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Former US Attorney details lack of border guidance from Biden administration during transition

Stretch of border wall east of El Paso. (BRIANA SANCHEZ/EL PASO TIMES/TNS)

It became one of the most headline-making soundbytes of the 2020 election season — should Joe Biden win the presidency, he would order an immediate halt to border wall construction and would stop government seizures of private land.

But now, the man who spent more than three years in charge of overseeing border wall litigation from Brownsville to Laredo is shedding new light on a yawning disconnect that existed between those campaign promises and the on-the-ground reality.

Ryan K. Patrick — who resigned as the U.S. Attorney for the Southern District of Texas in February — said neither he nor other Department of Justice officials received any guidance regarding the border wall from the incoming Biden administration in the months leading up to inauguration day.

Nor were their repeated inquiries answered, even after Biden issued a proclamation that day ordering border wall construction to stop.

“The short answer is we were told nothing,” Patrick said Thursday in an exclusive interview with The Monitor.

“We never got an answer during the transition and we never got an answer for the just over a month I was there serving under President Biden,” he said.


“There will not be another foot of wall constructed in my administration,” said Biden, then the presumptive Democratic nominee for president, during an Aug. 5, 2020, interview with NPR’s Lulu Garcia-Navarro.

Biden was just as adamant about putting a halt to land confiscations.

“End. Stop. Done. Over. Not going to do it. Withdraw the lawsuits. We’re out. We’re not going to confiscate the land,” Biden said at the time.

But, more than 100 days into his presidency, the DOJ has continued to pursue dozens of land condemnation lawsuits that were initiated during the Trump administration.

And just last month, a McAllen federal judge handed the government immediate possession of 6.5 acres of land along the Rio Grande south of Mission — a ruling that came as a surprise not only to the Cavazos family who own the land, but to the government attorneys who are pursuing the case.

In recent days, local officials also began sounding the alarm about flood risks posed by stretches of levees that lie broken at the now-abandoned border wall sites.

Though the proclamation’s 60-day construction moratorium has since expired, crews have not returned to the sites. Officials with the U.S. Department of Homeland Security say, in the absence of further instructions, they continue to operate as if the work stoppage remains in effect.

The issues also gained national attention after U.S. Rep. Vicente Gonzalez, D-McAllen, wrote a letter to the White House last Wednesday urging the president to take action on the levee breaches and other border concerns.

On Friday, DHS responded, pledging to repair the levee system as hurricane season approaches on June 1. But the details remain sparse, and any additional guidance the White House may have issued to DHS or the DOJ is unknown.

That comes as no surprise to Patrick, who described a “shocking” trend of silence in the months leading up to and after the transition of power.

A Trump appointee who took office in January 2018, the former U.S. Attorney said the lack of communication created “a lot of tension” among Border Patrol officials, incoming DOJ leadership, and those in the Rio Grande Valley who handle border issues daily.

“We were asking the transition people… in February, ‘Hey, what are the new policies of X, Y and Z?’ and we never got any responses,” Patrick said.

“There was tension between DOJ — the new DOJ leadership — and DHS on what some of the policies would be because, obviously, there’s not only political ramifications, but some serious law enforcement ramifications,” he said.

Speaking of how the presidential transition process typically works, Patrick said “landing teams” are inserted throughout the upper echelons of government in order to facilitate an administration changeover.

With immigration and border issues being one of the keystones of the Biden campaign, Patrick expected those teams would soon address whatever border policy shifts the new president planned to implement.

But, that didn’t happen despite numerous inquiries made to DOJ leaders in Washington.

“I don’t know if the border just wasn’t a priority for policies and guidance for us on the ground, or if it was just innocent ignorance,” Patrick said.

“And to not have guidance within days — or within the first few weeks — really shocked us,” he added a moment later.

The poor communication extended to the simplest of questions, including when the president wanted Patrick and the 55 other Trump-appointed U.S. Attorneys to resign from office.

“I know the U.S. Attorneys as a whole felt generally that there was a lack of communication — not to say that they owed us anything, but it’s kind of hard to do your job when you’re asking specific questions… and in most cases, they just never answered.”

Biden ultimately asked those U.S. Attorneys to step down by the end of February, and, to date, no names have been floated to potentially fill the seats in Texas’ four districts.

Reached for comment Sunday, Sen. John Cornyn — a member of the Federal Judicial Evaluation Committee responsible for reviewing applicants for U.S. Attorney — said he had no potential candidates currently in mind.


In court, the prosecutors formerly under Patrick’s command were left in limbo. A family lost their land. And the Valley stands at risk of flooding due to the levee breaches — all foreseeable consequences.

Even Democratic lawmakers have been critical of the administration on action that’s been slow in coming.

That lack of communication left line prosecutors in the Valley in an untenable position — unable to answer direct questions from federal judges about policy decisions that don’t exist yet, while remaining tasked with moving forward on border wall hearings that had been scheduled months in advance.

“When the judges are asking specific questions on, ‘Well, what are you supposed to be doing? What’s the new rule? What’s the new policy?’ And the answer is, ‘We don’t know,’ what’s a judge supposed to do with that?” Patrick said.

“(When) you can’t directly answer a judge’s question like that, then you sort of are leaving the judge up to what they want to do on their own,” he said, alluding to decisions like that of U.S. District Judge Micaela Alvarez, who in mid-April granted the government possession of the Cavazos family’s land.

The lack of memoranda addressing such issues were, as Patrick repeatedly described it, frustrating.

“It’s not like immigration and the border was not part of the campaign. It’s not like people weren’t thinking about these ideas and didn’t see these issues coming,” he said.


Making good on his campaign promises won’t be an entirely straightforward process for President Biden. The hundreds of pending lawsuits involve numerous moving parts and multiple agencies — from the DOJ and DHS, to the U.S. Army Corps of Engineers and the International Boundary and Water Commission.

The administration will also have to contend with the various avenues of funding former President Donald Trump conscripted to pay for the wall.

Late Friday, Biden announced the revocation of billions of dollars in funding that his predecessor had redirected from the Department of Defense in order to bankroll the wall. Those funds, along with money from the U.S. Treasury, the U.S. Marshals Service and asset forfeitures, are relatively easy to pull away from border wall projects, Patrick said.

What will be more difficult will be dealing with funds appropriated by Congress, as well as any construction contracts that have already been engaged.

“There is congressionally appropriated money for border fence that has not been built yet. Only Congress can decide not to spend money that they’ve said to spend,” Patrick said.

“No doubt, someone is going through the contracts to see which contracts potentially can be broken, which contracts are just gonna have to be eaten. … It’s probably gonna generate more lawsuits,” he added later.

Biden will also have to decide what to do with the dozens of additional lawsuits that were filed just as the COVID-19 pandemic began to sweep across the country.

In media calls in April 2020, attorneys with the Texas Civil Rights Project expressed concerns about the alarming number of land condemnation suits being filed throughout South Texas.

Whereas TCRP had previously noted just a handful of cases were filed each month early in Trump’s presidency, that pace accelerated significantly last spring as prosecutors began filing dozens of suits at a time.

“Definitely, the Trump administration appears to be taking advantage of the pandemic to build the wall even more quickly than before,” TCRP attorney Ricky Garza said at the time.

But Patrick said the timing of the increase had less to do with the pandemic and a “lame duck” president who may have been trying to capitalize on his last days in office than it did a confluence of interagency cogs that had just then begun to sync up.

“It’s not because we woke up on Jan. 15 and said, ‘Oh quick, let’s file on this piece of land.’ It could very easily be a piece of land that we’ve been working, that people have been (doing) title work and research on for a very long time and it just got to the point where it came to be filed,” he said, adding that all litigation must also get the go-ahead from DHS.


Patrick anticipates President Biden will begin moving more quickly to address the border wall, especially as the issue has continued to draw national scrutiny.

“The issues on the border are not going away. … The new administration is going to have to figure out what they want to do as far as balancing the law enforcement and civil enforcement priorities along the border,” he said.

“If I had to guess, I would not be surprised if there was an order to dismiss cases that are pending. Returning land — is that possible? Sure. It’s more complicated than it sounds, but I don’t know. My guess is we’ll start to see things move now, certainly with the attention it’s getting,” he added.

No matter what decisions the president makes, however, the former U.S. Attorney remains confident that the Southern District is well positioned to continue the work left unfinished when he stepped down.

“As an office, we were really hitting our stride,” Patrick said, calling it the greatest job he’s ever had.

During his three-year tenure, Patrick’s office hired more than 80 prosecutors and saw a 95-96% conviction rate as they pursued nearly 22,000 prosecutions, according to a news release announcing his February resignation.

The Southern District encompasses seven divisions stretching from Houston south along the Coastal Bend to Brownsville, and west to Laredo. Were the McAllen division a standalone district, it would easily rank among the top five busiest districts in the nation, Patrick said.

“I loved it. I wasn’t ready to go. I was definitely grumpy for a little while. But at the same time, there’s great people there,” he said.

“It’s an amazing place to get to practice law and really be involved in everything the Department of Justice does.”


(c) 2021 The Monitor

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