Florida sues Biden administration over catch-and-release policy, alleging violation of federal law

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Biden's catch-and-release is a 'magnet' for illegal immigration: Retired Border Patrol agent

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EXCLUSIVE: The state of Florida is suing the Biden administration over its "illegal" catch-and-release policies at the Southern Border, saying they cause harm to the state's "quasi-sovereign interests," while claiming officials are either in violation of federal immigration law, or simply abusing their authority. 

Florida Attorney General Ashley Moody filed the suit against the administration Tuesday, as part of a joint effort with Florida Gov. Ron DeSantis to "uphold the rule of law despite the Biden administration's decision to violate the law." 

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The suit was filed in the Pensacola Division of the Northern District of Florida. Moody is not seeking a preliminary injunction. The defendants in the suit are the Department of Homeland Security, its component agencies, like Immigrations and Customs Enforcement (ICE), as well as Homeland Security Secretary Alejandro Mayorkas, top officials from ICE, Customs and Border Protection (CBP), and U.S. Citizenship and Immigration Services (USCIS). 

The attorney general is also suing the United States itself. 

Fox News exclusively obtained Florida's lawsuit against the Biden administration Tuesday. 

"The Biden administration's illegal border policies cause Florida harm," the lawsuit states. "Many of the aliens illegally released by the Biden administration are arriving, or will arrive in Florida, harming the state's quasi-sovereign interests and forcing it to incur millions of dollars in expenses." 

Under U.S. code 1225, when individuals arrive in the United States, either at ports of entry, or when caught crossing the border illegally, they are considered "arriving aliens" under immigration laws. 

Under U.S. code, those individuals are required to be detained until a decision is made as to whether they are to be admitted to the country. This rule applies even if the individual is claiming asylum--an immigration judge would determine if they are entitled to asylum before release into the U.S. interior. 

The only exception to the rule is the federal government's "parole authority," which allows releasing aliens into the interior immediately, but may only be used on a "case-by-case basis" and only for "urgent humanitarian reasons or significant public benefit." 

Moody's suit alleges that the Biden administration's immigration policy is either in violation of these rules, or simply an abuse of their parole authority. 

"The government is not free to ignore the clear commands of Congress," the lawsuit states. "It has claimed that it lacks the resources and detention capacity to process the surge of migrants at the border." 

The lawsuit alleges that the Biden administration "has actively sought to eliminate measures that increase its resources and detention capacity, such as the Migrant Protection Protocols (also known as the ‘wait in Mexico policy'), and has even asked Congress to reduce the number of immigration detention beds available to it." 

"Further, it is the Biden administration's misguided policies that have encouraged more migrants to make the dangerous journey to the United States," the lawsuit says. "The government cannot, therefore, use a purported lack of resources as an excuse to ignore congressional mandates." 

Moody warned that most people who claim asylum are ultimately denied, and many who claim asylum do so fraudulently. 

"Once people are released into the interior, the federal government may never find them," Moody's office said. 

Moody's office said that the United States, since President Biden took office in January, has released at least 225,000 migrants at the border.

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Moody argued that those illegal border crossers come to Florida-- a state that spends more than $100 million per year incarcerating criminal illegal aliens, and provides a number of other services to unlawfully present individuals, including education, substance abuse treatment, crime victim's services, and emergency medical services. 

Florida is asking the court to "hold unlawful and set aside" the Biden administration's policy of "releasing arriving aliens subject to mandatory detention, of paroling aliens without engaging in case-by-case adjudication or abiding by the other limits on that authority; and of failing to serve charging documents or initiate removal proceedings against plainly inadmissible aliens who are being released into the interior of the United States."

Florida is also asking the court to issue "permanent injunctive relief," compel the Biden administration to comply with requirements pursuant to U.S. code; issue declaratory relief declaring the policy unlawful' and award Florida costs and reasonable attorney's fees. 

The lawsuit comes after U.S. Customs and Border Protection (CBP) encountered more than 200,000 migrants at the southern border in August--the second month in a row where the number has been over the 200,000 mark as migrants continue to attempt to enter the U.S.

Fox News first reported that there were 208,887 encounters in August. While it marks the first decrease in migrant encounters seen under the Biden administration, where migrant encounters have been sharply rising for months, it is only a 2% drop over the more than 212,000 encounters in July.

Additionally, the 208,887 number for August represents a 317% increase over last August 2020 which saw 50,014 encounters — and a 233% increase over August 2019, where there were 62,707 amid that year's border crisis.

In August, 49% of apprehensions were single adults, down 7% from July, and 44% of migrants overall were expelled via Title 42 public health protections put in place under the Trump administration and extended by the Biden administration.

The Biden administration has been expelling single adults and some migrant families under the order, implemented due to COVID-19, but has not been expelling unaccompanied children or migrant families with young children.

There were 18,847 encounters of unaccompanied children in August, down slightly from July, and 86.487 encounters of family units, marking a 4% increase over July. Just 19% of encounters involving family unit individuals resulted in a Title 42 expulsion.

The lawsuit also comes after DeSantis, last month, wrote to the Biden administration asking that it stop resettling illegal immigrants in Florida. DeSantis asked that administration officials either deport them or instead send them to a state that supports the "flouting of our immigration laws." 

The Florida governor cited Border Patrol statistics that 59,691 immigrants were issued either a notice to appear in court or an order of recognizance in July alone, and that as of June, 6,254 unaccompanied children had been released to sponsors in Florida this fiscal year.

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DeSantis, one of a number of Republican governors who has objected to the Biden administration’s immigration policies and has blamed them for fueling the surge at the border, told Mayorkas not to resettle migrants in the Sunshine State.

"I ask that DHS immediately cease any further resettlement of illegal aliens in Florida and that the aliens instead be removed from the United States or resettled in states that support the administration’s continued flouting of our immigration laws," he said.

"Floridians welcome responsible immigration that serves the interests of Florida and the American people, but we cannot abide the lawlessness that your department is aiding and abetting on the southwest border," he wrote.

A DHS spokesperson told Fox News in a statement that DHS policy remains that single adults and families are removed under Title 42. Those who Mexico will not take are transported to an ICE facility are released with either a notice to appear or a notice to report at an ICE office.

"As part of the process, Border Patrol agents collect biometric and biographic information – fingerprints, photos, phone numbers, and an address in the United States – and run a background check to identify criminals or those who pose a public safety risk," the spokesperson said.

The spokesperson said that many immigrants are "proactively reaching out to ICE to begin their official immigration processing, including by receiving a Notice to Appear" and that community partners also play a role in getting individuals to report to ICE and court.

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"Those who do not report, like anyone who is in our country without legal status, are subject to removal by ICE," they said.

The Biden administration has faced fierce criticism for its handling of the crisis along the U.S.-Mexico border, which Republican critics have blamed on the dramatic rollback of Trump-era policies like border wall construction and the Migrant Protection Protocols (MPP). It has also narrowed interior Immigration and Customs Enforcement (ICE) priorities and pushed hard for legalization of illegal immigrants already in the country. It has also been releasing migrants into the interior, processing UACs to sponsors already in the country and releasing migrant families -- angering Republican governors and other lawmakers.

The Biden administration has pushed back, blaming the Trump administration for sealing off legal pathways to asylum, while emphasizing the role that root causes -- like poverty, violence and corruption in Central America -- play in encouraging migrants to travel north.

DHS Secretary Alejandro Mayorkas said the administration intended to continue with its border strategy, which he said involves rebuilding "safe, legal and orderly pathways for migrants," improving processing, and going after smugglers.

"We have a plan, we are executing our plan and that takes time," he said in July when he announced border numbers.

He also told Border agents in audio leaked to Fox News that the situation is "unsustainable."

"A couple of days ago I was down in Mexico, and I said look, you know, if, if our borders are the first line of defense, we're going to lose and this is unsustainable," Mayorkas said. "We can't continue like this, our people in the field can’t continue and our system isn't built for it."