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State, feds battle as migrant surge looms

Photo by Barbara Zandoval on Unsplash

By Jim Saunders

News Service of Florida

May 11, 2023

TALLAHASSEE --- Florida and federal officials were locked in an eleventh-hour legal battle Thursday as the state sought to block a new policy that would allow large numbers of migrants to be released into the United States.

State Attorney General Ashley Moody asked U.S. District Judge T. Kent Wetherell to issue a temporary restraining order to prevent the federal Department of Homeland Security from moving forward with the new policy. The policy came as a public-health order — known as a Title 42 order — was scheduled to expire at 11:59 p.m. Thursday, leading to a surge of migrants coming into the country.

In a 14-page motion, Moody’s office argued the new policy violated a March 8 ruling by Wetherell that rejected an earlier Biden administration policy that led to releasing migrants.

“Florida seeks a temporary restraining order to preserve the status quo until the parties can brief motions for a preliminary injunction or to postpone the effective date of the new policy,” Moody’s office argued Thursday in the motion. “The Biden administration’s behavior, if left unchecked, makes a mockery of our system of justice and our Constitution.”

But about 5 p.m. Thursday, U.S. Department of Justice attorneys filed a response arguing that Wetherell should deny the request for a temporary restraining order. The document pointed to serious consequences if the new policy, which is described as “parole with conditions,” did not take effect.

“A TRO (temporary restraining order) would irreparably harm the United States and the public by frustrating measures DHS (Department of Homeland Security) has adopted that are necessary to address an expected significant increase in noncitizens arriving in the coming days,” the response said. “DHS has identified an imminent crisis at the southwest border — record numbers of noncitizens seeking to enter our country, overwhelming the immigration system — and has planned to use all authority at its disposal to address this crisis. But that authority is limited. Outside of narrow exceptions, DHS cannot return noncitizens arriving from other countries to Mexico, and certainly cannot do so in numbers that would alleviate the pressure on the border. Nor does DHS have the resources to either 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.”

As of 6:15 p.m., Wetherell had not ruled on the request for a temporary restraining order.

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.

Wetherell issued a 109-page ruling in March that sided with the state, finding that a policy known as “Parole Plus Alternatives to Detention,” or “Parole+ATD,” violated federal law. The Biden administration this week filed a notice of appealing that ruling to the 11th U.S. Circuit Court of Appeals.

Meanwhile, officials were bracing for Thursday night’s expiration of the Title 42 order. That 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.

The Justice Department attorneys said in Thursday’s court filing that the new “parole with conditions” policy is different from the earlier policy that Wetherell rejected.

“An order restricting DHS’s parole authority on the eve of this crisis has the serious potential to cause chaos and undermine the security of the border and the safety of border officials,” the response said. “The resulting harm to the public from such an injunction far outweighs the more remote financial harms raised by Florida.”

But Moody’s office contended the new policy, in part, violates a law known as the Administrative Procedure Act because it is “arbitrary and capricious.”

“The new parole policy is arbitrary and capricious because it is a pretextual attempt to circumvent this court’s prior ruling,” the state’s motion said. “Instead of approaching the problem in good faith, such as by seeking a stay of this court’s ruling, DHS slapped a new label on the same Parole+ATD policy that this court vacated and went about its business. This is the very definition of ‘capricious.’”

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