The Center for Immigration Studies recently reported that the Florida vs. the U.S. lawsuit has limited the Biden administration’s ability to release illegal migrants by ruling the detention mandate in Section 235(b) of the Immigration and Nationality Act (INA) also applies to the government.
According to the report, the ruling limits the use of three different tools used by the Department of Homeland Security (DHS) to release migrants caught at the southwest border. The first is that they may be released at an ICE office within the country with a “Notice to Report” (NTR) and served with a “Notice to Appear” (NTA). The second is they may be released on their own recognizance with an NTA under the authority in Section 236(a) of the Immigration and Nationality Act. The third is they may be released on “Parole+ATD” in anticipation of being summoned to an ICE office at a later date.
“Thus, like a child who kills his parents and then seeks pity for being an orphan, it is hard to take defendants’ 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 in §1225(b)(2)(C) and they have continued to ask for less detention capacity in furtherance of their prioritization of 'alternatives to detention' over actual detention,” said Judge T. Kent Wetherell II in a news release by Attorney General Ashley Moody.
According to flgov.com, the state of Florida, referencing Mark Krikorian, referred in its complaint to NTR releases as a form of “immigration enforcement by the honor system.” Wetherell agreed with this characterization and found that only about 30% of migrants who were released with NTRs appeared as directed. This led to ICE launching “Operation Horizon” to locate them.
The Center for Immigration Studies reported that the U.S. Customs and Border Protection (CBP) abandoned NTR releases in September 2021, after releasing 94,500 migrants under the program. Instead in November 2021, CBP transitioned to Parole+ATD. This combines parole under Section 212(d)(5) of the INA with “alternatives to detention.” This includes GPS tracking, ankle monitors and the SmartLINK app.
The court also found that DHS failed to comply with statutory requirements of parole, and also that the department cannot release those who enter the country illegally on their own recognizance under Section 236(a) of the INA. The court then vacated the Parole+ATD policy.
In response to the Biden administration and Department of Homeland Security’s border policy, which has impeded on border security agency’s abilities to manage those who enter the country illegally once they have crossed the border, the Texas administration requested the U.S. Supreme Court to review a case involving the June 2021 order by Judge Drew Tipton of the Southern District of Texas that vacated ICE interior enforcement guidelines issued by Secretary Alejandro Mayorkas in September 2021.
The Center for Immigration Studies reported one of the key arguments of the Texas government is that Section 242(f)(1) of the INA prevents lower courts from vacating actions under Title II, Chapter 4 of the INA, and even though the Supreme Court can vacate such actions, it needs a case to do so. The Supreme Court's ruling in this case will decide if the administration can continue to release illegal migrants on NTA/OR.
According to Ballotpedia, if the court reaches a decision in the case it could provide clarity on the administrative procedures that the executive branch must follow when issuing guidance on immigration policy. The decision could also clarify if the district courts have the power to vacate immigration policies used by the executive branch.
During the Department of Homeland Security Committee hearing that took place on March 15 in McCallen, Texas, Border Patrol Chief Raul Ortiz testified about the surge of immigrants over the past two years, as well as CBP resources and effectiveness. He also spoke on Biden and Mayorkas’ approach to the border security. Ortiz stated that in 2023, CBP has seen more than 900,000 encounters.
“Unlike in previous surges, we are seeing traffic, including large groups, spread across multiple locations of one or two sectors,” Ortiz said in the hearing.
The CBP reported that in February, the agency had 1,285,056 nationwide encounters for fiscal year 2023 through February, excluding those who got away.
