Homeland Security officials say they have identified several thousand more migrants they paroled into the country last week ahead of a judge’s restraining order, but said all of the releases complied with their understanding of the terms of the order.
Officials made the revelation in a court filing Friday, after a Washington Times story indicated roughly 2,500 migrants were released after Judge T. Kent Wetherell II’s temporary restraining order took effect just before midnight on May 11.
A top border official told the judge that all releases — including 167 releases that had been marked in the system as either coming after the order took effect, or showing no timestamp at all — were in fact processed before the deadline.
But David S. BeMiller, a senior official at Customs and Border Protection, said they did discover that another set of numbers they provided the judge earlier this week was wrong.
Mr. BeMiller said the actual number of migrants released on what was known as “Parole with Conditions” was 8,807. That’s substantially higher than the 6,413 he’d told Judge Wetherell earlier — and much closer to the roughly 8,500 number The Times had reported over the weekend.
Of those, Mr. BeMiller said 2,572 were released after the restraining order took effect.
But he said they had all been processed and approved for parole before the restraining order. He said they were held for release on Friday, after the judge’s order had taken effect, because CBP doesn’t like to do overnight releases. So CBP considered them fully paroled, even though they were still in custody.
That explanation had irked Judge Wetherell, who in an order Tuesday said the releases seemed to contrast with his restraining order. He said Homeland Security should have come back to him for more clarity on his order before releasing people after his deadline.
“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 TRO 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 his ruling.
He said, however, that he would not hold Homeland Security in contempt because they appeared to be acting in good faith based on their policies.
At that time, Mr. BeMiller had raised the issue of the 167 other cases and said he would have to check into those more.
On Friday he said that after doing a manual review of all cases, they found each of them had been “fully processed under Parole with Conditions” before the restraining order took effect.
“This was determined, in most cases, by examining the processing history available in CBP’s systems to confirm the time at which processing was, in fact, completed,” Mr. BeMiller said in his sworn declaration. “The manual review determined that the lack of a process complete time for 130 individuals, and the process completion time after 11:59 p.m. ET on May 11, 2023, for 37 individuals, were data entry errors.”
His explanation for undershooting the total number of migrants released on parole by roughly 2,400 people was that they were using too narrow a search last time, and missed some records that hadn’t been properly pulled into a “centralized data warehouse.”
“Because the data in the centralized data warehouse has had more time to settle, the data analysis we completed this week is going to be more accurate than the data pulled on Monday to meet the Court’s original deadline,” he told the judge.
The administration had wanted to use the “Parole with Conditions” program to handle the surge of migrants it had expected at the border starting Friday with the expiration of the Title 42 pandemic emergency power to expel the migrants.
The logic was that it takes too long to catch and release a migrant through regular processing — up to two hours — while parole takes about 15 minutes per migrant. Detaining and deporting migrants who don’t qualify for protection was never seriously considered by Homeland Security, which said it didn’t have the space to hold them.
Judge Wetherell ruled that the parole program violated the law. He said parole was supposed to be used in exceptional cases where the unauthorized migrant lacked a visa to enter, but had a compelling reason such as needing medical treatment or to serve as a witness in an investigation.
He ruled that the Border Patrol’s overcrowding — a problem he said the Biden administration’s policies created — wasn’t a valid reason for a mass parole.
Besides, he ruled, under parole migrants are supposed to be returned to their original status at the end of their time in parole. But there is little sense the Biden administration has made arrangements to track down, detain and perhaps deport those it’s releasing on parole.
Some 1.5 million people have been paroled into the country since Oct. 1, 2021.
The Biden administration has filed an appeal of Judge Wetherell’s ruling, despite the lower border numbers.
In a filing with the appeals court, Border Patrol Chief Raul Ortiz said that if numbers go back up his agents will be stretched thin if they can’t speed up catch-and-release.
“USBP is not able to predict with certainty when or where noncitizens will enter between ports of entry or how many noncitizens will cross at a particular time,” he said, describing a border situation dictated by smuggling cartels, where agents are largely reactive.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
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