Migrants drowned while crossing Rio Grande before Border Patrol contacted state, Justice Department acknowledges

WASHINGTON – Three migrants had already drowned while trying to cross the Rio Grande near Eagle Pass on Friday night when Texas National Guardsmen turned away U.S. Border Patrol agents seeking access to the river, the federal government said in a recent court filing.

The deaths – and disputed reports on the timeline of the drownings – have exacerbated tensions between Texas and the federal government over jurisdiction along a key stretch of the U.S.-Mexico border.

The state last week fenced off Shelby Park in Eagle Pass and has prevented federal agents from monitoring the area and responding to emergencies along the river.

Clarifying the U.S. government’s timeline of events, Robert Danley, U.S. Customs and Border Protection lead field coordinator for the Del Rio area, wrote a statement attached to a Justice Department filing to the U.S. Supreme Court on Monday.

A representative of Mexico’s National Institute of Migration notified U.S. officials at 9 p.m. Friday that two migrants were in distress on the U.S. side of the river in the area near the Shelby Park boat ramp, Danley said in the statement.

The representative also reported that one woman and two children had drowned about an hour earlier in the same area, he said.

A Border Patrol supervisor went to Shelby Park’s entrance, where Texas National Guardsmen said they had been ordered to block federal access to the city park, even in emergencies, Danley said.

The next day, Mexican authorities confirmed a total of seven migrants in two groups had tried to cross the river. The first group included the three migrants who drowned. Their bodies were recovered by Mexican officials. Two other migrants in that first group were rescued by Mexico’s National Institute of Migration.

The second group of migrants consisted of two men and were the ones Border Patrol was trying to reach.

“As conveyed by the representative of Mexico’s National Institute for Migration, those two migrants were on the U.S. side of the river then attempted to return to Mexico when they were rescued by a Mexican government airboat and safely returned to Mexico where they were suffering from hypothermia,” Danley said.

Border Patrol was unable to visually monitor the Shelby Park area during the incidents because the state had blocked the agency from placing its mobile video surveillance equipment in the Shelby Park area, he added.

Texas has allowed Border Patrol access to the Shelby Park boat ramp, but only with restrictions that include providing information about each agent, Danley said.

The latest filing was part of a Justice Department appeal asking the Supreme Court to overturn a lower-court ruling that bars the Border Patrol from cutting or removing razor wire deployed by the state.

U.S. Rep. Henry Cuellar, D-Laredo, shared an account of the drownings on Saturday that seemed to indicate that Border Patrol agents had been blocked from trying to save the three migrants who drowned.

In a statement Sunday night, the Texas Military Department disputed Cuellar’s version of events.

“At the time that Border Patrol requested access, the drownings had occurred, Mexican Authorities were recovering the bodies, and Border Patrol expressed these facts to the TMD personnel on site,” the statement said.

The statement also said two migrants were apprehended by TMD, one of whom was transferred to emergency medical services due to “initial hypothermic conditions.”

Gov. Greg Abbott wrote on X, formerly Twitter, that Cuellar and “some media” overlooked the facts in a rush to blame the state for the migrant deaths. Abbott instead blamed the deaths on “Biden’s Open Border magnet.”

Cuellar told the Dallas Morning News on Tuesday that he had been sharing the latest information provided to him on Saturday and had no reason to dispute the accuracy of the latest court filing.

Regardless of Friday’s exact timeline, he said, the state took on responsibility for that stretch of the river when it kicked out federal agents and the surveillance equipment they use to see what’s happening on both sides of the river.

“This emphasizes the point that we ought to be coordinating, communicating together,” Cuellar said.

Border Patrol should have been there, with its monitoring equipment, when those migrants were in distress, he said.

“Maybe they could have prevented this because they would have seen what was happening,” he said.

Cuellar has broken with his party at times on immigration and border policy, urging President Joe Biden to do more to stem the flow of migrants. He also has said Mexico needs to do more to address the situation and urged the migrants themselves not to take the dangerous trek to the border.

But Cuellar also criticized Abbott for pursuing “Lone Ranger” tactics on border enforcement rather than working in coordination with the federal government.

In its court filing, the Department of Justice said Friday night’s events underscored how Texas is sticking to its efforts to control the border, blocking Border Patrol access even in emergencies.

“It is impossible to say what might have happened if Border Patrol had had its former access to the area – including through its surveillance trucks that assisted in monitoring the area,” U.S. Solicitor General Elizabeth B. Prelogar wrote.

“At the very least, however, Border Patrol would have had the opportunity to take any available steps to fulfill its responsibilities and assist its counterparts in the Mexican government with undertaking the rescue mission. Texas made that impossible,” Preloger added.

On Sunday, the U.S. Department of Homeland Security sent a cease-and-desist letter ordering the state to stop its blockade by Wednesday.

Prelogar said the government is not asking the court to resolve all of those issues, but rather to strike down the lower court’s injunction barring Border Patrol agents from cutting or moving Texas’ razor wire when necessary to access the border or migrants.

“Texas’s recent actions vividly illustrate the untenable legal and practical implications of that injunction,” Prelogar wrote.