUTY
FOR THE WESTERN DISTRICT OF TEXAS
DEL RIO DIVISION

THE STATE OF TEXAS, §

§
Plaintiff §
§ Civil Action No.
v. § DR-23-CV-00055-AM
§
U.S. DEPARTMENT OF HOMELAND §
SECURITY; ALEJANDRO §
MAYORKAS, in his official capacity as §
Secretary of the U.S. Department of §
Homeland Security; U.S. CUSTOMS & §
BORDER PROTECTION; U.S. §
BORDER PATROL; TROY A. §
MILLER, in his official capacity as §
Acting Commissioner for U.S. Customs §
& Border Protection; JASON OWENS, §
in his official capacity as Chief of the §
U.S. Border Patrol; and JUAN §
BERNAL, in his official capacity as §
Acting Chief Patrol Agent, Del Rio §
Sector U.S. Border Patrol, §
§
Defendants. §

MEMORANDUM OPINION AND ORDER

Pending before the Court is the State of Texas’s (the “Plaintiff”) Motion for a Preliminary

Injunction or Stay of Agency Action (the “Motion”) against the United States Department of

Homeland Security (“DHS”); Alejandro Mayorkas, in his official capacity as Secretary of DHS

(“Mayorkas”); United States Customs and Border Protection (“CBP”); United States Border Patrol

(“BP”); Troy A. Miller, in his official capacity as Acting Commissioner for CBP (“Miller”); Jason

Owens, in his official capacity as Chief of BP (“Owens”); and Juan Bernal, in his official capacity

as Acting Chief Patrol Agent of the Del Rio Sector of BP (“Bernal”) (collectively, the
 Case 2:23-cv-00055-AM Document 57 Filed 11/29/23 Page 2 of 34

“Defendants”). (ECF No. 3-1.) Upon careful consideration of the record and relevant law, the

Court DENIES the motion for preliminary injunctive relief.

I. BACKGROUND

A. Procedural Background

On October 24, 2023, the Plaintiff commenced this civil action against the Defendants.

(ECF No. 1.) According to the Plaintiff, the Defendants are destroying its property by cutting the

concertina wire (“c-wire” or “wire”) fence the Plaintiff constructed near the U.S.-Mexico border.

(Id. at 3-4.) The Plaintiff claims that this property destruction is intended to allow migrants to

enter the country illegally. (Id. at 1-4.) The Plaintiff raises numerous claims against the

Defendants, including common law conversion, common law trespass to chattels, and several

violations under the Administrative Procedure Act (“APA”). (Id. at 23-28.) The Plaintiff seeks

the following: preliminary and permanent injunctive relief to enjoin the Defendants from seizing

or destroying the Plaintiff’s property; a stay of agency action under 5 U.S.C. § 705; a declaration

that the Defendants’ actions are unlawful; and costs. (Id. at 28-29.) Together with the Complaint,

the Plaintiff filed a motion for preliminary injunctive relief, which is presently before the Court.

(ECF No. 3-1.)

Three days later, on October 27, 2023, the Plaintiff filed a Motion for a Temporary

Restraining Order (“TRO”). (ECF No. 5.) One day later, the Plaintiff filed a Notice of Escalating

Property Damage in Support of its Emergency Motion for a TRO. (ECF No. 8.) The Plaintiff

alleged that the Defendants, knowing a motion for a TRO had already been filed, used a forklift to

seize concertina wire and smash it to the ground. (Id.) The Court, considering the motion for a

TRO ex parte and on an expedited basis, granted the request on October 30, 2023, which forbade

the Defendants from interfering with the Plaintiff’s concertina wire except for medical

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emergencies. (ECF No. 9 at 4, 11.) Following the TRO, the Defendants filed an opposition to the

motion. (ECF No. 23-1.) Thereafter, the Plaintiff filed a reply in support of its request for a

preliminary injunction. (ECF No. 27-1.)

The parties appeared before the Court on November 7, 2023 for an initial hearing on the

motion for preliminary injunction. The Court heard testimony from the Plaintiff’s witness,

Michael Banks, Border Czar for the State of Texas, and from the Defendants’ witnesses, Mario

Trevino, Deputy Patrol Agent in Charge for the U.S. Border Patrol at the Eagle Pass South Station,

and David S. BeMiller, Chief of Law Enforcement Operations at U.S. Border Patrol Headquarters.

The Court also considered extensive arguments from the parties. On November 9, 2023, the Court

extended the TRO for an additional 14 days to fully consider the parties’ arguments and evidence.

(ECF No. 33.) The Court then ordered that a second preliminary injunction hearing should be

held, that the parties provide supplemental briefs on the APA claims, that the parties define various

legal terms, and that the parties provide all documents and communications related to the cutting

of the Plaintiff’s c-wire and any other border barriers. (Id.)

On November 14, 2023, the Defendants filed a Motion to Modify the Court’s November

9, 2023 Order. (ECF No. 38.) The Defendants explained they would not be able to fully comply

with the Court’s order for production given the breadth of the order and the limited amount of time

remaining before the next hearing, which the parties consented to have on mutually agreeable days

between November 20 and November 29, 2023. (ECF Nos. 36, 38.) The Defendants proposed

limiting the Court’s discovery to seven custodians likely to have responsive documents to the

Court’s order. (ECF Nos. 38 at 4; 38-1 at 4.) These custodians included the Chief Patrol Agent

and Deputy Patrol Agent of the Del Rio Sector, the Patrol Agents in Charge and Deputy Patrol

Agents in Charge of the Eagle Pass North and Eagle Pass South Stations, and the Chief of Law

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Enforcement Operations. (ECF No. 38-1 at 4.) According to the Defendants, a targeted search of

these seven individuals yielded over 310,000 emails and documents. (ECF No. 38 at 4.) Thus,

the Defendants also requested that they be permitted to produce only responsive documents from

the search described in paragraphs 11, 12, and 15 of the Courey Declaration. (Id. at 4-5.)

On November 15, 2023, the Court denied in part and granted in part the Defendants’ motion

to modify. (ECF No. 39.) Specifically, the Court ordered that its November 9, 2023 Order not be

modified except to limit document production to the period between March 6, 2021, and

November 9, 2023. (Id.) The parties had until November 21, 2023 to produce the documents as

modified. (Id.) The Court also set the second preliminary injunction hearing for

November 27, 2023. In a separate order, the Court set a virtual conference for November 21, 2023

regarding document production, the TRO, and the second preliminary injunction hearing. (ECF

No. 41.)

Before the virtual conference, the Defendants reported that they reviewed more than 6,000

documents pulled from a search of the seven identified custodians’ electronic records to include

the modified period. (ECF No. 43 at 6.) From the pool, the Defendants produced approximately

1,182 documents and five videos, asserting they attempted to maintain appropriate controls to

safeguard privileges and other necessary redactions and withholdings. (Id.) They stated these

documents reflect that the c-wire “inhibits Border Patrol’s ability to patrol the border and inspect,

apprehend, and process migrants in this four-mile stretch of the border, and the ways in which

Border Patrol has coordinated with Texas about the wire in this area.” (Id. at 7.) They further

stated that while Border Patrol and the Texas Department of Public Safety (“DPS”) have

coordinated concerning the c-wire, the documents reflect that the “relationship has deteriorated

over time, driven at least in part by at least one instance in which Texas DPS personnel threatened

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to criminally charge Border Patrol for cutting the wire and DPS efforts to impede Border Patrol

access to certain areas.” (Id. at 8.)

Following the virtual conference, the Court ordered that the TRO be extended to November

29, 2023, at 11:59 p.m. on consent of the parties. (ECF No. 46 at 1.) The Court further ordered

that the Defendants had until the morning of the second preliminary injunction hearing to produce

the outstanding documents as previously ordered. (Id. at 2.) On November 26, 2023, the

Defendants submitted additional documents to the Court for its review. The Plaintiff also

submitted documents to the Court on November 21 and November 27, 2023. The Court held the

second preliminary injunction hearing on November 27, 2023.

The Court now considers the Plaintiff’s Motion for Preliminary Injunction. (ECF No. 3-

1.) For purposes of clarifying the record, the Court makes its factual and legal determinations

below based on the following: the Plaintiff’s Complaint (ECF No. 1); the Plaintiff’s Motion for

Preliminary Injunction (and the appended declarations and exhibits) (ECF No. 5-1); the Plaintiff’s

Notice of Escalating Property Damage (and the appended declaration) (ECF No. 8); the Court’s

TRO entered on October 30, 2023 (ECF No. 9); the Plaintiff’s video exhibits submitted on October

30, 2023 (ECF No. 10); the Defendants’ Opposition to the Preliminary Injunction (and the

appended declarations and exhibits) (ECF No. 23-1); the Plaintiff’s Notice of Filing of Amended

Declaration of Manuel Perez (ECF No. 26); the Plaintiff’s Reply in Support of the Preliminary

Injunction (and the appended declarations and exhibits) (ECF No. 27-1); the arguments, testimony,

and evidence presented at hearings before the Court on November 7 and November 27, 2023; the

Defendants’ document production submitted to the Court ex parte and for in camera review on

November 21, November 26, and November 29, 2023; and the Plaintiff’s document production

submitted to the Court ex parte and for in camera review on November 21 and

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November 27, 2023. 1 The Court also considers the Defendants’ Supplemental Brief filed on

November 21, 2023, and the Plaintiff’s Supplemental Brief filed on November 27, 2023. (ECF

Nos. 47, 48.)

B. Factual Background

The U.S.-Mexico border presents a unique challenge that is equal parts puzzling to

outsiders and frustrating to locals. The immigration system at the heart of it all, dysfunctional and

flawed as it is, would work if properly implemented. Instead, the status quo is a harmful mixture

of political rancor, ego, and economic and geopolitical realities that serves no one. So destructive

is its nature that the nation cannot help but be transfixed by, but simultaneously unable to correct,

the present condition. What follows here is but another chapter in this unfolding tragedy. The law

may be on the side of the Defendants and compel a resolution in their favor today, but it does not

excuse their culpable and duplicitous conduct.

i. The Border – A Brief Synopsis

Much of the 1,200-mile run of the Rio Grande River separating Texas and Mexico presents

a bucolic setting, rolling from ranches to pecan orchards and back again. Twenty-nine official

ports of entry dot the landscape, but much of the focus in this matter, and the border debate more

broadly, is the vast stretches of land between. To guard this area, Congress created Border Patrol.

Its principal statutory objective, in the words of the Defendants, “is to deter illegal entry into the

United States and to intercept individuals who are attempting to unlawfully enter the United

States.” (ECF No. 23-1 at 13.) Border Patrol agents are empowered to apprehend noncitizens

1
The Court is cognizant of the general nature of contents of the documents and is not relying on any particular
document in this order.

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unlawfully entering the country, process them, inspect them for asylum or related claims, and in

appropriate circumstances, place them in removal proceedings. (Id. at 13–14.)

In recent years, the character of the situation facing Border Patrol agents has changed

significantly. The number of Border Patrol encounters with migrants illegally entering the country

has swelled from a comparatively paltry 458,000 in 2020 to 1.7 million in 2021 and 2.4 million in

2022. (ECF No. 3-1 at 9–10 (citing internal DHS figures).) Border Patrol is on track to meet or

exceed those numbers in 2023. (Id. at 10.) As expected, organized criminal organizations take

advantage of these large numbers. The New York Times reported that conveying all those people

to the doorstep of the United States has become an incredibly lucrative enterprise for the major

Mexican drug cartels. (Id. at 10–12.) However, the infrastructure built by the cartels for human

cargo can also be used to ship illegal substances, namely fentanyl. (Id. at 11.) Lethal in small

doses, fentanyl is a leading cause of death for young Americans and is frequently encountered in

vast quantities at the border. (Id.)

Migrant numbers increased apparently in response to softened political rhetoric. To

prepare those additional migrants for parole, Border Patrol devoted increasing portions of its

manpower to processing. (ECF No. 37 at 63, 64.) For this purpose, the Defendants set up a

temporary processing center on private land in Maverick County, Texas close to the Rio Grande

River. (Id. at 143–45, 163–65, 200, 223 (discussing the processing center and its location).) As it

became known that additional migrants were being allowed entry into the country, more appeared

at the border, requiring still more agents to be pulled from deterrence and apprehension to

processing. (ECF No. 37 at 63, 64.) This became a cycle in which the gaps in law enforcement at

the border grew wider even as more illegal entries occurred. (Id.)

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ii. Operation Lone Star and the Concertina Wire

The Plaintiff launched Operation Lone Star in 2021 to aid Border Patrol in its core

functions. (ECF No. 3-1 at 14.) Through that initiative, the Plaintiff allocated resources in an

attempt to stem the deteriorating conditions at the border. (Id.; ECF No. 37 at 62–64.) The activity

subject to dispute here is the Plaintiff’s laying of concertina wire along several sections of

riverfront. The wire serves as a deterrent—an effective one at that. The Court heard testimony

that in other border sectors, the wire was so successful that illegal border crossings dropped to less

than a third of their previous levels. (ECF No. 37 at 71–74.) By all accounts, Border Patrol is

grateful for the assistance of Texas law enforcement, and the evidence shows the parties work

cooperatively across the state, including in El Paso and the Rio Grande Valley. (Id. at 71–75.)

The Eagle Pass area, though, is another matter.

Eagle Pass, and Maverick County generally, is the epicenter of the present migrant influx:

nearly a quarter of migrant entries into the United States happen there. (ECF No. 3-1 at 18–19.)

Naturally, the Plaintiff’s efforts under Operation Lone Star flowed there as well. Just over 29

miles of concertina wire was installed in Maverick County by September 2023. (ECF No. 37 at

76.)

Of course, the installed wire creates a barrier between crossing migrants and law

enforcement personnel, meaning that it must be cut in the event of an emergency, such as a

drowning or heat exhaustion. The Plaintiff does not contest this. In fact, the Plaintiff itself cuts

the wire from time to time to provide first aid or render treatment. (Id. at 79–80.) The problem

arises when Border Patrol agents cut the wire without prior notification to the Plaintiff for reasons

other than emergencies.

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Plaintiff’s Exhibit 10 neatly displays this issue. 2 In the video, Border Patrol agents are

cutting a hole in the wire to allow a group of migrants to climb up from the riverbank. However,

another hole already exists in the wire, less than 15 feet away, through which migrants can be seen

passing. After completing the second hole and installing a climbing rope for migrants, agents then

proceed to further damage the wire in that area and cut a third hole further down. Meanwhile, in

the background, a Border Patrol boat can be seen situated in the middle of the river, passively

observing a stream of migrants as they make the hazardous journey from Mexico, across the river,

and then up the bank on the American side. At no point are the migrants interviewed, questioned

as to citizenship, or in any way hindered in their progress into the United States. 3

Border Patrol agents can be seen cutting multiple holes in the concertina wire for no

apparent purpose other than to allow migrants easier entrance further inland. 4 Any rational

observer could not help but wonder why the Defendants do not just allow migrants to access the

country at a port of entry. If agents are going to allow migrants to enter the country, and indeed

facilitate their doing so, why make them undertake the dangerous task of crossing the river? Would

it not be easier, and safer, to receive them at a port of entry? In short, the very emergencies the

Defendants assert make it necessary to cut the wire are of their own creation.

2
Because the video is not yet publicly available, the Court includes herewith still images taken from the video as
Appendix A. Those images provide a visual representation of key moments that factor heavily in the Court’s analysis.
3
It is important to note that the Court is aware of at least fourteen incidents of wire cutting. (ECF No. 3-2 at 10–13,
23–28; ECF No. 8-1.) However, the Court will focus on the September 20 incident, as shown in Plaintiff’s Exhibit
10, because it is most illustrative for analysis purposes. The Court is aware of one additional wire cutting incident
that took place after the TRO was issued, but the Court is satisfied that a sufficient emergency existed to justify the
action.
4
The evidence suggests that on the day Plaintiff’s Exhibit 10 was filmed, several migrants attempting to cross the
river had been swept away. (ECF No. 37 at 127–28.) Accordingly, the wire was cut to rescue the individuals situated
on the riverbank who had already entered the country, given the muddy and slippery conditions. (Id. at 132–33.)
However, this assertion, made by Agent Mario Trevino, is totally uncorroborated by the condition of the migrants
seen on the video. Regardless, Agent Trevino’s testimony is not lent great weight by the Court given his evasive
answers and demeanor.

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Making matters worse are the cynical arguments of the Defendants in this case. During

the second preliminary injunction hearing, counsel for the Defendants argued that although no

Border Patrol agent can be seen making any sort of effort to physically restrain them, the migrants

are in fact in custody because their path is bounded on both sides by wire and fence. It is

disingenuous to argue the wire hinders Border Patrol from performing its job, while also asserting

the wire helps. But regardless, the Court heard testimony that some 4,555 migrants entered during

this incident, but only 2,680 presented themselves for processing that day at the Eagle Pass South

Border Patrol Station. (ECF No. 37 at 113, 147–48.) 5 This information was provided to Banks

by an unidentified Texas National Guardsman. (Id. at 113.) The Defendants do not contest the

final processing number, only the number of entries on that day, though they do so without their

own contrary evidence. (Id. at 148.)

II. STANDARD OF REVIEW

A preliminary injunction is an “extraordinary and drastic remedy,” which is never awarded

as a right. Munaf v. Geren, 553 U.S. 674, 689–90 (2008); accord Pham v. Blaylock, 712 F. App’x

360, 363 (5th Cir. 2017); Miss. Power & Light Co. v. United Gas Pipe Line Co., 760 F.2d 618,

621 (5th Cir. 1985). Its purpose is to preserve the relative positions of the parties until a trial on

the merits can be held. Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981); Texas v. United

States, 809 F.3d 134, 187 n.205 (5th Cir. 2015). A preliminary injunction is warranted only when

a movant can show (1) a substantial likelihood of success on the merits; (2) substantial injury to

the moving party if the injunction is not granted; (3) that the injury outweighs any harm that will

result if the injunction is granted; and (4) that granting the injunction will not disserve the public

interest. All. for Hippocratic Med. v. FDA, 78 F.4th 210, 242 (5th Cir. 2023); Fed. R. Civ. P. 65.

5
Importantly, the Defendants raised concerns about the actions of the Plaintiff and its agents, suggesting the
cooperative portrait the Plaintiff paints may not be entirely accurate.

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When the United States is the opposing party to a preliminary injunction, the third and fourth

requirements merge. Nken v. Holder, 556 U.S. 418, 435 (2009). The party seeking the injunction

must clearly carry the burden of persuasion on all four requirements. Munaf, 553 U.S. at 689-90;

Karaha Bodas Co. v. Negara, 335 F.3d 357, 363 (5th Cir. 2003). Thus, “the decision to grant a

preliminary injunction is to be treated as the exception rather than the rule.” Karaha Bodas Co.,

335 F.3d at 363–64 (quoting Miss. Power & Light Co., 760 F.2d at 621).

III. JURISDICTIONAL ISSUES

A. Standing

To establish standing, a plaintiff must show an injury in fact caused by a defendant and

redressable by a court order. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).

The Plaintiff complains of three types of injuries caused by the Defendants’ cutting or moving the

fence: (1) harm to the fence; (2) harm from increased crime; and (3) increased state expenditures

on healthcare, social services, public education, incarceration, and its driver’s license program.

(ECF No. 3-1 at 12-13, 40-41, 43; ECF No. 27 at 16-19.)

The Defendants do not challenge the Plaintiff’s proprietary interest in the integrity of the

fence. (See ECF No. 23-1 at 14 n.3.) They also admit that they did, in fact, cause the asserted

harm to the fence. (Id. at 15.) Instead, the Defendants argue that states have “no cognizable

interest in how the federal government exercises its enforcement discretion.” (Id. at 38-39 (citing

United States v. Texas, 143 S. Ct. 1964, 1970-71 (2023).) In that case, the Supreme Court held

that states generally lack standing to assert “attenuated” injuries in the form of “indirect effects”

of federal policies on “state revenues or state spending” derived from an alleged federal failure to

make arrests or bring prosecutions. Texas, 143 S. Ct. at 1972 n.3, 1973-76.

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In addition, citing Haaland v. Brackeen, 143 S. Ct. 1609, 1640 (2023), the Defendants

argue that the Plaintiff cannot assert claims on behalf of its citizens. (ECF No. 23-1 at 39.)

Haaland found that states lacked standing to challenge a statute’s rule governing child custody

disputes based on a state’s abstract “promise to its citizens” and indirect recordkeeping costs that

were not “fairly traceable” to the federal policy. Haaland, 143 S. Ct. at 1640-41. The Defendants

argue that the Plaintiff cannot claim standing based on an alleged rise in crime affecting the

Plaintiff’s citizens—such as drug smuggling, human trafficking, terrorist infiltration, and cartel

activities (see ECF No. 3-1 at 7-8)—that the Defendants claim is similarly difficult to trace to their

cutting or moving the fence. (ECF No. 23-1 at 39.)

While Texas and Haaland cast significant doubt on whether the Plaintiff can claim indirect

increased expenditures or a rise in crime as bases for standing, they do not address direct physical

damage to a state’s property by agents of the federal government. 6 Here, the Plaintiff has direct

proprietary interests in seeking to prevent or minimize damage to its fence caused by the

Defendants’ affirmative acts and to protect the Plaintiff’s control and intended use thereof. The

asserted harm is particularized, concrete, and directly traceable to the Defendants’ conduct. See

Lujan, 504 U.S. at 560. It also satisfies the APA’s additional “zone of interests” standing

requirement. See Texas v. United States, 50 F.4th 498, 521 (5th Cir. 2022) (holding the

requirement is satisfied if a claim is “arguably within the zone of interests to be protected or

regulated by the statute” and the test is “not especially demanding.”). The APA expressly covers

6
The Plaintiff suggests that this case could fall within one of the potential exceptions contemplated in Texas, see 143
S. Ct. at 1973-74, thereby establishing standing based on indirect state expenditures. (ECF No. 37 at 25.) The Plaintiff
cited Texas v. United States as an example of adequate standing derived in this manner. Because the Court finds the
injury-in-fact prong of standing analysis satisfied by direct harm to the Plaintiff’s property, the Court need not further
examine this argument at this time. 809 F.3d 134 (5th Cir. 2015).

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“sanctions” affecting a plaintiff, defined as an agency’s “destruction, taking, seizure, or

withholding of property.” 5 U.S.C. § 551.

The only question is whether the relief the Plaintiff seeks can redress such injuries. That,

of course, depends on whether such relief is available in the first place. While an award of

monetary damages under the Federal Tort Claims Act (“FTCA”) could perhaps redress past

property damage, as the Defendants suggest (see ECF No. 23 at 21-22, 38), the Plaintiff does not

seek that remedy. (See ECF No. 1.) 7 Absent other jurisdictional issues, the Court must therefore

review the availability of injunctive relief or a stay of agency action and potential barriers thereto. 8

B. Sovereign Immunity for Plaintiff’s Common Law Claims

In Counts One and Two of this suit, the Plaintiff asserts common law claims for conversion

and trespass to chattels. (ECF No. 1 at 23-25.) When the Court granted the Plaintiff’s ex parte

motion for a TRO, it did so under the trespass to chattels claim. However, at the time, sovereign

immunity was not considered. (See ECF No. 9 at 4.) For the reasons stated below, sovereign

immunity presents a jurisdictional barrier to the Plaintiff’s request for injunctive relief under its

state law claims. That said, the Plaintiff may have alternative state law relief for the damage the

Defendants have previously caused to its concertina wire.

The Supreme Court has long recognized that “[i]t is axiomatic that the United States may

not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction.”

United States v. Mitchell, 463 U.S. 206, 212 (1983) (citing United States v. Sherwood, 312 U.S.

7
The Court recognizes that compensation for past injury cannot adequately redress the prospect of continuing or future
harm for which the only appropriate remedy would be injunctive relief.
8
The Court pauses here to address the matter of jurisdiction. There is no dispute the Court holds jurisdiction over the
Plaintiff’s APA claims, but also asserted are various state law claims. The Court may maintain supplemental
jurisdiction over the state law claim if it is so related to the other claim(s) that it forms part of the same case or
controversy. 28 U.S.C. § 1367. Here, it is clear the state law claims are so bound up with the APA claims as to be part
of the same case or controversy. Accordingly, the Court has the ability to, and does, exercise supplemental jurisdiction.
Likewise, any issue not discussed in this order would not be outcome determinative at this stage of litigation.

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584, 586 (1941)); accord FDIC v. Meyer, 510 U.S. 471, 475 (1994) (“Absent a waiver, sovereign

immunity shields the Federal Government and its agencies from suit.”); Loeffler v. Frank, 486

U.S. 549, 554 (1988); Price v. United States, 174 U.S. 373, 375-76 (1899) (“It is an axiom of our

jurisprudence. The Government is not liable to suit unless it consents thereto, and its liability in

suit cannot be extended beyond the plain language of the statute authorizing it.”); see also La.

Dep’t of Envtl. Quality v. United States EPA, 730 F.3d 446, 448-49 (5th Cir. 2013). The exemption

of the United States from being sued without its consent, known as “sovereign immunity,” extends

to a suit by a State. California v. Arizona, 440 U.S. 59, 61-62 (1979) (quoting Kansas v. United

States, 204 U.S. 331, 342 (1907)) (“It does not follow that because a State may be sued by the

United States without its consent, therefore the United States may be sued by a State without its

consent. Public policy forbids that conclusion.”); Blatchford v. Native Vill. of Noatak, 501 U.S.

775, 781-82 (1991); Minnesota v. United States, 305 U.S. 382, 387 (1939).

Only Congress can establish how the United States and its governing agencies can consent

to be sued. Gonzalez v. Blue Cross Blue Shield Ass’n, 62 F.4th 891, 899 (5th Cir. 2023); La. Dep’t

of Envtl. Quality, 730 F.3d at 449 (citing Mitchell, 463 U.S. at 215-16) (“An agency cannot waive

the federal government’s immunity when Congress hasn’t.”). Moreover, the terms of consent to

be sued may not be inferred or implied and must be unequivocally expressed in statutory text to

define a court’s jurisdiction. United States v. White Mt. Apache Tribe, 537 U.S. 465, 472 (2003);

United States v. Bormes, 568 U.S. 6, 9 (2012); Gonzalez, 62 F.4th at 899. Further, a waiver of

sovereign immunity and the conditions therein “must be construed strictly in favor of the

sovereign.” La. Dep’t of Envtl. Quality, 730 F.3d at 449.

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Congress has enacted legislation to create several exceptions to sovereign immunity. At

issue in this preliminary injunction is the 1976 amendment to the Administrative and Procedures

Act, passed under 5 U.S.C. § 702 (“Section 702”), which provides:

A person suffering legal wrong because of agency action, or adversely affected or

aggrieved by agency action within the meaning of a relevant statute, is entitled to
judicial review thereof. An action in a court of the United States seeking relief other
than money damages and stating a claim that an agency or an officer or employee
thereof acted or failed to act in an official capacity or under color of legal authority
shall not be dismissed nor relief therein be denied on the ground that it is against
the United States or that the United States is an indispensable party. The United
States may be named as a defendant in any such action, and a judgment or decree
may be entered against the United States: Provided, That any mandatory or
injunctive decree shall specify the Federal officer or officers (by name or by title),
and their successors in office, personally responsible for compliance. Nothing
herein (1) affects other limitations on judicial review or the power or duty of the
court to dismiss any action or deny relief on any other appropriate legal or equitable
ground; or (2) confers authority to grant relief if any other statute that grants consent
to suit expressly or impliedly forbids the relief which is sought. 5 U.S.C. § 702.

Section 702 has thus “waived sovereign immunity for suits seeking nonmonetary relief through

nonstatutory judicial review of agency action.” Geyen v. Marsh, 775 F.2d 1303, 1307 (5th Cir.

1985). “The intended effect of the amendment was to broaden the avenues for judicial review of

agency action by eliminating the defense of sovereign immunity in cases covered by the

amendment.” Doe v. United States, 853 F.3d 792, 798-99 (5th Cir. 2017) (internal citations

omitted).

Under Fifth Circuit precedent, Section 702 waives immunity for two distinct types of

claims. See Ala.-Coushatta Tribe of Tex. v. United States, 757 F.3d 484, 489 (5th Cir. 2014). First,

it waives immunity for claims where a “person suffer[s] legal wrong because of agency action.”

Id. (citing § 702). “This type of waiver applies when judicial review is sought pursuant only to

the general provisions of the APA.” Id. Second, Section 702 waives immunity for claims where

a person is “adversely affected or aggrieved by agency action within the meaning of a relevant

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statute.” Id. (citing § 702). “This type of waiver applies when judicial review is sought pursuant

to a statutory or non-statutory cause of action that arises completely apart from the general

provisions of the APA.” Id. (citing Sheehan v. Army & Air Force Exch. Serv., 619 F.2d 1132,

1139 (5th Cir. 1980); Trudeau v. FTC, 456 F.3d 178, 187 (D.C. Cir. 2006)). Under this second

type, there does not need to be final agency action; only “agency action” as defined by 5 U.S.C. §

551(13) is required. Id. (citing Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 882 (1990)). Because

the Plaintiff’s common law claims are separate and apart from those brought under the APA, they

would not fall under the first type of waiver and could only be considered under the second type

of waiver.

In the Motion for Preliminary Injunction, the Plaintiff asserts that Section 702 generally

waives the United States’s immunity from a suit “seeking relief other than money damages and

stating a claim that an agency or an officer or employee thereof acted or failed to act in an official

capacity or under color of legal authority.” (ECF No. 3-1 at 40.) They further assert, “[the]

Defendants have waived sovereign immunity for ultra vires claims under the APA via the 1976

amendment to Section 702, which ‘waived sovereign immunity for suits seeking nonmonetary

relief through nonstatutory judicial review of agency action.’” (Id. (quoting Geyen, 775 F.2d at

1307).) The Motion for Preliminary Injunction did not, however, explicitly contend that Section

702’s waiver of sovereign immunity applies to the state law claims of conversion and trespass to

chattels. (See generally ECF Nos. 1, 3-1.)

In response to the Motion, the Defendants contend that the Plaintiff cannot assert its state

law claims of conversion and trespass to chattels because Congress has not waived the United

States’s sovereign immunity for such claims. (ECF No. 23-1 at 20.) The Defendants note that the

Plaintiff invokes Section 702’s waiver of sovereign immunity for actions in federal court “seeking

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relief other than money damages,” but states no binding precedent that Section 702 covers its state

law claims. (Id. at 21.)

In reply, the Plaintiff again relies on the statutory text of Section 702 and asserts that the

waiver of sovereign immunity applies to “any action seeking relief other than money damages.”

(ECF No. 27-1 at 10.) In support of this theory, the Plaintiff asserts that the “plain text is clear—

“[a]n action in” federal court “seeking relief other than money damages” means any action,

whether under the APA, a different statute, or the common law.” (Id. (citing § 702) (emphasis in

original).) The Plaintiff relies on the D.C. Circuit’s review of Section 702 and supposes that the

D.C. Circuit held the waiver extends to “any action” seeking non-monetary relief. (Id. at 10-11

(citing Trudeau, 456 F.3d at 187).) The Plaintiff also cites a Supreme Court decision where instead

of establishing that Section 702 can never apply to state law claims the Supreme Court held the

waiver did not apply because the equitable lien sought constituted a claim for money damages.

(Id. at 11 (citing Department of Army v. Blue Fox, Inc. 525 U.S. 255, 263 (1999).)

In supplemental briefing, the Plaintiff asserts that the Defendants have not cited any case

that finds the Plaintiff is barred from the state law injunctive relief they seek. (ECF No. 48 at 11.)

The Plaintiff also claims that a finding for the Defendants would create a circuit split with at least

three other circuits. (Id. (citing Perry Capital LLC v. Mnuchin, 864 F.3d 591, 620 (D.C. Cir.

2017); Michigan v. U.S. Army Corps of Eng’rs, 667 F.3d 765, 775 (7th Cir. 2011); and B.K.

Instrument, Inc. v. United States, 715 F.2d 713, 727 (2d Cir. 1983).)

After an extensive review of the relevant law, the Court has not identified any case or legal

authority that finds Congress unequivocally consented to suit for injunctive relief under common

law conversion or trespass to chattels causes of action. The Fifth Circuit has also never recognized

the availability of such a claim. Nor has any other circuit court. Absent binding precedent, the

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Plaintiff instead relies on a D.C. Circuit case that held Section 702’s waiver of sovereign immunity

permits “nonstatutory” actions. 9 Trudeau, 456 F.3d at 187.

This argument is unavailing for several reasons. The D.C. Circuit did not hold that Section

702 waives sovereign immunity for common law claims of conversion or trespass to chattels. See

id. Instead, the plaintiff in Trudeau initially raised claims against the Federal Trade Commission

(“FTC”) for exceeding its statutory authority under 15 U.S.C. § 46(f) and violations of the First

Amendment, but the non-statutory actions derived from the plaintiff’s statutory and First

Amendment claims. Id. at 190 (“[Plainitff] contends that his § 46(f) claim falls within the core of

the doctrine of non-statutory review because the issuance of a false and misleading press release

exceeds the FTC’s authority to disseminate information in the public interest.”) (internal

quotations omitted); see also Brief for Appellants at 33, Trudeau, 456 F.3d 178 (No. 05-5365)

(asserting “it is well-established the First Amendment itself provides a means for plaintiffs to seek

‘equitable relief to remedy agency violations’ thereof.”) Although not explicitly stated, the non-

statutory claims the D.C. Circuit recognized seem to present as ultra vires claims, as opposed to

separate or independent common law causes of action for conversion and trespass to chattels. See

Trudeau, 456 F.3d at 190 (holding “[t]here certainly is no question that nonstatutory review ‘is

intended to be of extremely limited scope,’ [Griffith v. Fed. Lab. Rel. Auth., 842 F.2d 487, 493

(D.C. Cir. 1988)], and hence represents a more difficult course for [plaintiff] than would review

under the APA (assuming final agency action) for acts ‘in excess of statutory . . . authority,’ 5

U.S.C. § 706(2)(C).”). And notably, the Trudeau case was considered under a motion to dismiss

posture, not a preliminary injunction posture as in this case. See generally id.

9
To the extent that Trudeau supports the Plaintiff’s position, the D.C. Circuit, as well as the Second and Seventh
Circuits, are not binding on this Court.

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The Plaintiff also contends that the absence of cited precedent barring their state law claims

supports the waiver of sovereign immunity. Notwithstanding that the burden is squarely on the

Plaintiff, the fact that a court has not barred such claims does not then mean that Congress has

authorized them. It could imply the very opposite—that the sovereign immunity doctrine is so

imposing that a plaintiff would not seek such equitable relief against the United States. More

likely, however, it indicates that a separate, appropriate remedy already exists. See, e.g., Blue Fox,

Inc., 525 U.S. at 263-64. Indeed, in Blue Fox, cited by the Plaintiff, the Supreme Court denied the

equitable lien sought because it constituted a claim for money damages. Id.

In order to find that sovereign immunity is waived for the Plaintiff’s common law claims,

the Court would have to conclude that the language in Section 702 unequivocally expresses

Congress’s consent to all non-monetary actions arising outside the APA. Statutory construction

presumes Congress did not intend for Section 702’s waiver to be so over-inclusive. Had Congress

intended to include common law claims for conversion or trespass to chattels or other state law

claims under Section 702, it could have so stated. To accept the Plaintiff’s proposition would so

broaden the scope of the APA that sovereign immunity would be effectively negated for state law

causes of action seeking equitable relief. To the extent there is any ambiguity in the application

or statutory interpretation of Section 702, the Court is reminded that “a waiver of the Government’s

sovereign immunity will be strictly construed, in terms of its scope, in favor of the sovereign.”

Lane v. Peña, 518 U.S. 187, 192 (1996). Thus, the Court finds that the Plaintiff’s common law

claims do not overcome sovereign immunity.

Although the Plaintiff did not raise the issue, the Defendants recognized that the FTCA

“‘waives the United States’ sovereign immunity from tort suits’ in certain circumstances, and is

‘the exclusive remedy for compensation for a federal employee’s tortious acts committed in the

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scope of employment.’” (ECF No. 23-1 at 21-22 (quoting McGuire v. Turnbo, 137 F.3d 321, 324

(5th Cir. 1998); Dickson v. United States, 11 F.4th 308, 312 (5th Cir. 2021).) The record here

shows that Border Patrol has been known to cut the fences and locked gates of private ranch owners

to perform immigration duties. As most of the land near our southern border is privately owned,

this relationship with Border Patrol has existed out of necessity for decades. In instances where

Border Patrol causes harm to private property, such as damaging fencing and allowing livestock

to escape, they will often ex post restore a rancher by repairing the property or through financial

compensation. Such a cooperative relationship suggests that Border Patrol, and the federal

government at large, acknowledge its duty to respect private property. So, too, could such a

relationship between the Plaintiff and the Defendants exist. Thus, although the Plaintiff’s common

law claims seeking injunctive under conversion and trespass to chattels are unlikely to succeed, it

is conceivable that the Plaintiff could pursue money damages for prior harm to its fence. The

Court is not ruling on what would be appropriate for future potential harm; it only references prior

harm.

IV. ANALYSIS

A. Likelihood of Success on the Merits

i. The Defendants’ Conduct

a. The Defendants’ Justifications

While the Plaintiff bears the burden on a motion for preliminary injunctive relief, the Court

will first consider the Defendants’ own explanations for their conduct before turning to the

Plaintiff’s allegations. The Defendants offer two justifications for their series of decisions to cut

or move the Plaintiff’s fence: (1) to discharge their statutory obligation to inspect, apprehend, and

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detain individuals unlawfully entering the United States; and (2) to prevent or address medical

emergencies. (See ECF No. 23-1 at 15.)

1. Inspection, Apprehension, and Processing

The federal government “has broad, undoubted power over the subject of immigration and

the status of [noncitizens],” which “rests, in part, on the National Government’s constitutional

power to ‘establish an [sic] uniform Rule of Naturalization’ and its inherent power as sovereign to

control and conduct relations with foreign nations.” Arizona v. United States, 567 U.S. 387, 394-

95 (2012). To that end, Congress has specified who may be admitted to the United States, see,

e.g., 8 U.S.C. § 1182, criminalized unlawful entry and reentry, see id. §§ 1325, 1326, and

determined who may be removed and under what conditions, see id. §§ 1182, 1225-1227; Arizona,

567 U.S. at 395-96.

Congress entrusted DHS with the “power and duty to control and guard the boundaries and

borders of the United States against the illegal entry of [noncitizens].” 8 U.S.C. § 1103(a)(5).

Congress has charged the Secretary of Homeland Security to “establish such regulations” and

“perform such other acts as he deems necessary for carrying out his authority under [8 U.S.C. §§

1101-1537].” Id. § 1103(a)(3). That includes “authoriz[ing] any employee . . . to perform or

exercise any of the powers, privileges, or duties conferred [by the Immigration and Nationality

Act (INA)].” Id. § 1103(a)(4). Those employees authorized by the Secretary to enforce the INA

are known as immigration officers. 8 U.S.C. § 1101(a)(18).

U.S. Customs and Border Protection (“CBP”), in coordination with other federal agencies,

bears responsibility to “enforce and administer all immigration laws,” including “the inspection .

. . and admission of persons who seek to enter” the United States and “the detection, interdiction,

removal . . . and transfer of persons unlawfully entering . . . the United States.” 6 U.S.C. §

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211(c)(8). U.S. Border Patrol is “the law enforcement office of [CBP] with primary responsibility

for interdicting persons attempting to illegally enter . . . the United States” and for “deter[ring] and

prevent[ing] the illegal entry of terrorists, . . . persons, and contraband.” Id. § 211(e)(3)(A)-(B).

Individual immigration officers, including Border Patrol agents, “interrogate any [noncitizen] or

person believed to be [a noncitizen] as to his right to be or remain in the United States” and may

“arrest any [noncitizen] who in his presence or view is entering or attempting to enter the United

States in violation of any law.” 8 U.S.C. § 1357(a)(1)-(2).

Before Congress enacted § 1357(a)(3), Border Patrol’s “activities . . . in certain areas [were]

seriously impaired by the refusal of some property owners along the border to allow patrol officers

access to extensive border areas in order to prevent such illegal entries.” H.R. Rep. No. 82-1377,

1952 U.S.C.C.A.N. 1358, 1360. In response, Congress authorized agents to “access . . . private

lands” without a warrant within 25 miles of an external border “for the purposes of patrolling the

border to prevent the illegal entry of [noncitizens] into the United States.” 8 U.S.C. § 1357(a)(3).

Congress intended that Border Patrol agents should “conduct[ ] such activities as are customary,

or reasonable and necessary, to prevent the illegal entry of aliens into the United States.” 8 C.F.R.

§ 287.1(c); see H.R. Rep. No. 82-1377, 1952 U.S.C.C.A.N. at 1360 (Section 1357(a)(3)

“adequately authorize[s] immigration officers to continue their normal patrol activities, concerning

which Congress has been well informed during the past 48 years, and which authority it

unquestionably meant these officers to exercise.”).

DHS has long made use of this provision to move or cut privately owned fencing within

25 miles of the international border when exigencies arise. Border Patrol guidance dating back to

the 1980s has advised Border Patrol Agents to work with private landowners where the agents

encounter locked gates prohibiting access to the border. (ECF No. 23-2 at 3.) While Border Patrol

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guidance requires that agents take steps to work with the owner to gain access, it acknowledges

that the agent may cut locks or fencing that prohibits access to the border. (Id.) When they must

do so, Border Patrol guidance instructs agents to take steps to close gates, make available repairs

to fencing, and take other steps to ameliorate any damage. (See id.)

Here, the Defendants claim that the appearance of any migrants at the Rio Grande qualifies

as a situation requiring agents to cut the Plaintiff’s fence. The Defendants argue that “[n]oncitizens

who have already crossed the international boundary into the United States stand on a different

legal footing from those who have not.” (ECF No. 23-1 at 12.) Disregarding that entering the

United States by crossing the river other than at an official port of entry is a federal crime, see 8

U.S.C. § 1325, the Defendants note that a person “present in the United States who has not been

admitted or who arrives in the United States (whether or not at a designated port of arrival . . .)” is

“deemed . . . an applicant for admission.” Id. § 1225(a)(1). 10 Claiming that “[n]o immigration

statute that Congress has enacted authorizes Border Patrol agents to simply push noncitizens

already present in the United States back to Mexico,” (ECF No. 23-1 at 13), the Defendants

maintain that they must assist anyone who has unlawfully crossed the border to advance further

into the United States for immigration processing after this initial “inspection.”

In short, the Defendants claim their hands are tied. They have a statutory duty to “inspect,”

so they claim they must cut or move the Plaintiff’s fence to get to the river. Once at the river, they

claim they have no authority to direct illegal entrants to return to Mexico, so they must cut or move

10
The nation’s immigration system is separate from its criminal justice system. An individual who enters the United
States by unlawful means may freely apply for a change in his or her immigration status while serving time in federal
prison. At the Rio Grande, Border Patrol agents can and should both process those they encounter as “applicants for
admission” and arrest them for criminal conduct. As discussed below, Border Patrol agents may also simply direct
such individuals to return to the far side of the river.

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the Plaintiff’s fence to help such individuals proceed further into the United States. These claims

fail to recognize the dual civil and criminal nature of the immigration statutes.

The Defendants first argue that the mere act of laying eyes on migrants as they wade

through the Rio Grande, as seen in Plaintiff’s Exhibit 10, qualifies as the beginning of a drawn-

out inspection process. As noted above, this inspection process involves: no warning against

criminal violation of immigration law; no attempt to prevent the same; no direction to enter at a

lawful port of entry; no questioning; no document requests; and no search for drugs or weapons.

(See Plaintiff’s Ex. 10; ECF No. 37 at 84–85.) According to the Defendants, pure visual

observation justifies cutting or moving the Plaintiff’s fence to access the river.

This rests on two false and misguided propositions. First, Border Patrol agents already

possess access to both sides of the fence by which to accomplish this extraordinarily superficial,

hands-off “inspection”: to the river and bank by boat and to the further-inland side of the fence by

road. (See, e.g., Plaintiff’s Ex. 10; ECF No. 37 at 82.) The fence may conceivably slow Border

Patrol agents’ ability to respond to medical emergencies, as discussed below, but the evidence and

testimony presented so far has not conclusively established that any delay would materially impede

inspection practices of the kind described above.

Second, “an alien who is detained shortly after unlawful entry cannot be said to have

‘effected an entry.’ Like an alien detained after arriving at a port of entry, an alien like respondent

is ‘on the threshold.’” DHS v. Thuraissigiam, 140 S. Ct. 1959, 1982–83 (2020) (citations omitted);

see also Leng May Ma v. Barber, 357 U.S. 185, 186–87 (1958). Federal officials can and

historically do take steps to turn migrants on the threshold back across the border into Mexico.

See, e.g., Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 163 (1993) (finding that aliens could

be repatriated “without giving them any opportunity to establish their qualifications as refugees”).

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The Defendants’ view of immigration enforcement would “create a perverse incentive to enter at

an unlawful rather than a lawful location,” which is why the Supreme Court rejected it for a migrant

who managed to “mak[e] it 25 yards into U.S. territory before he was caught.” Thuraissigiam,

140 S. Ct. at 1982. 11

Border Patrol itself assesses agents’ performance based on the number of migrants repelled,

and thousands of migrants have, in fact, been “turned back” after crossing the Rio Grande. (ECF

No. 37 at 66, 104.) The Defendants recently boasted their agents’ authority to “turn back” migrants

on the threshold of the international boundary. See Press Release, U.S. Customs & Border

Protection (June 1, 2023), https://www.cbp.gov/newsroom/local-media-release/us-border-patrol-

urges-migrants-not-endanger-their-lives-swimming (describing an incident on May 25, 2023,

where Border Patrol agents were able to “turn [aliens] back south into Mexico” even after they

“cross[ed] the maritime boundary line”). Publicly available records show that the Defendants

regularly track incidents of successful “turn-backs” at the Border, including more than 5,000

“TBS”—i.e., “Turn Back South”—between October 2018 and March 2020. See USBP FOIA

Documents at 22, 25, 30, 128-29, 136-54, available at

https://int.nyt.com/data/documenttools/border-patrol-fence-breach/b9addab9d72a6a2a/full.pdf

(embedded in Zolan Kanno-Youngs, Armed Mexicans Were Smuggled in to Guard Border Wall,

11
The Defendants argue that Thuraissigiam is inapposite for the proposition that a noncitizen who manages to cross
the border has not really effected entry into the United States. (See ECF No. 47 at 21 n.5.) The Ninth Circuit there had
held that a noncitizen had a constitutional Due Process right to more process than what Congress set out in §
1225(b)(1)(B)(ii), (v). The Supreme Court rejected that conclusion, holding that “the procedure authorized by
Congress” is sufficient for “due process as far as [a noncitizen] denied entry is concerned.” 140 S. Ct. at 1982. The
Supreme Court also noted that such a noncitizen “has . . . those rights regarding admission that Congress provided by
statute,” Id. at 1983 (cleaned up). Like the Ninth Circuit in Thuraissigiam, the Defendants here seek to add to the
requirements of the immigration statutes. This Court refuses to ignore Supreme Court precedent and follow the Ninth
Circuit's example of inventing a novel barrier to immigration enforcement where none exists. Doing so “would
undermine the ‘sovereign prerogative’ of governing admission to this country and create a perverse incentive to enter
at an unlawful rather than a lawful location.” Id. Those who enter the United States unlawfully do possess certain due
process rights; the right to continue into the United States rather than be stopped at the border is not among them.

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Whistle-Blowers Say, N.Y. TIMES (Dec. 7, 2020),

https://www.nytimes.com/2020/12/07/us/politics/border-wall-mexico.html).

The Defendants cannot justify cutting or moving the Plaintiff’s fence whenever and

wherever they find convenient based on a supposed need to access the river by both boat and foot

so they may passively observe migrants crossing. Nor can they do so when the Defendants fail to

direct migrants attempting to unlawfully enter the United States to return back across the border

per longstanding, Supreme Court-sanctioned practice.

The Defendants next claim that they must cut or move the Plaintiff’s fence to allow

migrants to proceed toward a further-inland processing center. (ECF No. 37 at 198.) Once they

pass through the fence, Border Patrol agents orally direct persons whom they have just witnessed

illegally entering the United States to walk as much as a mile or more—with vanishingly little if

any further supervision or direction—and present themselves at the nearest immigration processing

center. (ECF No. 37 at 83–85, 112–13, 115–16, 147–48, 169–170.) Notably, the Defendants

concede that their hope that the aliens will flow in an orderly manner from the breach they created

in the Plaintiff’s fence to the nearest processing center relies on the Plaintiff’s fence along the

route. 12 The Defendants claim that easing migrants’ path toward the processing center in this

manner is necessary to “apprehend” and “detain” the migrants.

Border Patrol itself has defined “apprehension” as “the physical control or temporary

detainment of a person who is not lawfully in the United States which may or may not result in an

arrest.” Customs & Border Protection, Nationwide Enforcement Encounters: Title 8 Enforcement

Actions and Title 42 Expulsions Fiscal Year 2024, https://perma.cc/YWE2-B6UZ. It has defined

“detention” as “[r]estraint from freedom of movement.” CBP, National Standards on Transport,

12
See forthcoming transcript of November 27, 2023 hearing. The Court has access to an audio recording of this
hearing.

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Escort, Detention, and Search at 28 (Oct. 2015), https://perma.cc/6KRP-2XTH. No reasonable

interpretation of these definitions can square with Border Patrol’s conduct. Visual observation is

not physical control. Opening fences does not restrain freedom of movement. Blind trust that

migrants who have just been seen criminally violating one boundary will respect barriers along the

road toward a processing center constitutes neither “apprehension” nor “detention.” No unfair

cynicism is required to suspect that some such migrants likely commit other crimes (e.g., drug

smuggling, human trafficking, etc.) during this process, providing ample incentive for the

individuals posing the greatest public danger to flee rather than deliver themselves to the

Defendants. 13 To the extent migrants who fear no additional criminal or immigration consequence

because of the Defendants’ broader immigration policies, practices, and public statements elect to

declare themselves at a processing center, their decision to do so can hardly be attributed to any

acts to restrict their freedom of movement by the Defendants.

The Defendants cannot justify their wire-cutting based on purported “apprehension” and

“detention” of migrants after they cross through the fence in the face of testimony of both parties

strongly suggesting neither occurs without migrants’ willing cooperation. (ECF No. 37 at 112,

115–116, 169–170). By ignoring the blatant criminal context of where, when, and how these

“applicants for admission” enter the United States, the Defendants apparently seek to establish an

unofficial and unlawful port of entry stretching from wherever they open a hole through the

Plaintiff’s fence to the makeshift processing center they established on private land a mile or more

away. The Defendants even appear to seek gates in the Plaintiff’s fence that the Defendants can

control to facilitate this initiative. (See id. at 107-108, 114.) Establishing such a system at a

13
As noted above, the Plaintiff’s fact witness claimed that during one incident, its personnel observed 4,555 migrants
enter through holes the Defendants created while only 2,680 presented themselves for processing. (ECF No. 37 at
113, 147-48.)

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particularly dangerous stretch of the river creates a perverse incentive for aliens to attempt to cross

at that location, begetting life-threatening crises for aliens and agents both.

The evidence presented amply demonstrates the utter failure of the Defendants to deter,

prevent, and halt unlawful entry into the United States. The Defendants cannot claim the statutory

duties they are so obviously derelict in enforcing as excuses to puncture the Plaintiff’s attempts to

shore up the Defendants’ failing system. Nor may they seek judicial blessing of practices that both

directly contravene those same statutory obligations and require the destruction of the Plaintiff’s

property. Any justifications resting on the Defendants’ illusory and life-threatening “inspection”

and “apprehension” practices, or lack thereof, fail.

2. Medical Emergencies

At times, agents rescue individuals who have crossed into the United States illegally and

who are in distress in or near the banks of the Rio Grande River. (ECF No. 23-2 at 4–5). These

routine rescues, life-saving measures, and other such urgent care, often provided at grave risk to

agents’ safety, are a noble and legitimate part of Border Patrol operations. Injury, drowning,

dehydration, and fatigue are real and common perils in this area of the border, particularly in the

context of changing water levels and regular triple-digit heat. (Id.) The parties agree that medical

emergencies justify cutting or moving the Plaintiff’s fence. (ECF No. 37 at 28, 79; ECF No. 23-1

at 15). The Court endorses this agreement.

However, evidence suggests that these exceptional circumstances can be used to swallow

a rule against wire-cutting such as the one the Court entered in the TRO. (See, e.g., ECF No. 37 at

81.) While an ongoing medical emergency can justify opening the fence, the end of that exigency

ends the justification. As a hypothetical example, cutting the wire to address a single individual’s

display of distress does not justify leaving the fence open for a crowd of dozens or hundreds to

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pass through. In addition, an emergency that can be just as adequately addressed by less

destructive means, such as by reaching one or more individuals by boat rather than on foot, does

not justify opening the fence at all. Moreover, given the greater potential for abuse, prevention of

possible future exigencies rests on far more dubious grounds as a justification for destroying the

use of private property than the need to address actual, ongoing crises. Further, the question of

whether a situation rises to the level of an emergency is an objective inquiry of a reasonable

person’s judgment, not the subjective determination of a particular agent. With those

qualifications, the Court accepts medical emergencies as a narrow, partial justification for the

Defendants’ conduct.

b. Plaintiff’s Allegation of a Policy, Practice, or Pattern

The Plaintiff alleges that the Defendants’ series of acts interfering with its wire fence

represent a “a policy, practice, or pattern of seizing, damaging, and destroying Texas’s personal

property by cutting, severing, and tearing its concertina wire fence to introduce breaches, gaps, or

holes in the barrier.” (ECF No. 3-1 at 27.) The Plaintiff alleges that the Defendants “have

authorized their officials or agents to engage in this conduct anytime an alien has managed to

illegally cross the international border in the Rio Grande to process that alien in the United States—

even where migrants are in no apparent distress or when any legitimate exigency has dissipated.”

(Id.) The Plaintiff suggests that orders to cut the Plaintiff’s wire are largely implemented by Border

Patrol supervisors, rather than lower-level agents, who allegedly often refuse to destroy or damage

the Plaintiff’s border infrastructure. (Id.; see also ECF No. 37 at 139–140, 150.)

The Plaintiff argues that the sheer volume and regularity of similar incidents, together with

repeated public statements from DHS itself, demonstrates an institutional policy, practice, or

pattern of sanctioning Border Patrol agents’ cutting or moving the fence even absent exigent

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circumstances. (ECF No. 27-1 at 16–17.) 14 The Defendants deny that any such alleged pattern

reflects an intentional policy handed down by DHS or Border Patrol leadership. (ECF No. 47-1 at

16–18; see ECF No. 23-2 at 5; ECF No. 37 at 138, 186–87.)

The problem appears unique to the Del Rio sector. The testimony and evidence of both

parties suggest that, by and large, Border Patrol agents have not cut the Plaintiff’s wire except

when faced with exigent circumstances in the El Paso and Rio Grande Valley Sectors. (ECF No.

47-1 at 16–18 (citing ECF No. 37 at 80, 96).) The Defendants argue that this disproves the notion

that there is an agency-wide directive requiring or authorizing agents to cut the wire when they

observe any unlawful border crossing. (Id. (citing ECF No. 37 at 80, 96).) The Defendants admit

that supervisors in the Del Rio Sector have provided “guidance” to agents along the following

lines: “(a) if there are no exigent circumstances, the agents should call a supervisor before any

wire-cutting; and (b) if a supervisor is unavailable or exigent circumstances exist, the agents should

use their judgment in determining how best to apprehend noncitizens or provide medical

assistance.” (Id. (citing ECF No. 37 at 137–41).) The Defendants emphasize that in both cases,

agents have discretion to assess the situation and exercise their judgment whether to cut the wire.

(Id. (citing ECF No. 23-2 at 6; ECF No. 37 at 110-11).)

Regular and frequent occurrence of the incidents in question between September 20, 2023,

and the entering of the TRO, regardless of exigency, and the fact of communications between

lower- and higher-ranking DHS officers regarding wire-cutting in the Del Rio Sector raise the

14
The Plaintiff provides the following examples of the Defendants’ public statements, each of which is consistent
with the Defendants’ position in this litigation: On June 30, 2023, a spokesperson for CBP justified federal officials’
cutting Texas’s fence as “consistent w/ federal law” simply because “[t]he individuals had already crossed the Rio
Grande from Mexico [and] were on U.S. soil.” (See ECF No. 3-1 at 22 (citing CBP statement).) On October 24, 2023,
in response to inquiries about this lawsuit concerning Defendants’ destruction of state property, a DHS spokesperson
said: “Border Patrol agents have a responsibility under federal law to take those who have crossed onto U.S. soil
without authorization into custody for processing.” (See ECF No. 5 at 6 n.1 (citing DHS statement).) The Defendants
reiterated the same policy in identical terms in statements to numerous news outlets after this Court granted a TRO.
(See ECF No. 27-1 at 16-17.)

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possibility that an unwritten “policy, practice, or pattern” exists. However, the Court cannot find,

on this procedural posture, that the evidence the Court has reviewed thus far conclusively

establishes or disproves the existence of such an institutional “policy, practice, or pattern.” Such

a determination would require further review of evidence and likely additional investigation.

ii. APA (Final Agency Action)

The Plaintiff asserts that the Defendants’ interference with its c-wire is a final agency action

and thus reviewable under the APA. (ECF No. 3-1 at 29.) The APA empowers courts to review

only “final agency action.” 5 U.S.C. § 704; see also Lujan, 497 U.S. at 885 (“When, as here,

review is sought not pursuant to specific authorization in the substantive statute, but only under

the general review provisions of the APA, the ‘agency action’ in question must be ‘final agency

action.’”). Absent a final agency action, a court lacks subject matter jurisdiction to consider a

claim brought under the APA. See Peoples Nat’l Bank v. Off. of the Comptroller of the Currency

of the U.S., 362 F.3d 333, 336 (5th Cir. 2004); accord Sierra Club v. Peterson, 228 F.3d 559, 562

(5th Cir. 2000) (“Absent a specific and final agency action, we lack jurisdiction to consider a

challenge to agency conduct.”).

An agency action is final when two conditions are satisfied. See Bennett v. Spear, 520 U.S.

154, 177-78 (1997). First, the action “must mark the ‘consummation’ of the agency’s

decisionmaking process.” Id. Second, “the action must be one by which ‘rights or obligations

have been determined,’ or from which ‘legal consequences will flow.’” Id. at 178 (quoting Port

of Boston Marine Terminal Assn. v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71 (1970)).

Although this analysis is “flexible” and “pragmatic,” courts take great care not to confuse final

agency action with tentative or interlocutory agency actions, or broader programmatic decisions.

Lujan, 497 U.S. at 891; see also Peterson, 228 F.3d at 562. The APA does not authorize courts to

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supervise “day-to-day agency management,” Norton v. S. Utah Wilderness All., 542 U.S. 55, 67

(2004), and thus, courts must reject invitations to find final agency action in an agency’s

“continuing (and thus constantly changing) operations.” Lujan, 497 U.S. at 890.

As the party seeking preliminary injunctive relief, the Plaintiff bears the burden of showing

a substantial likelihood that it will succeed on the merits of its APA claim, which requires final

agency action. Clark v. Pichard, 812 F.2d 991, 993 (5th Cir. 1987) (discussing the standard for

obtaining injunctive relief). Here, the Plaintiff alleges that the Defendants’ interference with its

concertina wire constitutes such a final action. (ECF No. 1 at 27.) Specifically, it asserts that

“[s]ince September 20, 2023, federal agents have developed and implemented a policy, pattern, or

practice of destroying Texas’s concertina wire to encourage and assist thousands of aliens to

illegally cross the Rio Grande and enter Texas.” (Id. at 3.) The question, then, is whether the

evidence presented thus far creates a substantial likelihood that the Plaintiff will ultimately

establish the existence of final agency action.

At the November 7, 2023, hearing, the Court heard evidence from CBP officials involved

in the decisions to cut or manipulate Texas’s concertina wire. After the hearing, the Court took a

step it rarely takes at this stage of injunction litigation and ordered the parties to produce additional

documents regarding Texas’s placement of the concertina wire and the Defendants’ subsequent

interference with it. (ECF No. 9.) The parties provided as much discovery as narrow time

constraints allowed, and thereafter, the Court reviewed thousands of pages of emails, reports, and

other documents. These documents shed further light on the events referenced at the November

7, 2023 hearing. But even viewed alongside the evidence presented at the hearing, 15 they fall short

of demonstrating the existence of a final agency action.

15
The Court continues to review the numerous documents provided by the parties and may supplement the factual
findings in this Order in light of new information discovered through this review process.

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Having considered the evidence presented at the November 7, 2023 hearing, the post-

hearing document production, and the arguments of counsel, the Court finds that the Plaintiff has

not, at this preliminary stage, shown a substantial likelihood that it will establish the existence of

a final agency action. Of course, the Court does not suggest that the Plaintiff cannot establish final

agency action when this case proceeds to be heard on the merits. As the Defendants note, the

documents within the federal government’s possession that mention the Plaintiff’s concertina wire

potentially number in the millions. (ECF No. 43 at 2.) Discovery may produce information that

sheds new light on the nature of the directives to cut or otherwise interfere with the Plaintiff’s

concertina wire. But at this early stage of the case, the Court finds insufficient evidence of final

agency action. Absent such final agency action, the Court need not address the Plaintiff’s claims

that the Defendants are engaging in arbitrary and capricious action or exceeding their statutory

authority.

iii. APA (Ultra Vires)

The Plaintiff correctly asserts that final agency action need not exist for the Court to address

its non-statutory ultra vires claim. (ECF No. 48 at 13 n.7.) The Fifth Circuit recognizes that courts

“may have jurisdiction to review an ultra vires agency decision under one of the exceptions to the

final agency action rule.” Exxon Chemicals Am. v. Chao, 298 F.3d 464, 467 n.2 (5th Cir. 2002);

see also Apter v. Dep’t of Health & Hum. Servs., 80 F.4th 579, 589 (5th Cir. 2023) (noting that for

ultra vires claims, agency action complained of “need not be final”).

To prevail on its ultra vires claim, the Plaintiff must show that an agency had “no colorable

basis” for the challenged actions. Fla. Dep’t of State v. Treasure Salvors, Inc., 458 U.S. 670, 682

(1982). This standard sets a high bar for plaintiffs bringing ultra vires claims. See Trudeau, 456

F.3d at 190. “[A] state officer may be said to act ultra vires only when he acts ‘without any

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authority whatever.’” Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 102 (1984).

“There certainly is no question that nonstatutory review ‘is intended to be of extremely limited

scope.’” Trudeau, 456 F.3d at 190 (quoting Griffith, 842 F.2d at 493). Thus, plaintiffs bringing

ultra vires claims face a higher burden than they do for traditional APA claims. See id. (“[Ultra

vires] hence represents a more difficult course for Trudeau than would review under the APA

(assuming final agency action) for acts ‘in excess of statutory . . . authority.’”) (quoting 5 U.S.C.

§ 706(2)(C)). Here, based on the evidence presented at the November 7, 2023 hearing and the

documents submitted thereafter, the Court finds that there is insufficient evidence at this juncture

to support a substantial likelihood of success on the Plaintiff’s ultra vires claim.

B. Irreparable Harm and Public Interest

The possible harm suffered by the Plaintiff in the form of loss of control and use of its

private property continues to satisfy the irreparable harm prong of preliminary-injunction analysis.

(See ECF No. 9 at 7-8; see also above discussion of potential redressability for past violation of

the Plaintiff’s property under the FTCA.) The public interest calculation reflected in the Court’s

TRO decision stands. (See id. at 9-10.)

V. CONCLUSION

Accordingly, it is ORDERED that the Plaintiff’s Motion for a Preliminary Injunction

Order or Stay of Agency Action (ECF No. 3-1) is DENIED.

SIGNED and ENTERED on this 29th day of November 2023.

______________________________________
ALIA MOSES
Chief United States District Judge

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