Last week, hours before Title 42 ended, Judge T. Kent Wetherell II of the U.S. District Court for the Northern District of Florida issued a temporary restraining order (TRO) blocking the Biden administration from implementing a massive migrant release program it had concocted just the day before. That TRO simply underscores the fact that the White House has little regard for the law when it comes to immigration, and the fecklessness of the president’s border policies.
A Brief History of Title 42. On March 20, 2020, days after the UN’s World Health Organization declared a global Covid-19 pandemic, CDC issued the first of several orders under Title 42 of the U.S. Code directing CBP to expel all illegal migrants at our nation’s borders to stem the introduction and spread of the novel coronavirus.
When the first Title 42 order was issued, it had little bearing on CBP’s ability to provide “operational control” at the Southwest border thanks to a series of policies to deter illegal entrants implemented in preceding months by the Trump administration. Many of those policies were politically contentious, however, and were derided by then-candidate Joe Biden during his 2020 presidential campaign.
Biden quickly reversed nearly all of Trump’s border policies after taking office, and illegal entries almost immediately surged. His administration maintained Title 42, however, subject to modifications and “exceptions”. As a result, those purely health-related CDC orders began playing an increasingly significant role in border security.
Despite the oversized importance of Title 42, however, the Biden administration announced in early April 2022 that it would end Title 42 on May 23. That prompted a group of states that were concerned about the effects of mass migration to sue to continue Title 42, in a case captioned Louisiana v. CDC.
On May 20, 2022 — three days before Title 42 was scheduled to end — the federal district court judge hearing Louisiana enjoined the termination of Title 42, finding that the CDC failed to consider the effect ending Title 42 would have on immigration enforcement and the now 24 plaintiff states in the case. The Biden administration filed a notice of appeal of that decision with the Fifth Circuit but did not seek a stay.
Despite that injunction, in mid-November a different federal judge hearing a challenge to Title 42 expulsions filed by a group of migrants and advocates in a case captioned Huisha-Huisha v. Mayorkas vacated and enjoined those CDC orders in their entirety, effective December 20.
The Louisiana plaintiffs attempted directly thereafter to intervene in Huisha-Huisha, only to be barred from doing so by the U.S. circuit court for the District of Columbia on December 16. Not deterred, those states obtained stays of that November order from the Supreme Court, first on December 19 and then on December 27, to give the justices an opportunity to hear their claims in a case now captioned Arizona v. Mayorkas.
Not content to let well enough alone, however, on January 30, the White House Office of Management and Budget announced that the administration planned to extend the Covid-19 national emergency (which had been set to expire on March 1) and the coronavirus public health emergency (due to end on April 11) to May 11, and then end both on that date.
In its February 7 brief to the Supreme Court in Arizona, DOJ asserted: “Absent other relevant developments, the end of the public health emergency will (among other consequences) terminate the Title 42 orders and moot this case.” The justices appeared to concur because Title 42 expired at 11:59 PM EDT on May 11 without further action by the Court.
Florida v. U.S. While Title 42 played out in the background, the state of Florida filed suit in U.S. district court in the Sunshine State in September 2021 in a case captioned Florida v. U.S. (which I will refer to as “Florida I” for reasons that will become apparent below).
Florida alleged in its complaint that the Biden administration was deliberately “ignoring” a congressional mandate in section 235(b) of the Immigration and Nationality Act (INA) — which requires DHS to detain migrants who have crossed the Southwest border illegally — resulting in fiscal harm to the state.
On March 8, after more than a year of argument and reams of discovery in Florida I, Judge Wetherell — who had also been assigned that matter — issued an opinion in which he largely agreed with the state’s claims.
Most notably, he 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.
In his March 8 opinion, Judge Wetherell explicitly vacated a DHS policy called “Parole+ATD”, pursuant to which Border Patrol agents were directed to release illegal migrants they had apprehended 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 hearing dates.
The thought was that it was much quicker to release those migrants without NTAs instead of completing the paperwork required to place those aliens into removal proceedings, as Judge Wetherell explained: “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 problem, the court concluded, was not only was there no provision in the law that allowed such releases, but also that this Parole+ATD scheme placed an almost unbearable 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.
The Biden administration did not seek a stay of Judge Wetherell’s opinion, and only filed an appeal of Florida I with the 11th Circuit on May 5.
“Parole with Conditions”. 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 component’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.
Pursuant to this new policy, aliens would be paroled without being issued NTAs, or as that memo put it “in advance of the issuance of an NTA”.
Keep in mind that the Biden administration had more than 13 months to prepare for the end of Title 42, during which both the White House and DHS Secretary Alejandro Mayorkas repeatedly assured the American people that it had everything well in hand. That rushed memo proves all of it was a lie.
Florida v. Mayorkas. Which brings me to Judge Wetherell’s latest order, in a case captioned Florida v. Mayorkas (“Florida II”).
The state of Florida filed its complaint in Florida II on May 10, when news of Chief Ortiz’ Parole with Conditions memo was only just filtering out (no formal publication of that memo has yet been made).
Based on this imperfect information, the state argued that the latest policy “may violate” the court’s March 8 vacatur of Parole+ATD in Florida I, and continued:
But it is unquestionably cynical, in bad faith, and contrary to both the Immigration and Nationality Act (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 TRO and a hearing on the legality of the new policy.
As with Florida I, Florida II was assigned to Judge Wetherell, and he was less than amused, stating in his order granting the 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).
The Detention Issue. Interestingly, as with Parole+ATD in Florida I, Judge Wetherell found that a separate defect with the May 10 Parole with Conditions policy was that it did not “contemplate” that the migrants who would be paroled “would be returned to custody once the purposes of parole had been served”, that is once they received their NTAs.
The court held in Florida I that the parole statute requires that paroled aliens be detained once parole ends. That was a novel finding, but one clearly mandated under section 212(d)(5)(A) of the INA, which states in pertinent part that the DHS secretary:
may ... in his discretion parole into the United States temporarily ... only on a case-by-case basis for urgent humanitarian reasons or significant public benefit any alien applying for admission to the United States, but such parole of such alien shall not be regarded as an admission of the alien and when the purposes of such parole shall, in the opinion of the [secretary], have been served the alien shall forthwith return or be returned to the custody from which he was paroled and thereafter his case shall continue to be dealt with in the same manner as that of any other applicant for admission to the United States. [Emphasis added.]
Unlike circuit court and Supreme Court determinations, district court decisions are not binding on any other court (even one in the same judicial district), and the administration likely waited nearly two months to appeal the order in Florida I because it did not want to deal with this “return to custody” issue — for good reason.
In FY 2022 and the first six months of FY 2023, Border Patrol agents at the Southwest border alone have paroled more than 673,000 migrants — a figure that does not include inadmissible aliens paroled at the Southwest border ports (a statistic the administration refuses to release). That’s nearly 20 times ICE’s current detention capacity of 34,000 daily beds, and nearly 27 times the 25,000 daily detention beds the Biden administration is requesting in its FY 2024 budget.
As Judge Wetherell found in Florida I, non-detention of illegal migrants has been the rule under the Biden administration. The president may have thought that he was ducking migrant detention entirely, but it appears likely he was simply kicking the detention can down the road into a yawning chasm.
Stay Tuned. Nothing underscores the fecklessness of the Biden administration’s border policies better than its desperate May 10 attempt to bypass a federal court order to release an untold number of illegal migrants into the United States. Thanks to the state of Florida and one exasperated federal judge, however, it won’t get away with it — yet. Judge Wetherell scheduled a hearing on Florida’s request for a preliminary injunction of the Parole with Conditions policy for May 19. Stay tuned.