Last week I discussed a declaration filed by Daniel Bible, deputy executive associate director at ICE’s Enforcement and Operations (ERO), in Florida v. Mayorkas (Florida II). Most days, Bible is the number-two official charged with finding and removing illegal aliens in the United States, but when he signed that declaration on July 17, he became both the face of and the fall-guy for the Biden administration’s catch-and-release policies at the Southwest border as he admitted to a federal judge that ICE wasn’t doing — and likely wouldn’t do — its job by placing 2,108 illegal entrants into removal proceedings. Not surprisingly, the judge wasn’t happy about that answer, noting: “It is hard to understand why DHS thinks that aliens will take any of Its directives seriously”.
Florida I. I explained the history of Florida II in last week's post, but a truncated recap frames the court’s latest order, issued on July 18.
In September 2021, the state of Florida filed a complaint in Florida v. U.S. (Florida I), alleging the Biden administration was “ignoring” a congressional mandate in section 235(b) of the Immigration and Nationality Act (INA) by refusing to detain illegal border migrants.
After more than a year of argument and discovery in Florida I, the federal judge assigned to that case, T. Kent Wetherell II, issued an opinion largely agreeing with the state’s claims.
Most saliently, Judge Wetherell vacated a DHS policy Florida uncovered called “Parole+ATD”, which directed Border Patrol to release illegal migrants on “parole” under section 212(d)(5)(A) of the INA with “alternatives to detention” (ATD), all without issuing them Notices to Appear (“NTAs”) — the charging documents in removal proceedings — and thus without placing them into removal proceedings.
Why did the Biden administration direct agents to release aliens on parole without NTAs? As the court found, issuing NTAs takes up to 2.5 hours, while parole releases can be done in 30 minutes.
The administration wanted to get those aliens out of custody as quickly as possible, partly because (as Judge Wetherell found) Biden doesn’t want to detain illegal migrants, and partly to alleviate the burden on the agents who had to deal with the thousands of migrants entering daily to take advantage of the administration’s non-detention policies.
That set up ICE as Lucy at the chocolate factory in finding those aliens. Border Patrol released so many aliens without NTAs that, according to NBC News, 588,000 of them were awaiting their ICE call-ins as of February, and according to the New York Post, by March the New York City ICE office was “fully booked” for such interviews until October 2032.
Florida II. Judge Wetherell’s order did shut down Border Patrol’s parole releases, but only until May 10, the day before Title 42 ended, when Border Patrol Chief Raul Ortiz issued a memo directing his agents to implement a new policy called “Parole with Conditions” (PWC), purportedly to reduce overcrowding at Border Patrol processing facilities.
Under PWC, Border Patrol was again directed to release aliens in its custody on parole without issuing them NTAs and court dates, or as that memo put it “in advance of the issuance of an NTA”.
That memo sent the state back to court in Florida II on May 10 to nip PWC in the bud. Based on what little information it had about that policy (the memo hadn’t yet been publicly released), Florida argued in its complaint that the latest policy “may violate” the court’s March 8 vacatur of Parole+ATD in Florida I.
The state continued, noting: “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, the state asked the district court for a temporary restraining order (TRO) stopping PWC releases.
Florida II was also assigned to Judge Wetherell, who concluded on May 11 that a TRO was in order 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).
“It Has Come to the Court’s Attention . . .” Federal agencies usually turn square corners in complying with district court orders, even ones they don’t like or agree with. CBP apparently failed to heed that hoary norm as it continued to release illegal migrants on PWC directly after Judge Wetherell’s May 11 TRO in Florida II.
This all came to light on May 14, when the Washington Times reported DHS had paroled “roughly 2,500 border migrants” on May 12, the day after Judge Wetherell issued his order in Florida II.
In response to that article, Judge Wetherell issued an Order to Show Cause on May 15, which began “[i]t has come to the Court’s attention” — words to chill any lawyer. He asked DHS whether the Times was correct, and if so, how those releases occurred and why DHS should not be held in contempt.
In the response DOJ filed that same day, it explained that while DHS and CBP “take very seriously their obligation to comply with court orders”, DHS had concluded the judge’s TRO still allowed it to release 2,576 aliens on parole whose processing was “fully complete” prior to the issuance of that order, but who had not yet been cut loose.
No one was held in contempt, but Judge Wetherell wasn’t happy with that explanation, either, noting in his May 16 order discharging the Order to Show Cause: “Ideally, DHS would have sought clarification from the Court before making a unilateral decision to release aliens under the authority of the Parole with Conditions policy after the TRO took effect.”
He did, however, direct DHS to “file periodic reports on the status of those [2,576] aliens”, identifying “the number of aliens who have reported to ICE and been issued NTAs”, indicating “when, where (city and state), and how (in person or online) these aliens reported to ICE and were issued NTAs”, and explaining “what steps DHS is taking to track down the aliens who did not report as required and whether those efforts have been successful”.
The court’s interest in those specific aliens aside, the 2,576 are a microcosm of the two million-plus border migrants DHS has released under the Biden administration. Thus, the government’s response to the May 16 order was bound to provide a rare glimpse into Biden’s otherwise secretive handling of its illegal migrant population.
DHS’s first report was due 60 days after the issuance of Judge Wetherell’s May 16 order, coinciding with the 60-day period the PWC memo gave paroled aliens to report to ICE for service of their NTAs.
The Bible Declaration. The government’s response to that order was filed on July 17. Attached was the Bible declaration, which provided answers to Judge Wetherell’s questions (though not the ones he wanted to hear).
Bible explained that of those 2,572 PWC aliens, 1,507 had checked in with ICE (only 464 of whom were served NTAs), and 1,065 were as yet no-shows.
That’s a 58.6 percent appearance rate, but more critically a 41.6 percent nonappearance rate. Worse, Bible failed to explain why fewer than one-third of the late-released PWC aliens who did report to ICE were served with NTAs and placed into proceedings.
Again: (1) in Florida I, Judge Wetherell found the Biden administration was flouting Congress’s directives with respect to the detention and processing of illegal migrants in March; (2) in Florida II, he concluded DHS was flagrantly flouting his Florida I order by reissuing the parole policy he had already shut down; and (3) he concluded on May 16 that while DHS’s late PWC releases of aliens didn’t meet the contempt standard, the department wasn’t taking his orders as seriously as it should.
“It Is Hard to Understand Why DHS Thinks that Aliens Will Take Any of Its Directives Seriously.” Which brings me to (4), the court’s reaction in its July 18 order to the Bible declaration. Let’s just say his reaction was about what I expected, and what mine would have been in the same situation.
The judge noted the government’s response confirmed his conclusions in Florida I about “the inefficacy of using ‘parole’ as a processing pathway” for apprehended illegal entrants, and — more bitingly — held that DHS’s actions were “akin to what Florida described in its original complaint in Florida I as ‘immigration enforcement by the honor system’”.
As an aside, I note that Florida’s description of Biden’s release without NTAs policy as “immigration enforcement by the honor system” was a reference to a July 2021 article in which my colleague Mark Krikorian described it as such.
Returning to the July 18 order, the court reserved its real thunder for DHS’s pusillanimous response to the aliens who failed to report to ICE:
Notably, [Bible] did not say that enforcement action will be taken against the aliens who violated the conditions of their parole under the PWC policy if DHS is able to find them. Rather, he only said that “ICE may take enforcement action against those [aliens],” ... and that one potential enforcement action might be “initiation of removal proceedings,” ... . Given that the initiation of removal proceedings is what was supposed to happen if the alien had checked in as directed, it is hard to understand why DHS thinks that aliens will take any of its directives seriously if their “punishment” for not doing so ends up being the same thing that would have happened if they complied. [Emphasis added; internal citations omitted].
You can sense the court’s frustration. But the worst part is — as the judge held — there’s nothing he can do about it, admitting that he has no “authority to order DHS to track down and take into custody the aliens who should not have been released under the enjoined PWC policy and who are in violation of their ‘parole’ and unlawfully in the country”.
The only thing he can and did do is force DHS to update its efforts to find that aliens and put them into removal proceedings, “for whatever that is worth to those who are responsible for overseeing DHS and holding its policymakers accountable for their acts and omissions”. Perhaps Congress will take notice.
Even when Biden’s DHS knows it’ll be on the hook to enforce the law with respect to an extremely small and select cohort of 2,572 illegal migrants, it either does little, nothing, or worse than nothing. I’m not saying the administration wants to destroy all U.S. immigration enforcement, but Congress should ask itself — if that were Biden’s plan, what would he do differently?