Plan Blocked to Expand Catch-and-Release

As Title 42 came to an end on May 11, the Biden administration anticipated dramatic increases in illegal border crossings, but had no real plan or interest in preventing or deterring them. Typically, the administration’s goal was to manage the unprecedented numbers of illegal migrants and do their best to avoid the bad optics of their border crisis. The plan to manage the increased flows came on the eve of the end of Title 42 in the form of a memo written by Chief of the U.S. Border Patrol Raul Ortiz. 

In his memo to agency personnel, President Biden’s handpicked chief instructs overwhelmed Border Patrol officers to begin releasing migrants who cannot be processed and given Notices to Appear (NTAs) in a timely fashion. As per Ortiz’s memo, if the number of migrants encountered exceeds the Border Patrol’s resources to detain migrants, even for short periods of time, they are to be released without any form of monitoring and instructed to present themselves to an Immigration and Customs Enforcement (ICE) office somewhere in the country within 60 days. The benchmark for triggering these wholesale releases is if Border Patrol arrests 7,000 migrants in a single day. On the day Chief Ortiz issued his directive, more than 11,000 migrants had been arrested. 

“Because BP [Border Patrol] personnel and resources are finite, BP must consider whether processing personnel and resources are necessary to process other noncitizens in BP custody or accomplish enforcement actions that are immediately critical to border security for the greater public benefit,” the memo states. “If so, the individual may be considered for Parole with Conditions.” If Ortiz had a plan to track down and remove migrants who did not report to ICE within 60 days of their release, he did not share it with anyone. Based on previous mass releases of migrants without NTAs or tracking devices it is unlikely that many of them would comply with the “conditions.” 

Anticipating that many migrants released on “Parole with Conditions” would be heading to Florida, the state immediately filed a lawsuit to prevent the policy from going into effect. On Friday May 12, U.S. District Court Judge T. Kent Wetherell granted Florida’s request for a Temporary Restraining Order (TRO) barring the mass release of illegal migrants. In granting the TRO, Judge Wetherell found that the Ortiz memo was not materially different from a Biden administration catch-and-release policy he struck down in March. In that 109-page ruling, Judge Wetherell found that the administration’s policies “were akin to posting a flashing ‘Come In, We’re Open’ sign on the southern border,” and that the administration had “effectively turned the Southwest Border into a meaningless line in the sand and little more than a speedbump for aliens flooding into the country.” 

In issuing the TRO, Judge Wetherell wrote, “What DHS [Department of Homeland Security] cannot do is adopt a functionally identical policy as the one the Court vacated in the Florida decision and then expect a different outcome when that policy is challenged.” White House Press Secretary Karine Jean-Pierre responded to the judge’s ruling saying, “It’s sabotage. That’s how it reads to us” – an ironic comment coming from an administration that has openly sabotaged nearly every border and immigration law on the books. 

Even as DHS was considering the administration’s next legal move, however, they were defying Judge Wetherell’s order. In spite of the TRO which was already in effect on Friday May 12, the Border Patrol released nearly 2,600 migrants without NTAs, in addition to some 6,000 who were released in the hours leading up to the end of Title 42. 

On May 16, Judge Wetherell followed the TRO up with a preliminary injunction prohibiting DHS from implementing or enforcing the “Parole with Conditions” policy. In that order, Wetherell found that “a preliminary injunction is necessary to prevent irreparable harm to Florida.” He concluded by writing that issuing the preliminary injunction was in the public interest and would promote respect for the rule of law.