Judge T. Kent Wetherell II of the U.S. District Court for the Northern District of Florida issued an opinion in Florida v. U.S. this week, finding the Biden administration’s border release policies violate various sections of the Administrative Procedure Act (APA), and vacating those policies. That opinion is a damning, and at times shocking, indictment of those policies, and it could potentially slow if not stop the administration’s “catch and release” regime at the Southwest border. But it’s just a first step.
The APA. The APA has been a key point in the various suits filed against the immigration policies of the Obama, Trump, and Biden administrations. Someone could set up an entire APA think tank (it’s a semester-long class in law school; I received a B), but as the Congressional Research Service succinctly explains:
The [APA], which applies to all executive branch and independent agencies, prescribes procedures for agency rulemakings and adjudications, as well as standards for judicial review of final agency actions.
As a general matter, there is a “strong presumption that Congress intends judicial review of administrative action.”
Specifically, the APA states: The reviewing court shall ... hold unlawful and set aside agency action, findings, and conclusions found to be –
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
(B) contrary to constitutional right, power, privilege, or immunity;
(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;
(D) without observance of procedure required by law;
(E) unsupported by substantial evidence in a case ... ; or
(F) unwarranted by the facts.
The Detention Mandate. Section 235(b) of the Immigration and Nationality Act (INA) requires DHS to detain all migrants apprehended entering illegally and all aliens encountered at the ports of entry seeking admission who aren’t “clearly and beyond a doubt entitled to be admitted”.
Those aliens are supposed to be detained from the moment they’re encountered until they are either admitted, granted some form of “relief” from removal (primarily asylum), or removed.
The sole exception to that detention mandate is “parole”. Under the parole statute, DHS may allow an inadmissible alien to enter the United States without being admitted, but DHS may parole such aliens “only on a case-by-case basis for urgent humanitarian reasons or significant public benefit”.
As my colleague George Fishman has explained, the restrictions Congress has placed on DHS’s parole authority are the product of a decades-long battle between the legislative and executive branches over the latter’s authority to permit aliens to enter the United States outside the strict limits Congress has placed on the admission of aliens.
In this battle, Congress has the upper hand, but only technically. As the Supreme Court has held:
Policies pertaining to the entry of aliens and their right to remain here are peculiarly concerned with the political conduct of government. In the enforcement of these policies, the Executive Branch of the Government must respect the procedural safeguards of due process. But that the formulation of these policies is entrusted exclusively to Congress has become about as firmly imbedded in the legislative and judicial tissues of our body politic as any aspect of our government. [Emphasis added.]
I say “technically” because Congress can’t usually sue to enforce its immigration restrictions, and largely has to use the “power of the purse” (annual appropriations) or threats of impeachment to force compliance with the entry policies it has formulated.
That’s why APA challenges like the one in Florida are so important in the current political context. House Republicans can cut (or expand) funding, but the Democratic-controlled Senate is unlikely to go along. That sets up a budget battle, and in the recent past those have resulted in “continuing resolutions” funding the government at current levels or massive and unreadable “omnibus” bills.
If the states can show they have “standing” to sue (and increasingly they have), they can bring suits like Florida to challenge executive-branch immigration policies that don’t pass APA muster.
Biden’s Border Release Policies. CBP currently refers to migrants apprehended by Border Patrol agents and aliens deemed inadmissible at the ports of entry as “encounters”. In FY 2022, CBP encountered nearly 2.4 million aliens at the Southwest border: 2.2 million-plus migrant apprehensions and just over 172,500 aliens deemed inadmissible at the ports.
Of the more than 2.2 million migrants apprehended at the Southwest border in FY 2022, just over 1.054 million were expelled under CDC orders issued pursuant to Title 42 of the U.S. Code in response to the Covid-19 pandemic. That leaves 1.152 million-plus who were processed for removal under the INA.
“Processed for removal” doesn’t mean that those aliens were removed, and the vast majority weren’t. They were simply placed on the often years-long track to appear before an immigration judge who will determine whether they should be granted relief or removed.
Most weren’t detained, either. CBP statistics reveal that in FY 2022, Border Patrol released just fewer than 311,000 migrants apprehended at the Southwest border on their own recognizance (“OR” without bond or other conditions) with a Notice to Appear (NTA), and released just over 338,000 others on “Parole+ATD”.
Parole+ATD stands for “parole” under the parole statute plus “alternatives to detention” (ATD), like GPS tracking, ankle monitors, or (more commonly) the SmartLINK app. I’ll put aside for this analysis that ATD is both costly and ineffective, and an “alternative” to detention only to the degree that cardboard is an “alternative” to Kevlar as body armor. (My colleagues Jessica Vaughan and Jon Feere discuss these and other shortcomings of ATD in this week's Parsing Immigration Policy podcast.)
An NTA is the charging document DHS is required by statute to use when placing aliens into removal proceedings. As for OR, there’s no authority for DHS to release illegal migrants on their own recognizance in section 235(b) of the INA; that authority is found in DHS’s general arrest on warrant and release authorities in section 236(a) of the INA, which is inapplicable to those migrants, as explained below.
Parole+ATD, and the November and July Memos. The release of migrants on Parole+ATD was formally adopted in a memo issued by Border Patrol in November 2021, but the court found parole releases had previously been used to improve “processing efficiencies” several months prior, when migrants were set free with instructions to appear at an ICE office 60 days, and then 15 days, later.
That November memo applied this parole policy only to adult migrants travelling with children in “family units” (FMUs), and justified its use on a “need to protect the workforce, migrants, and American public against the spread of COVID-19 that may be exacerbated by overcrowding in CBP facilities”. That memo applied only in the Border Patrol’s Rio Grande Valley and Del Rio sectors, but noted it could be extended to reduce crowding in CBP facilities elsewhere.
The court explained that the November Memo “concluded by stating that ‘when COVID-19 conditions eventually improve, it is expected that there will no longer be a need for this alternative pathway’”.
Even though the administration announced in April 2022 that it would be ending the Covid-19-related Title 42 in late May, the Parole+ATD “pathway” remained. In fact, the Parole+ATD policy “was effectively reauthorized in a July 18, 2022, memorandum jointly issued by CBP and ICE titled ‘Policy on the Use of Parole Plus Alternatives to Detention to Decompress Border Locations’”.
The July memo expanded Parole+ATD to include single adults as well as FMUs, and dropped all pretenses that it was justified by Covid-19, “stating more generally that avoiding overcrowding in CBP facilities is necessary for ‘disease-mitigation’”.
Florida’s Claims. Florida alleged that the federal government was violating the detention mandate in section 235(b) of the INA with respect to illegal migrants at the Southwest border “through various ‘non-detention policies’”, including Parole+ATD and releases under section 236(a) of the INA.
It argued those non-detention policies should be set aside under the APA as contrary to law and in excess of DHS’s statutory authority, and because they are arbitrary and capricious.
Finally, Florida alleged that those policies were improperly promulgated without notice and comment, also in violation of the APA.
Contrary to Law. The “contrary to law” argument, not surprisingly, is that section 235(b) of the INA mandates the detention of illegal migrants at the Southwest border, while DHS’s non-detention policy “instructs DHS’s officials to release these aliens except under narrow circumstances”.
In response, the government argued that detention under section 235(b) of the INA is discretionary, but that even if it were mandatory, DHS retains the discretion to release those aliens under the parole statute as well as under the general release authority in section 236(a) of the INA.
I have been pointing out for over a year that illegal migrants can’t be released under section 236(a) of the INA, because by its terms, that provision only applies to aliens arrested “on a warrant”, while illegal entrants are apprehended by Border Patrol under its warrantless arrest authority in section 287(a) of the INA.
Judge Wetherell wasn’t buying either of the government’s arguments, concluding that DHS’s position that it has discretion to release illegal migrants “would render mandatory detention under” section 235(b) of the INA “meaningless”.
As for migrant releases under section 236(a) of the INA, apparently the administration concluded that once it initiated removal proceedings by issuing NTAs, the detention mandate in section 235(b) of the INA ended. As the judge found, the Supreme Court has already rejected a similar argument in its 2018 decision in Jennings v. Rodriguez.
Evidently, however, DHS was putting “administrative warrants” in alien’s A-files when it issued them NTAs and released them, assuming this made everything kosher under section 236(a). Those aliens had already been arrested, however, and this post hoc exercise was meaningless according to the court.
Or, as Judge Wetherell put it: “This sleight of hand — using an ‘arrest’ warrant as de facto ‘release’ warrant — is administrative sophistry at its worst.”
Parole+ATD. After rejecting some of the state’s other arguments, the court turned to Florida’s claim that the administration’s Parole+ATD policy was contrary to law, arbitrary and capricious, and subject to notice and comment under the APA.
Significantly, as I will explain below, the judge concluded that this policy was “contrary to law in three ways”:
(1) it does not contemplate a return to custody once the purposes of parole have been served; (2) it does not comply with the case-by-case requirement; and (3) it does not limit parole to urgent humanitarian reasons or significant public benefit.
Let me address each of these three issues in turn:
No Return to Custody. The parole statute requires that a parolee “be returned to the custody from which he was paroled” after the purpose of the parole has been satisfied. In the course of oral argument, the government admitted that “the ‘purpose’ of parole” in this context was to move “aliens out of CBP facilities faster than would occur if the alien were processed consistent with the requirements of” section 235 of the INA.
Those parolees were supposed to later report to an ICE office to be served with the NTA placing them into removal proceedings. But, as I explained in February, it’s not clear how long those aliens are being paroled before they’re expected to appear, which is a problem as 588,000 border migrants released on parole or with “Notices to Report” haven’t been told to appear at ICE yet, and may never be.
Turning to the government’s admission at oral argument, the court held:
That being the case, the purpose of the parole is served when the alien has his first encounter with ICE. However, nothing in the July Memo or the supplemental administrative record contemplates a return to custody at that time or any time thereafter — indeed, the supplemental administrative record shows that aliens are all-but-guaranteed that they “will not be taken into custody” when they report to ICE for issuance of an NTA. [Emphasis added.]
That’s a big deal, because it shows that the administration is expressly violating the parole statute, and a fact that hasn’t previously been clarified. This isn’t “parole”, it’s “release”, unmoored from any statutory authority.
The parole statute also contemplates that the alien return to his or her “case” once the purpose of parole is completed. As the judge noted, however, “the entire purpose of the Parole+ATD policy is to expedite the processing of aliens at CBP facilities without initiating an immigration proceeding against them”, and therefore the alien has no removal “case” to return to. Again, a big deal.
“Case-by-Case” Requirement for Parole. Judge Wetherell further held that the Parole+ATD policy violates DHS’s duty under the parole statute to assess the circumstances in individual parole cases on a “case-by-case” basis, in several ways.
First, although the July memo “pays lip service to assessments of individual aliens, it’s largely focused on DHS’s operational circumstances [its detention capacity] rather than an individual alien’s circumstances”.
Second, the sole focus of the case-by-case assessment under DHS’s parole policy is “whether the alien is a public safety risk or flight risk, not on whether the alien meets the exceedingly high parole standard”.
Third, that 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”.
The court also noted that Border Patrol’s time estimate for completing the Parole+ATD process is “15 to 30 minutes”, concluding that it would be “implausible” for agents to “meaningfully assess an alien’s individual circumstances” in that brief period.
Urgent Humanitarian Reasons or Significant Public Benefit Requirement. Finally, the judge held that Parole+ATD policy violates the requirement in the statute that parole be granted only “for urgent humanitarian reasons or significant public benefit”.
The primary “public benefit” that the Parole+ATD policy sought to achieve was speeding up the inspection mandated by [section 235 of the INA] to “decompress” overcrowded CBP facilities. However, even if there may be circumstances where an individual alien might be eligible for parole based on overcrowding and health and safety concerns, creating an entirely new “processing pathway” to avoid the process mandated by [section 235] is inconsistent with the narrow language in [the parole statute].
Then, Things Got Interesting. And then, things got interesting as the government argued that its parole release policies conform with the regulation implementing the parole statute, 8 C.F.R. § 212.5. It allows DHS to parole “aliens whose continued detention is not in the public interest”.
The judge made short work of this argument, noting that the main problem is that the regulation “flips the INA on its head”.
Specifically, he held, the parole statute “requires detention unless parole is justified based on ‘urgent humanitarian reasons’ or ‘significant public benefit’” while “the regulation effectively allows any alien to be released on parole whenever continued detention is not ‘in the public interest’ — whatever that means — and the alien is not a security or flight risk”.
With respect to that security risk assessment, the court critically noted the record failed to show how CBP officers could determine whether an alien posed such a risk “if the alien’s home country does not share its criminal history databases with the United States”.
I should mention that Florida did not challenge that regulation; rather, the judge took it upon himself to make those findings sua sponte. I’ve long argued that the regulation is ultra vires and exceeds its own purported statutory authority, and the court plainly agrees.
“Arbitrary and Capricious”. Florida offered five grounds on which it argued that the administration’s Parole+ATD is arbitrary and capricious in violation of the APA, three of which the court concurred with. Specifically, the state alleged that DHS:
(1) failed to adequately consider the ever worsening backlog caused by earlier iterations of the policy; (2) ignored the evidence when it concluded that Parole + ATD will only be “used sparingly” and that it is “not meant to be a primary processing tool”; and (3) failed to acknowledge its decision to expand Parole + ATD to include single adults rather than only family units, much less explain why it did so.
To address each of these claims in turn:
The Backlog Blockbuster. His backlog finding offered yet another blockbuster. Projections in the record revealed that “for every 90 days Parole + ATD continues”, it creates a backlog taking 5.5 years and $49 million to clear.
As significantly, he continued:
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. [Emphasis added.]
That explains why 588,000 migrants released at the border haven’t received their NTAs yet.
Judge Wetherell found that the July parole memo, however, failed to mention the backlog, let alone explain why the problems it created outweighed any benefits from continuing Parole+ATD. Hence, he concluded, it violated the APA.
“Used Sparingly”. While the July parole memo asserted that Parole+ATD would only be “used sparingly” and that it’s “not meant to be a primary processing tool”, the court concluded that these contentions were “untrue”. That’s not surprising given the parole numbers cited above.
In fact, the court explained, 40 percent of all aliens apprehended at the Southwest border in June were released under Parole+ATD, and that was before DHS issued the July memo expanding the program to include single adults in addition to migrants in family units.
Unexplained Expansion. With respect to that last point, Judge Wetherell held that DHS’s failure to explain in the July memo why it was expanding Parole+ATD from just FMUs to include single adults rendered that memo arbitrary and capricious, given precedent that “the requirement that an agency provide reasoned explanation for its action would ordinarily demand that it display awareness that it is changing position”.
Notice and Comment. Lastly, the court concurred with Florida’s argument that DHS should have given notice before issuing the July parole memo and solicited comments from the state, because that memo didn’t fall under any notice and comment exceptions and “it instructs agents how to exercise their discretionary authority under” the parole statute, “sets criteria for granting parole”, and “affects Florida’s obligations to paroled aliens”.
Vacatur and Next Steps. Having found that DHS’s Parole+ATD policy violates the APA on these grounds, he vacated it.
As the court noted, vacatur under the APA deprives that policy “of force”, while still serving as “a less drastic remedy” than injunctive relief (which would be barred under the INA by precedent anyway) because vacatur “does nothing but re-establish the status quo absent the unlawful agency action” while neither compelling nor restraining “further agency decision-making”.
In other words, DHS is free to craft a new policy. Just not one that violates the INA and APA in the manner the court concluded the present one does.
Judge Wetherell stayed his decision for seven days to allow the government to seek appeal. The Eleventh Circuit, which has jurisdiction over Florida, may not be quite as friendly to the state’s parole arguments as the Fifth Circuit has shown itself to be in Texas v. Biden, but it also wouldn’t be as hostile as I would expect the Ninth Circuit to be.
The government will likely seek a stay from the circuit court, and failing that from the Supreme Court. The latter has been fairly willing to let such cases play out (it denied a stay in Texas, but then later reversed the lower court’s decision and remanded it), but the justices are tired of getting pulled into immigration policy fights.
The Footnote. The effect of the administration’s release policies on the state of Florida was relevant to several issues in this matter, including its standing to bring the case. And the number of released migrants who headed to the Sunshine State is plainly relevant to the effects of those policies, which brings me to footnote 20:
During oral argument at the end of trial, Defendants’ counsel suggested that the Court could only “assume” from this data that aliens released under the challenged policies were in Florida because the addresses were “self-reported” and an alien “may give a Florida address but may not reside there.” However, when the Court pressed counsel on why the self-reported addresses were good enough for DHS to rely on to keep tabs on the released aliens but not good enough for the Court to rely on in making a finding that the aliens are where they said they were going to be, counsel was initially stumped (although the long pause and blank look on counsel’s face does not come through in the transcript) before conceding that it would not be unreasonable to rely on this data to conclude that aliens released under the challenged policies were in Florida. [Emphasis added.]
Such is the state of the administration’s arguments in defense of its indefensible border policies.
Conclusion. In his opinion, Judge Wetherell stated “The evidence establishes that Defendants have effectively turned the Southwest Border into a meaningless line in the sand and little more than a speedbump for aliens flooding into the country.” That’s an apt recap of the record, but it’s just a snippet that elides the court’s thorough analysis of the law and voluminous facts. Even in the unlikely event that the court’s ruling is reversed, its opinion will remain a damning indictment of Biden’s border policies.