Circuit Court Denies Biden’s Request to Stay Orders Halting Border Parole Releases

By Andrew R. Arthur on June 6, 2023

The U.S. Court of Appeals for the Eleventh Circuit yesterday denied the Biden administration’s request to stay blockbuster orders by U.S. district Judge T. Kent Wetherell II that halted two DHS efforts to release massive numbers of illegal migrants into the United States on parole. The next stop may be the Supreme Court, where the justices are likely getting a little tired of being dragged into immigration debates.

Those decisions were issued in two separate cases that I have analyzed at length in the past: Florida v. U.S. (Florida I) and Florida v. Mayorkas (Florida II).

Florida I. The state of Florida first filed its complaint in Florida I in September 2021. It alleged therein that the administration was deliberately “ignoring” a congressional mandate in section 235(b) of the Immigration and Nationality Act (INA) that requires DHS to detain migrants who have crossed the Southwest border illegally, directly resulting in fiscal harm to the state.

On March 8, after more than a year of argument and discovery in Florida I, Judge Wetherell issued an opinion largely agreeing with the state’s claims.

Most notably, the court concluded that the Biden administration’s non-detention policies:

were akin to posting a flashing “Come In, We’re Open” sign on the southern border. The unprecedented “surge” of aliens that started arriving at the Southwest Border almost immediately after President Biden took office and that has continued unabated over the past two years was a predictable consequence of these actions. Indeed, [Border Patrol Chief Raul] Ortiz credibly testified based on his experience that there have been increases in migration “when there are no consequences” and migrant populations believe they will be released into the country.

Judge Wetherell’s order in that opinion explicitly vacated a DHS policy called “Parole+ATD”, under which Border Patrol agents were directed to release illegal migrants on parole under section 212(d)(5)(A) of the INA with “alternatives to detention” (ATD), without issuing them Notices to Appear (“NTAs”, the charging documents in removal proceedings) or giving them hearing dates.

The administration’s rationale was that it was much quicker to release those migrants without NTAs than to complete the paperwork required to place those aliens into removal proceedings, as Judge Wetherell made clear: “The supplemental administrative record indicates that the ‘processing time’ for issuing a NTA is between 2 to 2.5 hours, whereas Parole+ATD only takes 15 to 30 minutes.”

The issue according to the court was that not only was there no provision in the law that allowed such releases, but also that this Parole+ATD scheme placed an insurmountable burden on ICE to locate those aliens to serve them with NTAs after they were released. Reviewing the record, the court found:

These projections show that for every 90 days Parole+ATD continues, the policy creates a backlog that takes 5.5 years and $49 million to clear. And this backlog only accounts for the time needed to begin removal proceedings — not the additional time required to complete those proceedings and remove aliens. By these estimates, the backlog created by Parole+ATD will take decades to overcome.

Judge Wetherell stayed his own order for seven days to give the administration the chance to appeal, but that period came and went with no action. In fact, DOJ only filed a notice of appeal of the judge’s order in Florida I with the 11th Circuit on May 5, and its request for a stay on May 19.

Florida II. Florida II moved on a much quicker track than Florida I.

On May 10, the day before Title 42 was scheduled to end, Chief Ortiz issued a memo directing his agents to implement a policy called “Parole with Conditions” once the Border Patrol's processing facilities reached 125 percent of capacity, or whenever agents apprehended more than 7,000 illegal entrants in a 72-hour period, or when Border Patrol was holding migrants for 60 hours or more.

Under this new policy, aliens in Border Patrol custody would be paroled without being issued NTAs, or as that memo put it “in advance of the issuance of an NTA”.

Soon after news of Chief Ortiz’ memo started filtering out (no formal publication of that memo has yet been made) on May 10, the state of Florida filed its complaint in Florida II. Specifically, and based on what little information at hand, the state argued that the latest policy “may violate” the court’s March 8 vacatur of Parole+ATD in Florida I.

It continued, arguing: “But it is unquestionably cynical, in bad faith, and contrary to both the [INA] and the [Administrative Procedure Act, “APA”]. It is also, unfortunately, consistent with the game of whack-a-mole DHS has been playing with Florida and this Court for almost two years.”

On these grounds, it asked the district court for a temporary restraining order (TRO) and a hearing on the legality of the new policy.

Again, Florida II was assigned to Judge Wetherell, and he was not happy, stating in his May 11 order granting the state’s request for a TRO:

The Court hoped that after issuing the decision in [Florida I], it would be able to go back to its normal docket and simply watch the political finger-pointing about the immigration crisis from afar. That, however, was not to be.

The court concluded that a TRO was in order because the state of Florida was likely to succeed on its claims, given:

the challenged policy appears to be materially indistinguishable from the Parole+ATD policy vacated in [Florida I] — both in its purpose (reducing overcrowding at border patrol facilities) and manner of operation (releasing aliens into the country without first issuing a charging document placing them in immigration proceedings and simply directing the aliens to report to ICE within a specified period for further processing).

Administration’s Contentions “Ring Hollow”. On May 19, the administration filed a “time sensitive motion” to stay Judge Wetherell’s orders in Florida I and Florida II pending appeal, to consolidate its appeals in the two cases, and to expedite its combined appeal. The Eleventh Circuit granted the request to consolidate the cases the next day, and directed the state to file its response to the motion to stay by May 24.

Which brings me to the circuit court’s June 5 order denying a stay.

In its 2009 decision in Nken v. Holder, the Supreme Court held that there four factors to consider when weighing a request for a stay pending appeal:

(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.

Importantly, the Court described the first two factors as the “most critical”.

Two of the three judges on the circuit panel made quick work of the administration’s request, finding, in essence, that DHS was crying wolf in arguing that it would be irreparably injured without a stay.

As the circuit panel summarized the government’s factual contentions on this point:

“The most immediate consequence of the orders,” according to DHS, “will likely be [the] overcrowding [of] CBP facilities during increases in border encounters,” which would threaten the “health, safety, and security” of USBP officers and aliens. DHS warns that the overcrowding of CBP facilities could cause it to have to release some aliens without adequate monitoring measures and could, in the “worst-case scenario,” prevent it from apprehending some aliens entirely. Each of these potential consequences, DHS asserts, would have negative downstream effects on public safety and national security.

The panel found these arguments “ring hollow” when “considering the department’s track record of overstating similar threats in the underlying proceedings”, particularly with respect to its ability to function without Parole+ATD — which it had stopped using two months before the judge’s order in Florida I.

It also noted “DHS’s catastrophic predictions” that encounters would surge in the wake of the end of Title 42 had not come to pass, and finally concluded that “the timing of DHS’s appeals and motion for stay undermines the department’s assertions of irreparable injury”.

On that latter point, as explained above, the administration had waited nearly 60 days to appeal Judge Wetherell’s order in Florida I, and hadn’t even issued the Parole with Conditions memo at issue in Florida II until the day before Title 42 was scheduled to end.

Given that, the panel concluded that the administration had failed to satisfy one of the most critical factors for a stay and the panel denied the government’s request, though Judge Jill Pryor — an Obama appointee — wrote without elaboration that she would have granted the stay with respect to the parole policy at issue in Florida II.

SCOTUS Next? The administration could seek a stay from the Supreme Court next, but I question whether it will have any better luck there. If Justice Gorsuch’s recent grumblings when the Court remanded Arizona v. Mayorkas, a case dealing with Title 42 expulsions, are any indicator, the justices are getting a little tired of being dragged into every immigration dispute.

In any event, the High Court has — with exceptions — been willing of late to let those disputes play out in the lower courts without intervening.

Absent some Supreme Court intervention, however, the Biden administration won’t be able to release illegal migrants at the Southwest border en masse on any of its current parole schemes, at least for a while. But don’t expect it to stop trying — or for “the game of whack-a-mole DHS has been playing with Florida and” Judge Wetherell to end anytime soon.