Nearly two dozen Republican-led states have backed Florida’s legal challenge to a Biden administration policy that allowed for the release of migrants into the U.S. interior without court dates — but was blocked just hours before the expiration of the Title 42 public health order.
“The Administration’s en masse parole of aliens violates federal immigration law and abdicates its responsibility to secure the nation’s borders,” the 23 states, led by Virginia, said in an amicus brief filed this week.
The policy, known as “parole with conditions” was outlined in a May 10 memo and came a day before the end of Title 42. The policy set out how migrants can be allowed into the country on parole – a process typically reserved for “urgent humanitarian reasons or significant public benefit” – if Customs and Border Protection (CBP) faced overcrowding.
Migrants released under the policy were required to make an appointment with Immigration and Customs Enforcement (ICE) or request a Notice to Appear by mail. The use of parole had been authorized if a sector capacity goes above 125%, if agents apprehend 7,000 a day over 72 hours or if average time in custody goes above 60 hours.
A Customs and Border Protection officer (L) keeps watch as immigrants line up to be transported from a makeshift camp between border walls between the U.S. and Mexico on May 13, 2023 in San Diego, California. (Mario Tama/Getty Images)
It had been adopted just as authorities were seeing over 10,000 migrants a day ahead of the ending of the Title 42 public health order. Numbers have dropped since the ending of the order. In a court filing, the administration said nearly 9,000 migrants were released under the policy while it was in effect.
Florida quickly sued and it was blocked on May 11, with the judge accepting arguments that the policy was “materially identical” to a similar policy blocked by the same judge in March. The judge has since granted a preliminary injunction enjoining the policy as the case continues.
DHS had said it would comply with the ruling but called it harmful and warned that it would “result in unsafe overcrowding at CBP facilities and undercut our ability to efficiently process and remove migrants, and risks creating dangerous conditions for Border Patrol agents and migrants.”
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As the case goes on, the 23 states are backing the lawsuit in a supporting amicus brief, warning of the damages it says the states will face if the policy was allowed to resume.
“The en masse parole of aliens imposes huge, unrecoverable costs on Amici States, including surging expenses for education, law enforcement, and emergency medical care. It also threatens to overwhelm their public infrastructure and degrade their ability to provide critical services to their own citizens,” they write.
“Further, the Administration’s failure to secure the border has greatly exacerbated the severe problems of transnational crime, including the smuggling of Chinese-manufactured fentanyl that is killing more than 100,000 Americans per year, as well as human trafficking and the exploitation of minors,” they say.
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They also put the blame for the ongoing migrant crisis on the administration’s policies.
“In short, the Administration’s failure to enforce federal immigration law and secure the border has imposed severe and irreparable harm on Amici States. The district court’s order enjoining the Administration’s unlawful policy should be left in place as the litigation proceeds,” they say.
The legal battle is just one of a handful the administration is facing on immigration. It is also facing legal challenges from the left and right targeting its asylum rule to limit who can claim asylum at the southern border.
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Despite those challenges, the administration has touted a 70% drop in encounters at the border since Title 42 ended — while calling on Republicans in Congress to provide more funding and to pass a comprehensive immigration reform bill.
