Federal Court “Vacates” Biden’s Policy Of Mass Paroling of Illegal Border Crossers into the USA

Federal Court “Vacates” Biden’s Policy Of Mass Paroling of Illegal Border Crossers into the USA

One of the ways Joe Biden has effectively opened the southern border is to grant “parole” to people detained illegally entering the U.S.:

One way Biden managed to deal with the overflow of immigrants arrested for illegally crossing the southern border was to just grant them “parole.” Immigration law has included a parole power for decades, but in 1996, Congress specifically acted to limit this parole power.

“In recent years … parole has been used increasingly to admit entire categories of aliens who do not qualify for admission under any other category in immigration law, with the intent that they will remain permanently in the United States,” the House committee wrote at the time. “This contravenes the intent of [current law].”

The new law narrowed the parole power to “only on a case-by-case basis for urgent humanitarian reasons.”

Biden has driven a Mack truck through this loophole, releasing almost a million immigrants into the U.S. through the parole power alone. This is clearly illegal, and 20 states have sued Biden to end the program.

🚨 Watch🚨
@RepAndyBiggsAZ questions why illegal border crosser parole numbers have dramatically increased under President Biden’s DHS.

Parole is supposed be granted on a case-by-case basis, but the Biden Administration is applying it on a generic basis. pic.twitter.com/7qIvQWW1sR

— Oversight Committee (@GOPoversight) March 8, 2023

The federal district court just ruled in favor of the states challenging Biden’s parole program, and “vacated” the policy.

🚨NEW! A federal judge in Florida has stepped in to block the Biden administration's use of parole to release individuals at the border (the so-called "Parole + ATD" policy).

Immediate thoughts: could lead to very dangerous overcrowding at the border. https://t.co/5m4DEx6K8p pic.twitter.com/TSTAUB4OLn

— Aaron Reichlin-Melnick (@ReichlinMelnick) March 8, 2023

From the Opinion

There is an immigration “crisis” at the Southwest Border. The Chief of the U.S. Border Patrol (USBP) candidly admitted it in his testimony and the overwhelming weight of the evidence confirms it. The crisis has been ongoing for over two years and shows no sign of abating. The evidence establishes that the current status quo at the Southwest Border is unsustainable, but it is not the Court’s job to solve the immigration crisis—that is the job of the political branches.1 Nor is it the Court’s job to decide whether the policies challenged by Florida in this case (or the underlying immigration laws) are good or bad public policy—that too is the job of the political branches. Instead, the Court’s only job is to determine based on the evidence presented whether challenged policies comply with the immigration laws, as written.

***

Under §1225(b)(1)(A), certain arriving aliens, including those who lack proper admission documents, are subject to expedited removal “without further hearing or review.” However, if such an alien indicates an intention to apply for asylum or a fear of persecution, the alien “shall be detained” pending a final determination of asylum or credible fear of persecution. See 8 U.S.C. §1225(b)(1)(B)(ii), (b)(1)(B)(iii)(IV) (emphasis added). For all other arriving aliens, unless an immigration official determines that the alien is clearly and beyond a doubt entitled to be admitted, the alien “shall be detained” for removal proceedings. See 8 U.S.C. §1225(b)(2)(A) (emphasis added).

***

The State of Florida contends that Defendants3 are violating the statutory detention mandates in §1225(b)(1) and (b)(2) by releasing aliens arriving at the Southwest Border into the country en masse through various “non-detention policies,” including the Parole+ATD policy and the exercise of “prosecutorial discretion” under 8 U.S.C. §1226(a). Defendants respond that there is no overarching “nondetention policy”; that they have the discretion not to detain aliens notwithstanding the mandatory language in §1225(b)(1) and (b)(2); and that Florida does not have standing to challenge their discretionary decisions to release aliens into the country on parole or otherwise.

For the most part, the Court finds in favor of Florida because, as detailed below, the evidence establishes that Defendants have effectively turned the Southwest Border into a meaningless line in the sand and little more than a speedbump for aliens flooding into the country by prioritizing “alternatives to detention” over actual detention and by releasing more than a million aliens into the country—on “parole” or pursuant to the exercise of “prosecutorial discretion” under a wholly inapplicable statute—without even initiating removal proceedings. The evidence further establishes that Florida is harmed by the challenged policies because well over 100,000 aliens have been released into Florida under the policies and the state has incurred substantial costs in providing public services to aliens, including those who should have been detained under §1225(b)(1) and (b)(2) and would not have been in the state but for the challenged policies. However, the Court only has the authority to vacate the Parole+ATD policy because the overarching “nondetention policy” is not discrete “agency action” that is subject to judicial review under the Administrative Procedure Act (APA).

The court rejected Biden’s argument that suspending the parole program would make things worse:

Likewise, it is hard to take seriously Defendants’ argument that there would be “disastrous consequences” if the challenged policies were enjoined or vacated because the evidence establishes Defendants have chosen to combat the historic “surge” of aliens arriving at the border with one hand tied behind their back by not taking advantage of all of the statutory tools provided by Congress—such as returning aliens to a contiguous territory under §1225(b)(2)(C) or, potentially, closing the border to particular classes of aliens under §1182(f).

The court found that vacating the policy was the proper remedy:

In sum, for the reasons stated above, the Court finds that (1) the Non-Detention Policy exists but is not discrete “agency action” that is subject to judicial review under the APA—although if it was, it would be subject to vacatur because it contravenes the INA; and (2) the Parole+ATD Policy is unlawful and is due to be vacated under the APA.

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