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The Immigrant as Criminal: Texas’ S.B. 4 and Dehumanizing Immigration Policy

Matthew Hornak and John Hollihan

2 April 2024

On November 21, 2023, Texas governor Greg Abbott signed Senate Bill 4 into law and enshrined into Texas state law the criminality of illegally crossing the southern border. S.B. 4 is the most recent attempt by Texas Republicans to increase state-level immigration restrictions after years of partisan infighting (1), and it has rocketed into the national spotlight. On March 19th, 2024, the Supreme Court denied an application by immigration activists to delay the law from going into effect. The Court’s ruling means that the activists must wait for a final ruling by a Texas appellate court on the law’s constitutionality before further action is taken (2). Until the Fifth Circuit appeals court rules, Texas will increase its mandatory minimum for the crime of protecting undocumented immigrants from two years to ten years and will empower its state judiciary to punish illegal entry into Texas from a foreign country with deportation – a heretofore solely federal power in immigration policy (3). 

S.B. 4 is unique; it is a bold-faced challenge to the supremacy of federal law and the jurisdiction of state governments in foreign and immigration policies. But more concerningly, S.B. 4 advances dangerous and politically volatile rhetoric to promote the dehumanization of immigrants. 

After the passage of S.B. 4, the bill’s sponsor, State Senator Pete Flores (R-24), was named the chairman of the Texas Senate Criminal Justice Committee. Upon taking the position, Senator Flores writes, “As Chairman, my priority will be to ensure Texas remains a well protected, safe State. We cannot, and will not be soft on crime here in Texas.” (4). S.B. 4 was written to provoke a national conversation about the role immigration plays in crime and the rule of law.

Even though Senator Flores does not cite the bill in his ascendancy in Texas politics, similar rule of law rhetoric was present during the bill’s debate and around Texas’ immigration discussions. State Representative David Spiller (R-68) noted that “It’s a landmark bill that allows Texas to protect Texans and to send illegal immigrants back, and to prosecute and incarcerate those that refuse to leave.” (5). Governor Abbott lists on his personal website under the header, “enforcing the law,” that “[a]s Governor, he signed a law banning sanctuary cities in Texas after naming it an emergency item during the most recent legislative session. It’s irresponsible and reckless to release known criminals back onto our streets.” (6). The undercurrent driving S.B. 4 to the spotlight is not purely immigration – itself a flashpoint in the U.S. political sphere – but the link between criminality and immigrants. The focus on criminality makes Texas’ foray into immigration law the most incendiary moment for dehumanizing rhetoric against immigrants. 

The primary tactic S.B. 4 uses is distancing politicians from those affected. Since the language of the bill invokes criminality towards migrants, two primary things occur. Firstly, the lives and conditions of migrants are erased because they are not discussed regularly in U.S. news media, let alone in legislation or litigation. Their material conditions are never incorporated into mainstream political discourse. The struggle of migrants – such as transportation to the U.S., crossing the border, finding work – is ignored. Their humanity and material conditions are disregarded for criminalization. Secondly, scapegoating migrants as the issue becomes a much more useful political tactic in elections. It is easier for Republican politicians to direct blame at a group of people rather than the complex systems and institutions that uphold current U.S. immigration law, particularly given the political saliency of immigration in the minds of voters (7).

More insidiously, however, is the way S.B. 4 subtly changes the playing field of immigration law. It is well established that, as a standalone issue, being an undocumented immigrant in the United States is not a crime (8). While committing crimes while being undocumented is increasingly punishable by deportation (9), being undocumented itself is a civil issue left to the Department of Justice’s Executive Officer for Immigration Review, a separate entity from the federal judiciary (10). However, S.B.4 explicitly makes undocumented status a misdemeanor offense under the jurisdiction of Texas’ state courts. Where once the term “illegal immigrant” or “illegal alien” were misnomers meant to falsely target immigrants, S.B. 4 makes these terms legally valid, at least on a state level. By giving these terms legal validity, they are no longer scare tactics meant to poke at Americans’ fears about immigrants and crime (11). Instead, Republican lawmakers can single out immigrants to enforce this law and mean what they say: they will uphold the law. 

Despite the nuanced legal craftsmanship of S.B. 4, nothing shields the at-times blatant racism present in the rhetoric of Texas Republicans. S.B. 4’s sponsor, Senator Flores, writes on his campaign site, “Pete Flores has been helping secure the border from his days as head of the Texas game warden division, where cadets were trained to hold an illegal alien.” (12). No matter the clever legal maneuvers to dehumanize immigrants, some of those in favor of the bill are proud to see immigrants as nothing more than vermin. 

S.B. 4 may soon be a watershed moment in the rights of states to intervene in federal immigration policy. But laws like S.B. 4 don’t augment the complex and at times dehumanizing aspects of existing immigration law. The 2021 unanimous Supreme Court decision in Sanchez v. Mayorkas held that Temporary Protected Status (TPS) granted for humanitarian reasons could not transform into lawful permanent residence and thus, a pathway to citizenship. Even though José Santos Sanchez and his wife Sonia lived in the U.S. for over a decade, their application for green cards was denied since they were not admitted for the explicit purposes of permanent residence (13). Immigrants – particularly those from Latin America – come to the United States for various reasons. Many do so hastily, without knowledge of what waits for them across the Rio Grande except that it must be better than the life they currently know. The existing immigration system perpetuates the same distance that S.B. 4 does by failing to consider – or even care – about the circumstances of an immigrant’s arrival. 

Dehumanizing immigrants isn’t new with S.B. 4. But Texas’s foray into immigration litigation presents a uniquely dangerous moment for the way Americans conceive of immigrants, and we should reflect on existing policy if laws like S.B. 4 begin to emerge across the country. 

Image via DHS — Secretary Kelly In Texas: Pool Photos.

Works Cited

  1. Aguilar, Julián. “Texas Senate passes state immigration enforcement bill and $1.5 billion more for border barriers.” KERA News 9 November 2023. https://www.keranews.org/texas-news/2023-11-09/texas-senate-passes-state-immigration-enforcement-bill-and-1-5-billion-more-for-border-barriers
  2. United States v. Texas, et al. No. 23A814. Supreme Court of the United States. 19 March 2024. https://www.supremecourt.gov/opinions/23pdf/23a814_febh.pdf
  3. Texas Senate. “Senate Bill 4.” 21 November 2023. Texas Legislature Online. 21 February 2024. https://capitol.texas.gov/BillLookup/History.aspx?LegSess=883&Bill=SB4
  4. Texas Senate. 2023. Senator Pete Flores (SD-24) Named Incoming Chair of Criminal Justice Committee. Press Release, Austin: State of Texas. https://senate.texas.gov/members/d24/press/en/p20231212a.pdf
  5. Aguilar, Julián. 2023. “Controversial legislation making unauthorized entry into Texas a state crime heads to governor.” KERA News. November 14. Accessed March 20, 2024. https://www.keranews.org/texas-news/2023-11-14/texas-house-passes-controversial-and-costly-immigration-enforcement-bills.
  6. Greg Abbott. n.d. Issues. Accessed February 24, 2024. https://www.gregabbott.com/issues/. 
  7. Pew Research Center. 2024. How Americans View the Situation at the U.S.-Mexico Border, Its Causes and Consequences. Immigration, Washington, DC: Pew Research Center. https://www.pewresearch.org/politics/2024/02/15/how-americans-view-the-situation-at-the-u-s-mexico-border-its-causes-and-consequences/
  8. American Civil Liberties Union. 2010. Criminalizing Undocumented Immigrants. Press Brief, New York: ACLU IRP. https://www.aclu.org/wp-content/uploads/legal-documents/FINAL_criminalizing_undocumented_immigrants_issue_brief_PUBLIC_VERSION.pdf
  9. American Immigration Council. 2013. Two Systems of Justice: How the Immigration System Falls Short of American Ideals of Justice. Special Reports on Immigration, Washington, DC: Immigration Policy Center. https://www.americanimmigrationcouncil.org/sites/default/files/research/aic_twosystemsofjustice.pdf
  10. Executive Office for Immigration Review. 2024. “About the Office.” United States Department of Justice. March 15. Accessed March 20, 2024. https://www.justice.gov/eoir/about-office. 
  11. Pew Research Center. 2024. In their own words: Americans’ concerns, feelings about U.S.-Mexico border situation. Immigration concerns, Washington, DC: Pew Research Center. https://www.pewresearch.org/politics/2024/02/15/in-their-own-words-americans-concerns-feelings-about-u-s-mexico-border-situation/
  12. Flores, Pete. n.d. Pete Flores for Texas Senate. Accessed February 21, 2024. https://floresfortexas.com/issues/.
  13. Constitutional Accountability Center. “Sanchez v. Mayorkas.” n.d. Constitutional Accountability Center. 15 March 2024. https://www.theusconstitution.org/litigation/sanchez-v-mayorkas/#:~:text=The%20Court%20held%20that%20eligibility,Section%201255’s%20adjustment%20process%2C%20TPS

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