On March 8, a Florida court blocked the Biden administration from using a key border program referred to as Parole plus Alternative to Detention (Parole + ATD). The court’s decision vacated the policy as unlawful. While the written order includes commentary on a wide range of border-related issues, including parole itself, the decision only directly affects the Parole + ATD program.
Parole + ATD was created by a Department of Homeland Security memo issued in November 2021 and updated in July 2022. The program, which was initially limited to families before the update expanded it to individuals, allowed for people entering the United States at the southwest border together to be paroled into the country while being placed on an alternative to detention, usually using a mobile phone app known as SmartLINK. They were also directed to report to an U.S. Immigration and Customs Enforcement office within 15 days of their entry, where they would be issued their Notice to Appear (NTA)—the charging document that formally starts a person’s immigration court case. The creation of the program broadly coincided with the end of family detention, in line with a promise President Biden made during his campaign and committed to at the beginning of his administration.
In September 2021, the state of Florida sued the federal government over its border policies. Their lawsuit, which was later amended to bring a direct challenge to the Parole + ATD program, argued that the program was not only in violation of the law governing how policies and rules are issued by the executive branch, but also that it was part of an amorphous, ill-defined “no detention” policy that they wanted to see blocked in court.
The court ultimately ruled that the policy should be vacated because it was issued in violation of that law. However, the immediate impact of this decision remains relatively uncertain. Following an expansion of the use of Title 42 in January, the Biden administration had already temporarily stopped using Parole + ATD in all but a handful of cases. Use of the program fell from 130,505 times in December 2022 to just 28 times in February 2023. This reduction may explain why the Department of Justice allowed the decision to go into effect without seeking emergency relief from a higher court.
Even though the judge in this case admitted he could only rule on the Parole + ATD program and not on Florida’s nebulous “no detention” policy claim, he nevertheless took the opportunity to give his opinions on a wide range of border policies ranging from Title 42, the Migrant Protection Protocols, and the entire parole regime. While these parts of the ruling are not binding, they are part of a troubling pattern of judicial activism from some Trump-appointed judges. These judges have challenged long-standing humanitarian policies in an attempt to force the federal government to detain or remove as many people as possible, while curtailing their power to use their discretion in immigration enforcement issues.
One of the most egregious aspects of the ruling is the judge’s wholly inaccurate assessment of the legality of parole itself. In prior cases where states such as Florida, Texas, and Louisiana sued the government on immigration enforcement and border policies, some courts have stretched the language of immigration laws to absurd conclusions. In previous cases, the courts decided that a section of the Immigration and Nationality Act (INA) required that everyone entering the country be detained for the duration of their cases or forced to wait in Mexico while they waited for their immigration court hearings, though it acknowledged that a person could still be paroled. In the Parole + ATD case, the judge took this one step further by arguing for even stricter restrictions on parole.
In prior cases, courts conceded that DHS had the independent power to parole anyone who was not subject to mandatory detention on a case-by-case basis. The judge in this case wrote that this authority was extremely limited. He suggested that the Parole + ATD program was an improper use of the parole statute because it didn’t include on its face a requirement that people paroled under the program would be returned to custody or their home country when the purpose of being paroled had been accomplished. According to this logic, the program’s purpose was for an individual to obtain their NTA. Therefore, the judge said, people should be detained after receiving their NTAs. He took this another step further, by stating that the INA requires individuals to have a “case pending” if they are to be paroled.
This conclusion is not supported by the actual statute or historical practice. Because a case is not officially “pending” until an NTA is filed with the court, he claimed that it is improper for people to be paroled into the country without receiving an NTA at the time of their parole.
This flawed assessment would challenge nearly every parole program the government has in place and that it has ever utilized. United for Ukraine, special consideration for Afghans, and many other parole programs over the years have been created for humanitarian reasons to provide temporary relief for individuals in a variety of circumstances. The extension of this reasoning to other parole programs would essentially make parole in the immigration context obsolete.
While this only vacates the specific memo creating Parole + ATD as a stand-alone policy, its legal implications could be far-reaching. If states are allowed to continue challenging every DHS policy related to immigration detention and enforcement to try to force the government’s hand, our already broken immigration system will only become more dysfunctional.