Federal judge blocks Biden admin from releasing migrants without court dates as Title 42 expires

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White House reiterates southern border is not open as end of Title 42 approaches

Fox News White House correspondent Jacqui Heinrich has the latest on the Biden administrations border policies as Title 42 is set to end on Special Report. 

A federal judge on Thursday evening blocked the Biden administration from implementing a policy that allows for the release of migrants without court dates – just hours away from the end of the Title 42 public health order.

Judge T. Kent Wetherell II imposed a two-week restraining order on the Biden administration policy, which would see migrants released on "parole with conditions."

The policy was outlined in a Border Patrol memo this week, which says that migrants can be allowed into the country on parole — a process typically reserved for "urgent humanitarian reasons or significant public benefit" — if Customs and Border Protection (CBP) faces overcrowding. The memo calls the practice "parole with conditions" as migrants are required to make an appointment with Immigration and Customs Enforcement (ICE) or request a Notice to Appear by mail.

FLORIDA AG SUES BIDEN ADMIN TO STOP PLANNED MASS RELEASE OF MIGRANTS AS TITLE 42 ENDS

A U.S. Border Patrol agent talks with asylum-seekers waiting between the double fence along the U.S.-Mexico border near Tijuana, Mexico, Monday, May 8, 2023, in San Diego. The migrants wait between the fences to be processed by U.S. Border Patrol agents.  ((AP Photo/Denis Poroy))

Under a parole release, migrants are rapidly released into the country, do not get an alien registration number and do not receive a court date.  

The use of parole is being authorized if a sector capacity goes above 125%, if agents apprehend 7,000 a day over 72 hours or if average time in custody goes above 60 hours. Agents have been encountering over 10,000 migrants a day since Monday, and there are no signs of that slowing down with the looming end of Title 42, which is expected to bring an even bigger wave with it.

Title 42 has been used since March 2020 by both the Trump and Biden administrations to return millions of migrants rapidly at the southern border due to COVID-19. With the end of the order coinciding with the end of the COVID-19 national emergency on Thursday evening, migrants have flocked the border in the hope that they will be more likely to be admitted to the country. 

"For the past 7 days, USBP has averaged over 8,750 encounters per day. This is over double the average daily encounters of 4,284 in May of 2019, the highest month of the 2019 surge. Even with significant personnel along the SWB, a significant detention capacity, and interagency resources supporting the effort, this situation requires urgent action," the memo stated.

Florida Attorney General Ashley Moody had sued after media reports emerged of the planned releases, arguing the policy was "materially identical" to a "Parole + ATD" policy blocked by the same judge in March. Judge Wetherell agreed with that assessment in his order.

"…The Court has no trouble concluding that Florida has a substantial likelihood of success on the merits because the challenged policy appears to be materially indistinguishable from the Parole+ATD policy vacated in Florida—both in its purpose (reducing overcrowding at border patrol facilities) and manner of operation (releasing aliens into the country without first issuing a charging document placing them in immigration proceedings and simply directing the aliens to report to ICE within a specified period for further processing)," he said.

BORDER PATROL CHIEF AUTHORIZES RELEASE OF MIGRANTS INTO US WITHOUT COURT DATES AS TITLE 42 ENDS

Moody, in a statement late Thursday, said the lifting of Title 42 "presents an unprecedented crisis at our nation’s Southwest Border." 

"The Biden administration did absolutely nothing to prepare for that crisis. Then, just yesterday, it issued the Parole with Conditions mass release policy, which is virtually identical to the policy a federal judge already invalidated. These actions demonstrate a striking combination of incompetence and bad faith. I am pleased that a federal court understood the situation and acted appropriately," she said.

DHS had warned that blocking the use of parole has the potential to cause chaos at the border, and estimated that doing so would result in an overwhelming 45,000 migrants in custody by the end of May. The judge said he did not find those arguments persuasive.

"Putting aside the fact that even President Biden recently acknowledged that the border has been in chaos for ‘a number of years,’ Defendants’ doomsday rhetoric rings hollow because, as explained in detail in Florida, this problem is largely one of Defendants’ own making through the adoption an implementation of policies that have encouraged the so-called ‘irregular migration’ that has become fairly regular over the past 2 years," he said.

The judge has scheduled a hearing for a preliminary injunction for May 19.

While DHS had acknowledged the plan to release migrants without court dates, it had rejected the idea that it was conducting "mass" releases, saying instead that those releases were only taking place on a case-by-case basis. A DHS spokesperson had told Fox News Digital on Thursday that "reports that CBP is allowing or encouraging mass releases of migrants are categorically false."

"We are stepping up enforcement actions and have surged 24,000 Border Patrol agents and officers, thousands of troops and contractors, and over a thousand asylum officers and judges to the border. Just yesterday ICE announced that families who attempt to cross the border unlawfully will be placed in expedited removal proceedings, subject to GPS monitoring, and removed within 30 days if they don’t have a legal basis to remain," the spokesperson said. 

BORDER PATROL ENCOUNTERS 10,000 MIGRANTS FOR THIRD DAY IN A ROW AS NUMBERS SWELL BEFORE TITLE 42 DROPS

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"As was the case under Republican and Democrat Administrations alike in the past, parole may be considered for certain migrants on a case-by-case basis if they have cleared security vetting, but migrants who do not have a lawful basis to remain will be expeditiously removed — just like the 1.4 million migrants who were expelled last year alone."

The order adds a new twist to the Biden administration's efforts to restore order at the border. DHS Secretary Alejandro Mayorkas has been touting a wide-ranging plan that includes international cooperation, a new asylum rule to make some migrants ineligible if they entered illegally and failed to claim asylum at a third country, a surge of personnel, expanded legal processes and a stiffening of traditional Title 8 penalties. However, both he and President Biden have admitted that chaos is likely to follow the expiration of the order.

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"We expected to see large numbers of encounters initially. We are already seeing high numbers of encounters in certain sectors," Mayorkas said Thursday. "This places an incredible strain on our personnel, our facilities and our communities with whom we partner closely. We prepared for this moment for almost two years and our plan will deliver results. It will take time for those results to be fully realized, and it is essential that we all take this into account." 

Fox News' Bill Melugin and Chris Pandolfo contributed to this report.