Hearings began Monday in Florida v. U.S., a suit brought by the Sunshine State challenging the Biden administration’s migrant release policies at the Southwest border. The complaint in that matter begins with a dispositively true (and indisputable) statement: “The Southwest border is in crisis, with record numbers of migrants illegally entering our country.” It ends by blaming Biden for the mess and asking for enforcement of the immigration laws as Congress has written them.
Record Numbers of Migrants Illegally Entering. In FY 2022, Border Patrol agents at the Southwest border apprehended more than 2.2 million illegal entrants, even while an additional 599,000 others (“got-aways”) successfully evaded apprehension to enter the interior of the United States illegally.
That is a record for apprehensions at the U.S.-Mexico line, as agents exceeded their prior record by nearly 33 percent. That old record (almost 1.66 million apprehensions) was set in FY 2021, the first (partial) year of the Biden administration.
More than 82 percent of those Southwest border apprehensions (1.374 million-plus) occurred between February and September, the first eight months of the Biden administration, a timespan that accounted for just two-thirds of the fiscal year. And, on top of the nearly 1.66 million aliens whom agents apprehended in FY 2021, an additional 389,000 got-aways entered unhindered.
By way of context, Border Patrol set its pre-Biden administration record for Southwest border apprehensions in FY 2000 (when there were fewer than 1.644 million apprehensions), prior to an increase in resources and agents that Congress surged to the Southwest border in the wake of the September 11 attacks.
Or, put differently, agents at the Southwest border apprehended 286,367 more illegal entrants in FY 2022 than they did from the beginning of FY 2014 to the end of FY 2018 — five full fiscal years —combined.
Illegal migration shows no signs of slowing down. In October and November — the first two months of FY 2023, agents apprehended an additional 411,125 illegal migrants at the Southwest border, on top of 137,000 got-aways.
All told, through the end of November, Southwest border apprehensions under the Biden administration total nearly four million aliens — more people than reside in 22 U.S. states.
The Biden Administration Is “Promoting [an] Open Borders Agenda”, in Two Steps. Florida alleges that none of this is coincidental, but instead is the byproduct of an “open borders agenda” that the Biden administration is “promoting ... with two steps”.
The first of those steps is the administration’s elimination of what the state terms “effective immigration enforcement measures”.
One of those measures is a combined series of Trump-era executive orders “expressly aimed at eliminating ‘catch and release’”, which the state contends (correctly) that the Biden administration has revoked.
A second is the Trump administration’s Migrant Protection Protocols (MPP), better known as “Remain in Mexico”, under which aliens apprehended entering illegally at the Southwest border were returned back across the line to await their asylum hearings.
Remain in Mexico was implemented in FY 2019, and a DHS October 2019 assessment of the program determined it was an “indispensable tool in addressing the ongoing crisis at the southern border and restoring integrity to the immigration system”, particularly as applied to adults entering illegally with children in “family units”. Asylum claims were expedited under MPP, and aliens with weak or bogus claims simply returned home.
Nonetheless, the Biden administration quickly ended the program, and has been fighting a federal suit brought by a coalition of states who are trying to force DHS to reimplement MPP (Texas v. Biden) since April 2021.
The second step, according to Florida, is the administration’s use of “the resulting crisis as a basis to violate congressionally mandated requirements in the immigration laws”.
Specifically, according to the state, the administration is refusing to detain aliens who are apprehended entering illegally from the point at which they are apprehended until they are either granted asylum or removed, as required by the Immigration and Nationality Act (INA).
I have written extensively about that congressional detention mandate, which is also the subject of ongoing litigation in Texas.
Florida concedes that there are two exceptions to that “mandatory detention rule” for illegal migrants stopped at the border: (1) what it terms the federal government’s “’temporary parole’ authority” under section 212(d)(5)(A) of the INA; and (2) section 235(b)(2)(C) of the INA, which the state notes “allows the government to ‘return ... aliens’ who ‘arriv[e] on land ... from a foreign territory contiguous to the United States ... to that territory pending’ immigration proceedings”.
If (2) sounds familiar, it’s likely because section 235(b)(2)(C) of the INA is the statutory basis for Remain in Mexico. In a recent post, I analyzed the interplay between the congressional detention mandate and the implementation of MPP.
Detention and Parole. Many of Florida’s claims hinge on the state’s argument that the Biden administration is abusing its limited parole authority under section 212(d)(5)(A) of the INA to evade its statutory obligation to detain illegal entrants.
That section of the INA states, in pertinent part, that DHS may parole otherwise inadmissible aliens into the United States “only on a case-by-case basis for urgent humanitarian reasons or significant public benefit”.
The state’s complaint alleges:
The government appears to assume that detention capacity constraints satisfy the “urgent humanitarian reasons” or a “significant public benefit” language in the parole statute.
But even if the government’s understanding of “urgent humanitarian reasons” or “significant public benefit” were accurate (it is not), the government’s policies fail to satisfy the “case-by-case” requirement. ... For example, the Biden Administration released over 18,000 migrants in December 2021. ... Over 550 grants of parole per day is not what Congress had in mind when it amended that provision to add the case-by-case requirement. [Internal citations omitted.]
More recent DHS statistics reveal that the release of 18,000 aliens in the month of December 2021 was just a start. In October and November, Border Patrol released on parole nearly 158,000 aliens who had been apprehended at the Southwest border, at a rate of more than 2,586 migrants per day.
What’s worse is that those aliens were released on a procedure known as “Parole + ATD”, that is parole coupled with release on so-called (and costly and ineffective) “alternatives to detention”. Parole + ATD, the state explains, replaced a prior Biden initiative, releases of aliens with “Notices to Report” (which my colleague Mark Krikorian termed “essentially immigration enforcement by the honor system”).
Florida asserts that, like Notices to Report, Parole + ATD “involves releasing aliens subject to mandatory detention without initiating removal proceedings”.
As the state notes, “DHS cannot obtain a final order of removal for an alien who is not issued a charging document” initiating proceedings, and thus DHS must first find and then place into removal proceedings an alien who absconds from Parole + ATD before removing them.
An absconder who was issued a charging document, on the other hand, ordered removed in absentia, can simply be removed when found.
“The Biden Administration Has Tied Its Own Hands Behind Its Back.” As the state notes, the administration has “claimed that it lacks the resources and detention capacity to process and detain the surge of migrants arriving at the border”. “But if that is true”, the complaint argues, “it is only because the Biden Administration has tied its own hands behind its back.”
Specifically, as set forth above, the Biden administration refuses to send migrants it cannot detain back across the border to await their legal proceedings, either under Remain in Mexico or a similar program pursuant to section 235(b)(2)(C) of the INA. Further, Florida asserts:
The Biden Administration has also — in incredibly cynical fashion given its litigating position that it cannot detain all those it is required to detain — asked Congress to reduce the number of immigration detention beds available to it. ... It has also refused to avail itself of other options — such as reprogramming funds — to increase that capacity. [Internal citations omitted.]
“The Biden Administration Is Not Unable to Control the Border; it Is Unwilling to Do So.” “To top it all off”, the state’s complaint asserts, the:
Administration’s misguided policies are the cause of the surge at the border in the first place. The Biden Administration has publicly touted its lax border policies. As Defendant Secretary Mayorkas has boasted, “[u]nlawful presence in the United States will alone not be a basis for an immigration enforcement action.” The Biden Administration is not unable to control the border; it is unwilling to do so.
I had always assumed that Mayorkas's sweeping and illogical statement, which was included in the secretary’s September 2021 “Guidelines for the Enforcement of Civil Immigration Law” (currently vacated pending Supreme Court review) would be used against DHS in the border context. I guess that I was right.
“Bombshell New Evidence”. On January 9 — again, the day the hearing in Florida started, state Attorney General (AG) Ashley Moody issued a press release revealing that she had received “bombshell new evidence” she contends “the federal government wrongfully withheld until just before trial”.
Usually in litigation, there is a period of “discovery”, at which the parties exchange relevant evidence. Moody contends, however, “DOJ withheld” that evidence, which the state only obtained through Freedom of Information Act (FOIA) releases.
According to the AG, that FOIA information includes:
Previously withheld U.S. Department of Homeland Security emails contain talking points for the Commissioner of U.S. Customs and Border Protection for a briefing with the Acting Secretary of the Department of Homeland Security, [which] detail that the Biden administration’s destruction of the Trump administration’s immigration structures left the U.S. Border Patrol with no other options except to release almost all immigrants encountered. The messages, sent just eight days after Biden took office, state that the surge of illegal immigrants caused by Biden’s destructive immigration policies will “immediately overwhelm” federal detention capacity.
I have no idea whether those e-mails should have been disclosed during discovery in Florida or not. I do note, however, that copied on those e-mails was Rodney Scott, then-chief of the Border Patrol.
That’s notable because in September 2021, the month after he retired from the Border Patrol, Chief Scott sent a letter to Senate leadership explaining that he was “sickened by the avoidable and rapid disintegration of what was arguably the most effective border security in” U.S. history in the prior few months.
Scott was clear as to why, as he put it, “control of our borders has disintegrated overnight”:
Common sense border security recommendations from experienced career professionals are being ignored and stymied by inexperienced political employees. The Biden administration’s team at DHS is laser-focused on expediting the flow of migrants into the U.S. and downplaying the significant vulnerability this creates for terrorists, narcotics smugglers, human traffickers, and even hostile nations to gain access to our homeland.
I have no idea why Chief Scott retired, but if I were him and was forced by the administration to ignore these dangers, I would have left, too.
It’s not clear whether the AG’s office has reached out to Scott, but if I were them, I would have.
Costs to the State, Violations of Federal Law, and Relief. By way of injury, Florida asserts the Biden administration’s border policies are causing it “irreparable harm”, as the arrival of thousands of migrants “violates the State’s quasi-sovereign interest in its territory and the welfare of its citizens” and “costs the State millions”.
The complaint argues that these policies violate the Administrative Procedure Act, the INA, and “the Constitution — including the separation of powers doctrine and the Take Care Clause”. There is not a lot of Take Care Clause caselaw, so if this matter proceeds to the Supreme Court, it could well break new ground.
For relief, Florida has asked the court to find that the administration’s Parole + ATD and non-detention policies are “unlawful”, and therefore to set them aside; to permanently enjoin the administration from enforcing those policies; and to “[i]ssue declaratory relief declaring the policies unlawful”.
The hearing should take at most a week, after which Judge T. Kent Wetherell II of the United States District Court for the Northern District of Florida will issue a decision. A decision will take at least a month, after which the non-prevailing party will likely appeal to the Eleventh Circuit, adding a few more months to the process.
If Judge Wetherell and the Eleventh Circuit both find for the state, this case will likely make its way to the Supreme Court, simply adding to the Biden immigration policies that the justices are being called upon to weigh in on.
Leadership to fix a Southwest border “in crisis” should be coming from Congress and the administration — the elected and political branches of our government. Until they do their jobs, however, it will be up to the third branch — the unelected and nonpolitical judiciary — to do it for them, and for the states to see that it is done.