Biden Administration Issues Mass Release Policy; Florida District Court Stops It

Just hours before the end of Title 42, the District Court for the Northern District of Florida issued a temporary restraining order (TRO) halting the implementation of the Biden Administration’s mass release policy issued by the Border Patrol only one day earlier.

The new policy, which the Border Patrol dubbed “parole with conditions,” authorized agents to release aliens who have illegally crossed the southern border through parole before they are given a Notice to Appear (NTA) in immigration court.  Issuing that NTA to illegal aliens is extremely important because it officially places them in deportation proceedings.  However, the new policy authorized border agents to parole illegal aliens and release them into the U.S. with only a promise that, within 60 days, the alien would self-report to an Immigration and Customs Enforcement (ICE) office to receive an NTA, or use an online portal to request that ICE send them an NTA through the mail.

Through the new policy, the Administration was clearly seeking to bypass federal law that requires detention of illegal aliens arriving at the southern border and to bypass the restrictions set forth in the parole statute, which allows parole only to be given on a case-by-case basis.  Reports swirled that the Border Patrol simply planned to release illegal aliens on the streets of border communities when Border Patrol stations and NGO shelters were full.

Less than 24 hours after the Biden Administration issued the policy, the State of Florida sought to stop it.  On Thursday morning, Florida’s Attorney General filed a complaint in federal district court arguing that the new “parole with conditions” policy is not only contrary to federal law, but also violates that same Court’s decision vacating a similar parole policy issued by the Biden Administration.  Florida’s complaint asked the Court to declare the new policy unlawful and enjoin Homeland Security from enforcing or implementing it.

Federal Judge Wetherell agreed with Florida and issued the temporary restraining order.  Judge Wetherell indeed found that the Border Patrol’s new mass release policy, called “parole with conditions” was functionally indistinguishable from the Border Patrol’s prior “parole + alternatives to detention” policy, which the same District Court determined was issued in violation of the Administrative Procedure Act (APA).  The District Court rejected the Biden Administration’s claim that the new policy was not subject to the APA due to the crisis and need for urgent action.  Instead, the Court pointed out that the Administration’s parole with conditions policy memo “does not explain how this surge was unexpected or why DHS waited until the day before the Title 42 Order was scheduled to end before issuing the new parole policy.”

Judge Wetherell ordered that the TRO would expire in 14 days and scheduled another hearing on May 19 to determine whether the TRO should be converted into a preliminary injunction.  Until any further action in court, the Biden Administration must now process illegal aliens entering through the southern border in accordance with existing statutes and regulations issued under Title 8 of the Immigration and Nationality Act (INA).

The Biden Administration criticized Judge Wetherell’s decision to issue the TRO. “This is a harmful ruling that will result in unsafe overcrowding at CBP facilities and undercut our ability to efficiently process and remove migrants, and risks creating dangerous conditions for Border Patrol agents and migrants,” said a U.S. Customs and Border Protection (CBP) statement released in response to the order.


FAIR Staff


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EDITORS NOTE: This FAIR column is republished with permission. ©All rights reserved.

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