Earlier this month, a federal judge in Florida blocked a U.S. Department of Homeland Security (DHS) policy that gives officers more discretion to parole, or release from detention, asylum-seekers who arrive at the border. Parole, wrote Judge T. Kent Wetherell II in a bit of Carlsonian prose, has “turned the Southwest Border into a meaningless line in the sand and little more than a speedbump for aliens flooding into the country.” The Biden administration has elected not to appeal.
Wetherell’s opinion betrays how little he understands about immigration law, let alone the reality of life at the border. Because more people seek entry into the United States than the agency can detain, DHS officials have always needed to triage arrivals, detaining only those they believe to be a danger while releasing others to the care of sponsors, who can guide them through the process of seeking legal status outside of a carceral setting. Last October, for example, U.S. Customs and Border Protection (CBP) paroled in close to 90,000 people who arrived at the border, and detained only 19,000.
Under President Joe Biden, the government began shifting resources away from detention. In late 2021, DHS repurposed its family detention centers to only hold adults, temporarily ending the practice of detaining infants and children, too. The administration also asked Congress for 9,000 fewer beds for this year’s immigration enforcement budget. DHS, preparing for this reduction in capacity, changed its policies to expand the availability of parole. Florida’s Republican-controlled government, led by Governor Ron DeSantis and Attorney General Ashley Moody, asked Wetherell, who was appointed to the bench by President Donald Trump in 2019, to stop DHS from following through.
A policy that disfavors incarcerating people fleeing violence and persecution might sound unobjectionable. Wetherell’s opinion, however, compared DHS’s position to that of “a child who kills his parents and then seeks pity for being an orphan.” In this analogy, a government’s decision to shutter baby jails is equivalent to a tragic double parricide.
To arrive at this decision, Wetherell adopts a rigid view of federal immigration law that has become popular among conservatives of late: that it requires DHS to detain every single person who arrives at the border wanting to apply for legal status. Texas made a similar argument to the Supreme Court last year, when it tried to stop the Biden White House from winding down “Remain in Mexico,” a Trump-era program that forced many asylum-seekers to await their court dates in dangerous Mexican border cities. The Court’s opinion in Biden v. Texas left that precise question open. Now, Florida has the answer for which it hoped.
Wetherell’s premise is wrong. DHS has never incarcerated everyone who arrives at the border, because the agency has never had the capacity to do so. That practical reality has meant that DHS officers have always utilized parole as a form of prosecutorial discretion to sort out which migrants it will detain and which it will not. Parole is temporary and doesn’t confer any permanent status, and migrants cannot use it to “avoid normal visa-issuing procedures or to bypass immigration procedures.”
Wetherell also writes that DHS is paroling asylum-seekers “without even initiating removal proceedings,” echoing the sort of open-borders rhetoric that Republicans have used for decades to foment anti-immigrant sentiments. This, too, is misleading. DHS’s policy ordered officers to release migrants, yes, but with instructions to report to an ICE office within 60 days; anyone who fails to do so faces the risk of deportation. Later, DHS reduced this period to just 15 days. In other words, the new policy didn’t get rid of the deportation process. It delayed it by a few weeks.
Wetherell’s opinion depicts the border as a lawless free-for-all, where thousands of migrants can evade ICE and avoid deportation by exploiting Biden’s naive generosity. Naturally, incarceration is the only solution to this crisis that Wetherell can imagine. “Detention is the surest way to ensure that an alien will not abscond pending completion of their immigration proceedings,” he writes.
The numbers suggest otherwise. Once they receive court dates, paroled migrants have a 99.4 percent appearance rate at their first hearing, and a 95.6 percent appearance rate for their final hearing, according to ICE’s data. Asylum-seekers aren’t trying to disappear. They want their day in court, and the chance to make their case for legal status so they don’t have to deal with this country’s broken immigration system anymore. Thanks to Wetherell, more people could soon be stuck in legal limbo for longer.