ATLANTA (CN) — The federal government on Friday asked an Eleventh Circuit panel to overturn a Florida federal judge's 2023 ruling that ended a Biden administration policy of releasing on parole some immigrants who entered the United States through its southern border with Mexico.
U.S. District Judge T. Kent Wetherell sided with Florida’s Republican attorney general last year in its challenge to the 2021 Department of Homeland Security policy. The Trump-appointed judge ruled that releasing some migrants who were not subject to mandatory detention requirements violated U.S. immigration law and unfairly caused the state to spend public funds on noncitizens.
The three-judge panel of the Atlanta-based appeals court appeared divided on Friday over whether Florida had legal standing to file the lawsuit alleging that more than 100,000 people had been released into the Sunshine State due to the policy.
State officials claimed the practice of temporarily releasing immigrants on parole left Florida on the hook to provide those people with public education, emergency Medicaid and other services.
Justice Department attorney Joseph Darrow told the panel that the policy, officially called Parole Plus Alternative to Detention, was based on “reasonable” memoranda.
The Biden administration implemented the policy after a November 2021 Department of Homeland Security memo authorized “alternatives to detention” to ease overcrowding in detention facilities. A migrant released on parole was enrolled in Immigration and Customs Enforcement's Alternatives to Detention program and told to report to an ICE office within 15 days to be processed for removal proceedings.
Paroled immigrants were supervised via electronic ankle monitors and other technology.
Judge Wetherell ruled that widespread use of the policy violated the Immigration and Nationality Act.
"The evidence establishes that defendants have effectively turned the southwest border into a meaningless line in the sand and little more than a speedbump for aliens flooding into the country by prioritizing ‘alternatives to detention’ over actual detention," Wetherell wrote.
Attorneys for the federal government have argued that the decision tossing out the policy disrupted Homeland Security’s mission to ensure safety at the border by leaving officers with fewer options for addressing sudden increases in border encounters.
Darrow argued on Friday that Florida has not proven it was directly injured by the policy.
“The only injury the district court identified was an increase in the number of immigrant students being educated in Florida schools. But if you actually look at the nuances of that, that determination was not traceable to the Parole Plus ATD policy,” Darrow said.
Darrow told the panel that Florida’s data showing an increase of 17,000 immigrant students in public schools in the 2021-2022 school year, compared to the previous year, also includes other groups, like U.S. citizens who were born abroad, legal permanent residents and those on various visas.
According to the lower court’s ruling, Florida spends about $8,000 per public school student per year. Wetherell said he had “no trouble finding that at least some of the aliens released under the challenged policies have enrolled their children in Florida’s public schools and caused the state financial harm.”
U.S. Circuit Judge Charles Wilson, a Clinton appointee, repeatedly asked how many of those students could be directly linked to the Parole Plus Alternative to Detention policy.
“Florida’s argument, as I understand it, is that there are more students in Florida schools that they have to educate and there are increased costs that are attributable to this policy. Where’s the data to reflect that? To support that you’ve got an injury that’s not just speculative?” Wilson asked.
Attorney James Percival, chief of staff for Florida attorney general Ashley Moody, admitted the state does not know exactly how many new students in Florida schools are there due to Parole Plus.
Percival said Wetherall was allowed to make an “inference” that at least some of the students were immigrants from the southern border based on evidence that one iteration of the policy was “disproportionately a family unit policy.”
Trump-appointed U.S. Circuit Judge Britt Grant did not appear to share Wilson’s concerns, asking Darrow, “Is it even plausible that the number [of non-citizens] would be zero? Don’t we have to consider reality a little bit? Is it plausible to assume there were not any?”
In rebuttal, Darrow argued that the panel does not have to make any determination about the number of noncitizens actually present in Florida because the state also has not proven that the immigrants were using state services and that their use "resulted in a net cost to the state."
The panel was rounded out by U.S. Circuit Judge Barbara Lagoa, a Trump appointee. The panel did not indicate when it would reach a decision in the case.
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