Appeals court denies Biden admin request for stay in challenge to migrant release policy

The 11th Circuit Court of Appeals on Monday denied the Biden administration’s request for a stay on an order blocking the implementation of a controversial policy that saw thousands of migrants released into the U.S. without a court date in the short time it was in place.

A federal judge had blocked the administration’s “parole with conditions” policy in May, a day after it was implemented amid a surge in migration to historic highs just ahead of the end of Title 42 expulsions on May 11. The administration has said that nearly 9,000 migrants were released in the time the policy was in place.

The judge found that the policy, which saw migrants released into the U.S. without court dates and told to check in with Immigration and Customs Enforcement within 60 days, was materially identical to a separate policy that paroled migrants into the U.S. while enrolling them into alternatives to detention (ATD) programs. The judge had blocked that policy in March in response to a lawsuit from Florida Attorney General Ashley Moody, who also filed the May challenge.

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The administration, which called the block of the policy “sabotage,” filed a motion to stay the orders blocking both the “parole + ATD policy” and the “parole with conditions” policy. Lawyers for the administration said that the orders blocking the policies will “undermine the Executive Branch’s constitutional and statutory authority to implement its immigration priorities and secure the border.”

The administration had also argued that blocking the ability to release migrants will lead to the overcrowding of Customs and Border Protection (CBP) facilities and threaten the health, safety and security of Border Patrol agents and migrants – with downstream effects on public safety and national security.

“The fact remains that when overcrowding has occurred in Border Patrol facilities, Republican and Democratic Administrations alike have used this parole authority to protect the safety and security of migrants and the workforce,” a CBP statement said last month.

The three-judge appeals court panel denied the motion, arguing that the warnings “ring somewhat hollow on this record, considering the department’s track record of overstating similar threats in the underlying proceedings” and pointed to prior claims made by the administration of disastrous consequences if releases were blocked.

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“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,” the judges wrote. The judges also noted a recent drop in encounters at the border since the Title 42 order ended on May 11.

The denial marks another win for Moody, who secured first a temporary restraining order and then the preliminary injunction against the policy.

“The 11th Circuit Court of Appeals has refused to disturb an injunction Florida obtained against a Biden policy allowing the mass release of illegal immigrants into the country,” Moody said in a statement. “Protecting our border is one of the most fundamental responsibilities of our President and Florida will not allow Joe Biden and Secretary Mayorkas to continue putting American lives at risk in clear violation of Federal Law.”

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Moody last week expanded the challenge to include migrants being released with court dates (Notices to Appear) after DHS said it had streamlined a policy that released migrants with NTAs on their own recognizance. Should that policy be blocked, it could result in most migrants not being allowed into the U.S. and a significant increase in detention.

Meanwhile, the administration is also facing legal challenges from both GOP-led states and civil rights groups targeting its asylum rule, which in theory bars most migrants from claiming asylum if they have entered illegally and failed to claim asylum in a prior country.

GOP-led states have called the rule a “smoke screen” while left-wing groups have argued it unlawfully bars migrants from claiming asylum. The administration has defended the policy, saying it is designed to encourage migrants to use lawful pathways and enter via ports of entry.

DHS officials said last week that, amid a 70% drop in encounters at the border, “[W]e’ve also seen how the consequences we are delivering as part of our comprehensive effort to manage flows at the border are working.”