As I recently reported, the state of Florida quickly moved last week to block an 11th-hour attempt by the Biden administration to release migrants apprehended at the Southwest border en masse. That case is Florida v. Mayorkas — which I refer to as “Florida II” to distinguish it from Florida v. U.S. (Florida I), another successful state effort to end an almost identical DHS migrant-release policy. Florida II has now taken on a life of its own, as the judge in the case dropped the hammer on DHS to ensure compliance with his orders — and put a pin in the question of where the blame for the ongoing border debacle lays.
Biden’s “Overarching Non-Detention Policy” and Parole+ATD. In September 2021, the state of Florida filed suit in Florida I in the U.S. District Court for the Northern District of Florida, alleging that the Biden administration was failing to comply with a congressional mandate to detain all illegal migrants at the Southwest border.
The matter was assigned to Judge T. Kent Wetherell II, and after 17 months of discovery, arguments, and pleadings, the judge found that the Biden administration was employing an “overarching non-detention policy” in violation of the Immigration and Nationality Act (INA).
The court found, however, that this overarching non-detention scheme was not “discrete agency action” subject to his review, though he did conclude that one aspect of it, known as “Parole+ATD”, was a discrete agency action that he could review under the Administrative Procedure Act (APA), which governs challenges to administrative rulemaking.
Parole+ATD was a system under which the Biden DHS released hundreds of thousands of illegal migrants on “parole” under section 212(d)(5)(A) of the INA with “alternatives to detention” (ATD) — things like ankle monitors, GPS tracking, or check-ins on the SmartLINK app.
Migrants released on Parole+ATD, however, were not issued Notices to Appear (NTAs) — the charging documents in removal proceedings — or given court dates before they were sent out the door, for no other reason than administrative convenience.
Simply put, the court found that aliens could be released on Parole+ATD without NTAs in about 15 to 20 minutes, while issuing them NTAs and giving them court dates before they were released took between two and 2.5 hours.
The idea was that those migrants would later report to a local ICE office to be served with their NTAs and hearing dates, but as the court determined, such service would have been a near impossible task given the hundreds of thousands of migrants involved and would have cost ICE tens of millions of dollars and taking decades to accomplish.
Judge Wetherell, concluding that Parole+ATD violated both the INA and the APA, vacated the policy in an opinion and order issued on March 8.
The court stayed its order until March 15 to give the administration the opportunity to appeal its decision and seek a stay, but no appeal was filed in Florida I until May 5, and no stay was sought until May 12 — the day after Judge Wetherell issued his temporary restraining order (TRO) in Florida II, which I will discuss below.
Suffice it to say that the judge denied that request for a stay in Florida I the day after it was filed without even considering Florida’s response, deeming the government’s motion “borderline frivolous”.
Parole with Conditions On May 10 — the day before CDC orders directing the expulsion of all illegal migrants at the Southwest border issued pursuant to Title 42 in response to the Covid-19 pandemic were scheduled to expire — Border Patrol Chief Raul Ortiz issued a memo directing his agents to release apprehended migrants under a new policy called “Parole with Conditions in Limited Circumstances Prior to Issuance of a Charging Document” (Parole with Conditions).
As the title suggests, like Parole+ATD, Ortiz’s plan was to release migrants under Parole with Conditions before they were served with NTAs or given hearing dates; thus, the policy suffered from the exact same defects as Parole+ATD (not surprising given that the two policies were virtually identical).
On May 10, Florida filed suit in Florida II seeking a TRO to block Parole with Conditions, and fortuitously for the state (not so much for DHS), the matter was assigned to Judge Wetherell.
Late on May 11, the judge granted the state’s request for a restraining order, setting the matter over for a hearing on the policy set for May 19.
In the same May 12 request for a stay of Judge Wetherell’s March 8 order vacating Parole+ATD in Florida I, the Biden administration also sought a stay of his May 11 order restraining the implementation of Parole with Conditions in Florida II.
While he denied the government’s request for a stay of Parole+ATD on May 13, he set over decision on the government’s request for a stay of his TRO on Parole with Conditions, meaning the TRO remained in effect.
“It Has Come to the Court’s Attention”. That’s when things in Florida II got interesting, as Judge Wetherell issued a rather pointed Order to Show Cause demanding information from the administration on May 15. It begins:
It has come to the Court’s attention that there are published news reports stating that DHS “paroled” 2,500 aliens after the Court entered its temporary restraining order. ... The Court takes everything it reads in the media with a healthy degree of skepticism ... so it is possible that the article is inaccurate. However, the Court takes allegations of noncompliance with its orders very seriously, irrespective of the source of the allegations.
The court specifically referenced a May 14 article by Stephen Dinan in the Washington Times, in which Dinan reported that DHS had paroled 2,500 into the United States on May 12, the day after Judge Wetherell issued his TRO in Florida I, and 6,000 others the day before.
Dinan had sought comment from DHS before he published that piece, but did not received a response.
Judge Wetherell demanded a response to these allegations from the administration by 2:00 PM CDT on May 15, which ended with the line “and if the allegations are true, [the government] shall show cause why they should not be held in contempt for violating the temporary restraining order” — words no lawyer wants to hear.
Almost 9,000 Illegal Migrants Released on May 11 and May 12. Biden’s DOJ dutifully responded, explaining that, in fact, “6,413 individuals were released under Parole with Conditions” on May 11, and that an additional 2,576 migrants were in its custody “who were fully processed for Parole with Conditions” at 11:59 PM CDT that night, when Judge Wetherell’s TRO in Florida II took effect.
That’s all straightforward. The government’s next statement is not so clear:
When the court issued its TRO, all sectors had ceased releases for the day for any noncitizens who were fully processed, and therefore some noncitizens who had already been fully processed prior to the time the TRO took effect were released on May 12, 2023, consistent with U.S. Border Patrol’s normal release procedures.
Taken in toto, that appears to more than confirm Dinan’s reporting — nearly 9,000 migrants were released from CBP custody on Parole with Conditions on May 11 and May 12 — more than 2,500 of them after the court’s order took effect.
“Defendants Brought the Immigration ‘Crisis’ at the Border on Themselves (and the Country)”. Whether the court is satisfied with CBP releasing that latter group of migrants under a policy it restrained is a different issue.
Notably, however, Judge Wetherell denied DOJ’s motion for a stay of his TRO in Florida II on May 15, and did not mention the issue, although it was not exactly relevant to the questions in that motion. I would expect to hear more about it in coming days.
Judge Wetherell denied the motion for a stay of his TRO in Florida II on many of the same grounds that he denied the motion for a stay of his order vacating Parole+ATD in Florida I, most saliently that the injuries the administration asserts it will suffer absent the ability to release untold numbers of migrants are “self-inflicted” in that:
Defendants brought the immigration “crisis” at the border on themselves (and the country) by adopting immigration policies that incentivized “irregular migration” by prioritizing “alternatives to detention” over actual detention and that they have known since early March that they would not be able to rely on “parole” as a “processing pathway” to avoid their statutory detention requirements and facilitate release without initiating immigration proceedings.
That Biden administration officials “brought the immigration ‘crisis’ at the border on themselves (and the country)” might be the most succinct summation of the debate over the humanitarian and national-security debacle at the U.S.-Mexico line in the last two-plus years. And it’s one those officials should take to heart — voluntarily if possible, or under judicial threats of contempt if necessary.