Biden’s DOJ Doesn’t Appeal Court’s Blockbuster Order on Parole

‘Bottom News of the Day’ or the dog that didn’t bark?

By Andrew R. Arthur on March 21, 2023

On March 8, Judge T. Kent Wetherell II of the U.S. District Court for the Northern District of Florida issued a blockbuster opinion in Florida v. U.S., finding the Biden administration’s border release policies violate various sections of the Administrative Procedure Act (APA), and vacating those policies. The judge stayed his order for seven days, to give Biden’s DOJ the chance to appeal to the Eleventh Circuit. But no appeal was filed, and the order is now in effect. Is this the “Bottom News of the Day”, or the dog that didn’t bark?

A Brief History of Border Apprehensions, Detentions, and Releases. In section 235 of the Immigration and Nationality Act (INA), Congress laid out the protocol that DHS — both CBP officers at the ports and Border Patrol agents between the ports — must follow in inspecting “applicants for admission”.

When Congress amended the law to create the current section 235 inspection protocol in 1996, it was a much-needed sea change from existing law and practice.

Prior to that amendment, officers at the then-Immigration and Naturalization Service (INS) — the precursor to CBP (and ICE and USCIS) — was required to apply what was known as the “entry doctrine” when placing aliens stopped at the borders and ports into proceedings.

The focus of the entry doctrine was on whether an alien had “entered” the United States. Aliens who had not entered the United States were placed into exclusion proceedings under section 212 of the INA and received few constitutional protections. Aliens who had entered — even illegally — were placed into deportation proceedings under then-section 236 of the INA, in which they were accorded greater rights and procedural benefits.

Applying the entry doctrine was simple in the case of an alien who had shown up at a port seeking admission, because ports were treated as the de facto “doorstep” of the United States, and while aliens were in the ports, they had not entered and could be excluded.

The entry doctrine was a challenge, however, in cases involving aliens who had entered illegally. Did the alien “actually and intentionally evade inspection”? Was the alien “free from official restraint”? It was more art than science and required a resource-intense analysis of often disputed facts.

The new section 235 cut this Gordian knot by treating all “arriving aliens” — those at the ports and those apprehended entering illegally between them — as applicants for admission, subject to what was now called “inadmissibility” under section 212 of the INA. Most importantly, it applied a detention mandate dating back to 1903 that had previously affected only aliens at the ports to illegal border entrants, in section 235(b) of the INA as amended, as well.

Congress can change the law on its own, but not the Constitution, and the issue remained whether aliens who entered illegally had a right to seek release from custody despite that section 235 statutory detention mandate. The Supreme Court, in a series of decisions issued between 2018 and 2021, held that at least those who were caught immediately after entry did not have such a right.

Notably, however, those cases were brought by aliens the government sought to detain who were seeking release, and thus the justices — who only consider the issues before them — did not rule directly on whether Congress had barred the executive branch from releasing them itself.

Biden’s Border Releases. In his 109-page decision, Judge Wetherell ruled that the detention mandate in section 235(b) of the INA applied to the government, too, and limited the Biden administration’s ability to release illegal migrants.

Biden’s DHS has used three different tools to release migrants apprehended at the Southwest border: (1) release with a “Notice to Report” (NTR) at an ICE office in the interior to be served with a “Notice to Appear” (“NTA”, the charging document in removal proceedings, similar to a criminal complaint); (2) release with an NTA on the alien’s own recognizance (OR) under authority in section 236(a) of the INA; and (3) release on “Parole+ATD”, in anticipation of being summoned into an ICE office to be served with an NTA at a future date.

The state of Florida — referencing my colleague Mark Krikorian — referred in its complaint to NTR releases as “immigration enforcement by the honor system”, and Judge Wetherell concurred. He found that only about 30 percent of migrants released with NTRs showed up as directed, forcing ICE to implement “Operation Horizon” to find them.

In any event, CBP abandoned NTR releases in September 2021, by which point it had set free more than 94,500 migrants under that program (which had no statutory basis whatsoever). In its place, CBP, in November 2021, shifted to Parole+ATD, i.e., parole under section 212(d)(5) of the INA plus “alternatives to detention” such as GPS tracking, ankle monitors, or (more commonly) the SmartLINK app.

Notably, as with NTRs, aliens were not issued NTAs at the time they were released on Parole+ATD as a time-saving measure. The NTA issuance process, the court found, took between two and two-and-a-half hours, while “Parole+ATD only takes 15 to 30 minutes”.

Parole is a clear exception to the detention mandate in section 235(b) of the INA, but a limited one. A paroled alien is allowed to enter the country without being admitted, but as Judge Wetherell found, DHS may issue parole (1) “only on a case-by-case basis for urgent humanitarian reasons or significant public benefit”; (2) after placing the alien into removal proceedings; and (3) in anticipation that it will take the alien back into custody once parole ends.

The court found that the department failed to comply with any of those statutory requirements.

With respect to the first, Judge Wetherell held that a July 2022 memo laying out the protocols for Parole+ATD violated “the case-by-case requirement because although the memo pays lip service to assessments of individual aliens, it is largely focused on DHS’s operational circumstances rather than an individual alien’s circumstances.”

In essence, DHS argued that it had to release illegal migrants on parole without NTAs because it was so overwhelmed that it didn’t have time to place them into removal proceedings (in violation of the second requirement) and lacked detention space to hold them — at a point at which the administration was asking Congress for fewer detention beds.

“Additionally”, the court held, “the July Memo turns the parole standard on its head by providing ineligibility criteria rather than eligibility criteria. In other words, the July memo essentially establishes a presumption of parole when the relevant ‘triggers’ are met”, again in violation of the parole statute.

Finally, Judge Wetherell found, the July Memo scheme violated the clear statutory requirement that paroled aliens be returned to custody once parole was terminated, noting that the record in the case revealed “aliens are all-but-guaranteed that they ‘will not be taken into custody’ when they report to ICE for issuance of an NTA”.

Then, there were the aliens released on OR under section 236(a) of the INA, who were issued NTAs before they left DHS custody. The judge had two problems with that.

First, the court held, illegal migrants are subject to detention under section 235(b) of the INA, and that provision, not section 236(a), controls their detention and release.

Second, section 236(a) applies only to aliens arrested “on a warrant”, but Border Patrol apprehensions are “warrantless”, under authority in section 287(a)(2) of the INA.

DHS had attempted to square this circle by slipping “administrative warrants” into the aliens’ files when they were released, but as the court held: “This sleight of hand — using an ‘arrest’ warrant as de facto ‘release’ warrant — is administrative sophistry at its worst.”

To recap, under the order in Florida, DHS may release aliens subject to detention under section 235(b) of the INA, but only in strict compliance with the terms of the parole statute. It cannot release those aliens on OR under section 236(a) of the INA. Most saliently and directly, the court vacated the Parole+ATD policy.

Why No Appeal? Many observers — myself included — anticipated the Biden DOJ would file a notice of appeal and seek a stay from the Eleventh Circuit within the seven-day deadline. The only questions were what the circuit court would do, and if it denied a stay, whether DOJ would seek Supreme Court review prior to the Eleventh Circuit considering the case.

But no appeal was filed. While I am not privy to the administration’s deliberations, I can think of a few reasons why.

First, I am not sure that there was any basis for appeal, and DOJ — regardless of the administration — rarely appeals cases it will not win. Any number of critics attacked Judge Wetherell for purported errors in law or fact, but respectfully, I didn’t see any.

Second, the administration ran the risk of bad precedent. It’s axiomatic that district court opinions have no “precedential effect”, even with respect to the other judges in the district. Circuit court opinions, on the other hand, are binding on all the judges in the circuit, at least until they are overturned or vacated, and Supreme Court determinations on questions of law bind all other courts.

Third, the Biden administration appears to be abandoning Parole+ATD anyway. In December, Border Patrol released more than 130,500 illegal entrants under that program, but there were “just” 5,214 Parole+ATD releases in January, and a grand total of 28 in February.

That said, NTA/OR releases are still running high (more than 32,000 illegal migrants have been released in this manner in the past two months at the Southwest border), but there may be complications for Florida on that front.

The Supreme Court is currently considering Texas v. U.S., a challenge filed by the states to block restrictions DHS Secretary Alejandro Mayorkas has imposed on ICE enforcement.

The administration in Texas is specifically asking the justices to examine a June 10 order issued by Judge Drew Tipton of the U.S. District Court for the Southern District of Texas vacating “guidelines” for ICE interior enforcement issued by Mayorkas in September 2021.

Among the government’s arguments in Texas is that the APA doesn’t authorize vacaturs of administrative rules, but that even if it did, section 242(f)(1) of the INA prevents lower courts from vacating actions under title II, chapter 4 of the INA, except with respect to individual aliens, in accordance with the Supreme Court’s June opinion in Garland v. Aleman Gonzalez.

The parole authority in section 212(d)(5) of the INA is in an inapplicable chapter of the INA (chapter 2), but section 236 sits firmly in the middle of title II, chapter 4. Thus, even if the justices reject DOJ’s APA argument (which is likely), if the Supreme Court rules that lower courts cannot vacate administrative rules under chapter 4, the administration will be free — for now — to release illegal migrants on NTA/OR.

I say “for now” because while lower courts cannot vacate actions under that chapter of the INA, by law the Supreme Court can. To do so, however, it actually has to get a case ripe for determination — which may have been, at least in part, why Biden’s DOJ did not appeal Judge Wetherell’s order directly.

Bottom Story or the Dog that Didn’t Bark? Wall Street Journal editor James Taranto used to write the paper’s “Best of the Web” column, a recap of various breaking stories, some relevant, some not. One recurring element of those pieces was “Bottom Stories of the Day”, generally banal headlines from local papers (like “Jail Basement Dryer Ignites; No One Hurt”).

“Biden’s DOJ Doesn’t Appeal Court’s Blockbuster Order on Parole” might fit that bill.

But then, there’s the famous passage in the 1892 Sherlock Holmes story, “Silver Blaze”, about a missing horse and a dead trainer. The “dog that didn’t bark” during the theft led Holmes to conclude the thief was known to the canine in question, and the term has come to be used to describe a conclusion that logically follows from some other event not happening.

Given the absence of transparency about its immigration policies, it’s never been clear whether the administration is simply bumbling from disaster to disaster at the Southwest border, or instead whether nameless and faceless apparatchiks in the West Wing are playing an elaborate game of Tetris with the millions of migrants who have entered illegally since Joe Biden took office. Either makes sense.

That said, it’s clear that the administration’s border releases have created, as Judge Wetherell put it, “a flashing ‘Come In, We’re Open’ sign on the” Southwest border for would-be migrants, and more importantly, their smugglers.

Unless and until Congress or the courts force the Biden administration to detain illegal migrants, it will continue to release them; the only real question is how. Don’t be fooled by the appeal that wasn’t filed; it’s likely more dog that didn’t bark than bottom story of the day.