A federal judge granted Attorney General Ashley Moody’s request for a Temporary Restraining Order enjoining the Department of Homeland Security (DHS) from releasing migrants that had been detained under a new and last-minute parole policy.
But the TRO issued on the May 10 Memorandum of U.S. Border Patrol Chief Raul Ortiz expires on May 25.
“We’ll see if it gets converted to a preliminary injunction,” said Gene Hamilton, America First Legal vice president and general counsel. “This legal action has the potential to affect nationally but it depends on the scope of relief that the judge will eventually order, whether he just vacates the memo or whether there's some kind of injunction of further unlawful action.”
Judge Kent Wetherell stated in his May 11 order that the original parole policy, which Ortiz’s memo replaced, did not consider that migrants would be required to return to custody under 8 U.S.C. §1182(d)(5) once the purposes of parole had been served.
“The evidence presented in Florida established that Florida suffers substantial harm — both to its sovereignty and its public fisc — when the federal government releases aliens into the country on “parole” (or otherwise) rather than detaining them as required by the Immigration and Nationality Act (INA),” Wetherell wrote.
A preliminary injunction hearing is scheduled for May 19.
“With evidence, the judge can hold people in contempt and maybe at some point this year we might see that given the flagrant violations happening time and time again,” Hamilton told the Florida Record. “A lot of judges haven't wanted to touch this topic. They don’t want to be seen as harsh, but I think everybody now sees clearly the situation for what it is and that they're going to have to take bold action to stop this lawlessness.”
Moody, who filed the lawsuit on the eve that Title 42 expired, is challenging the fact that the DHS Parole + Alternatives to Detention Policy, without notice and commentary, instruct agents on how to exercise discretionary authority and sets criteria by which aliens are eligible or ineligible for parole.
Because it is an agency rule, the Department of Homeland Security is required to comply with the notice and commentary process outlined in the Administrative Procedures Act.
“Under the new parole policy announced by DHS, tens of thousands more will be released and will likely make their way to Florida,” Moody wrote in her May 11 complaint. “Florida will continue to expend funds on illegal aliens present in the State in the form of public education, incarceration costs for aliens who commit crimes, unemployment benefits, and emergency Medicaid. Those costs will increase as a result of the new parole policy.”
Filed in the Pensacola division of the Northern District of Florida, Moody wants the DHS to provide the court with weekly status reports regarding the Border Patrol’s use of parole authority.
“This legal action has the potential to affect nationally,” Hamilton said in an interview. “It depends on the scope of relief that the judge will eventually order, whether he just vacates a memo or whether there's some kind of injunction of further unlawful action. But it's helpful. It's good and we're proud of the states that are standing up to say no to this lawlessness.
Florida isn’t the only state that has sued. The state of Texas filed a similar lawsuit on May 12.
“You cannot abuse parole authority just to allow people to come into the United States willy-nilly,” Hamilton added.