A federal judge late Monday refused to put on hold a ruling that blocked a new Biden administration immigration policy challenged by Florida Attorney General Ashley Moody.
Pensacola-based U.S. District Judge T. Kent Wetherell denied a motion by U.S. Department of Justice attorneys for a stay of a temporary restraining order that he issued Thursday against the policy, which could lead to large number of migrants being released into the United States.
The Justice Department sought the stay as it prepares an appeal to the 11th U.S. Circuit Court of Appeals, according to a motion filed Friday. It filed a separate appeal last week after Wetherell in March ruled that an earlier immigration policy violated federal law.
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Thursday’s temporary restraining order blocked a new policy, known as “parole with conditions,” that the Biden administration issued as a public-health order — known as a Title 42 order — was expiring. The Title 42 order, which stemmed from the COVID-19 pandemic, provided a way to help expel migrants. The expiration coincided with the end of a broader federal public-health emergency for COVID-19.
In his ruling Thursday and in denying the stay late Monday, Wetherell wrote that the new policy was “materially indistinguishable” from the policy that he rejected in March. That earlier policy was known as “Parole Plus Alternatives to Detention,” or “Parole+ATD.”
“Like the Parole+ATD policy, the Parole with Conditions policy is a ‘processing pathway’ designed to relieve overcrowding at Border Patrol facilities and release large numbers of aliens into the country on ‘parole’ without even initiating immigration proceedings,” Wetherell wrote in Monday’s decision. “The Parole with Conditions policy operates in precisely the same manner as the Parole+ATD policy — by allowing immigration officials to ‘parole’ arriving aliens into the country on the condition that they schedule an appointment at an Immigration and Customs Enforcement facility (or check-in online) within a specified period to be placed in an immigration proceeding.”
In its motion Friday, the Justice Department requested a stay of Thursday’s temporary restraining order and a stay of Wetherell’s March ruling on the previous policy.
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The motion said Wetherell’s rulings “irreparably harm the United States and the public by frustrating measures that are necessary to secure the border and protect the health and welfare of both migrants and Border Patrol agents, in light of the significant increase in the number of non-citizens who have arrived and are expected to continue to arrive in the coming days.”
“The Department of Homeland Security has identified an exigent situation at the southwest border — record numbers of non-citizens seeking to enter or entering our country without authorization, overwhelming the immigration system — and has planned to use all authorities at its disposal to address these circumstances,” the motion said. “But that authority is limited. DHS can no longer expel non-citizens arriving from other countries to Mexico under Title 42 and lacks the resources to detain this record number of arrivals, or the staffing and facilities to safely process and issue charging documents to all these new arrivals in the normal course. And because of this court’s two orders, the government can rely on neither Parole+ATD or Parole with Conditions.”
Wetherell, who was appointed to the federal bench by former President Donald Trump after serving as a state appellate judge, issued a decision Saturday that rejected the part of the motion seeking a stay of his March ruling. He described that request as “borderline frivolous.”
The legal battle in Florida has added another element of uncertainty into a chaotic immigration situation as the Title 42 order expired last week, and communities along the nation’s southwest border brace for additional influxes of migrants.
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Moody and Gov. Ron DeSantis have long criticized federal immigration policies, with the state filing a lawsuit in September 2021 alleging that the Biden administration violated immigration laws through “catch-and-release” policies that led to people being released from detention after crossing the U.S. border. The state has contended, in part, that undocumented immigrants move to Florida, creating costs for such things as the education, health care, and prison systems.
The 2021 lawsuit ultimately led to Wetherell’s March ruling that blocked the Parole+ATD policy.
The temporary restraining order that Wetherell issued Thursday against the new policy would last for 14 days. In a footnote in Monday’s ruling, Wetherell wrote that a temporary restraining order is “generally not appealable” but that he expects to quickly issue a preliminary injunction. That could lead to an appeal by the federal government.
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