Credit the inestimable immigration reporter Stephen Dinan for uncovering a stunning DHS court disclosure, specifically the declaration of Daniel Bible, deputy executive associate director at ICE’s Enforcement and Operations (ERO) unit (i.e., the number-two official responsible for finding and removing illegal aliens in the United States), in Florida v. Mayorkas. Bible plainly drew the short straw when he agreed to sign off on what is a rare window into just how screwed up the Biden administration’s border release policies are.
Florida v. U.S. (Florida I). To briefly set the stage for the Bible declaration, you must go back to a complaint filed by the state of Florida in September 2021, in a case captioned Florida v. U.S. (which I call Florida I because there's another Florida v. U.S. case, which I call Florida II; see below). It alleged therein that the administration was deliberately “ignoring” a congressional mandate in section 235(b) of the Immigration and Nationality Act (INA) that requires DHS to detain migrants who have crossed the Southwest border illegally, directly resulting in fiscal harm to the state.
On March 8, after more than a year of argument and discovery in Florida I, Judge T. Kent Wetherell II issued an opinion largely agreeing with the state’s claims.
Judge Wetherell’s order explicitly vacated a DHS policy called “Parole+ATD”, under which Border Patrol agents were directed to release illegal migrants on “parole” under section 212(d)(5)(A) of the INA with “alternatives to detention” (ATD), without issuing them Notices to Appear (“NTAs”, the charging documents in removal proceedings) or giving them hearing dates.
The administration’s rationale was that it was more efficient (that is, quicker) to release those migrants without NTAs than to complete the paperwork required to place those aliens into removal proceedings, as Judge Wetherell made clear: “The supplemental administrative record indicates that the ‘processing time’ for issuing as NTA is between 2 to 2.5 hours, whereas Parole+ATD only takes 15 to 30 minutes.”
Aliens released on Parole+ATD, therefore, were expected to appear at ICE offices in the interior where they would be served with NTAs and placed into removal proceedings, completing the process that agents had begun at the border.
The problem was that so many aliens had been paroled under that program and its predecessors that, according to NBC News, nearly 600,000 of them were awaiting their ICE call-ins as of February, and in March the New York Post reported that the New York City ICE office was “fully booked” for such interviews until October 2032.
Florida II. So far, so good, or at least that’s what Judge Wetherell thought when he issued his order in Florida I.
Notwithstanding that order, on May 10 — the day before Title 42 was scheduled to end — Border Patrol Chief Raul Ortiz issued a memo directing his agents to implement a new policy called “Parole with Conditions” once the Border Patrol's processing facilities reached 125 percent of capacity, or whenever agents apprehended more than 7,000 illegal entrants in a 72-hour period, or when Border Patrol was holding migrants for 60 hours or more.
Under this new policy, aliens in Border Patrol custody would again be paroled without being issued NTAs, or as that memo put it “in advance of the issuance of an NTA”.
Soon after news of Chief Ortiz’ memo started filtering out, on May 10, the state of Florida filed its complaint in Florida II. Based on what little information it had at hand (that memo had not yet been publicly released), Florida argued that the latest policy “may violate” the court’s March 8 vacatur of Parole+ATD in Florida I.
The state continued, arguing: “But it is unquestionably cynical, in bad faith, and contrary to both the [INA] and the [Administrative Procedure Act, “APA”]. It is also, unfortunately, consistent with the game of whack-a-mole DHS has been playing with Florida and this Court for almost two years.” On these grounds, the state asked the district court for a temporary restraining order (TRO) of the “new” policy.
As luck would have it, Florida II was also assigned to Judge Wetherell, who was less than pleased, as he explained in his May 11 order granting the state’s request for a TRO:
The Court hoped that after issuing the decision in [Florida I], it would be able to go back to its normal docket and simply watch the political finger-pointing about the immigration crisis from afar. That, however, was not to be.
The court concluded that a TRO was in order because Florida was likely to succeed on its claims, given:
the challenged policy appears to be materially indistinguishable from the Parole+ATD policy vacated in [Florida I] — both in its purpose (reducing overcrowding at border patrol facilities) and manner of operation (releasing aliens into the country without first issuing a charging document placing them in immigration proceedings and simply directing the aliens to report to ICE within a specified period for further processing).
Order to Show Cause and the May 16 Order. Subsequent events likely did little to endear DHS to the court, particularly when it came to light (in a story also broken by Dinan) that DHS had paroled more than 2,576 border migrants the day after Judge Wetherell issued his order in Florida II, on top of approximately 6,000 the day before.
That prompted the court to issue an Order to Show Cause on May 15, demanding that DHS explain what had happened. DHS, in turn, offered its take that the order still allowed it to release aliens on parole whose processing was “fully complete” prior to the issuance of that order, but who had not yet been scooted out the door.
Judge Wetherell wasn’t exactly pleased with that explanation, noting in his May 16 order resolving the issue: “Ideally, DHS would have sought clarification from the Court before making a unilateral decision to release aliens under the authority of the Parole with Conditions policy after the TRO took effect.” Still, he didn’t hold anyone in contempt.
What he did do in that order, however, was to direct DHS to “report to the Court how many of the 2,576 aliens who, in the Court’s mind, should not have been released on ‘parole’ after the TRO went into effect reported to ICE as required by the Parole with Conditions policy”.
Specifically, he directed the department to:
identify the number of aliens who have reported to ICE and been issued NTAs; indicate when, where (city and state), and how (in person or online) these aliens reported to ICE and were issued NTAs; and explain what steps DHS is taking to track down the aliens who did not report as required and whether those efforts have been successful.
That report was due 60 days after the issuance of Judge Wetherell’s May 16 order, consistent with a requirement in the Parole with Conditions policy that those aliens were to report to ICE within that time — giving the agency ample time to compile its statistics before responding.
The Bible Declaration. Which brings me to DHS’s response to that order, and specifically the Bible declaration.
In that declaration, Mr. Bible explained that of the 2,572 aliens covered by the court’s order, 1,507 had checked in with ICE, and 464 aliens in that group had received NTAs — a 58.6 percent appearance rate among a limited cohort of aliens that ICE had every incentive possible to round up.
Why did just 464 of those highly scrutinized aliens — 37.4 percent of those who actually appeared — get NTAs? Bible blamed “limited agency resources”, which seems a little fishy given the fact that the Supreme Court in June gave DHS Secretary Alejandro Mayorkas carte blanche to order ICE ERO to ignore criminal aliens who were already in the country — likely freeing up “limited agency resources”.
That declaration further explained that ICE is allowing some of those aliens to check in with the agency without actually appearing, which is why it hasn’t issued those aliens NTAs, either.
Note that of the 464 aliens who were issued NTAs, 319 received them in person, with 15 receiving their charging documents via certified mail, 68 through regular mail, and the remaining 62 aliens either in-person or via mail. ICE isn’t sure because “Additional manual review is required to determine the exact manner of service for these individuals.”
Anyone familiar with how ICE does its business understands just how verkakte this response is. An NTA must indicate on its face how the document was served — how hard would it have been to check 62 of them in a high-profile case involving a judge who really isn’t pleased with how the process has been playing out up to this point?
The declaration takes a turn into the truly bizarre, however, when Mr. Bible explains:
In accordance with the Parole with Conditions guidance, noncitizens in this report were issued parole valid until July 10, 2023. As such, the 1,065 noncitizens documented in the report as not yet having checked in with ICE are not considered to have violated the terms of their parole. The data was accurate as of 5:31p.m. EDT on July 10, 2023. Thus, they could have checked in with ICE after 5:31 p.m. EDT July 10, 2023, and still be within the terms of their parole.
Seriously? Does ICE treat alien call-ins like they are central post offices that remain open after-hours on Tax Day so that last-minute filers can get in just under the wire? Even better, why couldn’t Bible update his declaration between “5:31p.m. EDT on July 10, 2023” and July 15, when DOJ filed it?
To be fair, however, he did admit that “ICE does not expect the numbers to substantially change when they are updated to account for this lag in reporting”, after which point “ICE’s decision-making about future enforcement actions will be better informed”.
“Better informed”? How about just “better”, because “ICE’s decision-making” has been sorely lacking up to this point. And yet, somehow it gets worse, with Bible averring:
In the event noncitizens processed under the Parole with Conditions guidance fail to properly report to ICE or request a [NTA] via mail, by July 10, 2023, ICE may take an enforcement action against those noncitizens. Enforcement actions are determined on a case-by-case basis and may include, but are not limited to, initiation of removal proceedings, arrest, increased monitoring through the [ATD] program, and/or confinement in a detention facility. [Emphasis added.]
“May take an enforcement action”? Every alien who is covered by the May 16 order: (1) entered the United States illegally; (2) was apprehended by Border Patrol agents after doing so; and thus (3) is subject to mandatory detention, prosecution, and — if ordered removed — removal from the United States.
And yet, the “enforcement action” that Bible starts the list with is “initiation of removal proceedings”, that is, service with an NTA.
That’s a statutory requirement, and again, it was DHS’s failure to issue NTAs to apprehended illegal entrants that formed the basis for Judge Wetherell’s orders in both Florida I and Florida II. Yet Mr. Bible won’t even commit to doing that with respect to the Parole with Conditions aliens who fail to appear.
As for ATD, “flight risk” is one of two factors considered in determining whether a removable alien who is eligible for release should be released (the other is “danger to the community”). No alien covered by the May 16 order should ever have been cut loose, but the 1,065 who failed to appear are a double flight risk, having shown contempt for U.S. law by entering illegally and then by failing to show up as required after release.
Does any non-intoxicated person with even a limited understanding of how the real world works think any of those scofflaws would show up in response to an appearance order after they have been ordered removed for deportation? Even better, does anyone think that any ATD process (telephonic reporting, Global Positioning System (GPS) monitoring, or the check-ins via the SmartLINK app) would ensure their appearance even at an immigration court hearing?
Consider All the Factors. Border Patrol agents have apprehended more than five million illegal entrants at the Southwest border under Joe Biden, and just short of 2.7 million of them have been subject to removal proceedings under the INA (in lieu of expulsion under Title 42). The 2,572 aliens covered by the May 16 order represent .09 percent of that population.
DHS knew from the day it released them that its handling of that relatively miniscule collection of illegal migrants would be under the microscope of a jurist who was objectively displeased by being repeatedly slapped in the face by that department, and yet ICE is still bungling its handling of those aliens and being border-line offensive (in my estimation) in its response to the court.
If DHS can’t even get its handling of this tiny population of high-profile illegal entrants right — and by “right” I mean anywhere near what the INA requires — what must it be doing with respect to the two million-plus other aliens it has released under the Biden administration? To ask the question is to answer it — and that answer’s not good.