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A Florida federal judge has temporarily blocked federal immigration policy

Migrants walk across the Darien Gap from Colombia to Panama in hopes of reaching the U.S., Tuesday, May 9, 2023.
Ivan Valencia
Migrants walk across the Darien Gap from Colombia to Panama in hopes of reaching the U.S. on May 9, 2023.

Siding with arguments by Florida Attorney General Ashley Moody, a federal judge late Thursday issued a temporary restraining order against a new Biden administration policy that would lead to large numbers of migrants being released into the United States.

Moody’s office sought the temporary restraining order Thursday, after filing a lawsuit to challenge the policy Wednesday. The Biden administration issued the policy as a public-health order — known as a Title 42 order — was scheduled to expire at 11:59 p.m. Thursday, leading to a surge of migrants coming into the country.

In his ruling, Pensacola-based U.S. District Judge T. Kent Wetherell wrote that the “challenged policy appears to be materially indistinguishable” from an earlier Biden administration policy that he ruled in March violated federal law. The earlier policy was known as “Parole Plus Alternatives to Detention,” or “Parole+ATD.”

“One of the fundamental flaws with the Parole+ATD policy is that it did not contemplate that the alien would be returned to custody once the purposes of parole had been served, as required by the plain language of (a section of federal law),” Wetherell wrote Thursday.

“The same appears to be true of the challenged (new) policy, which is primarily intended to relieve overcrowding at border patrol facilities by more quickly releasing aliens into the country for further processing when (or if) they report to an ICE facility. The policy does not contemplate that the alien would be taken into custody at the ICE facility and, as was the case with the Parole+ATD policy, aliens released under the challenged policy would not have an immigration ‘case’ that can ‘continue to be dealt with’ after the purposes of the parole have been served.”

Wetherell wrote that the temporary restraining order would last for 14 days and scheduled a May 19 hearing on a state request for a preliminary injunction against the new policy, which the federal government has called “parole with conditions.”

The ruling added another element of uncertainty into a chaotic immigration situation as the Title 42 order expired Thursday night. That order, which stemmed from the COVID-19 pandemic, provided a way to help expel migrants. The expiration coincided with the end of a broader federal public-health emergency for COVID-19.

U.S. Customs and Border Protection said in a Twitter post that it would comply with Wetherell’s ruling and is “assessing next steps.”

“This is a harmful ruling that will result in unsafe overcrowding at CBP (Customs and Border Protection) facilities and undercut our ability to efficiently process and remove migrants, and risks creating dangerous conditions for border patrol agents and migrants,” the agency said. “The fact remains that when overcrowding has occurred in Border Patrol facilities, Republican and Democratic administrations alike have used this parole authority to protect the safety and security of migrants and the workforce.”

Moody and Gov. Ron DeSantis have long criticized federal immigration policies, with the state filing a lawsuit in September 2021 alleging that the Biden administration violated immigration laws through “catch-and-release” policies that led to people being released from detention after crossing the U.S. border. The state has contended, in part, that undocumented immigrants move to Florida, creating costs for such things as the education, health-care and prison systems.

Wetherell, who was appointed to the federal bench by former President Donald Trump after serving as a state appellate judge, issued a 109-page ruling in March that agreed with the state’s arguments that the “Parole+ATD,” policy violated federal law. The Biden administration this week filed a notice that is a first step in appealing that ruling to the 11th U.S. Circuit Court of Appeals.

In seeking the temporary injunction Thursday, Moody’s office argued the new policy violated Wetherell’s March ruling.

“Florida seeks a temporary restraining order to preserve the status quo until the parties can brief motions for a preliminary injunction or to postpone the effective date of the new policy,” Moody’s office argued Thursday in the motion. “The Biden administration’s behavior, if left unchecked, makes a mockery of our system of justice and our Constitution.”

But U.S. Department of Justice attorneys filed a response arguing that Wetherell should deny the request for a temporary restraining order. The document pointed to serious consequences if the new policy did not take effect.

“A TRO (temporary restraining order) would irreparably harm the United States and the public by frustrating measures DHS (Department of Homeland Security) has adopted that are necessary to address an expected significant increase in noncitizens arriving in the coming days,” the response said.

“DHS has identified an imminent crisis at the southwest border — record numbers of noncitizens seeking to enter our country, overwhelming the immigration system — and has planned to use all authority at its disposal to address this crisis. But that authority is limited. Outside of narrow exceptions, DHS cannot return noncitizens arriving from other countries to Mexico, and certainly cannot do so in numbers that would alleviate the pressure on the border. Nor does DHS have the resources to either detain this record number of arrivals, or the staffing and facilities to safely process and issue charging documents to all these new arrivals in the normal course.”

The Justice Department attorneys wrote that the new policy is different from the earlier policy.

“An order restricting DHS’s parole authority on the eve of this crisis has the serious potential to cause chaos and undermine the security of the border and the safety of border officials,” the Justice Department response said. “The resulting harm to the public from such an injunction far outweighs the more remote financial harms raised by Florida.”

But Moody’s office contended the new policy, in part, violates a law known as the Administrative Procedure Act because it is “arbitrary and capricious”

“The new parole policy is arbitrary and capricious because it is a pretextual attempt to circumvent this court’s prior ruling,” the state’s motion said. “Instead of approaching the problem in good faith, such as by seeking a stay of this court’s ruling, DHS slapped a new label on the same Parole+ATD policy that this court vacated and went about its business. This is the very definition of ‘capricious.’”