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DOJ won’t appeal court ruling in Florida immigration case

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The Biden administration has declined to appeal a decision from last week that blocks a key Department of Homeland Security program that has helped the agency relieve migrant congestion at the U.S. southern border.

U.S. District Judge Kent Wetherell II, a Florida-based judge appointed by former President Donald Trump, issued the 109-page opinion last week, blaming President Joe Biden for the country’s border crisis and giving the government a week to appeal — a deadline that passed on Wednesday.

The parole program, called “parole + ATD,” has allowed DHS to release tens of thousands of migrants into the country while they await immigration proceedings. DHS will now have to provide migrants full “Notices to Appear” instead of resorting to other alternatives to detention.

Immigration activists called on the administration to appeal the ruling, warning that the elimination of the policy could lead to overcrowding at border crossings and risk overwhelming U.S. Border Patrol.

DHS officials declined to comment on the decision. But agency statistics show that use of the program has dropped substantially over the past year, down from over 130,000 cases being handled through the program to just 28 in February of this year.

The decision comes after a four-day bench trial in Pensacola sparked by a lawsuit filed by Florida Attorney General Ashley Moody against the Biden administration in 2021. It is a victory for Moody and Gov. Ron DeSantis, who has made immigration a key part of his platform as he eyes a potential run for president in 2024.

In the case, the state argued that under the Biden administration, DHS changed its policies and “leveraged” the parole program to release thousands of migrants into the community without initiating removal proceedings.

“Border Patrol Chief Raul Ortiz testified that, under the prior [Trump] administration, DHS only allowed the release of applicants for admission at the Southwest Border under ‘very exigent circumstances,’ ” attorneys with the state argued.

Under the Biden administration, Ortiz testified, many migrants are released before it can be determined whether there is a credible fear of persecution, which is a screening procedure to determine whether an individual would fall under the category of asylum seeker.

Attorneys with the Biden administration, however, disputed that DHS had policies in place “directing, encouraging or even hinting at releasing” migrants into the community. Instead, they argued immigration officers are using discretion on a case-by-case basis.

The case is “simply a disagreement on policy,” U.S. Department of Justice attorney Erin T. Ryan argued during the trial. Its resolution, she added, should be at the “voting booth, not the courtroom.”

This story was originally published March 16, 2023, 1:18 PM.

Michael Wilner is McClatchy’s Senior National Security and White House Correspondent. A member of the White House team since 2019, he led coverage of the federal response to the coronavirus pandemic. Wilner previously served as Washington bureau chief for The Jerusalem Post. He holds degrees from Claremont McKenna College and Columbia University and is a native of New York City.

Ana Ceballos is a politics and policy reporter for the Miami Herald. She has covered Florida state government for the Associated Press, Naples Daily News and the News Service of Florida. Before she moved to the Sunshine State, she lived in California and Mexico. She has a journalism degree from San Diego State University, where she was the manager of the student-run newspaper.

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