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The State of Florida filed this case on May 10, 2023—the day before “Title 42” pandemic-based border restrictions expired—to challenge a newly-issued DHS policy known as “Parole with Conditions.” Under that policy, some asylum seekers can be released from detention (on immigration “parole,” a form of temporary permission to be in the country) while the federal government adjudicates their claims for humanitarian protection (which often takes years, through no fault of the asylum seeker). The federal government has had similar policies for decades, but Florida claims that the Parole with Conditions policy substantively conflicts with immigration statutes and that it did not go through required procedures. Florida’s claims are virtually identical to those it brought against a previous policy in a case currently on appeal.

The day after filing suit (May 11), Florida sought a temporary restraining order (TRO) to block the federal government from enforcing the Parole with Conditions policy. After giving the federal defendants a few hours to respond, Judge Wetherell issued the requested TRO. 

The next day, Friday, May 11, the Biden Administration filed a motion asking Judge Wetherell to convert the TRO into a preliminary injunction (so that it could be appealed) and to stay (pause) that injunction pending appeal. Two days later, on Sunday, Florida and the federal government defendants filed a joint stipulation resolving several issues of dispute and asking Judge Wetherell to decide expeditiously whether Florida is entitled to a preliminary injunction. Judge Wetherell denied the request to stay the TRO on May 15. The next day, Judge Wetherell issued a preliminary injunction of the Parole with Conditions policy, which the Biden Administration promptly appealed to the Eleventh Circuit.

In mid-February 2024, the Eleventh Circuit remanded the appeal of Judge Wetherell’s decision (both in this case and and in the related case) back to him so that he could consider whether the Supreme Court’s June 2023 decision in a case brought by Texas means that Florida lacks standing to bring this case. Just two days later, on February 16, 2024, Judge Wetherell—without waiting for any briefing from the parties—issued an “Order Regarding Jurisdiction” in which he opined that nothing in USA v. Texas undermines Florida’s standing. The case is now expected to return to the Eleventh Circuit.

Technical Summary

When Florida filed its complaint, it had not yet seen the Parole with Conditions policy, and so its claims are quite vague. Florida’s claims are that (1): “DHS’s new policy violates 8 U.S.C. §§ 1225(b), 1226(a), and 1182(d)(5); (2) “it is impossible to imagine that DHS has engaged in reasoned decisionmaking,” in violation of APA’s prohibition on arbitrary and capricious agency action; and (3) “like the one at issue here are subject to notice and comment,” and DHS could not “possibly have good cause” to skip notice and comment “given its own delay and poor planning.”

On the Monday (May 15) After the TRO was issued, Judge Wetherell, acting sua sponte, issued an order disclosing that he had seen a news article stating that DHS had given parole to ‘thousands’ of migrants over the weekend, and ordering the Biden Administration to show cause (by later that same day) why Defendants should not be held in contempt for violating his TRO. DOJ responded as directed, and on May 16, Judge Wetherell issued an order mostly discharging the order to show cause.

On May 31, 2022, Florida filed an amended complaint to add to this lawsuit claims against a different policy (which it calls the “notice to appear/own recognizance (the NTA/OR) Policy.” According to Florida–which had not actually seen the policy when it filed its amended complaint–the policy authorizes, under certain conditions, releasing “arriving” migrants under 8 U.S.C. § 1226(a). Florida’s claims are that the policy: (1) is ultra vires because § 1226(a) is inapplicable to those who could otherwise be subjected to expedited removal; (2) is arbitrary and capricious for its alleged failure to consider alternatives and that the policy would “encourag[e] mass migration”; and (3) should have, but did not, go through notice and comment rulemaking.

Four days after issuing the initial remand order, Judge Wetherell issued a “corrected” version of that opinion. In addition to fixing typos, the “corrected” opinion had significant word- and sentence-level changes throughout. 


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