Court Blocks Biden Admin Policy of Releasing Illegal Immigrants Into US Without Court Dates, as Title 42 Expires

DHS Secretary Mayorkas says 'the border is not open' in midnight statement

Illegal immigrants board vans after waiting along the border wall to surrender to U.S. Customs and Border Protection (CBP) Border Patrol agents for immigration and asylum claim processing upon crossing the Rio Grande river into the United States on the U.S.-Mexico border in El Paso, Texas, on May 11, 2023. Patrick T. Fallon/AFP via Getty Images

A federal judge in Florida has issued a two-week restraining order on the Biden administration’s policy of releasing illegal immigrants into the United States without court dates, just hours before Title 42 was due to expire.

Judge T. Kent Wetherell II, an appointee of former President Donald Trump, issued a temporary restraining order on Thursday night against the Biden administration’s new parole policy that would have replaced Title 42, the measure that allowed for the immediate expulsion of illegal border crossers to Mexico during the COVID-19 pandemic.

The temporary restraining order comes into place from 11:59 p.m. on Thursday, May 11, according to court filings (pdf).

Florida Attorney General Ashley Moody, who sued the Biden administration over the policy, announced the ruling on Twitter late Thursday.

“We took swift action to protect the American people from [President Joe Biden’s] unlawful plan to release thousands of illegal immigrants when Title 42 lifts in an hour. I am grateful for the quick decision by the federal judge,” Moody wrote.

Moody argued the new policy is “materially identical” to a similar program, known as Parole plus Alternative to Detention (Parole + ATD), which was deemed unlawful by a Florida court in March.

The judge agreed, writing in his ruling the policy was “materially indistinguishable” from Parole + ATD, “both in its purpose” to reduce overcrowding at detention facilities and “manner of operation.”

Biden Admin Policy

Under the new policy outlined in a Department of Homeland Security memo, apprehended illegal immigrants could be released into the United States after processing without receiving an alien registration number or a court date.

The memo outlining the policy states that Secretary Alejandro Mayorkas has the authority to “parole certain noncitizens into the United States” temporarily “on a case-by-case basis for urgent humanitarian reasons or significant public benefit.”

The new policy was set to replace the Title 42 public health order, as it expires at midnight, to allow for the release of illegal border crossers under “parole with conditions.”

“The policy does not contemplate that the alien would be taken into custody at the [Immigration and Customs Enforcement] 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 in his ruling that was issued just hours before Title 42 was set to expire, and as thousands of migrants wait on the Mexico side of the border.

The Biden administration argued that the new policy is a response to “a moment of crisis at the border,” and that blocking the DHS’s parole authority ”on the eve of the crisis“ could ”cause chaos and undermine the security of the border and the safety of border officials.”

However, Wetherall said this “rhetoric rings hollow” because “this problem is largely one of [the Biden administration’s] 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 2 years.”

‘The Border Is Not Open’: Mayorkas

At midnight on Thursday, as Title 42 expired, Mayorkas issued a video statement saying that migrants who arrive at the border without using “a lawful pathway” won’t be eligible for asylum and will face “tougher consequences.”

“We are ready to humanely process and remove people without a legal basis to remain in the U.S.,” Mayorkas said in the video. “Do not believe the lies of smugglers. People who do not use available legal pathways to enter the U.S. now face tougher consequences including a minimum five-year ban on reentry and potential criminal prosecution.”

Mayorkas said there are 24,000 Border Patrol agents and officers at the southwest border, as well as thousands of troops, contractors, and asylum officers.

“Do not believe the lies of smugglers. The border is not open,” he said in a written statement.

Earlier on Thursday, Mayorkas faced a grilling by White House reporters over the border crisis and Florida’s legal challenge to DHS’s parole program. He questioned the motives of Moody’s legal challenge against the parole program, which Mayorkas said is used to “release a fraction of the people whom we encounter.”

“The judges make the decisions that they believe are warranted under the facts and laws before them,” he told reporters. “But I will say this: It is ... it is interesting to see some of the tools that we employ that are successful or operationally needed to be challenged at the ... in ... in the courts.”

“So, for example, the parole process that we announced and implemented on January 5th for Cubans, Haitians, Nicaraguans, and Venezuelans,” he continued. “Immediately, that demonstrated a reduction in the number of those individuals arriving at our southern border of over 95 percent. And yet, it’s been challenged in a court.”

He also warned that a large number of illegal immigrant encounters would occur in certain areas for an initial time.

“This places an incredible strain on our personnel, our facilities, and our communities with whom we partner closely,” he said. “We prepared for this moment for almost two years, and our plan will deliver results. It will take time for those results to be fully realized. And it is essential that we all take this into account.”