by Bethany Blankley
Florida Attorney General Ashley Moody won another round against the Biden administration in federal court, this time in the 11th Circuit Court of Appeals.
On Monday, the court ruled to keep in place an injunction against the Department of Homeland Security’s parole program. The injunction was issued by a federal district judge in Florida last month. DHS appealed the judge’s ruling and lost.
On May 8, U.S. District Judge T. Kent Wetherell of the Northern District of Florida Pensacola Division vacated DHS’s “Policy on the Use of Parole Plus Alternatives to Detention to Decompress Border Locations.” On May 16, he enjoined DHS’s “Parole with Conditions in Limited Circumstances Prior to the Issuance of a Charging Document” memorandum.
The ruling is the latest among several in a lawsuit filed by Moody over DHS’ plans to release foreign nationals who’d illegally entered the U.S. en masse into local communities. DHS is also partnering with other federal agencies and nongovernment organizations to temporarily house and transport millions of people to U.S. cities nationwide.
DHS appealed, requesting the 11th circuit issue a stay of the lower court’s ruling. In a 2-1 vote, the judges on the appeals court’s panel denied DHS’s request.
At issue is a catch and release and parole program DHS implemented over which Moody sued, arguing it’s illegal.
The plan for DHS to release people en masse when the public health authority Title 42 ended May 11 was first made public by Moody’s office as part of her lawsuit through a memo her office obtained written by Border Patrol Chief Raul Ortiz explaining it. Rio Grande Valley Sector Border Patrol Chief Gloria Chavez in Texas also explained her sector’s plan to release people into local communities, according to a recording of a meeting she held with local law enforcement provided to The Center Square.
DHS argues blocking its plan undermines “the Executive Branch’s constitutional and statutory authority to implement its immigration priorities and secure the border.” It also maintains “the most immediate consequence” of the judge’s orders “will likely be [the] overcrowding [of] CBP facilities during increases in border encounters,” which would threaten the “health, safety, and security” of USBP officers and illegal foreign nationals. DHS, like Ortiz, argues overcrowded CBP facilities are resulting in agents releasing illegal foreign nationals without adequate monitoring measures. In the “worst-case scenario,” not being able to release millions of people into the U.S., it argues, would prevent it from apprehending illegal foreign nationals who are illegally entering the U.S.
Former Border Patrol chiefs argue this is what is already happening because Border Patrol agents have been taken off the line to instead process people. They also argue over 7.5 million people have been apprehended or reported evading capture. No one knows how many have evaded capture, who or where they are.
DHS’s arguments fell flat before the district judge and appellate judges hearing its case. The appellate judges ruled DHS couldn’t meet the “irreparable injury” factor to sustain its claim. They denied DHS’s motion “because DHS has not met its burden to show that it will suffer an irreparable injury absent a stay.
“Simply showing some ‘possibility of irreparable injury,’ fails to satisfy” their request, the judges wrote in their nine-page ruling. The court “will not find irreparable harm based on mere conjecture,” the judges said.
They also said DHS’s “ability to ascertain future harm is uncertain at best. Given this record, we take DHS’s latest claims of impending disaster if it is not allowed to use either of the challenged policies with some skepticism.”
On May 11, Wetherell granted Moody’s request for a temporary restraining order enjoining DHS’ “Parole with Conditions” mass-release policy. The next day, he denied the Department of Justice’s “borderline frivolous” motion to stay his order.
On May 15, he denied an emergency request for a stay and on May 16 he enjoined DHS for another two weeks from implementing its plan through a temporary restraining order. DHS appealed and the case was heard before the 11th Circuit, which denied its request June 5.
Wetherell has maintained DHS’s policy is “the latest in a series of policies adopted by DHS over the past two years to expedite the release of aliens arriving at the Southwest Border into the country instead of detaining them until their immigration proceedings are concluded as required by 8 U.S.C. §1225(b).”
He also said, “If the allegations in the complaint and motion” filed by Moody were true after it was reported that DHS planned to follow through with its release plan under a new name, “then it appears that DHS is preparing to flout the Court’s order in Florida v. United States by implementing a new ‘parole’ policy that, based on the DHS spokesperson’s description of the policy, sounds virtually identical to the Parole+ATD policy the Court vacated in Florida.”
It remains unclear if DHS will request the full 11th Circuit Court to hear its case or if the full court would consider it.
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Bethany Blankley is a regular contributor to The Center Square.
Photo “Ashley Moody” by Ashley Moody. Photo “Joe Biden” by Gage Skidmore. CC BY-SA 2.0. Background Photo “Courtroom” by Carol M. Highsmith.