Texas border floating buoys can stay until May, court rules

A federal appeals court has temporarily reversed an order requiring Texas to remove a floating barrier at the border to curb the flow of illegal immigrants, the latest in a series of back-and-forth decisions that have been made over the last number of months.

Last month, a Fifth Circuit panel issued a split decision upholding a district judge’s order demanding that Texas move the buoys to the Texas side of the riverbank placed in the Rio Grande at the Texas-Mexico border. 

Texas Attorney General Ken Paxton immediately filed a petition to rehear the case before the full court and to allow the buoys to remain in place while the court considered the petition. 

A migrant from Columbia stands at a floating buoy barrier as he looks to cross the Rio Grande from Mexico into the U.S., Monday, Aug. 21, 2023, in Eagle Pass, Texas. (AP Photo/Eric Gay)

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On Wednesday, Paxton secured an en banc rehearing by the U.S. Court of Appeals for the Fifth Circuit concerning the Biden Administration’s attempt to force Texas to remove the buoys, he said via a press release.

Paxton said the buoy system was deployed by Texas to reduce the number of unvetted migrants attempting to enter the United States at a dangerous and illegal river crossing rather than a designated port of entry.

Now that the Fifth Circuit has granted an en banc hearing, the order to move the buoys will continue to be stayed. The argument before the Fifth Circuit is scheduled for May 2024, Paxton said. 

A federal appeals court has temporarily reversed an order requiring Texas to remove a floating barrier at the border to curb the flow of illegal immigrants. (Omar Ornelas/El Paso Times/USA TODAY NETWORK)

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"Great news!" Paxton wrote on X in a post sharing details about the court case.

Gov. Greg Abbott deployed the buoys in July to deter the flow of migrants coming across the southern border. The plan was part of the governor's broader Operation Lone Star to respond to the rise in illegal immigration.

The buoy barrier was installed near the border town of Eagle Pass, with anchors in the riverbed. The area is part of a Border Patrol sector that has seen the second-highest number of migrant crossings this fiscal year with about 270,000 encounters. 

Texas Attorney General Ken Paxton filed a petition to rehear the case before the full court and to allow the buoys to remain in place while the court considered the petition.  (Drew Angerer/Getty Images)

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The buoys brought legal challenges from the U.S. Justice Department, which accused Texas of putting a barrier on the international boundary without permission in violation of the of the Rivers and Harbors Act. The Biden administration also said the water barrier raised humanitarian and environmental concerns.

Immigration attorney Thomas Esparza told Fox 7 that he expects the Fifth Circuit will eventually rule to let the floating barriers stay.

"The Fifth Circuit just wants to make a decision, get all the judges involved," Esparza. "They're a very conservative court. They're going to lean in favor of the Texas governor," he said. 

Fox News’ Bradford Betz contributed to this report.