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Federal Judge Issues Temporary Restraining Order Halting DHS Plan to Release Foreign Nationals into the U.S. En Masse

TRO in effect for two weeks.
Migrants receives pizza from volunteers after being released from a respite center at the Texas-Mexico border, Thursday, May 11, 2023, in Brownsville, Texas. Julio Cortez | AP
Migrants receives pizza from volunteers after being released from a respite center at the Texas-Mexico border, Thursday, May 11, 2023, in Brownsville, Texas. Julio Cortez | AP

By: Bethany Blankley

A federal judge in Florida Thursday night issued a temporary restraining order halting the Biden administration’s plan to release illegal foreign nationals into the U.S. en masse.

The order is in effect for two weeks.

The judge issued the order in response to a lawsuit filed by Florida Attorney General Ashley Moody, who sued after she learned of the plan. Moody argues it violates a previous order issued by the same judge in a lawsuit she filed over a year and a half ago and won in March.

U.S. District Judge T. Kent Wetherell for the Northern District of Florida Pensacola Division Thursday night granted Moody’s request to issue a temporary restraining order and enjoined the Department of Homeland Security from implementing or enforcing a new parole policy it created. A May 10, 2023, Memorandum issued by Border Patrol Chief Raul Ortiz, “Policy on Parole with Conditions in Limited Circumstances Prior to Issuance of a Charging Document (Parole with conditions),” is the same parole program Judge T. Kent Wetherell already ruled was illegal but was announced under a new name, Moody argues.

The TRO went into effect at 11:59 p.m. EST to correspond with the end of Title 42 and to give Moody time to seek an emergency stay from a higher court.

The TRO will expire in 14 days on May 25.

A preliminary injunction hearing is scheduled for May 19 in Pensacola.

At a hearing before Whetherell on Thursday, the Biden administration argued that without being able to release people en masse they would have 45,000 illegal foreign nationals in custody by the end of the month. On Wednesday, they already had 28,000 in custody.

On May 9, The Center Square reported that there were already 27,000 illegal foreign nationals in custody and “of that 27,000, a little over 5,000 are processed waiting for their next phase in the process,” a Border Patrol agent in the Rio Grande Valley of Texas told The Center Square. “Every sector is near 150% capacity,” the agent said, referring to nine U.S. Customs and Border Protection sectors along the southwest border, five of which are in Texas.

Wetherell replied to the administration’s argument, saying, “this problem is largely one of Defendants’ own making through the adoption and implementation of policies that have encouraged the so-called ‘irregular migration’ that has become fairly regular over the past 2 years,” the Los Angeles Times reported.

The judge replied with the same perspective he gave in his March 8 order, ruling the parole program was illegal. He said the administration’s policies “were akin to posting a flashing ‘Come In, We’re Open’ sign on the southern border. The unprecedented ‘surge’ of aliens that started arriving at the Southwest Border almost immediately after President Biden took office and that has continued unabated over the past two years was a predictable consequence of these actions.

“Thus, like a child who kills his parents and then seeks pity for being an orphan, it is hard to take Defendants’ claim that they had to release more aliens into the country because of limited detention capacity seriously when they have elected not to use one of the tools provided by Congress in §1225(b)(2)(C) and they have continued to ask for less detention capacity in furtherance of their prioritization of ‘alternatives to detention’ over actual detention.”

CBP maintains that the ruling is “harmful” and will result in overcrowding of CBP facilities and “undercut” its ability to “efficiently process” illegal foreign nationals into the U.S. Their release instead of deportation, Moody and others argue, violates federal law.

CBP says it will comply with the order and DHS is expected to appeal.

Related Story: Biden Admin to Release Illegal Immigrants ‘En Masse’ Without Tracking Technology, Court Dates

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