DHS says it complied with judge’s order on border releases

A Homeland Security official told a federal judge Monday that the department generally has complied with his order to stop issuing “parole” to illegal immigrants last Thursday, saying that while some people were officially released after the judge’s deadline, they had been “fully processed” before that.

But David S. Bemiller, a senior official at Customs and Border Protection, said there are 167 cases that they haven’t been able to nail down — including 130 people who don’t have a processing time listed, and 37 people whose files show they were processed after the deadline.

Judge T. Kent Wetherell had ordered the administration to explain itself after The Washington Times reported some 2,500 people were paroled after his temporary restraining order took effect Thursday at 11:59 p.m.

“Based on our review to date, it appears that the instructions in Exhibit A generally were followed by the field. As explained below, however, an initial review of the data indicates that some individuals may have had their parole processing completed after 11:59 pm on May 11,” Mr. Bemiller told the judge in a sworn declaration. Exhibit A was the guidance issued to Border Patrol stations for how to comply with Judge Wetherell’s temporary restraining order.

Mr. Bemiller added: “We are actively reviewing the data to seek to determine whether the individuals were in fact processed after 11:59 pm on May 11 and if so how that occurred contrary to the instructions to the field and the Court’s order.”

He asked for 48 hours to track down the specifics of those cases.

The Times, citing a Homeland Security source, reported that CBP had paroled roughly 6,000 people Thursday, before the restraining order kicked in, and 2,500 more Friday, after the order blocked parole.

Mr. Bemiller said they paroled a total of 6,413 people in all, or roughly 2,000 fewer than The Times’ source indicated.

He did say 2,576 releases came after the restraining order was in effect, but he said they were fully processed and granted parole before the deadline. But because CBP doesn’t do overnight releases, he said, they were freed from custody the next day, after the deadline.

“Consequently, USBP released on May 12, 2023 these noncitizens who had already been fully processed prior to the time the TRO took effect.” Mr. Bemiller said.

In the wake of The Times’ report, Judge Wetherell had issued a show-cause order to Homeland Security to explain what happened.

He said he had “a healthy degree of skepticism” about what appears in the media.

“However, the Court takes allegations of noncompliance with its orders very seriously, irrespective of the source of the allegations,” the judge wrote.

The judge is overseeing a case involving a legal challenge to the use of parole at the border.

Border Patrol Chief Raul Ortiz, anticipating a new surge of illegal immigrants with the end of Title 42, had issued a memo authorizing the use of parole to catch and release new arrivals. He said there were going to be too many people coming, and they would swamp the Border Patrol’s holding cells and create unsanitary conditions.

His deputy, in a court filing, told Judge Wetherell the choice was between catch-and-release or not catching them at all.

Parole is a special power Homeland Security has to pass people into the country even though they lack a visa or other permit that would allow them to enter. It is supposed to be used on a case-by-case basis in extraordinary circumstances, but under the Biden administration has become a shadow immigration system, with 1.5 million paroles issued since Oct. 1, 2021.

Judge Wetherell earlier this year had ruled against a border parole program, and expressed surprise when the administration created a new program that looked similar to the one he’d already enjoined.

As it turns out, the border numbers have surprisingly dropped in the days since the end of Title 42 on Thursday, from about 10,000 a day down to less than 5,000 a day from Friday through Sunday.