Over 40% of migrants released under blocked Biden policy failed to check in with ICE within allotted time

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A substantial minority of migrants released under a now-blocked migrant release policy enacted by the Biden administration in May failed to check in with Immigration and Customs Enforcement (ICE) as required, and a federal judge concluded that it shows the "inefficacy" of the program.

The numbers emerged in a court filing in the case over the Biden administration’s Parole with Conditions policy, which briefly saw migrants released into the U.S. without court dates due to overcrowding before the end of Title 42 May 11. One of the conditions was to check in with Immigration and Customs Enforcement (ICE) within 60 days. 

The Department of Homeland Security previously said it released more than 6,000 migrants into the U.S. under the policy, which was implemented May 10 but shut down just over 24 hours later after a lawsuit from Florida.

Judge T. Kent Wetherell issued a temporary restraining order and later agreed to a lengthier preliminary injunction as he found the policy was similar to a previous policy under which migrants were paroled into the U.S. into Alternatives to Detention.

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A U.S. Border Patrol agent talks with asylum seekers waiting between a double fence along the U.S.-Mexico border near Tijuana, Mexico, May 8, 2023, in San Diego. (Denis Poroy)

In the latest filing, Wetherell cited data provided by DHS that said that while migrants were required to check in with ICE within 60 days so they could be issued a notice to appear, a significant minority did not do so.

"Not surprisingly, a substantial number (41%) of the aliens did not check in with ICE as directed," Wetherell said. "And, of those aliens who did check in, only a fraction have been issued an NTA — which means that immigration proceedings against those aliens have not even commenced.

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"All totaled, only 18% (464/2572) of the aliens released under the PWC policy after it was enjoined by the Court have been issued an NTA and placed in removal proceedings. The other 82% (2108/2572) are either awaiting the issuance of an NTA (1043) or their whereabouts are unknown (1065)."

DHS told the court it "is prepared to take such actions as may be required to ensure that individuals who were released pending the initiation of their immigration court proceedings comply with the terms of their release" and that the agency "maintains its commitment that individuals have an obligation to comply with requirements imposed by DHS."

U.S. Homeland Security Secretary Alejandro Mayorkas speaks during the daily press briefing in the Brady Press Briefing Room of the White House in Washington, D.C., May 11, 2023. (Brendan Smialowski/AFP via Getty Images)

DHS had previously noted that migrants released on parole must still report to immigration authorities in the interior and has claimed that those encountered undergo "strict national security and public safety vetting and are subject to immigration consequences and potential prosecution."

"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," a DHS spokesperson said in May.

Wetherell called the statistics "troubling."

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"But even more troubling is the fact that DHS apparently does not have a plan in place to track down the aliens who are in violation of the conditions of their ‘parole ’— and, thus, unlawfully in the country," he said.

He also highlighted testimony from an ICE official who said the agency "may" rather than "will" take enforcement action against those in violation.

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"Given that the initiation of removal proceedings is what was supposed to happen if the alien had checked in as directed, it is hard to understand why DHS thinks that aliens will take any of its directives seriously if their ‘punishment’ for not doing so ends up being the same thing that would have happened if they complied," he said.

The Biden administration has dramatically expanded the use of parole, which is supposed to be used on a "case by case" basis for urgent humanitarian reasons or significant public benefit, as part of its strategy to deal with the ongoing crisis at the border.

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Despite the block of the parole policies, the administration is paroling migrants through ports of entry to the tune of 1,450 a day via the controversial CBP One app. It has also implemented a parole program for nationals from Cuba, Venezuela, Nicaragua and Haiti.

The administration has said it is expanding legal pathways to bring order at the besieged southern border, which has seen record highs of apprehensions. Numbers went down sharply to 144,000 encounters overall in June, still historically high but down from both May 2023 and June 2022. 

Fox News' Jacqui Heinrich contributed to this report.