Biden Administration’s ‘Catch and Release’ Border Policy Struck Down by US Judge

President Joe Biden speaks during the 2023 International Association of Fire Fighters Legislative Conference in Washington, D.C., on March 6, 2023. Saul Loeb/AFP via Getty Images

The federal government’s program of releasing many illegal immigrants rather than holding them until their cases are resolved violates federal law, a U.S. judge ruled on March 8.

“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,” U.S. District Judge Judge T. Kent Wetherell, a Trump appointee, said in the ruling.

Wetherell struck down Alternatives to Detention, a program through which President Joe Biden’s administration has released more than one million aliens into the U.S. interior.

Florida Attorney General Ashley Moody, a Republican, sued the government in 2021 over the policy, arguing the catch-and-release policy violated federal law.

Biden administration officials have claimed they had the discretion not to hold immigrants and that Florida lacked standing.

Under Supreme Court precedent, immigration officials have “broad discretion” in carrying out immigration laws, but must adhere to laws established by Congress. The Immigration and Nationality Act, one such law, states that immigrants who arrive at the border without proper documents are subject to quick removal without a hearing or review. Immigrants who claim asylum can have their claims heard but “shall be detained” until the claims are resolved.

The “shall be detained” wording “means what it says and that is a mandatory requirement," Wetherell said in the new ruling.

The government’s position “would render mandatory detention under” the law “meaningless,” he added later.

The judge also said Florida has standing because it has a procedural right under Administrative Procedure Act and a quasi-sovereign interest in its territory and on illegal aliens being within that territory. The government’s failure to hold immigrants as required by the Immigration and Nationality Act, according to the judge, harms states because “they cannot do anything to keep those aliens out of the state.” States are also harmed because they have to spend money to deal with the aliens, the ruling said.

Wetherell vacated the policy under the procedure act, remanding it back to the government for further work consistent with his order.

Moody said in a statement: “Today’s ruling affirms what we have known all along, President Biden is responsible for the border crisis and his unlawful immigration policies make this country less safe. A federal judge is now ordering Biden to follow the law, and his administration should immediately begin securing the border to protect the American people.”

Federal officials did not respond to requests for comment.

The ruling was stayed for seven days to allow the government time to appeal.

Minors lie inside a pod at the Donna Department of Homeland Security holding facility, the main detention center for unaccompanied children in the Rio Grande Valley run by the U.S. Customs and Border Protection in Donna, Texas, on March 30, 2021. Dario Lopez-Mills/Pool/AP Photo

‘Urgent Humanitarian Need’

Alternatives to Detention started in the early 2000s, but has been used more frequently under the Biden administration.

A summer 2021 email on expanding the program said Customs and Border Protection (CBP) agents would have the ability to parole immigrants after considering whether there was room in detention for them and what risk they posed, among other factors. Under federal law, immigration authorities can grant parole on a case-by-case basis for “urgent humanitarian reasons or significant public benefit.”

An immigrant released on parole would not receive a notice to appear in court. They would be told to report to the Immigration and Customs Enforcement office nearest their “final destination” within 60 days or “face removal from the United States.” Deportations still happen under the Biden administration, but have plunged from Trump-era levels.

The email setting out the expanded program did not mention COVID-19 or other health issues.

In a Nov. 2, 2021, memorandum, U.S. Border Patrol Chief Raul Ortiz formally detailed the updated policy, asserting it was necessary due to an “urgent humanitarian need to protect the workforce, migrants, and American public against the spread of COVID-19 that may be exacerbated by overcrowding in CBP facilities.” Once COVID-19 conditions improve, “it is expected that there will no longer be a need for this alternative pathway,” he said.

But authorities later reauthorized the program despite the U.S. Centers for Disease Control and Prevention moving to terminate Title 42, a public health order. The Supreme Court has halted the termination of the order. The centers cited the easing of pandemic conditions. In the reauthorization memo for the immigration program, COVID-19 was not mentioned. The program was needed for “disease mitigation,” the memo stated.

The program and other actions “were akin to posting a flashing ‘Come In, We’re Open’ sign on the southern border,” Wetherell said. “The unprecedented ‘surge’ of aliens that started arriving at the Southwest Border almost immediately after President Biden took office and that has continued unabated over the past two years was a predictable consequence of these actions.”

Officials have also asked for lower detention capacity in budget requests while asking for increased funding for alternatives to detention.

“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 in §1225(b)(2)(C) and they have continued to ask for less detention capacity in furtherance of their prioritization of ‘alternatives to detention’ over actual detention,” the judge said.