GOP attorneys general push for fix to ‘catch-and-release loophole' at southern border, citing terror threat

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FIRST ON FOX: Republican attorneys general, led by Florida AG Ashley Moody, are calling on the Biden administration to fix what they say is a catch-and-release "loophole" — calling for urgency in the wake of the terror attack in Israel.

The coalition of 27 states has written to Department of Homeland Security (DHS) Secretary Alejandro Mayorkas calling for the agency to make regulatory changes that "close the catch-and-release loophole that [DHS] is currently exploiting to implement its mass release policy at the Southwest border."

The petition to initiate rulemaking notes language in U.S. Code 1225 that specifies that migrants crossing illegally or presented at a port of entry "shall be detained" if they are not entitled to be admitted. 

FLORIDA AG MOODY MOVES TO BLOCK DHS FROM RELEASING MIGRANTS INTO INTERIOR WITH COURT DATES

Florida Gov. Ron DeSantis, right, listens as Florida Attorney General Ashley Moody speaks during a press conference at the Broward County Courthouse on Aug. 18, 2022, in Fort Lauderdale, Florida. (Photo by Joe Raedle/Getty Images)

However, the attorneys general say that DHS has been using language in U.S. Code 1226, which says that foreign nationals to which it applies "may" be detained or may be released. The attorneys general say it is that power officials have been using to release migrants into the U.S. — citing stats that more than 100,000 were released via that authority in August alone.

They call the use of the authority in such a manner "flagrantly unlawful," and argue that it applies to those already in the U.S., and not to those crossing the border illegally — an argument Florida has made in court as part of its efforts to block mass releases of migrants into the interior.

Florida Attorney General Ashley Moody, left, and Department of Homeland Security Secretary Alejandro Mayorkas, right. (Getty Images)

"It is not at all clear that any regulation expressly authorizes DHS’s uses of 1226(a) at the Southwest border," they say, arguing that DHS should "amend its regulations to expressly prohibit these releases."

They argue this is necessary not only because the practice is unlawful — a claim which DHS has denied, and said it is conducting immigration policy in accordance with federal law — but because catch-and-release is "having horrendous effects" on the U.S.

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They note the enormous migrant numbers, which hit a new monthly record in September, at the southern border and cite court rulings which tie the increase in numbers to the policies of the administration. 

They also note that due to the number of releases into the interior, some migrants do not have their first court date until 10 or more years in the future.

In a statement to Fox News Digital, Moody cited the recent terror attacks in Israel as an impetus for the move.

"The Biden administration has let more than 7 million illegal immigrants across the U.S. border — including more than 1.5 million gotaways and 264 suspected terrorists. Given the massive flood of unvetted migrants into the interior of our country, there is no way to know who is in the U.S. or if they plan to enact terror on Americans," she said. 

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Department of Homeland Security (DHS) Secretary Alejandro Mayorkas has said repeatedly that DHS is conducting policy in accordance with the laws passed by Congress. (Screenshot)

"Given the risks illustrated by what happened this weekend in Israel, I am leading a coalition of 27 attorneys general taking action to force the Biden administration to enact responsible rulemaking to ensure our nation’s security at our Southern Border."

The attorneys general ask Mayorkas that if he disagrees with their position, "we ask that you promptly deny this petition on the basis so we may seek judicial review."

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Signed onto the petition are the attorneys general of Alabama, Alaska, Arkansas, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia and Wyoming.

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The Biden administration has said it is dealing with a hemisphere-wide migration challenge and has argued that its policies of expanding international cooperation, widening lawful migration pathways while also reasserting consequences for illegal entry since the ending of Title 42 in May is working. Officials have also pointed to stats showing that there have been more removals and repatriations since May than in the same period in 2019.

However, it says that Congress needs to provide additional funding and pass a comprehensive immigration reform bill to fix what it says is a "broken" system.