Jared Culver's Picture


  by  Jared Culver

Another Department of Homeland Security (DHS) catch and release policy bites the dust. Florida Judge T. Kent Wetherell II reviewed the DHS “Parole + Alternatives to Detention (ATD)” policy in a fiery opinion that must be read to be believed. This policy allowed Customs and Border Protection (CBP) to release aliens without a Notice to Appear for removal proceedings and instead just a request that the aliens contact Immigration and Customs Enforcement (ICE). As the judge observes, this is completely counter to the law and a direct cause of the border crisis the country is currently enduring.

While I encourage you to read the opinion in its entirety, I cannot help but spoil it with some of the best quotes:

“...[T]he 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 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.”

So our Department in charge of HOMELAND SECURITY has turned our sovereign borders into a meaningless line in the sand. It is difficult to overstate the impact of policies like the one under review here. The fact is that the Biden Administration’s policy choices are feeding the border crisis that endangers aliens, overwhelming both American communities and government’s resources, and putting public health and safety at risk. In their recent asylum rule, DHS acknowledged that quick removals reduced border numbers, so why did it take a judge to vacate the policy frustrating quick removals? The opinion says between March 2021 and November 2022, 1.6 million aliens were released under catch and release policies, and the Biden Administration is pretending their policies offer no incentive to enter illegally? If you come illegally you get to stay with parole. The cartel’s coyotes aren’t lying to their clients, instead it is the Biden Administration lying to the American people about their policies and their impact.

More from the judge laying this border catastrophe squarely at President Biden’s feet:

“Collectively, these actions were akin to posting a flashing “Come In, We’re Open” sign on the southern border. 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. Indeed, USBP Chief Ortiz credibly testified based on his experience that there have been increases in migration “when there are no consequences” and migrant populations believe they will be released into the country.”

People respond to incentives and the Biden Administration has received the result their policies incentivize. It is really as simple as that.

The opinion also makes clear that the political leadership of DHS was warned very early on of the calamity to come:

“High-ranking immigration agency officials were made aware of the impact of these actions on border security as early as January 28, 2021, when CBP officials prepared an email about the “release of migrants along border” in advance of a briefing with the Assistant Secretary of DHS.

The email explained that CBP was seeing “a stark increase in monthly illegal migration into the U.S., especially in the South Texas area” that was expected to “immediately overwhelm USBP’s short-term detention capacity”; that “[t]he pause on processing pathways[13] … and recent policy changes have also impacted USBP’s ability to expeditiously process and remove those encountered” The email also warned that “USBP will be required to promptly process and release [aliens] due to lack of adjudication pathways and the necessity to maintain the health and safety of the workforce and those in detention during the pandemic.”

So it let it not be said that they did not know. The only possibilities are that they either did not care or the result was what they intended. The judge agrees with me:

“Indeed, the more persuasive evidence establishes that Defendants effectively incentivized what they call “irregular migration” that has been ongoing since early 2021 by establishing policies and practices that all-but-guaranteed that the vast majority of aliens arriving at the Southwest Border who were not excluded under the Title 42 Order would not be detained and would instead be quickly released into the country where they would be allowed to stay (often for five years or more) while their asylum claims were processed or their removal proceedings ran their course—assuming, of course, that the aliens do not simply abscond before even being placed in removal proceedings, as many thousands have done.”

As the opinion makes clear, this border crisis is not the product of a “broken” immigration system. Further, it will not be solved by Congressional amnesty that doubles down on de facto executive amnesty via catch and release. This is a crisis created by the policy of the Biden Administration. The consequences of their actions were clearly foreseeable and explained to them before they embarked on this path. Their latest asylum rule indicates they still haven’t learned their lesson. Congress still has a chance to change their policies for them. The appropriations process allows our elected officials to protect us from the unelected bureaucrats by defunding the policies feeding the fire. It was what they were elected to do, and if they like their jobs then they should try doing them.

JARED CULVER is a Legal Analyst for NumbersUSA

Updated: Thu, May 11th 2023 @ 3:23pm EDT

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