CA5 (2-1) on Texas Concertina Wire, Sovereign Immunity

Texas v. DHS

Majority: "We address whether United States Border Patrol agents can legally cut a concertina wire (“c-wire” or “wire”) fence the State of Texas has placed along part of the border with Mexico. ... We now rule that Texas is entitled to a preliminary injunction. ... Accordingly, we ... GRANT Texas’s request for a preliminary injunction. Based on the district court’s supplemental fact findings concerning intervening events in Shelby Park, however, we modify the preliminary injunction as follows. Defendants are ENJOINED from damaging, destroying, or otherwise interfering with Texas’s c-wire fence in the vicinity of Eagle Pass, Texas, as indicated in Texas’s complaint, in instances where Defendants have the necessary access to both sides of Texas’s c-wire for immigration law enforcement and emergency purposes. That access must include the land side of the c-wire fence along the international border within Shelby Park."

Irma Carrillo Ramirez, Circuit Judge, dissenting: "Because Texas has not met its burden to show a waiver of sovereign immunity or a likelihood of success on the merits, I respectfully dissent. ... Because Texas has not met its burden to demonstrate § 1252(f)(1)’s inapplicability, the injunctive relief Texas seeks is “a forbidden one in this case.” United States, 599 U.S. at 690 (Gorsuch, J., concurring in the judgment)."