Florida officials think the federal government must detain everyone – or virtually everyone – who arrives at the U.S.-Mexico border without a visa. And it is using the courts to try to make that happen. Just last week, the U.S. Court of Appeals for the Eleventh Circuit refused to stop two federal district court decisions out of Florida that interfere with the Biden administration’s ability to release people on parole.
For decades, across Republican and Democratic administrations, the federal government has used a variety of tools to release people who arrive at the border, or are stopped shortly after crossing the border, without immigration paperwork. The reasons are obvious: the federal government has never had the resources to lock everyone up and no administration has detained all new arrivals. This makes sense. The vast majority of immigrants who are released show up to their immigration hearings.
One key tool the federal government has to release people is parole. Immigration law allows for the release of individuals not authorized to enter the United States if there is an urgent humanitarian need or a significant public benefit. The Biden administration, like past administrations, has used various polices to guide release on parole. One policy, called “Parole + ATD [Alternatives to Detention],” was released in 2021 and updated July 2022.
The state of Florida, however, thinks it knows best how to manage the border. It has gone to court to force the federal government to do what it wants. Relying on discriminatory claims that new immigrants harm Florida, it brought a lawsuit to vacate the Parole + ATD policy. On March 8, 2023, the Florida federal court struck down the policy.
Anticipating an increase in people entering the United States at the southwest border, the Biden administration revised its parole policy before Title 42 ended. The new policy memo, known as “Parole with Conditions,” describes when and how certain individuals can be released on parole before being placed in removal proceedings under Immigration and Nationality Act section 240. The administration issued the policy on May 10, the day before Title 42 was set to expire.
Parole with Conditions only goes into effect if U.S. Customs and Border Protection (CBP) exceeds certain capacity thresholds. Only then may a particular CBP sector get permission to use the policy. It is necessary, the memo explains, because overcrowded conditions are dangerous both for the people in custody and the CBP officers themselves. An orderly release plan is important for the safety of people who are detained and the public at large.
If the policy is in effect in a CBP sector, CBP officers must individually evaluate each person for the possibility of release on parole. Only those who CBP determines should not be subjected to expedited removal can be considered. The officer must vet the person’s identity, immigration background, any criminal history, and confirm their physical address upon release. The initial grant of parole is only for 60 days. During that time the person must appear with U.S. Immigration and Customs Enforcement (ICE) to receive the necessary paperwork to begin their deportation proceedings.
Florida immediately sued. On May 10, even before receiving the Parole with Conditions policy, Florida filed a new lawsuit in federal court to stop it. In a fortuitous twist for Florida, the case was assigned to the same judge who had struck down Parole + ATD. In short order, and with little additional analysis, that same judge issued a temporary restraining order (TRO) and then a preliminary injunction, preventing the federal government from using the Parole with Conditions policy.
According to the judge, the policy is illegal because it does not require the person to be re-detained, does not allow for sufficient vetting, and was not subjected to formal notice and comment rulemaking. In short, it micromanages discretionary release decisions.
On June 5, the U.S. Court of Appeals for the Eleventh Circuit refused to stay (pause) the Florida court’s orders vacating Parole + ATD and preventing the use of Parole with Conditions. The court of appeals found that the federal government had not shown that it would suffer serious harm without these policies. It pointed to the lower number of individuals arriving at the border and the fact that the government had waited nearly two months to appeal the Parole + ATD decision.
The court of appeals did not say, however, that the Florida district court decisions are legally correct. It will decide that question after hearing more arguments from both sides.
In the meantime, the Florida court has made clear it intends to enforce those orders, even threatening the federal government with contempt.
Florida’s challenge to the federal government’s ability to release people on parole is part of a larger attack on the government’s ability to release new arrivals at all. It has already amended its complaint to attack another federal government process for releasing people: promptly starting removal proceedings and then releasing individuals with orders of release on recognizance. Texas also has tried to attack the federal government’s use of parole to release people within the United States.
This push for mandatory detention is dangerous. It is not only cruel and unnecessary, but it is also impossible. A world in which Florida and other states get to force the federal government to detain all new migrants regardless of the human and administrative costs will not serve our national interest. And it certainly isn’t required by our laws.