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This is an appeal of a March 2023 decision by a district court judge in Florida to vacate (nullify) a DHS policy authorizing, in certain circumstances, the release from detention of some asylum seekers and instead monitoring them via less expensive and arguably more humane alternatives to detention, like via GPS ankle bracelet, while the federal government processes their claims for humanitarian protection (which can take years, through no fault of the asylum seekers). Judge Wetherell held that the policy (known as the “Parole+ATD” policy) was contrary to an immigration statute and did not go through required procedures.  The Biden Administration appealed.

This appeal is consolidated with the Biden Administration’s appeal of a decision (in a separate case also brought by Florida) by the same district court judge to preliminarily enjoin (block) the “Parole with Conditions” policy, which DHS issued after the Parole+ATD policy was vacated.

Shortly after filing this appeal, the Biden Administration asked the Eleventh Circuit to stay (pause) the district court’s vacatur (nullification) of the Parole+ATD policy. The Eleventh Circuit denied that motion on June 5, 2023.

Under the expedited briefing schedule ordered by the Eleventh Circuit, the appeal was fully briefed on July 3, 2023. In December 2023, amici curiae Americans for Immigrant Justice, Catholic Charities, and three small law firms requested to participate in oral argument; the Eleventh Circuit denied that motion without explanation on January 8, 2024.

Oral argument took place on January 26, 2024 in Atlanta, Georgia. On February 13, 2024, the Eleventh Circuit issued an order remanding the appeal back to the district court so that Judge Wetherell could determine whether Florida has standing in light of the Supreme Court’s June 2023 decision holding that Texas lacked standing to sue over a similar policy. Three days later, Judge Wetherell issued an opinion stating that nothing in the Texas decision changes his view of Florida’s standing, sending the case back to the Eleventh Circuit. Thereafter, on April 8, 2024, the Eleventh Circuit ordered the parties to file supplemental briefs addressing those same issues; that briefing concluded in early May 2024.

Technical Summary

Florida’s operative complaint targeted one or more alleged policies of “refusing to detain arriving aliens,” which Florida claims conflicts with 8 U.S.C. § 1225(b)(1)-(2) and relies on an unlawful misuse of the parole authority in 8 U.S.C. § 1182(d)(5).  Florida also claimed the alleged policies violate the Administrative Procedure Act’s prohibition of arbitrary and capricious agency action and its notice-and-comment requirement; as well as the Take Care Clause (which requires the President to “take Care that the Laws be faithfully executed”).

Judge Wetherell’s March 8, 2023 opinion held that the July 2022 policy memorandum regarding the use of parole and alternatives to detention is contrary to the parole statute, 8 U.S.C. § 1182(d)(5), because it “does not contemplate a return to custody,” “does not comply with the case-by-case requirement,” and “does not limit parole to urgent humanitarian reasons or significant benefit.” Judge Wetherell also held that the policy should have gone through notice and comment and that it is arbitrary and capricious. 

Judge Wetherell stayed (paused) his order for 7 days to permit the Biden Administration to seek a longer stay from the Eleventh Circuit Court of Appeals, but the Biden Administration did not do so.

The State of Florida cross-appealed Judge Wetherell’s opinion, likely so that it can argue to the Eleventh Circuit that he should have also vacated DHS’s general “non-detention policy,” which Judge Wetherell found existed and held is contrary to immigration law, but not subject to judicial review.


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