Why Isn’t Florida Asking the Courts to Block Biden’s Mass Release Scheme at the Ports?

DHS is running would-be illegal migrants through the ports and releasing them — which it can’t do

By Andrew R. Arthur on May 18, 2023

As I explained on May 15 and May 16, the state of Florida has scored two legal victories of late that have hobbled the Biden administration’s attempts to release — en masse — illegal migrants apprehended by Border Patrol agents at the Southwest border. Kudos to state Attorney General Ashley Moody and her staff, but “the game of whack-a-mole DHS has been playing ... for almost two years” as she described it in a recent filing continues. So why isn’t Florida trying to block the administration’s latest effort to hide its border fiasco from the public by funneling hundreds of thousands of would-be illegal migrants through the ports of entry? That’s where the mole is popping up now.

Florida I and Florida II. Briefly, in September 2021, the state of Florida filed suit in the U.S. District Court for the Northern District of Florida in a case captioned Florida v. U.S. (Florida I).

The state started out by arguing the Biden administration was violating a congressional detention mandate in section 235(b)(2) of the Immigration and Nationality Act (INA) by releasing illegal migrants apprehended by Border Patrol agents at the Southwest border into the United States.

For all their fecklessness and bumbling, the artisans crafting Biden’s overarching non-detention policy remain nimble and inventive.

That mandate requires DHS to detain aliens from the point at which they are “encountered” by CBP officers at the ports of entry and Border Patrol agents between the ports until those aliens are either granted some sort of immigration relief (usually asylum) or removed.

As discovery in Florida I proceeded over more than a year, Florida refined its claims, alleging that those releases were part of the Biden administration’s “overarching non-detention policy” for illegal migrants, again, in violation of the INA.

One element of that policy involved the release of apprehended migrants with Notices to Appear (NTAs, the charging documents in removal proceedings) and immigration court hearing dates on their own recognizance (OR), identified as “NTA/OR”.

A second element of that non-detention policy — created exclusively to move migrants from custody as quickly as possible — was called “Parole+ATD”.

Under Parole+ATD, agents were told to “parole” apprehended migrants into the United States using DHS’s limited authority in section 212(d)(5)(A) of the INA and release them on “alternatives to detention” (ATD) — like check-ins on an app (which do nothing to ensure aliens’ future appearances).

I say that Parole+ATD was “created exclusively to move migrants from custody as quickly as possible” because under that policy, agents didn’t have to issue those migrants NTAs or give them court dates before they were set free. That process could be completed in about a half hour, while the issuance of NTAs and court dates, by contrast, could take two hours or more.

Judge T. Kent Wetherell II, who was assigned to hear Florida I, found that any efficiencies Parole+ATD created for Border Patrol on the front end did not compensate for the train wreck it created for ICE officers who had to find those released aliens and serve them NTAs on the back end. He found that this scheme would end up costing ICE tens of millions of dollars and, if continued, create a backlog that would take decades to clear up — assuming it ever was cleared up.

Reading Judge Wetherell’s March 8 opinion in Florida I, one realizes the Biden administration has been blundering forward at the Southwest border in a panic almost since day one, constantly hoping things would get better, but implementing blanket release policies that only encouraged more aliens to enter illegally and thus further degrading border security.

Honestly, though, the slapdash nature of the administration’s overarching non-detention policy was the only thing keeping Judge Wetherell from shutting it down entirely. He found that policy existed but was not “discrete” enough to be judicially reviewable.

Aliens without valid documents at ports of entry aren’t “seeking to enter lawfully”

He did hold, however, that Parole+ATD was a discrete policy subject to his review, and for reasons I explained in a March 10 post, vacated that policy in his March 8 order.

Biden’s Southwest border panic turned into a white-hot frenzy on May 10, the day before Title 42 was scheduled to end. That’s when Border Patrol Chief Raul Ortiz issued a memo directing agents to release migrants from CBP custody once it got too overcrowded on a new policy called “Parole with Conditions”.

That latest parole scheme was supposed to be hush-hush, but the news quickly leaked, sending Florida back to district court that day to block it in a case captioned Florida v. Mayorkas (Florida II).

As luck would have it, Florida II was also assigned to Judge Wetherell. Once Chief Ortiz’s memo saw the light of day on May 11, the judge realized that it was essentially a rehash of Parole+ATD and quickly granted Florida’s request for an order temporarily restraining the implementation of that policy.

By the time that order took effect, however, Border Patrol had already released nearly 9,000 illegal migrants on Parole with Conditions.

The Biden administration is appealing Florida I (it threatened to appeal Florida II, too, but I haven’t seen a filing yet), so either the 11th Circuit or the Supreme Court might see things differently than Judge Wetherell did. For what it’s worth, Florida also filed a notice of cross appeal in Florida I, so Biden’s whole overarching non-detention policy may get the ax. For now, though, Judge Wetherell’s orders are the law.

CBP One App Port of Entry Interviews. From a border-security standpoint, that’s good news. The bad news is that for all their fecklessness and bumbling, the artisans crafting Biden’s overarching non-detention policy remain nimble and inventive.

Which brings me to a proposal included in a January 5 White House fact sheet titled “Biden-⁠Harris Administration Announces New Border Enforcement Actions” — a misnomer because there’s little “enforcement” in it. The fact sheet explains:

When Title 42 eventually lifts, noncitizens located in Central and Northern Mexico seeking to enter the United States lawfully through a U.S. port of entry have access to the CBP One mobile application for scheduling an appointment to present themselves for inspection and to initiate a protection claim instead of coming directly to a port of entry to wait. This new feature will significantly reduce wait times and crowds at U.S. ports of entry and allow for safe, orderly, and humane processing.

There’s a lot that’s not true in that excerpt, starting with the fact that would-be illegal migrants started scheduling appointments for interviews at the border ports of entry well before “Title 42 lifted”. In fact, my colleague, Todd Bensman, blew the lid off the program last November.

That timing taradiddle is minor compared to other whoppers in that paragraph, particularly the contention that would-be illegal migrants accessing port appointments through the CBP One app are somehow “seeking to enter the United States lawfully”. That’s just not true.

Why Aliens Without Valid Documents at Ports Aren’t “Seeking to Enter Lawfully”. By law, aliens are only “seeking to enter the United States lawfully” when they obtain — in advance of arrival — a visa or other valid document allowing them to be admitted to the United States and present it to a CBP officer at a port of entry. Otherwise, they’re coming to this country just as illegally as if they bypassed the port entirely and simply crossed the border.

The White House statement has muddied this already arcane issue, but here’s a simple example to help clarify things.

Imagine you’re a U.S. citizen and you want to move to Australia. To be admitted, you’ll need an immigrant visa, so you apply at the consulate but are denied.

Undeterred, you sneak onto a Qantas flight, fly to Sydney, and present yourself without a visa at the airport seeking admission. Ask yourself — are you seeking to enter Australia lawfully? The answer is plainly “no” — you didn’t obtain the immigrant visa required for admission in advance.

And it’s still “no” even if you plan to apply for asylum so that you can stay there. An asylum grant — not a mere asylum application — may eliminate the consequence of your initial illegal entry (deportation), but it doesn’t make that entry any more legal.

Despite that fact, it’s the same scenario the White House described in its January 5 fact sheet as “seeking to enter the United States lawfully through a U.S. port of entry”.

Regardless of whether an alien is an “applicant for admission” because that alien entered illegally without proper documents or instead showed up at the port of entry without documents, the alien is “not entitled to be admitted” (i.e., is “inadmissible”)

That’s the expository — here’s the legal. Any alien who seeks to enter the United States — legally or illegally, and at a port of entry or across the border between the ports — is defined in section 235(a)(1) of the INA as an “applicant for admission”.

Under section 235(a)(3) of the INA, all such applicants for admission are to be “inspected by immigration officers” to determine whether they’re inadmissible under any of the grounds of inadmissibility in section 212(a) of the INA. Under section 291 of the INA, the burden is on the applicant for admission to prove he or she is admissible.

Applicants for admission at the ports of entry who don’t have valid entry documents allowing them to be admitted are inadmissible under section 212(a)(7)(A)(i) of the INA, and thus cannot be admitted.

You know who else is inadmissible under section 212(a)(7)(A)(i) of the INA because they lack valid entry documents? Illegal border-crossers. Same immigration status on arrival, same inspection process, same ground of inadmissibility.

Recent reports indicate that more than 99 percent of would-be illegal migrants who have applied for port interviews using the CBP One app have been allowed into the United States. Because those aliens are (1) at the ports of entry and (2) not admissible, the only way they could have been released is under DHS’s parole authority in section 212(d)(5)(A) of the INA.

That’s the exact same mass release scheme that Florida challenged — and Judge Wetherell shut down — in Florida I and Florida II. And yet, for some reason, the state hasn’t challenged those CBP One app port releases.

What About Asylum? Part of the reason why Florida hasn’t sued to shut down that mass-release policy may have to do with the confusion the Biden administration has sown concerning that port interview process, so let me shed some light on that as well.

Section 208(a)(1) of the INA permits aliens at the ports of entry to apply for asylum. That’s why you’ll hear government officials and advocates say (inaptly) that those aliens have a “right to apply for asylum”. So, if those aliens are scheduling CBP One interviews to apply for asylum, aren’t they “seeking to enter the United States lawfully”?

No. Here’s the statutory language:

Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien's status, may apply for asylum in accordance with this section or, where applicable, [section 235(b) of the INA]. [Emphasis added.]

Most aliens who enter illegally are what Border Patrol calls “give ups”. They cross the border illegally between the ports and wait patiently for agents to arrive and process them so they can make asylum claims and be released (regardless of whether they are eligible for asylum — most aren’t).

No one would say that those illegal entrants are “seeking to enter the United States lawfully”, and yet that process — illegal entry, waiting for pick-up, processing, and asylum claim — is not different in any legal manner from the White House’s CBP One port interview process. Again: same status on arrival; same inspection process; same ground of inadmissibility; same asylum claim; same likely release.

And, most importantly, same congressional DHS detention mandate that Judge Wetherell recognized in Florida I and Florida II. Both the state of Florida and the judge focused on the following INA provision, section 235(b)(2)(A):

[I]n the case of an alien who is an applicant for admission, if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a [removal] proceeding under [section 240 of the INA].

To be clear: Regardless of whether an alien is an “applicant for admission” because that alien entered illegally without proper documents or instead showed up at the port of entry without documents, the alien is “not entitled to be admitted” (i.e., is “inadmissible”) under the same ground of inadmissibility and DHS is under the same obligation to detain that alien for removal proceedings.

If anything, DHS’s obligation to detain those inadmissible aliens at the ports of entry is much older and more well-established than it is for the ones Border Patrol apprehends: the port detention mandate has been in effect since 1903, while the border detention mandate has only been law since 1996.

I know that and Biden’s DOJ knows that (Solicitor General Elizabeth Prelogar brought up the 1903 law in Supreme Court arguments last April), and yet the White House acts as if DHS has no obligation — whatsoever — to detain those aliens.

Worse, the administration acts as if there is nothing wrong with mass releases of “clearly and beyond a doubt” inadmissible aliens at the ports of entry. In fact, as I have explained in the past, those releases are part of the president’s plan to hide the ongoing and burgeoning disaster at the Southwest border. And it is burgeoning.

CBP officers at the ports are part of that agency’s Office of Field Operations (OFO) — a component that while separate and apart from Border Patrol, shares most of the same responsibilities.

Among those responsibilities is to stop inadmissible “applicants for admission” from proceeding unimpeded into the United States. That’s why you’ll hear reference to “CBP encounters” at the Southwest border. Encounters are the total of aliens apprehended by Border Patrol agents between the ports and aliens deemed inadmissible by CBP officers in OFO at the ports.

Do you need further proof that those CBP One interview applicants aren’t “seeking to enter the United States lawfully”? Look at OFO’s most recent Southwest border encounter statistics.

In the first six months of FY 2023, OFO CBP officers at the Southwest border ports have encountered nearly 168,000 inadmissible aliens — more than 2.5 times as many as during the same period in FY 2022 (47,435). While the Biden administration hasn’t explained that massive increase, the only explanation is its CBP One app interview scheme.

Remember — more that 99 percent of those aliens have reportedly been allowed to enter the United States, even though they have no right to enter, and in fact, DHS is under a 120-year-old obligation to detain them.

Florida’s standing claim to sue in both Florida I and Florida II is based on the fiscal costs and threats to the state’s sovereignty that the Biden administration’s “overarching non-detention policy” has inflicted on it. Regardless of whether those aliens are being released by Border Patrol agents or CBP officers in OFO, the costs and threats are the same.

Florida Attorney General Ashley Moody is right — DHS under the Biden administration has been playing a “game of whack-a-mole” with its massive Southwest border release schemes. That game has now shifted to the ports of entry. The only questions are whether there will be a Florida III, and whether it will be focused on the administration’s failure to detain inadmissible aliens at those ports.