Federal judge rebukes Biden administration in lawsuit over its 'catch and release' immigration policy

By Bethany Blankley

A federal judge on Wednesday denied the Biden administration’s request to dismiss Florida’s lawsuit seeking to halt its “catch and release” immigration policy.

The administration argued Florida didn’t have legal standing to challenge its policies, and its polices “are beyond judicial review.”

U.S. District Judge T. Kent Wetherell of the Northern District of Florida Pensacola Division rejected the administration’s arguments in a blistering 37-page ruling.

Wetherell repeatedly argued its arguments “weren’t persuasive,” “defy logic,” and its policies are “not immune from judicial review.”

Not holding back, he began his rebuke in the fourth paragraph.

“Suffice it to say the Court is wholly unpersuaded by Defendants’ position that they have unfettered discretion to determine how (or if) to comply with the immigration statutes and that there is nothing that Florida or this Court can do about their policies even if they contravene the immigration statutes,” the judge wrote.

“This position is as remarkable as it is wrong because it is well established that no one, not even the President, is above the law and the Court unquestionably has the authority to say what the law is and to invalidate action of the executive branch that contravenes the law and/or the Constitution,” he continued. “Thus, if Florida’s allegations that Defendants are essentially flaunting the immigration laws are proven to be true, the Court most certainly can (and will) do something about it.”

In his footnote, he adds, “The Court is aware that some consider the term ‘alien’ to be offensive and ‘dehumanizing’ and that Defendants prefer the term ‘noncitizen.’ However, the Court will use the term ‘alien’ in this Order because that is the term used throughout the immigration statutes and the term ‘noncitizen’ is underinclusive because the statutory definition of ‘alien’ includes both noncitizens and persons who are ‘not a … national of the United States.’” 8 U.S.C. §1101(a)(3) (emphasis added).”

Retired U.S. Border Patrol Chief Rodney Scott told The Center Square that after President Joe Biden entered office, Department of Homeland Security staff were instructed to no longer use certain terminology, including “illegal alien,” but terms like “migrant” or “undocumented noncitizen” instead.

The new terms, Scott argues, are inaccurate and contrary to law.

Everyone entering the U.S. illegally has identifying documents, meaning they aren’t undocumented. Many leave them in Mexico to make it more difficult for law enforcement to know who they are. Alienage is also a legal classification of citizenship.

Those seeking to enter the U.S. “are migrants,” Scott said, “until they get to the U.S. border. When they step into our home without our permission, they are by legal definition illegal aliens.”

Wetherell also argued the administration’s policies “have effectively turned the southern border into little more than a speed bump for the hundreds of thousands of aliens who have flooded across the border into the country since January 2021.”

And in response to the administration’s arguments, he said, “the judiciary does have the authority to say what the law is and to invalidate action of the executive branch that contravenes the law and/or the Constitution.” And, he wrote, “The decisions of this court have never allowed the phrase ‘prosecutorial discretion’ to be treated as a magical incantation which automatically provides a shield for arbitrariness.”

Attorney General Ashley Moody said the ruling “was a huge win in our fight to force the Biden administration to fix the crisis by following the law.” She hopes to “hold the Biden administration accountable for ignoring public-safety immigration laws and turning our nation’s last bastion of protection into nothing more than a speedbump.”

According to federal law, illegal immigrants are required to be detained while immigration judges determine if they have a valid reason to enter the country. Knowing the Department of Homeland Security doesn’t have the capacity to detain the volume of people flooding the southern border, the Trump administration implemented the Migrant Protection Protocols, requiring some adults to remain in Mexico as they went through the immigration process.

Instead, the administration resurrected an Obama-era “catch and release” policy. Instead of returning them to Mexico, they were released into the U.S. with “notices to appear” to immigration court, often with no court dates or court information.

Texas and Missouri sued over MPP. Last month, they argued before the Supreme Court, again asking it to require the administration to follow the law.

Last year, the administration acknowledged it’d lost track of those it released, including unaccompanied minors and those who failed to appear in court. Still, it transports illegal immigrants to cities throughout the U.S., including in Florida, and TSA accepts arrest warrants as sufficient identification to board domestic flights.

DHS Secretary Alejandro Mayorkas’ sweeping enforcement and deportation policies includes mandating that “unlawful presence in the United States will alone not be a basis for an immigration enforcement action,” directly contradicting federal law. Unlawful presence is grounds for detention and deportation, according to the law.

Several in Congress have called for Mayorkas to be impeached. Moody and multiple state attorneys general have called for his immediate resignation.

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