A federal judge rebuked the Department of Homeland Security for releasing 2,567 migrants on “parole” even after he had issued a temporary restraining order, and demanded that the department track what happens to those migrants as they disperse throughout the country.
Judge T. Kent Wetherell said that in his mind those migrants “should not have been released.”
But he said that because his restraining order wasn’t clear enough on what conduct was being blocked, he cannot conclude that Homeland Security officials intentionally flouted it and thus would not hold department officials in contempt.
“It was the court’s expectation and intention that no aliens would be released under the authority of the Parole with Conditions policy after the [temporary restraining order] went into effect because, in the court’s mind, the policy is still being ‘implemented’ when the alien is released from custody, irrespective of when the alien’s processing was ‘fully completed,’” the judge said in a ruling Tuesday.
Homeland Security will be required to track the migrants and report back in 60 days on how many actually showed up at U.S. Immigration and Customs Enforcement offices to pick up their immigration court summonses, known as a “Notice to Appear.”
The report will also have to detail where the migrants ended up and how they checked in. And the Homeland Security Department must also report on steps it is taking to track down those who fail to report.
Judge Wetherell is a judge at the United States District Court for the Northern District of Florida, appointed to his current post by President Trump in 2019.
The judge had issued a “show cause order” to Homeland Security after The Washington Times reported that the department had used its parole power to release roughly 2,500 migrants on Friday — after the judge’s restraining order went into effect just before midnight.
Biden administration officials admitted to 2,576 releases, but said the migrants had been “fully processed” or parole before the order kicked in. But because Customs and Border Protection generally avoids overnight releases, the migrants were kept in custody until Friday.
CBP officials said they considered the paroles completed before the order, even though the releases were not.
Judge Wetherell’s restraining order had prohibited the department from “implementing or enforcing” parole.
“Indeed, the entire point of the policy is to release aliens from custody more quickly, and it is hard to understand how an alien can be both ‘paroled’ and in custody at the same time,” the judge wrote.
Parole is a special power Homeland Security has to pass people into the country even though they lack a visa or other permit to enter. It is supposed to be used on a case-by-case basis in extraordinary circumstances, but under the Biden administration it has become a shadow immigration system, with 1.5 million paroles issued since Oct. 1, 2021.
The Border Patrol has planned to use parole to speed its catch-and-release policy at the border, anticipating a massive surge of migrants when Title 42, the pandemic border expulsion power, expired last week.
Judge Wetherell had previously ruled against another parole policy and ruled last week that the new policy also flouted immigration law. His restraining order prohibited use of parole once Title 42 expired.
In his ruling this week, he said Homeland Security officials should have asked for clarification about the post-parole releases. But he said he couldn’t find them in contempt of his order — particularly because CBP did appear to be diligent in halting processing of parole, even if it did release parolees.
CBP admitted to the judge that its records do show some 167 migrants that may have been paroled after the restraining order took effect. The agency is still trying to track down what happened in those cases. Judge Wetherell said he would defer a decision on contempt for those cases until the department responds.
The judge, in a separate ruling Tuesday, converted his restraining order into a preliminary injunction.
The effect on Homeland Security’s operations is the same, but now that the department is facing a formal injunction it can appeal to a higher court.
Judge Wetherell predicted the case could quickly reach the Supreme Court.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
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