Texas must remove Rio Grande migrant barrier, US appeals court rules

© Reuters. FILE PHOTO: Asylum-seeking migrants walk in the Rio Grande river between the floating fence and the river bank as they look for an opening on a concertina wire fence to land on the U.S. soil in Eagle Pass, Texas, U.S. July 24, 2023. REUTERS/Go Nakamura/F

By Daniel Wiessner

(Reuters) – Texas must remove a 1,000-foot-long (305-meter) floating barrier it placed in the Rio Grande river to deter migrants from illegally crossing the border with Mexico, a U.S. appeals court ruled on Friday in a victory for President Joe Biden’s administration.

The New Orleans-based 5th U.S. Circuit Court of Appeals in a 2-1 decision declined a request by the Republican-governed state to reverse a federal judge’s decision ordering it to move the string of buoys placed in the Rio Grande in July near Eagle Pass, Texas.

The 5th Circuit decided that the shallow waters where the buoys were placed were navigable, meaning that a U.S. environmental law requires Texas to receive permission from the U.S. Army Corps of Engineers before installing them.

The administration has argued that the barrier is unlawfully blocking navigation and poses humanitarian concerns.

After the administration sued Texas in July to remove the barrier, San Antonio-based U.S. District Court Judge David Ezra ordered state officials to move the buoys to an embankment on the U.S. side of the river – which serves as the border with neighboring Mexico – pending the outcome of the litigation.

The 5th Circuit upheld that decision on Friday, dealing a setback to Texas Governor Greg Abbott, a Republican. Abbott contends that Biden, a Democrat, has been too lenient with border security as record numbers of migrants have been caught crossing illegally during his presidency.

Texas can ask the full 5th Circuit to review the decision.

Judge Don Willett, a Trump appointee, disagreed with his colleagues in the ruling that the portion of the Rio Grande where the buoys were placed was navigable. That area of the river is treacherous and cannot currently handle commercial traffic, Willett said.

Abbott’s office and the U.S. Justice Department did not immediately respond to requests for comment.

The barrier is one of the strategies Abbott has used to try to prevent migrants from crossing the river, also including coils of razor wire placed along the riverbank. On Thursday, a federal judge rejected a bid by Texas to block federal immigration authorities from destroying the wire fencing.

The Biden administration has faced criticism from Texas and other Republican-led states over its immigration and border policies.

The administration on Oct. 6 said it will add sections to a border wall to stave off migrant crossings from Mexico, a reversal that embraces a signature policy of Republican former President Donald Trump.