Angry Federal Judge Orders Biden’s DHS: End Mass Parole of Illegal Aliens

COMMENTARY Border Security

Angry Federal Judge Orders Biden’s DHS: End Mass Parole of Illegal Aliens

Mar 16, 2023 6 min read

Commentary By

Hans A. von Spakovsky @HvonSpakovsky

Election Law Reform Initiative Manager, Senior Legal Fellow

Lora Ries @lora_ries

Director, Border Security and Immigration Center

Steven G. Bradbury

Distinguished Fellow

Migrants from Cuba line up to board a bus to be driven to a U.S. Customs and Border Protection station as they are processed on January 05, 2023 in Marathon, Florida. Joe Raedle / Getty Images

Key Takeaways

The state of Florida is claiming that the DHS is violating the mandatory detention required in federal immigration law by releasing aliens “en masse.” 

The evidence showed that the “unprecedented ‘surge’ of aliens that started arriving … almost immediately after President [Joe] Biden took office.”

Mayorkas is clearly on a mission to wave in as many illegal aliens as possible, in contravention of the immigration laws enacted by Congress.

In a scathing opinion on Wednesday that questions the credibility of the Department of Homeland Security, U.S. District Court Judge T. Kent Wetherell II for the Northern District of Florida has ordered a stop to the Biden administration’s “Parole Plus Alternatives to Detention” (“Parole+ATD”) policy that has been illegally releasing hundreds of thousands of aliens into the U.S., concluding that it violates the Administrative Procedure Act, which governs rulemaking by federal agencies.

In Florida v. U.S., the state of Florida is claiming that the DHS is violating the mandatory detention required in federal immigration law by releasing aliens “en masse through various, non-detention policies, including the Parole+ATD policy and the exercise of ‘prosecutorial discretion.’” 

The Biden administration claims it has “the discretion not to detain aliens, notwithstanding the mandatory language” of federal law. Parole+ATD is the Biden administration’s name for one of its many parole programs under its general “catch and release” policy, which the Obama administration also used, but which President Donald Trump ended.

Federal immigration law could not be clearer about the illegality of what DHS is doing. Section 1225 of Title 8 of the U.S. Code says aliens who arrive without proper admission documents are subject to expedited removal “without further hearing or review.” 

In other words, they are to be turned back immediately.

If aliens arriving illegally claim they are entitled to asylum because they are being persecuted, the statute says the aliens “shall be detained” pending a final determination of whether their claim is valid, which in the overwhelming number of cases is fraudulent.

In all other cases, unless an immigration official determines that, as Wetherell wrote in his opinion, the alien “is clearly and beyond a doubt” entitled to be admitted, the alien “shall be detained” for removal proceedings.

Wetherell stated that there is no question that there “is an immigration ‘crisis’ at the Southwest Border” that is “unsustainable.” Rejecting the Biden administration’s claims to the contrary, Wetherell found that the DHS has “effectively turned the Southwest Border into a meaningless line in the sand and little more than a speed bump for aliens flooding into the county by prioritizing ‘alternatives to detention’ over actual detention and by releasing more than a million aliens into the county – on ‘parole’ or pursuant to the exercise of ‘prosecutorial discretion’ under a wholly inapplicable statute.” 

Standing to Sue

Florida, he said, had standing to sue, since the state “has incurred substantial costs in providing public services” to the minimum of 100,000 aliens who have been released in Florida by DHS and who “would not have been in the state but for the challenged policies.” That 100,000 figure represents the number of Florida addresses given to DHS by illegal aliens being released.

When DHS argued that the court could only “assume” that the aliens were in Florida since they might have given a Florida address, but don’t actually reside there, Wetherell pressed the government lawyer “on why the self-reported addresses were good enough for DHS to rely on to keep tabs on the released aliens, but not good enough for the Court to rely on in making a finding that the aliens were where they said they were going to be.” 

According to the judge, the government’s “counsel was initially stumped (although the long pause and blank look on counsel’s face does not come through in the transcript) before conceding that it would not be unreasonable to rely on this data.” 

Talk about a classic example of a lawyer being hoisted on his own petard.

“Come In, We’re Open”

The judge pointed out that even the witnesses for the Biden administration admitted that “there is nothing inherently inhumane or cruel about detaining aliens pending completion of their immigration proceedings.” Detention, said the judge, “is the surest way to ensure that an alien will not abscond pending completion of their immigration proceedings,” which has become the norm for the illegal aliens released into the country.

In fact, all of the open-border policies implemented by the Biden administration, including the mass release of aliens, “were akin to posting a flashing ‘Come In, We’re Open’ sign on the southern border.” 

In a footnote, Wetherell said this was an “appropriate analogy, not only because it is a fair characterization of what” the administration is doing, but because DHS argued at trial that it “could not simply hang a ‘Closed’ sign on the border.” 

Wetherell called that claim “disingenuous” since federal law “specifically authorizes the President to ‘suspend the entry of all aliens’ whenever he finds that their entry would be ‘detrimental to the interests of the United States.’”

The evidence showed that the “unprecedented ‘surge’ of aliens that started arriving … almost immediately after President [Joe] Biden took office and that has continued unabated over the past two years is a predictable consequence of these actions.” 

Policies “Incentivized” Migration

The chief of the Border Patrol testified that there are such increases in immigration “when there are no consequences,” and aliens know “they will be released into the country.” The Biden administration’s policy of no consequences and immediate release “incentivized” migration by illegal aliens into the U.S.

The DHS tried to argue that the huge increase in illegal aliens being released was “attributable to something other than a change in policy (such as the post-pandemic increase in migration),” but the judge said that claim was “simply not credible and is contrary to the weight of the evidence.”

DHS also tried to claim that its release of aliens was due to not having enough detention space. But, as Wetherell pointed out, in contrast to the Trump administration, which submitted budget requests for increased detention space, the Biden administration has been steadily closing detention facilities and reducing the appropriations requested for detention space. 

As the judge said, the Biden DHS was acting “like a child who kills his parents and then seeks pity for being an orphan,” adding:

[It’s hard] to take Defendant’s claim that they had to release more aliens into the country because of limited detention capacity seriously when they have elected not to use one of the tools provided by Congress … and they have continued to ask for less detention capacity.

“Criminal Histories or Not”?

These mass parole policies don’t just violate the law; they are dangerous. The DHS claimed in court that “it is screening arriving aliens … to determine if they are a public safety threat.” But, as Wetherell concluded, “the more persuasive evidence establishes that DHS cannot reliably make that determination [because] DHS has no way to determine if an alien has a criminal history in his home country unless that country reports the information to the U.S. government.”

The DHS was “mainly only screening aliens at the border to determine if they have previously committed a crime” in the U.S. This was almost useless, since “many of these aliens are coming to the United States for the first time, [and] DHS has no idea whether they have criminal histories or not.”

Wetherell held that the Parole+ATD Policy “is unlawful,” and he vacated it, remanding it to DHS “for further proceedings consistent” with his order. For the sake of the country, we can hope this ruling makes some difference in limiting the disastrous open-border policies pursued by Homeland Security Secretary Alejandro Mayorkas and the president. 

But there’s no guarantee: Mayorkas is using many varieties of parole programs to release illegal aliens en masse into the country. He is clearly on a mission to wave in as many illegal aliens as possible, in contravention of the immigration laws enacted by Congress, and he has already flouted several court orders in pursuit of that goal.

There also seems little doubt that Mayorkas will simply direct DHS staff to increase the use of his most recently announced parole program, in which illegal aliens make an appointment with Customs and Border Protection officials at a port of entry using a mobile app and are then passed through into the country. He is institutionalizing his unlawful behavior. 

This latest parole program using an app is the subject of another lawsuit by 20 states and is just as illegal as Parole+ATD. It deserves the same withering court repudiation as Wetherell delivered in this case.

This piece originally appeared in The Daily Signal