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This is an appeal of a May 2023 decision by a district court judge in Florida to preliminarily enjoin (block) 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). The district court judge held that Florida (which brought the suit) is likely to succeed in proving that the policy (known as the “Parole with Conditions” policy) is contrary to an immigration statute and did not go through required procedures. 

This appeal is consolidated with the Biden Administration’s appeal of an earlier decision (in a separate case also brought by Florida) by the same district court judge to vacate (nullify) a predecessor to the Parole with Conditions policy, known as the “Parole+ATD” policy (ATD stands for “alternatives to detention”).

Shortly after filing this appeal, the Biden Administration asked the Eleventh Circuit to stay (pause) the district court’s preliminary injunction of the Parole with Conditions 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

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.”

Judge Wetherell’s brief preliminary injunction opinion held that Florida was likely to succeed on its claim that the Parole with Conditions policy is contrary to law and its notice-and-comment claim.


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