PENSACOLA, Fla. — A federal trial zeroing in on the Biden administration’s immigration policies this week provided a glimpse into the minutiae of everyday decisions that lead to the detention and release of tens of thousands of undocumented immigrants who cross the southern border.
Over four days in Pensacola’s federal courthouse, attorneys with the state of Florida and President Joe Biden’s administration made their case to U.S. District Judge T. Kent Wetherell on the rationale behind the federal government’s policies that have led to the release of thousands of migrants into the country in recent years.
A central question in the case is whether the Biden administration is flouting federal immigration laws by what Florida says is a “desire to release” rather than detain migrants at the border through an “unwritten” policy. Attorneys with the Biden administration dispute the claim, and argue immigration officers are using discretion on a case-by-case basis and that there are no new policies “directing, encouraging or even hinting at releasing” migrants.
Both sides made final arguments Thursday, and a ruling is expected in March. During closing arguments, there was little dispute that current federal immigration laws are “messy” and that it will be hard to discern how Wetherell’s decision will affect current procedures.
Wetherell, an appointee of former President Donald Trump, said that the situation at the border “doesn’t seem to be a sustainable situation.”
“It needs to get resolved,” he said, while noting he is aware his ruling may get appealed and that it will be a matter resolved “at a higher pay grade.”
Testimony from U.S. Customs and Border Protection Chief Raul Ortiz, high-ranking officers with U.S. Immigration and Customs Enforcement and top deputies in Gov. Ron DeSantis’ administration colored the arguments in the case, which concluded Thursday.
The case also offers an insight into how the federal immigration system works under Biden and how those decisions affect states, such as Florida.
Florida has argued that the federal government’s immigration policies have allowed many immigrants with criminal records to remain free while their cases move forward, violating a federal law that the state says makes detentions mandatory.
The federal law says that unless a migrant is determined to be admissible, they “shall be detained.” But federal immigration authorities testified during the trial that there are not enough resources to detain every single migrant who enters the U.S. — and that there never have been enough resources to do so.
A jump in migrant arrivals in recent years has also been compounded by a shrinking number of beds at ICE detention centers. According to testimony, there are simply not enough beds to detain all migrants who are entering the U.S., and pandemic guidelines that remain in place have limited availability even further.
Because of those factors, attorneys with the Biden administration argued that the U.S. Department of Homeland Security must be able to prioritize and use its discretion to release migrants into the U.S. on a case-by-case basis.
Detention is prioritized for individuals who pose public safety concerns, such as those with criminal histories or who are flagged as national security threats, Ortiz testified.
CBP officers use discretion to place migrants in a program that is called “Parole and Alternative to Detention,” when there are not enough beds available at ICE detention centers or when individuals are considered to be a “low-threat population,” Ortiz said.
Under the program, they are released under their own accord or with electronic monitoring devices, and told to periodically report to federal immigration authorities, he said.
It is more cost effective — about $8 a day — to place individuals in this program, but it is common for such cases to drag on for more than five years, testified Robert Guadian, with ICE’s Enforcement and Removal Office. When individuals are detained and their cases placed in federal immigration court, those cases tend to be fast-tracked.
Many of the migrants released under the program seek asylum. But under the Biden administration, Ortiz said, 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.
Under the Trump administration, CBP officers were allowed to serve as asylum officers to determine so-called credible fear claims for asylum seekers, a practice that advocates said undermined the neutrality of the nation’s asylum screening process.
Ortiz testified that he disagreed with the Trump administration’s policy, which ultimately was discarded by the Biden administration.
“CBP officers should be CBP officers,” Ortiz said.
Parts of the southern border are, in fact, in “crisis,” Ortiz acknowledged, and there has been a spike in the number of migrants entering the U.S. since Biden took office in January 2021.
According to court testimony, housing is the big reason why more migrants are being released. ICE, for example, no longer houses families for longer than 20 days, and the all-family residential centers have been converted to house individual adults.
From July 2021 to February 2022, the Border Patrol released about 91,000 family-unit members under the parole program, according to the U.S. Government Accountability Office.
Decisions made by CBP have created more work for ICE on the back end, Corey A. Price, the acting executive associate director for ICE’s Removal Operations Office, testified in a deposition.
That’s because thousands of migrants have been released into the U.S. without being processed for deportation by CBP.
This means that ICE has had to send court notices to tens of thousands of migrants who have yet to be processed for deportation after illegally crossing the border.
ICE launched a plan, known as “Operation Horizon,” to mail documents to migrants that include “notices to appear” in court, where immigration judges determine if they can stay in the U.S. or be deported.
Price said dealing with the backlog of cases is ongoing and that it could take years to address.
The state argues that the federal government’s immigration policies are harming Florida because it is costing taxpayers more money to offer services to migrants who end up in Florida.
Several DeSantis administration officials admitted that while services are available to non-citizens in the state, there is no way to know whether those people were paroled at the southern border, which is the issue in question in the trial.
James Heckman, the Department of Economic Opportunity’s workforce and statistics bureau chief, said there is no way to know how many non-citizens who get unemployment benefits were paroled by the federal government at the Mexican border.
But Heckman said that the state paid $426.5 million to non-citizens in reemployment assistance between January and May 2020 based on a total of $7.5 billion paid during the same time period, according to a deposition.
Jesse Bottcher, an administrator with the Agency for Health Care Administration, said there is no way for the agency to know if there were increased payouts in Medicaid for undocumented immigrants or whether a jump in migrant arrivals at the border caused any of the costs.
Testimony from Jacob Oliva, the senior chancellor at the Florida Department of Education, was similar. He said Florida schools are footing the cost of educating migrant children, but he did not know how many of them had entered the country illegally.
“There is no way for me to know,” Oliva testified in court.
