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Summary

The State of Florida filed this case in September 2021 to challenge decades-long practices of the federal government whereby some asylum seekers are released from detention while the federal government adjudicates their claims for humanitarian protection (which often takes years).  Florida claims that these practices substantively conflict with immigration statutes and that, even if they are substantively permissible, they did not go through proper procedures.  Florida sought an order compelling the Biden Administration to comply with Florida’s interpretation of the immigration statutes and to detain asylum seekers while their claims are decided.

In January 2022, Judge Wetherell denied the Biden Administration’s motion to transfer this case to the Tallahassee Division, from the Pensacola Division where Florida filed it. Approximately four months later, in May 2022, Judge Wetherell denied the Biden Administration’s motion to dismiss Florida’s claims. 

Following discovery, the parties briefed cross-motions for summary judgment (meaning that each side filed a motion requesting that the Court enter judgment for them without a trial). Judge Wetherell denied those motions in November 2022, ruling that a bench trial would be necessary to resolve disputed issues of fact.

A four-day bench trial took place in Pensacola, Florida from January 9 through 12, 2023. Post-trial briefs were filed a month later.

On March 8, 2023, Judge Wetherell issued an opinion that mostly entered judgment for Florida. Judge Wetherell held that the DHS policy of releasing some asylum seekers from detention and instead monitoring them via less expensive and more humane alternatives to detention, like via GPS ankle bracelet, is contrary to an immigration statute and did not go through required procedures. The vacated policy has become known as the “Parole + ATD” policy.  Judge Wetherell vacated (nullified) the policy nationwide, but declined to order any other relief.

The Biden Administration appealed Judge Wetherell’s decision on May 5, 2023. A week later, on May 12, the Biden Administration filed a motion asking Judge Wetherell to stay (pause) his vacatur of the Parole + ATD policy pending its appeal to the Eleventh Circuit; Judge Wetherell denied that motion the next day (a Saturday), calling it “borderline frivolous.” The Eleventh Circuit later denied a similar request.

Note that on May 10, 2023, Florida filed a copycat of this lawsuit to challenge a policy the Biden Administration adopted in May, called the “Parole with Conditions” policy. Florida requested that that case also be given to Judge Wetherell, and he is presiding over it as well.

In mid-February 2024, the Eleventh Circuit remanded the appeal of Judge Wetherell’s decision 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

Florida’s amended complaint targets 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 claims 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 a 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 before his stay expired, but the Biden Administration did not do so.​​​​

 

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