Federal court to rule on Florida lawsuit over Biden’s catch-and-release policy

The U.S. Court of Appeals for the Eleventh Circuit is set to rule in a case filed by Florida Attorney General Ashley Moody over the Biden administration’s catch-and-release program.

The lawsuit is one of several Moody has filed over Biden's border policies and one of two rulings the Biden administration appealed.

Throughout her years-long struggle with the Biden administration, Moody has called the president a human trafficker because she says his policies are enabling the cartels. She has also called on U.S. Department of Homeland Security Secretary Alejandro Mayorkas, who changed federal immigration policy established by Congress, to resign. Moody’s led several attorney general coalitions, including one calling on Congress to allow states to enforce immigration law when the federal government won’t.

The U.S. House Committee on Homeland Security is expected to file articles of impeachment against Mayorkas next week.

The Eleventh Circuit heard oral arguments on Moody's catch-and-release lawsuit Friday.

Last year, Moody won several federal court battles seeking to halt Mayorkas’ plan to release as many people into the country as possible through new parole programs and policies he created.

The Eleventh Circuit case was filed in March 2021. Moody sued over Mayorkas’ catch-and-release parole policies again in September 2021. After a federal court ruled the policies were illegal and issued injunctions, Mayorkas accelerated the policies in question and issued new guidelines. One new policy defied federal law established by Congress that makes illegal entry into the country a federal crime. Under Mayorkas, this was no longer an arrestable offense.

“The fact an individual is a removable noncitizen therefore should not alone be the basis of an enforcement action against them," Mayorkas said in a memorandum to Immigration and Customs Enforcement officials. "We will use our discretion and focus our enforcement resources in a more targeted way. Justice and our country’s well-being require it.”

The result was millions more foreign nationals were released into the U.S., breaking records nearly every month, The Center Square has reported.

Despite federal court orders, Mayorkas created new policies under different names, Moody’s investigation found. In May 2023, Border Patrol Chief Raul Ortiz announced the agency was implementing a similar parole policy under a new name, prompting Moody to sue again,asking the court to halt the program, which the court did.

During the course of discovery throughout Moody’s litigation, a former Border Patrol chief testified about plans to release foreign nationals en masse and detention capacity being purposefully reduced. An ICE official testified to seven times fewer removals of illegal foreign nationals in one year under Mayorkas than to removals conducted in the 10 years prior and only half the number of people were being detained compared to during the Trump administration.

Florida also joined multi-state lawsuits over Mayorkas policies: to halt Mayorkas’ newly created Central American Minors Refugee and Parole Program devised to allow far more minors who illegally entered the U.S. to stay and bring family members; to block Mayorkas’ non-removal policy and to block another Mayorkas parole program allowing an additional 360,000 Cubans, Haitians, Nicaraguans and Venezuelans to illegally enter the country.

The Biden administration and Mayorkas have argued the federal courts don’t have jurisdiction to rule on these cases, the states suing don’t have standing, and Mayorkas can use “discretion” to implement any policy he wants. They have also argued the border is secure and they inherited a broken system from the Trump administration.

By May 2022, U.S. District Judge T. Kent Wetherell of the Northern District of Florida Pensacola Division rebuked the administration, saying, “Suffice it to say the Court is wholly unpersuaded by Defendants’ position that they have unfettered discretion to determine how (or if) to comply with the immigration statutes and that there is nothing that Florida or this Court can do about their policies even if they contravene the immigration statutes.

“This position is as remarkable as it is wrong because it is well established that no one, not even the President, is above the law and the Court unquestionably has the authority to say what the law is and to invalidate action of the executive branch that contravenes the law and/or the Constitution. Thus, if Florida’s allegations that Defendants are essentially flaunting the immigration laws are proven to be true, the Court most certainly can (and will) do something about it.”

By March 8, 2023, Wetherell ruled Mayorkas’ catch and release policy was illegal, effectively turning “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 and by releasing more than a million aliens into the country – on ‘parole’ or pursuant to the exercise of ‘prosecutorial discretion’ under a wholly inapplicable statute – without even initiating removal proceedings.”

In response to the administration claiming it needed more money from Congress, a claim still being made, Wetherell said, “Thus, like a child who kills his parents and then seeks pity for being an orphan, it is hard to take Defendants’ claim that they had to release more aliens into the country because of limited detention capacity seriously when they have elected not to use one of the tools provided by Congress … and they have continued to ask for less detention capacity in furtherance of their prioritization of ‘alternatives to detention’ over actual detention.”