Posted on May 12, 2023

Judge Blocks Biden’s Post-Title 42 Catch-and-Release Policy

Neil Munro, Breitbart, May 12, 2023

A federal judge blocked a new catch-and-release policy announced by President Joe Biden’s border deputies shortly before they lifted the Title 42 border barrier at midnight.

The temporary restraining order (TRO) was signed by federal Judge T. Kent Wetherell of the U.S. District Court for the Northern District of Florida after a request by Florida’s Attorney General Ashley Moody. The TRO lasts up to 14 days and says:

DHS is enjoined from implementing or enforcing the parole policy contained in the May 10, 2023, Memorandum from U.S. Border Patrol Chief Raul Ortiz, titled “Policy on Parole with Conditions in Limited Circumstances Prior to Issuance of a Charging Document (Parole with Conditions).

A TRO is an extraordinary measure that preserves the status quo while a federal trial judge is determining whether to issue a preliminary injunction, or PI,” explained Breitbart News senior legal contributor Ken Klukowski.


The impact of the court decision is unclear. Biden’s border chief — Alejandro Mayorkas — seems determined to admit a huge number of job-seeking migrants. For example, Mayorkas may try to divert the migration through other questionable legal loopholes or announce that the U.S. superpower does not have the funds to detain the migrants.

“This is a harmful ruling that will result in unsafe overcrowding at C.B.P. facilities and undercut our ability to efficiently process and remove migrants, and risks creating dangerous conditions for Border Patrol agents and migrants,” the agency said in a statement to the New York Times.

More than 10,000 migrants have crossed the border on each of the last three days.

Many more are waiting in Mexico to walk through the border into Americans’ neighborhoods and workplaces.

The judge scoffed at the administration’s claim that his TRO would produce chaos at the border:

the Court fails to see a material difference between what [the border agency] will be doing under the challenged policy and what it claims that it would have to do if the policy was enjoined, because in both instances, aliens are being released into the country on an expedited basis without being placed in removal proceedings and with little to no vetting and no monitoring

In March, Wetherell blocked a very similar catch-and-release policy, dubbed “Parole + ATD.”  The ATD term refers to “Alternatives to Detention” and it was being used by Mayorkas to dodge the federal law that requires him to detain asylum-seeking migrants until their requests are decided.

The federal government’s policy of catch-and-release has allowed at least seven million migrants to reach the United States since 2011. The policy enables migrants to hire smugglers by first mortgaging their farms and homes, and then quickly pay down the high-interest debts with wages earned at U.S. workplaces. If migrants were not released at the border, they could not repay the smuggling fees, and likely would not try to reach the United States.

In a preliminary statement on May 11, the judge declared that Mayorkas’ new “Parole With Conditions” catch-and-release policy is:

Strikingly similar to the Parole+ATD policy vacated in Florida in both its purpose (reducing overcrowding at border patrol facilities) and operation (by releasing aliens into the country without first at least issuing a charging document on the condition that they report to ICE within a specified period, despite having no real way to assess whether the alien is a public safety threat unless the alien self-reports his or her home-country criminal history).

The Washington Post described the new policy:

A memo issued Wednesday by Border Patrol Chief Raul Ortiz authorized supervisors in overcrowded areas to quickly release migrants using an authority he called “Parole with Conditions.” Migrants will be vetted and directed to report to U.S. immigration authorities in their destination cities within 60 days.

According to the Ortiz memo, “the decision to parole a noncitizen must still be made on a case-by-case individualized basis, examining all the facts and circumstances at the time of the noncitizen’s inspection, and only if there is an urgent humanitarian reason, such as ensuring the safety, health and security of the individual noncitizen, or significant public benefit justifying parole.”


In a midnight tweet about the border, Mayorkas ignored the judge’s order as he directed migrants to use the “legal pathways” that he has cut in the border, including the asylum loophole that will soon be judged by the Supreme Court: