Federal Judge Blocks President Joe Biden’s Administration from Releasing Migrants Without Court Dates as Title 42 Expires

On Thursday evening, a federal judge blocked the Biden administration from implementing a policy that allows migrants to be released without court dates only hours before the expiration of the Title 42 public health order. 

Judge T. Kent Wetherell II imposed a two-week restraining order on the policy of the Biden administration that would allow migrants to be released on “parole with conditions.”

This week, the Border Patrol outlined the policy in a memo that migrants can be allowed into the U.S. on parole. The process is typically reserved for “urgent humanitarian reasons or significant public benefit” — if overcrowding is faced by Customs and Border Protection (CBP). 

According to the memo, “parole with conditions” means migrants must either request a Notice to Appear by mail or make an appointment with Immigration and Customs Enforcement (ICE). 

Migrants are rapidly released into the country under a parole release, do not receive a court date, and do not get an alien registration number. Parole is used if a sector’s capacity increases above 125%, the average time in custody goes over 60 hours, or agents apprehend 7,000 a day over 72 hours. 

Since Monday, agents have been encountering more than 10,000 migrants per day, with no signs of the flow slowing down and the end of Title 42 looming, with a predicted wave of migrants with it. 

The end of the order coincides with the end of the Covid-19 national emergency on Thursday night. Both the Biden and Trump administrations have used Title 42 since March 2020 to return millions of migrants quickly at the southern border because of Covid-19. Migrants have rushed to the border in hopes the likelihood they will be admitted to the country will increase. 

“For the past seven days, USBP has averaged over 8,750 encounters per day. This is over double the average daily encounters of 4,284 in May 2019, the highest month of the 2019 surge. Even with significant personnel along the SWB, a significant detention capacity, and interagency resources supporting the effort, this situation requires urgent action,” stated the memo. 

Florida AG sued after news of planned releases emerged

Ashley Moody, Florida Attorney General, had sued after news of the scheduled releases appeared in the media, arguing that the policy was “materially identical” to a “Parole + ATD” policy blocked by the same judge in March. Judge Wetherell agreed with the statement in the order. 

“…The Court has no trouble concluding that Florida has a substantial likelihood of success on the merits because the challenged policy appears to be materially indistinguishable from the Parole+ATD policy vacated in Florida —both in its purpose (reducing overcrowding at border patrol facilities) and manner of operation (releasing aliens into the country without first issuing a charging document placing them in immigration proceedings and simply directing the aliens to report to ICE within a specified period for further processing),” he said. 

In a statement, Moody said Thursday that lifting Title 42 “presents an unprecedented crisis at our nation’s Southwest Border.”

“The Biden administration did absolutely nothing to prepare for that crisis. Then just yesterday, it issued the Parole with Conditions mass release policy, which is virtually identical to the policy a federal judge already invalidated. These actions demonstrate a striking combination of incompetence and bad faith. I am pleased that a federal court understood the situation and acted appropriately,” said Moody. 

The judge stated that he didn’t find the arguments persuasive. DHS warned that blocking the use of paroling migrants has the potential to cause chaos at the border. It is estimated that doing so could result in an overwhelming 45,000 migrants in custody by the end of May. 

“Putting aside the fact that even President Biden recently acknowledged that the border has been in chaos for ‘a number of years,’ Defendants’ doomsday rhetoric rings hollow because, as explained in detail in Florida, this problem is essentially one of Defendants’ own making through the adoption and implementation of policies that have encouraged the so-called ‘irregular migration’ that has become fairly regular over the past two years,” he said. 

The judge scheduled a hearing on May 19 for a preliminary injunction.

Although the DHS acknowledged the plan to release migrants who hadn’t been given court dates, it rejected the ideate that it was conducting “mass” releases, instead saying those releases were only taking place on a case-by-case basis. A spokesperson for the DHS said Thursday that “reports that CBP is allowing or encouraging mass releases of migrants are categorically false.”