Federal judge in Florida blocks Biden administration from releasing some migrants

By: and - May 12, 2023 4:57 pm

A Texas National Guardsman observes as Border Patrol agents pat down migrants who have surrendered themselves for processing at Gate 42, some after waiting near the wall for days, May 10, 2023. (Corrie Boudreaux for Source NM)

A federal judge in Florida in a late Thursday order granted the state’s emergency request to temporarily halt a new Biden administration policy to release from federal custody some immigrants who enter the country without prior authorization. 

The order from U.S. District Judge T. Kent Wetherell II, who was appointed by former President Donald Trump, came just hours before the expiration of the pandemic-era public health policy known as Title 42 that allowed immigration authorities to immediately expel migrants without considering their asylum claims.

Wetherell said the new administration policy, outlined in a May 10 memo from U.S. Customs and Border Protection Chief Raul Ortiz, was nearly identical to one the judge invalidated in another case in March. The federal government’s appeal in that case is ongoing.

“The Court sees nothing materially different about the new policy or the parties’ arguments that would compel a different result with respect to the policy challenged in this case,” Wetherell wrote Thursday.

Absent another ruling, his order will expire in two weeks.


The new Biden administration policy would allow migrants who meet certain conditions and are not deemed national security threats to be released from overcrowded CBP facilities. Migrants at such facilities would have 60 days to schedule an immigration hearing. 

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The policy would take effect only at holding facilities where migrants are in custody on average for 60 hours or longer. Eight of nine CBP sectors already meet that threshold, meaning its impact would be widespread and immediate, Wetherell wrote.

The judge added that the end of the automatic expulsion under Title 42 would likely produce a “surge” in migrants crossing the border.

Numbers of arriving immigrants at the Southwest border remained high Friday but did not spike when Title 42 expired at midnight, Blas Nuñez-Neto, the U.S. Department of Homeland Security’s assistant secretary for border and immigration policy, told reporters on a video call Friday.

DeSantis urges border shutdown

At a news conference in Fort Myers, Florida, on Friday, Florida Gov. Ron DeSantis, a Republican, said the ruling should prompt contemplation by the Biden administration.

“Maybe it will cause them to look internally and say, ‘Maybe we should start doing our job and actually protecting the American people for a change,’ because they have not been willing to do that and, in fact, you now see more people than ever are prepared to storm across,” he said.

DeSantis, a potential candidate for the Republican presidential nomination next year, offered to send workers from Florida to construct a border wall. 

“The border should be shut down,” he said. “I mean, this is ridiculous, what’s going on. You shut it down. You do need to construct a wall.”

He added that anyone crossing the border without authorization should be immediately expelled.

“We also need to just have a policy: If you come across the border illegally, you get sent back,” the governor continued. “You don’t get a notice to appear for a trial in two years. What kind of a deterrent is that? It doesn’t work.”

Administration blasts Florida ruling

White House press secretary Karine Jean-Pierre said Friday that Immigration and Customs Enforcement would add “thousands more beds” as Title 42 ends and Wetherell’s order blocks a potential aid to overcrowding.

She also criticized Florida’s actions, calling the lawsuit “sabotage,” and slammed other Republican officials whose actions she said were counterproductive to an immigration solution.

“Pure and simple, this is sabotage,” she said.

‘What we’re seeing from Republican officials is completely shameful, because it’s political play.”

Nuñez-Neto called the order a “harmful ruling” that would hamper CBP’s operations.

The order “will result in unsafe overcrowding at CBP facilities and undercut our ability to efficiently process and remove migrants, which will risk creating dangerous conditions for Border Patrol agents, as well as non-citizens in our custody,” Nuñez-Neto said. “Republican and Democratic administrations alike have used this parole authority to protect the safety and security of migrants and the workforce.”

The administration would comply with the order, but was reviewing its next steps, he said, indicating an appeal was possible.

Nuñez-Neto and Jean-Pierre called for Congress to address immigration.

The Florida suit, and others from conservative groups and left-leaning organizations like the American Civil Liberties Union, “really clearly demonstrate just how fundamentally broken our immigration system is,” Nuñez-Neto added.

“We are clear-eyed that without bipartisan congressional action, we will continue to face these challenges on our border,” he said. “We invite Republicans and Democrats on the Hill to come together and work with us to once and for all address the underlying issues in our immigration system that are pulling so many migrants to the border.” 

Jennifer Shutt contributed to this report.


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Jacob Fischler
Jacob Fischler

Jacob covers federal policy as a senior reporter for States Newsroom. Based in Oregon, he focuses on Western issues. His coverage areas include climate, energy development, public lands and infrastructure.

Michael Moline
Michael Moline

Michael Moline has covered politics and the legal system for more than 30 years. He is a former managing editor of the San Francisco Daily Journal and former assistant managing editor of The National Law Journal. He began his career covering the Florida Capitol for United Press International. More recently, he wrote for Florida Politics.