Appellate court considers border fence battle between Texas and Border Patrol


The 5th U.S. Circuit Court of Appeals heard arguments Thursday surrounding the Border Patrol‘s destruction of border fencing in Texas.

This comes from a lawsuit filed by Gov. Greg Abbott (R-TX) and his solicitor general, Aaron Nielson, alleging that Border Patrol agents were trespassing when they cut its border fence with bolt cutters and smashed it with forklifts. Last year, the Supreme Court ruled that the federal government has the constitutional power to remove barbed wire on the state’s territory after the Department of Justice sued the Texas government for its various tactics to keep immigrants from illegally entering.

While Border Patrol has been instructed to take down the barbed-wire fences, the Texas National Guard is continuing to install more fences. Since this latest lawsuit, the panel has barred agents from destroying more fencing. Federal agents are generally protected from lawsuits when performing their duties, but this lawsuit centers on what a Border Patrol agent’s duty is.

“Border Patrol wasn’t cutting the fence to apprehend immigrants or prevent illegal entry, it was quite the opposite,” Circuit Judge Kyle Duncan said. He is one of three judges who sits on the panel and was appointed by former President Donald Trump.

Melissa Patterson of the DOJ attempted to argue that an agent’s job is to apprehend and process migrants instead of preventing them from crossing the border. According to the U.S. Customs and Border Protection website, its mission is to “protect the American people, safeguard our borders, and enhance the nation’s economic prosperity.”

“This isn’t even people on U.S. soil; these are people on the other side of the river and there’s no pushback whatsoever saying ‘don’t come here,’” Nielson argued.


Texas has fundraised some $55,427,025 since last December toward its border wall. State agents have apprehended 512,300 immigrants at its border.

President Joe Biden issued an asylum ban earlier this week once arrests for illegal entry reach 2,500 a day. However, Abbott referred to the order as a “smokescreen” ahead of the president’s reelection bid this November.