Texas barred border agents from responding to distress call, DHS says

The latest: Axios originally reported — citing a DHS statement that Border Patrol agents had been "physically barred" from responding to a distress call in the area where the drownings took place — that the migrants drowned after federal agents were turned away.

• But the U.S. Department of Justice stated in a Supreme Court filing on Monday that, in fact, the three migrants had already drowned earlier the same evening that the notice went out about people struggling in the Rio Grande.
• That distress call related to two other migrants who were later rescued by Mexican immigration officials. Both survived, though one had symptoms of hypothermia.
• The filing confirms that after Border Patrol was notified by Mexican authorities that three people had drowned and more were struggling in the river, Texas National Guard personnel had refused to allow federal agents to enter the area.

What they're saying: "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," the filing states.

• Robert Danley, Customs and Border Protection lead field coordinator for the Del Rio area in Texas, said in a statement attached to the filing that "Border Patrol was unable to visually monitor the Shelby Park area" that evening due to restrictions put in place by the Texas National Guard.

State of play: The deaths and disputed timelines come as political fights rage between Congress and the White House over how to address a years-long migration surge.

Catch up quick: A DHS spokesperson had confirmed to Axios on Sunday that a woman and two children drowned Friday in the Shelby Park area of Eagle Pass.

• The area, the statement said, "was commandeered by the State of Texas earlier this week."
• "In responding to a distress call from the Mexican government, Border Patrol agents were physically barred by Texas officials from entering the area," the spokesperson said.
• "The Texas governor's policies are cruel, dangerous, and inhumane, and Texas's blatant disregard for federal authority over immigration poses grave risks," they said.

Rep. Henry Cuellar (D-Texas) called the situation "a tragedy, and the State bears responsibility," per a statement Saturday on X.

• In his account, Cuellar said that after the distress call, Border Patrol was barred from entering Shelby Park by members of the Texas Military Department and the Texas National Guard.
• Abbott later accused Cuellar and the media of being "so eager to point finger at Texas for drowning of migrants they forgot to get the facts."
• On Tuesday, Cuellar told the Dallas Morning News that he was sharing the most up-to-date information that had been given to him on Saturday but that he had "no reason to dispute the accuracy of the latest court filing."
• Cuellar noted that Texas was responsible for that portion of the river, irrespective of the Friday timeline.

White House spokesperson Angelo Fernández Hernández said in a statement to Axios on Sunday that "while we continue to gather facts about the circumstances of these tragic deaths, one thing is clear: Governor Abbott's political stunts are cruel, inhumane, and dangerous."

• "U.S. Border Patrol must have access to the border to enforce our laws."

The other side: The Texas Military Department said in a statement on Sunday that "claims of Border Patrol requesting access to save distressed migrants are inaccurate."

• The department also said claims that the department "prevented Border Patrol from saving the lives of drowning migrants are wholly inaccurate."
• In an earlier statement on Saturday, the department confirmed that Border Patrol reached out to them about migrants under distress.

• The department said they "actively searched the river with lights and night vision goggles. No migrants were observed."
• "At no time did TMD security personnel along the river observe any distressed migrants, nor did TMD turn back any illegal immigrants from the US during this period," the statement continued.

Between the lines: An earlier court decision has prevented Border Patrol from being able to move or cut down barriers placed by Texas, except in cases of emergency.

• In a Friday filing to the U.S. Supreme Court, U.S. officials claimed new fencing placed by Texas "restricts Border Patrol's ability to reach the river in particular areas," including the area of Shelby Park in Eagle Pass.
• "Border Patrol's ability to view this portion of the border is now limited to a narrow sliver from a single surveillance camera located outside of the newly fenced area," the filing continued.
• The area is a central point for migrants attempting to illegally cross into the U.S., and includes a boat ramp often used by border agents.

Zoom out: Texas has taken increasingly aggressive actions to keep out migrants and asylum seekers — deploying its own state law enforcement and military officials to physically patrol the border, bussing migrants to other U.S. cities without coordination, constructing floating barriers and erecting concertina wire fencing.

• Enforcing immigration laws has long fallen to the federal government, and the Biden administration has been fighting the state's actions in court.

Meanwhile, Abbott continues to spar with the federal government over immigration enforcement.

• The Department of Justice filed a lawsuit against the state of Texas earlier this month over allegations that its new immigration law is unconstitutional.
• Abbott signed Senate Bill 4 into law in December 2023, which authorizes state officials to arrest and seek the deportation of migrants who have crossed the U.S.-Mexico border without legal authorization, Axios' Sareen Habeshian reports.

Go deeper: How Democrats got cornered on the border crisis

Editor's note: The story and headline have been corrected to reflect new information from the Justice Department that was in a Monday filing to the U.S. Supreme Court, noting that three migrants had already drowned when Border Patrol requested access to the area, as well as to add additional reporting including statements from the Texas Military Department and the White House.