Parole Decision

Case 3:21-cv-01066-TKW-ZCB Document 157 Filed 03/08/23 Page 1 of 109
UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
STATE OF FLORIDA,
Plaintiff,
v. Case No. 3:21-cv-1066-TKW-ZCB
UNITED STATES OF
AMERICA, et al.,
Defendants.
___________________________/
OPINION AND ORDER
After due notice, the Court held a bench trial in this case on
January 9-12, 2023. Based on the testimony and evidence presented at
the trial, the parties’ oral arguments and post-trial filings (Docs. 155,
156), and the supplemental administrative record for the Parole Plus
Alternative to Detention (Parole+ATD) policy (Doc. 87-1), the Court
makes the following findings of fact and conclusions of law in accordance
with Fed. R. Civ. P. 52(a).
I. Executive Summary
There is an immigration “crisis” at the Southwest Border. The
Chief of the U.S. Border Patrol (USBP) candidly admitted it in his

testimony and the overwhelming weight of the evidence confirms it. The
crisis has been ongoing for over two years and shows no sign of abating.
The evidence establishes that the current status quo at the
Southwest Border is unsustainable, but it is not the Court’s job to solve
the immigration crisis—that is the job of the political branches.1 Nor is
it the Court’s job to decide whether the policies challenged by Florida in
this case (or the underlying immigration laws) are good or bad public
policy—that too is the job of the political branches. Instead, the Court’s
only job is to determine based on the evidence presented whether
challenged policies comply with the immigration laws, as written.
* * *
The Supreme Court has recognized that immigration officials have
“broad discretion” in carrying out the immigration laws, see Arizona v.
1 It is noteworthy that the President made his first visit to the Southwest
Border the day before the trial in this case started. That visit was preceded by the
announcement of a new immigration policy that is intended to dissuade aliens from
continuing to simply show up at the Southwest Border. However, it does not appear
that this new policy will repeal the Parole+ATD policy or mandate detention of aliens
who do show up at the Southwest Border in contravention of the new policy, and
Defendants have not argued the new policy moots or otherwise has any bearing on
this case. Moreover, the legality the new policy has been already challenged by a
group of 20 states, including Florida, in Texas v. Department of Homeland Security,
Case No. 6:23-cv-007 (S.D. Tex.).
2
United States, 567 U.S. 387, 396 (2012). But that discretion must be
exercised within the confines established by Congress because, as the
Supreme Court has repeatedly held, Congress—not the President or
Executive Branch officials—has the “complete and absolute power” over
the subject of immigration and “plenary power” over the admission and
exclusion of aliens.2 See, e.g., Kleindienst v. Mandel, 408 U.S. 753, 766
(1972) (quoting Boutilier v. INS, 387 U.S. 118, 123 (1967)); Oceanic Steam
Navigation Co. v. Stranahan, 214 U.S. 320, 343 (1909).
Congress exercised that power by enacting the Immigration and
Nationality Act (INA), which is codified as amended in 8 U.S.C. §1101 et
seq. Most pertinent to this case is 8 U.S.C. §1225, which establishes the
policies and procedures for processing what the statute refers to as
“applicants for admission”—that is, aliens arriving in the United States
at ports of entry or other locations.
2 The Court uses the term “alien” because that is the term used by Congress
in the immigration laws. See 8 U.S.C. §1101(a)(3). Also, “alien” is also more accurate
than Defendants’ preferred—and allegedly less “dehumanizing”—term, “non-citizen,”
because the statutory definition of “alien” excludes U.S. nationals even though
nationals can be “non-citizens.” See Miller v. Albright, 523 U.S. 420, 467 n.2 (1998)
(Ginsberg, J., dissenting) (“Nationality and citizenship are not entirely synonymous;
one can be a national of the United States and yet not a citizen.”).
3
Under §1225(b)(1)(A), certain arriving aliens, including those who
lack proper admission documents, are subject to expedited removal
“without further hearing or review.” However, if such an alien indicates
an intention to apply for asylum or a fear of persecution, the alien “shall
be detained” pending a final determination of asylum or credible fear of
persecution. See 8 U.S.C. §1225(b)(1)(B)(ii), (b)(1)(B)(iii)(IV) (emphasis
added). For all other arriving aliens, unless an immigration official
determines that the alien is clearly and beyond a doubt entitled to be
admitted, the alien “shall be detained” for removal proceedings. See 8
U.S.C. §1225(b)(2)(A) (emphasis added).
In 2018, in Jennings v. Rodriguez, the Supreme Court held that
“§§1225(b)(1) and (b)(2) mandate detention of aliens throughout the
completion of applicable proceedings and not just until the moment those
proceedings begin.” 138 S. Ct. 830, 845 (2018) (emphasis added). Last
year, in Biden v. Texas, the Supreme Court assumed without deciding
that the federal government was violating §1225(b)(2)(A) by not
detaining aliens arriving at the Southwest Border, see 142 S. Ct. 2528,
2542 (2022), but the Court left unanswered the question of “whether the
detention requirement in section 1225(b)(2)(A) is subject to principles of
4
law enforcement discretion, as the Government argues, or whether the
Government’s current practice simply violates that provision,” id. at 2542
n.5. This case requires that question to be answered.
The State of Florida contends that Defendants3 are violating the
statutory detention mandates in §1225(b)(1) and (b)(2) by releasing
aliens arriving at the Southwest Border into the country en masse
through various “non-detention policies,” including the Parole+ATD
policy and the exercise of “prosecutorial discretion” under 8 U.S.C.
§1226(a). Defendants respond that there is no overarching “non-
detention policy”; that they have the discretion not to detain aliens
notwithstanding the mandatory language in §1225(b)(1) and (b)(2); and
that Florida does not have standing to challenge their discretionary
decisions to release aliens into the country on parole or otherwise.
For the most part, the Court finds in favor of Florida because, as
detailed below, the evidence establishes that Defendants have effectively
turned the Southwest Border into a meaningless line in the sand and
3 The United States of America and various federal immigration agencies and
officials, including the Department of Homeland Security (DHS), Customs and
Border Patrol (CBP), and Immigration and Customs Enforcement (ICE). At times in
this Opinion and Order, the Court refers to Defendants collectively as “DHS.”
5
little more than a speedbump for aliens flooding into the country by
prioritizing “alternatives to detention” over actual detention and by
releasing more than a million aliens into the country—on “parole” or
pursuant to the exercise of “prosecutorial discretion” under a wholly
inapplicable statute—without even initiating removal proceedings. The
evidence further establishes that Florida is harmed by the challenged
policies because well over 100,000 aliens have been released into Florida
under the policies and the state has incurred substantial costs in
providing public services to aliens, including those who should have been
detained under §1225(b)(1) and (b)(2) and would not have been in the
state but for the challenged policies. However, the Court only has the
authority to vacate the Parole+ATD policy because the overarching “non-
detention policy” is not discrete “agency action” that is subject to judicial
review under the Administrative Procedure Act (APA).
II. Findings of Fact
The Court adopts and incorporates by reference the facts agreed to
by the parties, see Doc. 122 at 16-24 (¶¶1-63); Doc. 143 at 1-2 (¶¶71, 72)),
but for sake of brevity, only the facts most pertinent to the Court’s
analysis are set forth below. The findings related to the merits of the
6
Parole+ATD policy are based on the documents in the supplemental
administrative record, see Doc. 55; Doc. 117 at 2; Doc. 130 at 3-4 (¶8.b.i),
whereas the findings on other issues are based on a thorough assessment
of the weight and credibility of the entire evidentiary record.
A. Immigration Enforcement, Generally
DHS is the cabinet-level agency that is primarily responsible for
implementing and enforcing the immigration laws.
CBP and ICE are component agencies within DHS.
CBP is generally responsible for immigration enforcement at the
borders—with CBP’s Office of Field Operations (OFO) having
responsibility for the ports-of-entry and the USBP having responsibility
between ports-of-entry.
ICE is generally responsible for immigration enforcement in the
interior of the country—with ICE’s Enforcement and Removal
Operations (ERO) having responsibility for detaining and removing
aliens.
7
CPB and ICE both have detention facilities, but the CBP facilities
are only intended for temporary detention of up to 72 hours, after which
continued detention requires a transfer to ICE custody.
The length of time that an arriving alien can be detained in CBP or
ICE custody is also impacted by judicial decisions. For example, the
consent decree and subsequent orders in Flores v. Garland, No. 2:85-cv-
4544 (C.D. Cal.), effectively limit the detention of minors (and, thus,
family units) to 20 days—although the evidence establishes that period
is more than enough time to at least initiate removal proceedings.
There is nothing inherently inhumane or cruel about detaining
aliens pending completion of their immigration proceedings. The CBP
and ICE witnesses admitted as much in their testimony and there is no
contrary evidence in the record.
Detention is the surest way to ensure that an alien will not abscond
pending completion of their immigration proceedings.
B. Alien Apprehensions and Releases at the Southwest Border
CBP maintains monthly data on the number of arriving aliens
apprehended at the Southwest Border and the “processing disposition”
8
for those aliens. See P.Ex.4 1 through 4 (monthly data from January 2020
through November 2022). The data only includes “Title 8 apprehensions”
and does not include aliens excluded under the “Title 42 Order.”5
The data shows that in the three months before the COVID-19
pandemic (January through March 2020), about 25,000 aliens per month
were being apprehended at the Southwest Border. The monthly
apprehensions dropped significantly (to less than 1,200) in April 2020
because of the pandemic and the Title 42 Order, and they remained at
relatively low levels through January 2021.
Apprehensions returned to their pre-pandemic levels in February
2021 and increased dramatically thereafter. By July 2021, monthly
apprehensions reached 100,000, and for the most part, they have stayed
at or above that level since then.
In the last three months for which there is data in the record
(September to November 2022), monthly apprehensions averaged about
4 “P.Ex.” refers to the exhibits introduced by Florida. “D.Ex.” refers to the

exhibits introduced by Defendants.
5 As explained in more detail below, the Title 42 Order was issued by the
Centers for Disease Control (CDC) to prohibit certain aliens from entering the
country during the COVID-19 pandemic.
9
135,000. These numbers are expected to increase significantly when the
Title 42 Order is no longer in place.
USBP agents routinely arrest aliens in the field without a warrant,
as authorized by 8 U.S.C. §1357. An arrest warrant is not issued (if at
all) until after the alien is in custody, and unless the alien is going to be
detained for prosecution, the warrant is merely a Form I-200
“administrative warrant” that is issued in conjunction with a notice to
appear (NTA).6
The monthly data also includes different categories of “processing
dispositions.” The most pertinent dispositions for this case are Notice to
Appear/Own Recognizance (NTA/OR), Parole+ATD,7 and Warrant of
Arrest/Notice to Appear (Warrant/NTA).
The Warrant/NTA category includes the aliens who were detained
for prosecution or removal. The other two categories are comprised of
6 The NTA is the document that formally initiates a removal proceeding

against an alien. See 8 C.F.R. §1239.1(a) (“Every removal proceeding conducted
under [8 U.S.C. §1229a] to determine deportability or inadmissibility of an alien is
commenced by the filing of a notice to appear with the immigration court.”).
7 The data for fiscal year 2021 included releases on parole in the “other”
category, but that category clearly included releases on Parole+ATD because the
numbers in that category increased significantly starting in August 2021 after the
Parole+ATD program was created.
10
aliens who have been released pending completion of their immigration
proceedings, either under the Parole+ATD program, the predecessor
Notice to Report (NTR) program, or “prosecutorial discretion” under
§1226(a).
The data shows that the Warrant/NTA category has remained
relatively consistent since the “surge” of arriving aliens started in March
2021. The data reflects that typically more than 20,000 arriving aliens
per month are being detained.
The data also shows that a substantial number of aliens have been
released each month since March 2021. For example, in the first month
of the NTR program (March 2021) there were more than 26,000 releases
categorized as NTA/OR, and by the time that program was terminated in
November 2021, there had been over 256,000 releases under the NTA/OR
category.
In total, between March 2021 and November 2022, the data shows
that more than 1.16 million aliens have been released under the NTA/OR
and Parole+ATD categories.
11
DHS has never had sufficient funding to apprehend and detain
every alien illegally in the country. As a result, DHS must make “tough
decisions” about which aliens to detain and which aliens to release.
The fact that DHS must make those “tough decisions” does not
mean that it has free rein to adopt policies that contravene the clear
mandates in the INA or create “processing pathways” that contort
statutory language to effectuate its preferred policy of “alternatives to
detention” over actual detention.
Likewise, the fact that prior Administrations (may have8) utilized
similar “processing pathways” as those being challenged in this case does
not make those policies lawful because, as Saint Augustine and William
Penn said, “wrong is wrong even if everyone is doing it.”
8 Defendants post-trial brief quoted and provided Internet links to “policy

memoranda” and “guidance” issued by various immigration officials from 1992 to
2019 that purport to show that prior Administrations (including the Trump
Administration) prioritized detention of aliens who posted a threat to public safety
and used parole to release lower-risk inmates. See Doc. 156 at 22-24. Some of those
documents are in the record (e.g., D.Ex. A, I, K), but others are not. Defendants argue
that the Court can take judicial notice of all these documents under Fed. R. Evid. 201,
but the Court declines to do so because Defendants had ample opportunity to present
this evidence at trial if they thought it was important to their case, and at this stage
of the case, the Court is not inclined to surf the Internet looking for these (or other)
facts that might be relevant to the issues in this case.
12
That said, the detention policies that were in effect before January
20, 2021, provide necessary background and context for the current
policies and they are relevant to the Court’s assessment of whether, as
Florida claims, the current Administration adopted a new “non-detention
policy” that should have been formally adopted pursuant to the APA.
C. Detention Policy During the Trump Administration
Shortly after taking office in January 2017, President Trump issued
Executive Order 13767 (P.Ex. 54), which instructed DHS to “take all
appropriate actions to ensure the detention of aliens apprehended for
violations of immigration law pending the outcome of their removal
proceedings.” This directive was intended to “terminat[e] the practice
commonly known as ‘catch and release’ whereby aliens are routinely
released in the United States shortly after their apprehension for
violations of immigration law.”
The following month, then-DHS Secretary Kelly issued a
memorandum to implement the directive in Executive Order 13767. See
D.Ex. K. The memorandum acknowledged that because “detention of all
[aliens subject to §1225(b)] may not be immediately possible” due to
limited detention capacity, “detention resources should be prioritized
13
based upon potential danger and risk of flight if an individual alien is not
detained.” However, the memorandum made clear that “[p]olicies that
facilitate the release of removable aliens apprehended at and between
the ports of entry [i.e. ‘catch-and-release’] shall end” because those
policies “allow [aliens] to abscond and fail to appear at their removal
hearings [and] undermine the border security mission.”
The memorandum stated that “parole determinations will be made
in accordance with current regulations and guidance” pending
establishment of additional processing and detention facilities. However,
the memorandum made clear that the parole authority “should be
exercised sparingly” (emphasis added) on a case-by-case basis because
“[t]he practice of granting parole to certain aliens in pre-designated
categories in order to create immigration programs not established by
Congress, has contributed to a border security crisis, undermined the
integrity of the immigration laws and the parole process, and created an
incentive for additional illegal immigration.”
Consistent with the directives in Executive Order 13767 and
Secretary Kelly’s implementing memorandum, USBP Chief Raul Ortiz
testified that aliens encountered at the Southwest Border during the
14
Trump Administration were only released under “very exigent
circumstances.” This was true both for releases under the parole
authority in 8 U.S.C. §1182(d)(5) and “prosecutorial discretion” or
NTA/OR releases under §1226(a).
USBP Chief Ortiz’s testimony that aliens apprehended at the
Southwest Border during the Trump Administration were rarely
released is borne out by the data. For example, in February 2020 (before
the COVID-19 pandemic), USBP apprehended around 30,000 aliens at
the Southwest Border and only released 91. And, in the entire month of
December 2020, USBP released only 17 aliens.
D. Changes in Detention Policy Under the Biden Administration
One of the issues presidential candidate Joe Biden campaigned on
was taking a different approach to immigration enforcement and border
security than President Trump. His official campaign website included
an extensive discussion of immigration, titled “The Biden Plan for
Securing Our Values as a Nation of Immigrants.” P.Ex. 45 (hereafter
“the Biden Plan”).9
9The “Biden Plan” provides background and context for the events that follow,
but it has no bearing on the legality of the challenged policies. See Trump v. Hawaii,
15
The Biden Plan described the border wall championed by President
Trump as “a waste of money” and “not a serious policy solution,” and it
also promised to end the Migrant Protection Protocols (MPP) that was
commonly known as the “Remain in Mexico” program. And, most
pertinent to this case, the Biden Plan promised to “[e]nd prolonged
detention” by utilizing “alternatives to detention” that “enable migrants
to live in dignity and safety while awaiting their court hearings.”
President Biden was true to his word. He issued a series of
Executive Orders during his first two weeks in office, including one that
set the stage for the termination of the “Remain in Mexico” program10
and rescinded Executive Order 13767. See P.Ex. 53 (Executive Order
No. 14010).
Even before Executive Order 13767 was formally rescinded, DHS
had already started to move away from it. Most significantly, on
President Biden’s first day in office, the Acting Secretary of DHS issued
138 S. Ct. 2392, 2417–18 (2018) (acknowledging but not giving any significance to
President Trump’s campaign statements about a “Muslim travel ban” when
evaluating the validity of his executive orders limiting travel from certain countries).
10 The termination of this program was the subject of the litigation that
culminated in the Supreme Court’s decision in Biden v. Texas, supra.
16
a memorandum rescinding the guidance implementing Executive Order
13767 and establishing more restrictive “enforcement priorities” that
applied to a “broad range of … discretionary [immigration] enforcement
decisions,” including “whom to detain or release” and whether to issue an
NTA. See P.Ex. 16 (“the Pekoske Memo”).11
On its face, the Pekoske Memo states that border security and
removal of aliens illegally entering the United States was a priority, but
CBP officials credibly testified that they understood that was not actually
the case—at least for illegal border crossers who were not deemed to be
a threat to public safety. Indeed, USBP Chief Ortiz testified that it was
his understanding based on communications from DHS officials that
releases were no longer limited to “very exigent circumstances” and that
USBP was now authorized to release aliens who were not deemed to be a
threat to public safety into the country irrespective of the detention
mandates in §1225(b).
Around the same time, DHS started closing family detention
facilities—either by converting them to detention facilities for single
11 Substantially similar enforcement priorities to those in the Pekoske Memo

are contained in the “guidelines” issued by the Secretary of DHS that are currently
under review by the Supreme Court in United States v. Texas, No. 22-58.
17
adults or closing them altogether. Although DHS claimed that it took
these steps to address the increase in single adults that were being
encountered at the border, the practical effect of closing the family
detention facilities was to guarantee that family units arriving at the
border would have to be released into the country rather than being
detained. This, in turn, contributed to the overcrowding of CBP facilities
as family unit encounters increased during the first six months of the
Biden Administration—from just over 7,000 in January 2021 to nearly
83,000 in July 2021.
Collectively, these actions were akin to posting a flashing “Come In,
We’re Open” sign on the southern border.12 The unprecedented “surge”
of aliens that started arriving at the Southwest Border almost
12 The Court uses this analogy not only because it is a fair characterization of
what Defendants did but also because Defendants elicited testimony and argued at
trial that they could not simply hang a “Closed” sign on the border.
Moreover, although Defendants’ argument that they could not simply “close”
the border to arriving aliens may be technically accurate, it is somewhat
disingenuous because 8 U.S.C. §1182(f) specifically authorizes the President to
“suspend the entry of all aliens” whenever he finds that their entry would be
“detrimental to the interests of the United States.” That statute “exudes deference,”
Hawaii, 138 S. Ct. at 2408, and if it is broad enough to authorize the President to
“establish a naval blockade that would … deny illegal Haitian migrants the ability to
disembark on our shores,” Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 187
(1993), it would certainly seem to authorize the President to close the border to
arriving aliens one it became apparent that CBP and ICE facilities were not going to
be able to handle the “surge” of aliens coming to the border.
18
immediately after President Biden took office and that has continued
unabated over the past two years was a predictable consequence of these
actions. Indeed, USBP Chief Ortiz credibly testified based on his
experience that there have been increases in migration “when there are
no consequences” and migrant populations believe they will be released
into the country.
High-ranking immigration agency officials were made aware of the
impact of these actions on border security as early as January 28, 2021,
when CBP officials prepared an email about the “release of migrants
along border” in advance of a briefing with the Assistant Secretary of
DHS. See P.Ex. 98.
The email explained that CBP was seeing “a stark increase in
monthly illegal migration into the U.S., especially in the South Texas
area” that was expected to “immediately overwhelm USBP’s short-term
detention capacity”; that “[t]he pause on processing pathways[13] … and
recent policy changes have also impacted USBP’s ability to expeditiously
13 The pathways referred to in the email—MPP, Asylum Cooperation

Agreement (ACA), and Prompt Asylum Claim Review (PACR)—were formally
terminated in the first weeks of the Biden Administration, although they had been
“paused” towards the end of the Trump Administration due to the COVID-19
pandemic.
19
process and remove those encountered” (emphasis added). The email also
warned that “USBP will be required to promptly process and release
[aliens] due to lack of adjudication pathways and the necessity to
maintain the health and safety of the workforce and those in detention
during the pandemic.”
The email did not specifically identify the “recent policy changes”
that it was referring to, but USBP Chief Ortiz (who was on the email
chain) testified that it was his understanding that the policy changes
referred to in the email were the Pekoske Memorandum and move away
from detention to “alternatives to detention.” The record contains no
contrary evidence on this point.
The email provides some support for Defendants’ position that the
need to release rather than detain aliens arriving at the Southwest
Border was attributable, at least in part, to COVID-related issues, but it
provides more support for Florida’s position that Defendants’ “pause on
processing pathways … and recent policy changes” led to DHS’s
subsequent inability to comply with the statutory detention mandates in
§1225(b)(1) and (b)(2).
20
The greater weight of the evidence establishes that the dramatic
increases in the number of aliens being released at the Southwest Border
was attributable to changes in detention policy, not increases in border
traffic. Indeed, this can be seen by comparing the apprehension and
release data for February 2020 (the last month of the Trump
Administration before the COVID-19 pandemic) and February 2021 (the
first full month of the Biden Administration) because that data shows
that nearly 8,800 aliens were released at the Southwest Border in
February 2021 even though apprehensions in that month were 20% lower
than in February 2020 when only 92 aliens were released.
There were undoubtedly geopolitical and other factors that
contributed to the surge of aliens at the Southwest Border, but
Defendants’ position that the crisis at the border is not largely of their
own making because of their more lenient detention policies is divorced
from reality and belied by the evidence. Indeed, the more persuasive
evidence establishes that Defendants effectively incentivized what they
call “irregular migration” that has been ongoing since early 2021 by
establishing policies and practices that all-but-guaranteed that the vast
majority of aliens arriving at the Southwest Border who were not
21
excluded under the Title 42 Order would not be detained and would
instead be quickly released into the country where they would be allowed
to stay (often for five years or more) while their asylum claims were
processed or their removal proceedings ran their course—assuming, of
course, that the aliens do not simply abscond before even being placed in
removal proceedings, as many thousands have done.
It is particularly noteworthy that USBP Chief Ortiz testified that
the current surge differs from prior surges that he seen over his lengthy
career in that most of the aliens now being encountered at the Southwest
Border are turning themselves in to USBP officers rather than trying to
escape the officers. It is reasonable to infer (and just plain common
sense) that aliens are doing this because they are aware that they will be
expeditiously processed and released into the country. Indeed, on this
point, Chief Ortiz credibly opined based on his experience that the aliens
are likely “turning themselves in because they think they’re going to be
released.”
E. NTR Policy
By the middle of March 2021, CBP facilities were becoming
increasingly overcrowded as a result of the increases in border traffic, the
22
time it takes to issue an NTA to initiate removal proceedings, and CBP’s
failure to transfer aliens to ICE custody for continued detention—often
because ICE refused to accept custody.
On March 19, 2021, in an effort to reduce overcrowding at CBP
facilities, then-USBP Chief Rodney Scott issued memoranda authorizing
the use of “prosecutorial discretion” to release arriving aliens into the
country “without placing them in removal proceedings.” See P.Ex. 20
(“the March Memo”).
The March Memo stated that “[p]rocessing an alien for release
without entering them into proceedings is not taken lightly,” but the only
authority cited in the memo for the policy was 8 C.F.R. §287.3.
That regulation does not come close to providing legal support for
the March Memo because it expressly contemplates that the alien will be
placed in some form of immigration proceeding if there is “prima facie
evidence that the arrested alien was entering, attempting to enter, or is
present in the United States in violation of the immigration laws.” 8
C.F.R. §287.3(b). The regulation does authorize the official examining
the alien to take other action as “appropriate or required under the laws
or regulations applicable to the particular case,” id., but the March Memo
23
did not identify any law or regulation that authorizes arriving aliens to
be released without first being placed in some form of removal
proceeding—and there is none.
The March Memo allowed USBP agents to release aliens into the
country more quickly with only minimal processing and without
initiating removal proceedings. As one ICE official described it, USBP
was releasing aliens at the border under the March Memo with nothing
more than a “piece of paper that said ‘go find somebody at ICE.’” The
“piece of paper” was a Notice to Report (NTR) and, thus, the Court refers
to the March Memo as the NTR policy.
The NTR policy was aptly described by Florida in its original
complaint as “immigration enforcement by the honor system” because,
under the policy, arriving aliens were not placed in removal proceedings
and, instead, they were simply released into the country with direction
to self-report to an ICE office to be placed in removal proceedings.
Not surprisingly, “only a fraction … (approximately 30%)” of the
aliens released under the NTR policy reported to ICE as directed. This
ultimately led DHS to establish a program called “Operation Horizon,”
24
pursuant to which ICE officials tried to locate the aliens who had not
reported so they could be served with an NTA.
The “surge” of aliens continued unabated while the NTR policy was
in effect, and by July 2021, CBP was apprehending more than 100,000
aliens per month at the Southwest Border. The mass release of aliens
likewise continued over that period—with over 170,000 aliens being
released between March and July 2021.
Instead moving away from “alternatives to detention” to dissuade
aliens from continuing to come to the Southwest Border, Defendants
doubled down on that approach to border enforcement by adopting the
Parole+ATD policy.
F. Parole+ATD Policy
The Parole+ATD policy was formally adopted through a
memorandum issued by USBP Chief Ortiz on November 2, 2021. See
Doc. 87-1 at SAAR0093 (“the November Memo”). However, the
administrative record for that policy establishes that USBP started using
“parole” as a means of improving “processing efficiencies” several months
prior.
25
Specifically, in an email dated July 31, 2021, an assistant chief of
CBP stated that “[e]ffective immediately and until further notice [CBP]
will begin to include considering certain non-citizens for processing
utilizing the Parole pathway.” Id. at SAR0117 (emphasis in original).
The email stated that CBP agents may “issue a Parole to family units or
single adults on a case-by-case basis” after considering four factors: (1)
whether ICE will accept custody of the alien; (2) whether the alien poses
a threat to national security, border security, or a heightened public
safety risk; (3) the border sector’s total detention capacity exceeds 75%
and arrivals exceeded discharges over a 24-hour period; and (4) the
average time-in-custody (TIC) of unprocessed aliens exceeds 48 hours
and the arrivals over the next 24-hour period are projected to exceed the
discharges.
An alien released on “parole” received an alien registration number
but was not issued a NTA for removal proceedings. The only condition of
the “parole” was that the alien “REPORT TO THE [ICE] OFFICE NEAR
YOUR FINAL DESTINATION WITHIN 60 DAYS OR FACE REMOVAL
FROM THE UNITED STATES” (capitalization in original). The 60-day
period was subsequently reduced to 15 days.
26
The July 31 email did not mention COVID-19 or health issues as a
reason for authorizing the use of “parole” as a processing “pathway,” nor
did the email mention §1182(d)(5) as authority for the “parole”
determination. Agents were directed to document “why” the alien was
paroled on the I-213 form14 by stating “[s]ubject was paroled due to time
in custody constraints at the [CBP facility].” Subsequently, in an effort
“to strengthen the validity of the Parole” agents were directed to stamp
the alien’s I-94 form15 “PAROLED” with the notation “212(d)(5).”16
The November Memo differed from the July 31 email in several
material respects, most notably that it only applied to family units (and
not single adults), it specifically referred to §1182(d)(5) as a source of
authority for the policy, and it identified COVID-19 as a justification for
the policy.
14 This form, titled “Record of Deportable/Inadmissible Alien,” is prepared by

immigration officials for aliens who will be placed in removal proceedings and
contains basic biographical information about the alien; the date, place, time, and
manner of entry to the United States; and immigration and criminal history.
15 This form, titled “Arrival/Departure Record,” is provided to nonimmigrant
aliens who are admitted into the country with a visa, are adjusting their status while
in the country, or are extending their stay in the country.
16 “212(d)(5)” refers to section 212(d)(5) of the INA, which is codified in 8 U.S.C.
§1182(d)(5).
27
The November Memo started by providing a post-hoc justification
for CBP’s use of NTRs—i.e., “to relieve overcrowding in congregate
settings, thus better protecting both the workforce and noncitizens in
[CBP] custody”—and the memo boasted that the use of NTRs “decreased
processing times significantly” as compared to the “much more time
consuming” issuance of a NTA.
Despite these benefits, the November Memo stated that CBP is
ceasing the use of NTRs “[e]ffective immediately” and that it will
“prioritize resources to issue noncitizens NTAs immediately.” However,
the memo also established “an alternative processing pathway,”
Parole+ATD, to use to “address urgent crowding and excessive [TIC] in
USBP facilities.”
From a practical standpoint, the Parole+ATD “pathway” described
in the November Memo is indistinguishable from the NTR pathway
because the memo explained that an alien released under Parole+ATD is
not issued an NTA and only condition of the release on “parole” is that
the alien “report to ICE within 15 days to be processed for an NTA.”
The November Memo explained that the Parole+ATD pathway was
necessary because of the “urgent humanitarian need to protect the
28
workforce, migrants, and American public against the spread of COVID-
19 that may be exacerbated by overcrowding in CBP facilities.” The
memo only authorized the use of this pathway in two sectors (Del Rio and
Rio Grande Valley) when certain TIC and capacity issues were present,
but it also stated that the CBP chief and commissioner could authorize
its use in other sectors in which “capacity constraints or conditions in
custody show that there is an urgent humanitarian reason to release
[family units] in a more expeditious fashion in order to avoid crowding in
CBP facilities and the resulting COVID-19 health risks to the workforce
and migrants in custody.”
The November Memo concluded by stating that “when COVID-19
conditions eventually improve, it is expected that there will no longer be
a need for this alternative pathway.”
In April 2022, CDC determined in the “Title 42 Order” that the
public health order entered in August 2021 suspending the entry of
certain aliens in the country under the Public Health Services Act should
29
be terminated because it was no longer justified by COVID-19
pandemic.17
Despite the CDC’s determination that the pandemic no longer
justified the Title 42 Order, CBP did not eliminate the Parole+ATD
pathway. Instead, the Parole+ATD policy was effectively reauthorized in
a July 18, 2022, memorandum jointly issued by CBP and ICE titled.
“Policy on the Use of Parole Plus Alternatives to Detention to Decompress
Border Locations.” Doc 87-1 at SAR0001, SAR0158 (“the July Memo”).
The July Memo expands the Parole+ATD policy to single adults,
rather than only family units. It also abandons the COVID-19 rationale
in the November Memo, stating more generally that avoiding
overcrowding in CBP facilities is necessary for “disease-mitigation.”
The supplemental administrative record for the July Memo is
comprised of 160 pages complied and certified by CBP (Doc. 87-1 at
SAR0001-SAR0160) and 120 pages complied and certified by ICE (id. at
SAR0161-SAR0280). Collectively, the supplemental administrative
17 The Supreme Court is currently considering a case involving the

termination of the Title 42 Order, see Arizona v. Mayorkas, No. 22-592, as is the Fifth
Circuit, see Louisiana v. CDC, No. 22-30303.
30
record contains “all of the non-privileged documents and materials
considered by [CBP and ICE] in issuing the [November memo].”
The supplemental administrative includes considerably more
information than the administrative record for the original Parole+ATD
policy.18 Of particular significance, the portion of the supplemental
administrative record compiled by CBP includes the permanent
injunction entered by a federal judge in the District of Arizona in April
2020 mandating conditions of confinement for certain individuals in CBP
custody (hereafter “the Nielsen injunction”), the CDC notice explaining
its decision to terminate the Title 42 Order in April 2022, and the
preliminary injunction entered by a federal judge in the Western District
of Louisiana in May 2022 enjoining the termination of the Title 42 Order.
The Nielsen injunction enjoined CBP from detaining aliens for more
than 48 hours in Tucson Sector Border Patrol stations unless certain
18 The original administrative record—which is included in the supplemental

record (Doc. 87-1 at SAR0093-SAR0123)—was comprised of only 31 pages did not
come close to justifying the establishment of the Parole+ATD “pathway.” See Doc. 55
at 3 (describing the administrative record as “paltry” and noting that “an inadequate
or incomplete record will presumably work in Florida’s favor because if the parole +
ATD policy is not sufficiently supported by the record, it will be invalidated”).
Notably, the original administrative record did not include any information about
COVID-19 that might justify the creation of a “pathway” to ameliorate the impacts of
the virus and it only provided minimal information about capacity constraints or TIC
statistics.
31
conditions of confinement were met for beds, showers, food, water, and
medical needs. The injunction provided that compliance with its
requirements could be temporarily excused in “exigent circumstances,”
but it stated that “[p]eriodic surges that occur along the border are a
chronic condition that do not constitute Exigent Circumstances.”
The CDC notice terminating the Title 42 Order recounted the
history of the COVID-19 pandemic, detailed the current status of the
pandemic, and outlined the “mitigation measures” being taken by CBP.
The mitigation measures included vaccination of the CBP workforce and
a program started in March 2022 to vaccinate aliens arriving at the
southern border. The notice explained that the Title 42 Order was
intended to be temporary and that it was not a substitute for processing
aliens under the INA. The notice concluded that “the danger of further
introduction, transmission, or spread of COVID-19 into the United States
from covered noncitizens … has ceased to be a serious danger to the
public health.”
The portion of the supplemental administrative record complied by
ICE included information about the percentage of aliens released under
the Parole+ATD that checked in with ICE as directed, information about
32
the “Operation Horizon” program, and information about the processing
backlog created by the failure to issue an NTA before the alien is released
on parole.
This information reflected that as of May 2, 2022, approximately
65% of aliens released under the Parole+ATD policy checked-in with ICE
as directed, which means that 35% (almost 50,000) did not. Of the aliens
who did not check-in, approximately 20% were “noncompliant” because
they had not checked in with ICE within 60 days of their release.
The Operation Horizon program was created November 2021 to
mail NTAs to aliens “who have been paroled or released under
prosecutorial discretion by [CBP].” As of April 22, 2022, the program had
mailed more than 72,000 NTAs at a cost of over $15.3 million.
The information about Operation Horizon reflected that as of April
26, 2022, there had been over 226,000 aliens released under
“prosecutorial discretion” under the NTR and Parole+ATD policies. More
than 110,000 of those aliens had not been issued NTAs and more than
66,000 were outside the period that they were supposed to have reported
to ICE to be issued an NTA.
33
ICE officials estimated that it would take nearly 3 years (and $25
million) to clear the “backlog” and issue NTAs to these 110,000 aliens if
the Parole+ATD policy was stopped at that point. For every 30 days that
the policy continued in place, approximately an additional year and $8
million were added to the time and cost of clearing the backlog.
In the first few months following the November Memo, CBP
continued to use §1226(a) as its principal release mechanism. For
example, in November 2021, CBP released 34,705 aliens under §1226(a)
(i.e., NTA/OR) and only 5,683 under Parole+ATD.
Parole+ATD became CBP’s primary release mechanism starting in
April 2022, when 39,918 aliens were released under Parole+ATD as
compared to 22,523 released under §1226(a).
Defendants continue to make heavy use of Parole+ATD even
though the COVID-19 pandemic has been over for quite some time and
the November Memo creating the Parole+ATD “pathway” stated that
“when COVID-19 conditions eventually improve, it is expected that there
will no longer be a need for this alternative pathway.”
34
In November 2022, which is the last month of data in the record,
almost 89,000 aliens (out of the 141,000 apprehended) were released into
the country under the Parole+ATD “pathway.”
Although DHS says it is screening arriving aliens released on
Parole+ATD to determine if they are a public safety threat, the more
persuasive evidence establishes that DHS cannot reliably make that
determination. Indeed, according to Defendants own witnesses, DHS has
no way to determine if an alien has a criminal history in his home country
unless that country reports the information to the U.S. government or
the alien self-reports. Therefore, DHS is mainly only screening aliens at
the border to determine if they have previously committed a crime in the
United States, and because many of these aliens are coming to the United
States for the first time, DHS has no idea whether they have criminal
histories or not.
Use of “alternatives to detention” (ATD) are unquestionably more
cost-effective for the federal government than actual detention. It costs
$125 per day to detain a single adult and $235 per day to detain a family
unit, whereas enrolling an alien in an ATD costs less than $8 per day.
35
There are three primary types of ATD, but only one of which (ankle
monitor with GPS monitoring) can fairly be characterized as detention-
like. The other types of ATD simply involve the alien periodically
“checking in” with ICE remotely though a smart phone app or over the
telephone. The record does not reflect how many aliens are on each type
of ATD.
The “absconder rate” for aliens on ATD is better than it was for
aliens who were simply issued an NTR. But, in 2022, the absconder rate
for aliens on ATD was still 14.8%, which equates to tens of thousands of
unaccounted-for aliens in the country.
ATD is less effective in ensuring that aliens will not abscond during
their immigration proceedings than detention. Indeed, ERO Director
Corey Price acknowledged in his testimony that all forms of release have
a risk of absconding and that the “surest way” to be able to remove
inadmissible aliens is to “keep them in detention.” This is common sense.
G. Existence of a “Non-Detention Policy”
Florida contends that the Non-Detention Policy it is challenging in
this case was created “in late January or early February of 2021 when
36
DHS leadership told CBP that strict limits on the release of aliens at the
border were no longer in place and that aliens should only be detained if
they are a public safety risk or flight risk.”19
Defendants contend that there is no such policy and, to be sure,
their witnesses testified that they received no blanket instruction not to
detain aliens at the Southwest Border and that they are unaware of any
formal policy that prioritizes release over detention. However, the more
persuasive evidence establishes that aliens arriving at the Southwest
Border are no longer being detained as a matter of course unless they are
deemed to be a public safety risk or flight risk.
This is unquestionably a change from the policy that was in place
during the Trump Administration, as USBP Chief Ortiz acknowledged in
his testimony. Moreover, DHS Secretary Mayorkas effectively confirmed
the change in policy (and, thus, the existence of the Non-Detention Policy
challenged by Florida) when he testified to Congress in May 2022 that
“detention has been misused in the immigration system for many years”
19 The Court did not overlook Defendants’ argument that Florida did not
clearly articulate the precise nature of the “non-detention policy” that it claimed to
exist until after the trial ended. However, Florida’s description of the policy in its
closing argument and its post-trial brief is consistent with how Florida described the
policy in the Pre-trial Stipulation that supplanted the pleadings and framed the
issues for trial. See Doc. 122 at 26.
37
and he explained that DHS is “increasing [its] use of alternatives to
detention, and … using detention when it’s a public safety imperative or
an imperative to the continued appearance of individuals in immigration
enforcement proceedings.”
The fact over a million aliens have been released rather than
detained at the Southwest Border since January 2021 is further evidence
of a change in detention policy. The testimony from Defendants
witnesses that the increased number of aliens being released is
attributable to something other than a change in policy (such as the post-
pandemic increase in migration, either generally or from specific
countries) is simply not credible and is contrary to the weight of the
evidence.
Thus, notwithstanding Defendants’ denials, the Court finds that
the Non-Detention Policy challenged in this case does, in fact, exist.
H. Detention Capacity Reductions by Defendants
The evidence establishes that Defendants do not have sufficient
detention capacity to detain all arriving aliens, but that does fact alone
is not justify the Non-Detention Policy because, as discussed above, the
policy itself contributed to “surge” of aliens arriving at the Southwest
38
Border, which, in turn, exacerbated to the capacity issues. Additionally,
despite the historic increases in border traffic, President Biden
terminated the “Remain in Mexico” program authorized by 8 U.S.C.
§1225(b)(2)(C) and Defendants took steps to reduce detention capacity,
including closing all of DHS’s family detention facilities and requesting
less detention capacity from Congress.
During the last immigration surge in 2019, DHS maintained
sufficient capacity to detain an average daily population (ADP) of as high
as 55,000.
In 2020 (during the Trump Administration), DHS anticipated that
border traffic would increase again when the COVID-19 pandemic ended
so it requested an increase to 60,000 ADP in its fiscal year 2021 budget
request.
Shortly after President Biden took office, DHS requested a
reduction to 32,500 ADP for fiscal year 2022. And for fiscal year 2023,
DHS requested a further reduction to 25,000 ADP.
It is true that Congress is ultimately responsible for allocating the
funds that are required to detain more aliens. However, DHS led
Congress to believe that it did not need more detention capacity because
39
it represented in its fiscal year 2022 and 2023 budget requests that “a
reduction in detention capacity level will not impede ICE’s ability to
apprehend, detain, and remove noncitizens that present a threat to
national security, border security, and public safety.”
The fact that DHS continued to ask for less detention capacity and
more money for “alternatives to detention” is another indication that the
Non-Detention Policy challenged by Florida exists because it confirms
Defendants’ prioritization of “alternatives to detention” over actual
detention.
Thus, like a child who kills his parents and then seeks pity for being
an orphan, it is hard to take Defendants’ claim that they had to release
more aliens into the country because of limited detention capacity
seriously when they have elected not to use one of the tools provided by
Congress in §1225(b)(2)(C) and they have continued to ask for less
detention capacity in furtherance of their prioritization of “alternatives
to detention” over actual detention.
Likewise, it is hard to take seriously Defendants’ argument that
there would be “disastrous consequences” if the challenged policies were
enjoined or vacated because the evidence establishes Defendants have
40
chosen to combat the historic “surge” of aliens arriving at the border with
one hand tied behind their back by not taking advantage of all of the
statutory tools provided by Congress—such as returning aliens to a
contiguous territory under §1225(b)(2)(C) or, potentially, closing the
border to particular classes of aliens under §1182(f).
This is particularly true now that the COVID-19 pandemic is “over”
and people are able to congregate at sporting events, concerts, and other
crowded venues. Indeed, at this point, the health risks associated with
overcrowding at CBP facilities is simply no excuse for releasing an
arriving alien without first initiating removal proceedings.
I. Impact of the Challenged Policies on Florida
The immigration crisis at the Southwest Border most significantly
affects border states and communities, but its impacts are not limited to
those areas. Florida and other states are also impacted by the border
crisis because arriving aliens are being released at the border into the
interior of the country in historic numbers. Indeed, the stated purpose of
the challenged policies is to “decompress” CBP’s border facilities and shift
the processing of arriving aliens to ICE facilities around the country that
are closer to the aliens’ final destinations.
41
Since President Biden took office on January 20, 2021, USBP has
released more than one million aliens at the Southwest Border. That
figure does not include releases by OFO because OFO does not publicly
report its releases, nor does it include releases by ICE because ICE does
not distinguish between interior enforcement and border enforcement in
its publicly released data. And that figure does not include “get aways”—
i.e., aliens who get into the country without being apprehended. Thus,
the actual number of additional aliens that have come into the country
since President Biden took office is unknown.
DHS provided information in discovery estimating that about
160,000 of the aliens released into the country between January 2021 and
July 2022 provided a Florida address or are on the Miami ERO docket,
which covers Florida, Puerto Rico, and the Virgin Islands. That number
does not account for aliens released after July 2022, which is notable
because DHS’s monthly releases have increased since then.
This evidence does not establish with absolute certainty the precise
number of aliens who have been released into Florida under the
challenged policies, but the Court has no trouble finding from this
42
evidence that well over 100,000 aliens released at the Southwest Border
under the challenged policies ended up in Florida. 20
Florida claims that it has expended millions of dollars of public
funds on these aliens, but it is impossible to determine with any certainty
how much was actually spent on aliens who are in the state as a result of
the challenged policies because Florida does not track alien-related
expenditures in a manner that allows it to identify expenditures on
specific aliens released under the challenged policies.
The fact that Florida cannot tie a specific public expenditure to a
specific alien impacted the weight the Court gave to the evidence from
Florida’s agency witnesses, but the Court did not discount that evidence
in its entirety.
20 During oral argument at the end of trial, Defendants’ counsel suggested that
the Court could only “assume” from this data that aliens released under the
challenged policies were in Florida because the addresses were “self-reported” and an
alien “may give a Florida address but may not reside there.” However, when the
Court pressed counsel on why the self-reported addresses were good enough for DHS
to rely on to keep tabs on the released aliens but not good enough for the Court to rely
on in making a finding that the aliens are where they said they were going to be,
counsel was initially stumped (although the long pause and blank look on counsel’s
face does not come through in the transcript) before conceding that it would not be
unreasonable to rely on this data to conclude that aliens released under the
challenged policies were in Florida. See Doc. 151 at 192-94.
43
For example, the Court gave no weight to the evidence of public
expenditures that pre-dated the challenged policies; expenditures that
could not have applied to aliens who were released into Florida under the
challenged policies because of eligibility requirements of the applicable
statutory program (e.g., food stamps and standard Medicaid); or
expenditures on programs that were fully funded by the federal
government (e.g., refugee assistance program). However, the Court gave
some weight to the other agency expenditure evidence (e.g., costs of
incarceration, unemployment benefits, and emergency Medicaid) and it
gave substantial weight to the testimony and evidence from the Florida
Department of Education (DOE) witness.21
DOE does not maintain data about where and when alien students
entered the country (or their immigration status) that would allow the
Court to determine with absolute certainty that children of aliens
21 The Court expressed a more jaded view of Florida’s standing evidence during
the oral argument after the close of evidence and the Court adheres to the view that
some of Florida’s standing evidence was “useless,” some of it was “not particularly
helpful,” and some of it (namely, the DOE evidence) was fairly compelling. To the
extent that there is any inconsistency in what the Court said at oral argument and
what the Court is saying now about Florida’s standing evidence, the findings in this
Opinion and Order control because they are based on the Court’s further
consideration of the evidence based on the case law cited by the parties and discussed
below.
44
released under the challenged polices enrolled in Florida schools.
However, DOE does keep data on the number of “immigrant children and
youth”22 enrolled in Florida’s public schools and that data provides
sufficient information from which the Court can draw reasonable
inferences about the number of alien children released under the
challenged polices that are enrolled in Florida public schools.
In the 2020-21 school year there were just over 95,000 immigrant
children and youth in Florida’s public schools. That number increased
by more than 17,000 in the 2021-22 school year, and although there is no
direct evidence establishing exactly how many of these children were
released into the country under the challenged policies, it can be
reasonably inferred from the testimony of the DOE witness (who
personally visited schools and met with families) that a good number of
these children were released into Florida under the challenged policies.
22 This term refers to individuals between the ages 3 and 21 who were not born
in the United States and have not attended school in the United States in the last
three academic school years. See 20 U.S.C. §7011(5).
45
Florida spends roughly $8,000 per public school student per year,
and an increase in the number of students in Florida’s schools requires
the state to spend more money over time.
Thus, even considering the other factors that might have
contributed to an increase in immigrant children and youth in Florida’s
public schools (e.g., the fact that Florida and its schools were more “open”
than other states during the COVID-19 pandemic), the Court has no
trouble finding that at least some of the aliens released under the
challenged policies have enrolled their children in Florida’s public schools
and caused the state financial harm.
The same is true with respect to the other programs under which
Florida expends funds for aliens that are not fully reimbursed by the
federal government—e.g., costs of incarceration, unemployment benefits,
and emergency Medicaid—because it implausible that none of the more
than 100,000 aliens released into Florida under the challenged policies
have committed crimes or received benefits under those programs. Thus,
although the evidence is not sufficient to establish with absolute
certainty that Florida has expended public funds on specific aliens
46
released under the challenged policies, the evidence is sufficient for the
Court to infer that it is more likely than not that it has done so.
It is unknown whether the costs that Florida spends on aliens
released under the challenged policies are more or less than any revenue
Florida derives from those aliens. However, there is no evidence (or at
least none that the Court found credible) that aliens released into Florida
under the challenged policies provide any meaningful amount of revenue
to the state.
In sum, despite the shortcomings in the evidence presented by
Florida on public expenditures, the Court finds that at least some of the
aliens released under the challenged policies have caused the Florida to
incur additional expenses. And, based on the large number of aliens
released into Florida under the challenged policies and the breadth of the
public benefits available to them (and the likelihood that at least some of
them will commit crimes23), the Court further finds that these expenses
will increase absent relief in this case.
23 This is an unfortunate reality, as ERO Director Price acknowledged in his

testimony. It is also not particularly surprising because, as noted above, DHS has no
way of knowing whether the aliens being released under the challenged policies have
47
III. CONCLUSIONS OF LAW
Before getting to the merits of Florida’s claims, the Court must
address two “threshold” issues raised by Defendants—standing and
justiciability.
A. Standing
Defendants have argued from the outset of this case that Florida
lacks standing to sue over the challenged policies. The Court has rejected
this argument twice—first at the motion to dismiss stage, see Doc. 45 at
11-18, and again at the summary judgment stage, see Doc. 117 at 2; Doc.
119 at 21-26. The third time is not the charm for Defendants.
1. Article III Standing
“Federal courts have authority under the Constitution to decide
legal questions only in the course of resolving ‘Cases’ or ‘Controversies.’”
Hawaii, 138 S. Ct. at 2416 (quoting Art. III, §2). “One of the essential
elements of a legal case or controversy is that the plaintiff have standing
to sue.” Id.
committed crimes in their home country unless that information happens to be

shared by the home country or the alien self-reports his or her criminal history.
48
“Standing requires more than just a ‘keen interest in the issue.’”
Id. (quoting Hollingsworth v. Perry, 570 U.S. 693, 700 (2013)). “It
requires allegations—and, eventually, proof—that the plaintiff
‘personal[ly]’ suffered a concrete and particularized injury in connection
with the conduct about which he complains.” Id. (quoting Spokeo, Inc. v.
Robins, 578 U.S. 330, 338 (2016)).
To establish its “Article III standing,” Florida must show that it has
“(1) suffered an injury in fact, (2) that is fairly traceable to the challenged
conduct of the defendant [and not the result of independent action of
some third party], and (3) that is likely to be redressed by a favorable
judicial decision.” Spokeo, 578 U.S. at 338; accord Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560–61 (1992).
An “injury in fact” must be “concrete and particularized, and actual
or imminent, not conjectural of hypothetical.” Lujan, 504 U.S. at 560
(cleaned up). However, injuries to “state sovereignty” can be real and
concrete even though they are “intangible.” West Virginia v. Dep’t of
Treasury, 59 F.4th 1124, 1136 (11th Cir. 2023).
Additionally, states are entitled to “special solicitude” in
establishing standing because, as the Eleventh Circuit recently held,
49
“[s]tates ‘are not normal litigants for purposes of invoking federal
jurisdiction.’” Id. (quoting Massachusetts v. EPA, 549 U.S. 497, 518
(2007)); see also Massachusetts, 549 U.S. at 520; Texas v. United States,
787 F.3d 733, 753 (5th Cir. 2015) [hereafter DAPA],24 aff’d by an equally
divided court, United States v. Texas, 579 U.S. 547 (2016).
To invoke that special solicitude, a State must show (1) a procedural
right and (2) a quasi-sovereign interest. See Massachusetts, 549 U.S. at
519–20. Once a State does so, the requirements of traceability and
redressability are relaxed.
Here, Florida has procedural right under the APA, see DAPA, 787
F.3d at 751–52; Florida v. Nelson, 576 F. Supp. 3d 1017, 1032 (M.D. Fla.
2021); and, Florida has a quasi-sovereign interests in its territory, in the
presence of unauthorized aliens within that territory, and in the effect
those aliens have on the public fisc, see DAPA, 787 F.3d at 752; Arizona,
24 The Court did not overlook Defendants’ argument that this case is more like
Arizona v. Biden, 40 F.4th 375 (6th Cir. .2022), than DAPA, because this case is
merely “a challenge to an amalgamation of policies and decisions.” See Doc. 156 at
74-75 n.21. The Court finds this argument unpersuasive for three reasons: first,
although the challenged “non-detention policy” is a bit abstract, the Court found as a
matter of fact that it exists; second, the Parole+ATD policy is indisputably an
articulatable, concrete policy; and, third, the Eleventh Circuit’s articulation of state
standing and the special solicitude doctrine in West Virginia is more like the Fifth
Circuit’s decision in DAPA than to the Sixth Circuit’s decision in Arizona.
50
567 U.S. at 422, 436 (Scalia, J., concurring in part and dissenting in part)
(recognizing that controlling immigration “is an inherent attribute of
sovereignty” and questioning whether the States, which “jealously
guarded” their sovereignty during the Constitutional Convention, would
have ratified the Constitution if it had provided that limits on
immigration “will be enforced only to the extent the President deems
appropriate”). Thus, Florida is entitled to special solicitude in the
standing analysis.
If special solicitude is to have any meaning, it must apply in the
immigration context because the states are dependent on the federal
government to keep inadmissible aliens out of their territories since they
ceded their sovereign right to do so to the federal government when they
joined the Union. Thus, if the DHS ignores the detention mandates in
the INA and releases aliens into the country that Congress said it should
be detaining, then the sovereign interests of states are concretely harmed
because they cannot do anything to keep those aliens out of the state.
Not only that, but Defendants’ failure to detain arriving aliens as
required by the INA also requires states to spend a considerable amount
of public money—which is unquestionably a concrete harm. Indeed, on
51
that issue, the Supreme Court has recognized that states “bear[] many of
the consequences of unlawful immigration,” Arizona, 567 U.S. at 397, and
that commonsensical proposition was also established by the evidence in
this case—including the testimony of ERO Director Price that “that’s
been the way our immigration system has worked” for the 24 years that
he’s worked in the system.
Before applying the special solicitude standard to Florida’s
evidence, the Court briefly reviews how the Supreme Court applied
special solicitude in Massachusetts. In that case, the states alleged that
global warming would cause a “rise in sea levels,” lead to “severe and
irreversible changes to natural ecosystems,” “increase . . . the spread of
disease,” and “contribute to the ferocity of hurricanes.” Massachusetts,
549 U.S. at 521–22. The Supreme Court recognized that the states’
traceability and redressability arguments were in many ways
speculative—for example, “China and India” were likely to “offset any
marginal domestic decrease” in greenhouse gas emissions. Id. at 523–24.
Nonetheless, the Supreme Court applied the relaxed special solicitude
standard and found that the states established their standing because
the risk of harm to the states’ sovereign interests in their territories
52
“would be reduced to some extent if [the states] receive the relief they
seek.” Id. at 526.
Florida’s standing evidence in this case is far stronger than the
states’ evidence in Massachusetts, particularly with respect to impact of
the challenged policies on its public education expenditures.
Like all states, Florida is required to include inadmissible aliens in
the state’s free public education. Plyler v. Doe, 457 U.S. 202, 230 (1982);
see also §1003.21(1)(a), Fla. Stat. (requiring that all children ages six to
sixteen attend school). And because Florida spends roughly $8,000 per
student per year on primary and secondary education, an increase in
alien children in the state will result in the state having to spend more
money on education.
The evidence presented by Florida at trial, which the Court found
credible and persuasive, established that Florida has and will continue
to expend funds on aliens who were released under the challenged
policies and would not otherwise be in the state. Specifically, the
evidence showed that the number of “immigrant children and youth”
enrolled in Florida schools have increased by more than 17,000 students
since January 2021, which is corresponds to the timeframe within which
53
more than 100,000 aliens (including many family units with children)
were released into Florida under the challenged policies. Although the
Court recognizes that “immigrant children and youth” include aliens
other than those released under the challenged policies, the increase of
17,000 such students since January 2021, along with the other evidence
in this case, establishes to the Court’s satisfaction that at least some
aliens released under the challenged policies are enrolling their children
in Florida’s schools and it is reasonable to expect that they will continue
to do so as long as the challenged polies are in place.
This evidence is sufficient to establish each of the required elements
for standing—injury in fact, traceability, and redressability—as
discussed below.
As to injury in fact, “[e]conomic detriment . . . is the epitome of an
injury in fact.” Chiles v. Thornburgh, 865 F.2d 1197, 1209 (11th Cir.
1989); see also Plyler, 457 U.S. at 228 n.23 (noting that “unchecked
unlawful migration might impair the State’s economy generally, or the
State’s ability to provide some important service”). Florida’s public
education expenditures plainly qualify as economic detriment.
54
As to traceability, these additional public education costs are
traceable to the challenged policies because the increase in alien children
in Florida schools corresponded to the dramatic increase in the number
of aliens being released into Florida under the challenged policies. The
fact that Florida cannot tie specific education expenditure to particular
children released under the challenged policy is not required without
special solicitude, see Black Warrior Riverkeeper, Inc. v. U.S. Army Corps
of Eng’rs, 781 F.3d 1271, 1280–81 (11th Cir. 2015) (agreeing that a
plaintiff’s injury need not “be traced to specific molecules of pollution
emitted by the alleged polluter,” only “that a defendant discharges a
pollutant that causes or contributes to the kinds of injuries alleged”
(quotations omitted)), so Florida certainly need not make this showing
with the benefit of special solicitude, see Texas v. United States, 50 F.4th
at 517–18 (applying the special solicitude standard and finding standing
even though “[t]he record does not indicate precisely what portion of all
costs for illegal aliens is spent on DACA recipients”).
Finally, as to redressability, “redressability and traceability
overlap” in this case “as two sides of a causation coin.” Dynalantic Corp.
v. Dep’t of Def., 115 F.3d 1012, 1017 (D.C. Cir. 1997). Florida seeks
55
declaratory relief, vacatur under the APA, and, consistent with the limits
on injunctive relief in 8 U.S.C. §1252(f), permanent injunctive relief
limited to DHS’s violations of §1182(d)(5). Each form of relief would
provide Florida at least partial redress. See Massachusetts, 549 U.S. at
518 (recognizing that a litigant has standing when “there is some
possibility that the requested relief will prompt the injury-causing party
to reconsider” its unlawful decisions); Larson v. Valente, 456 U.S. 228,
243 n.15 (1982) (explaining that a plaintiff need not show that its injuries
will be completely redressed). Specifically, vacatur under the APA would
“deprive” the challenged policies “of force,” Action on Smoking & Health
v. Civil Aeronautics Bd., 713 F.2d 795, 797 (D.C. Cir. 1983) (quoting 91
C.J.S. Vacate (1955)), and is akin to an injunction in that it will prevent
DHS from continuing to apply the policies at the Southwest Border and
it will preclude DHS from using “parole” to release aliens en masse
without initiating removal proceedings. This, in turn, will remedy (or at
least reduce) the harm to Florida by reducing the number of aliens
released into the state Cf. Chiles, 865 F.2d at 1209–10 (finding that an
injunction against the United States would remedy the injury to a local
government caused by persons escaping from a federal detention center).
56
DHS contests redressability on the ground that released aliens who
enroll their children in school are typically family units, and DHS’s
ability to detain family units for more than 20 days is limited by the
Flores consent decree. Thus, DHS argues, even absent the challenged
policies, applicants for admission subject to mandatory detention under
§1225(b) will be released after 20 days. The Court finds this argument
unpersuasive for two reasons.
First, if Florida prevails in its argument that §1225(b) mandates
detention for aliens apprehended at the Southwest Border—and if DHS
insists that Flores is causing the agency to violate that statute—one
would expect DHS to bring that to the attention of the Flores court. Cf.
Flores v. Lynch, 828 F.3d 898, 908–09 (9th Cir. 2016) (holding that Flores
does not “grant release rights to parents”); Garland v. Aleman Gonzalez,
142 S. Ct. 2057, 2065 (2022) (clarifying that district courts may not enjoin
the operation of §1225(b) on a class-wide basis). To instead insist that
DHS may consent to violate the law and that doing so eliminates Article
III jurisdiction is just plain wrong.
Second, the evidence at trial showed that Flores does not
categorically prevent DHS from detaining family units in a way that
57
would negate redressability. The purpose of the Flores 20-day
presumption is to allow DHS to apply expedited removal to family units
under §1225(b)(1), which can be completed in that short window. And
even if DHS fails to complete removal in 20 days, the agency has ample
time to at least initiate removal proceedings prior to release—which could
result in those proceeding concluding sooner and thereby reducing the
total time the aliens are enrolled in Florida’s schools.
Accordingly, the Court finds that Florida has established Article III
standing based on the funds it spends providing public education to alien
children. Florida’s remaining standing evidence, which is from four other
state agencies, bolsters Florida’s standing because the Court can infer
from that evidence that Florida likely has and will continue to spend
some amount of public funds on aliens released under the challenged
policies.
The Court did not overlook Defendants’ argument that Florida
derives more revenue from aliens released into the state under the
challenged policies than it incurs in costs. However, there is no evidence
that revenues generated from aliens released under the challenged
policies exceeded the costs incurred by Florida on those aliens. Moreover,
58
as the Fifth Circuit has explained, once the plaintiff has shown that it
has suffered an injury, it is not the role of the Court to engage in the
“accounting exercise” of weighing costs and benefits for standing
purposes. See Texas v. United States, 50 F.4th 498, 518 (5th Cir. 2022);
Texas v. United States, 809 F.3d 134, 156 (5th Cir. 2015) (quoting NCAA
v. Governor of N.J., 730 F.3d 208, 223 (3d Cir. 2013)).
2. Statutory Standing
In addition to Article III standing, Florida must also establish that
it has “statutory” standing under the APA. That requires Florida to show
that its claims fall within the “zone of interests” of the statutes on which
the claim is based—here, the INA. See Match-E-Be-Nash-She-Wish Band
of Pottawatomi Indians v. Patchak, 567 U.S. 209, 224 (2012). The zone of
interests test “is not meant to be especially demanding,” Clarke v. Secs.
Indus. Ass’n, 479 U.S. 388, 399 (1987), and “the benefit of any doubt goes
to the plaintiff,” Patchak, 567 U.S. at 225.
Florida satisfies that test because “[i]t’s clear that the INA aimed,
at least in part, to protect States from” harms to their fisc. See Texas v.
Biden, 20 F.4th 928, 975 (5th Cir. 2021), rev’d on other grounds, Biden v.
Texas, 142 S. Ct. 2528 (2022); accord Cook Cnty., Ill. v. Wolf, 962 F.3d
59
208, 220 (7th Cir. 2020) (holding that a county was within the zone of
interests of the INA); see also Demore v. Kim, 538 U.S. 510, 517–21 (2003)
(explaining that the 1996 amendments to the INA were motivated in part
by the costs caused by the government’s failure to remove deportable
aliens). Indeed, several provisions of the INA specifically seek to protect
the States from the injuries the federal government causes when it fails
to fulfill its duties. See, e.g., 8 U.S.C. § 1231(i) (granting the States
partial reimbursement for the costs of incarcerating criminal aliens).
* * *
In sum, for the reasons stated above, the Court finds that Florida
has standing under Article III and the APA to challenge the policies at
issue in this case.
B. Justiciability
Defendants argue that Florida’s claims are non-justiciable “political
questions” and that the challenged policies are not subject to judicial
review under the APA. The first argument is unpersuasive, but the
second argument is in part.
60
1. Political Question
Defendants “political question” argument relies primarily on Chiles
v. United States, in which the Eleventh Circuit held that questions about
whether the Executive Branch “is adequately guarding the borders of the
United States” are nonjusticiable “political questions.” 69 F.3d 1094,
1096–97 (11th Cir. 1995). However, Chiles is distinguishable because, in
that case, Florida officials were challenging the Attorney General’s
failure to perform his general duty under 8 U.S.C. §1103(a) (1993), “to
control and guard the boundaries and borders of the United States
against the illegal entry of aliens.” Here, by contrast, Florida is
challenging Defendants’ alleged noncompliance with statutes that
contain specific requirements, including one, §1225(b), that “mandates”
detention, see Jennings, 138 S. Ct. at 845, and another, §1182(c)(5), that
according to the Supreme Court, is not “unbounded” and contains
standards that are susceptible to judicial evaluation, see Biden v. Texas,
142 S. Ct. at 2543 (“Importantly, the [parole] authority is not unbounded:
DHS may exercise its discretion to parole applicants ‘only on a case-by-
case basis for urgent humanitarian reasons or significant public benefit.’
61
And under the APA, DHS’s exercise of discretion within that statutory
framework must be reasonable and reasonably explained.”).
Moreover, not every case that has significant political overtones (as
this one certainly does) presents a non-justiciable political question. See
Baker v. Carr, 369 U.S. 186, 217 (1962) (explaining that the doctrine “is
one of ‘political questions,’ not one of ‘political cases’”). Thus, although it
would certainly be much easier for the Court to simply say that elections
have consequences and that the parties’ disagreement over proper
immigration policy should be resolved in Congress or at the ballot box
rather than in court, the Court sees no jurisdictional or prudential reason
why it should not exercise its duty to “say what the law is” in this case
and then let the political chips fall where they may.
That said, there is nothing particularly surprising about the fact
that the Biden Administration had different immigration policy
preferences and priorities than the Trump Administration. That fact
alone does not make the challenged policies illegal because “[a] change in
administration brought about by the people casting their votes is a
perfectly reasonable basis for any executive agency’s reappraisal of the
costs and benefits of its programs and regulations.” Motor Vehicle Mfrs.
62
Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 59 (1983)
(Rehnquist, C.J., concurring in part and dissenting in part); see also FCC
v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009) (explaining that
an agency “need not demonstrate to a court’s satisfaction that the reasons
for the new policy are better than the reasons for the old one; it suffices
that the new policy is permissible under the statute, that there are good
reasons for it, and that the agency believes it to be better”) (emphasis in
original); Dep’t of Com., 139 S. Ct. at 2573 (“[A] court may not set aside
an agency’s policymaking decision solely because it might have been
influenced by political considerations or prompted by an Administration’s
priorities.”); Organized Vill. of Kake v. U.S. Dep’t of Agric., 795 F.3d 956,
979 (9th Cir. 2015) (Smith, J., dissenting) (noting that “[e]lections have
legal consequences” and “policies of the new president will occasionally
clash with, and supplant, those of the previous president, often leading
to changes in rules promulgated pursuant to the [APA]”). However, that
does not mean that every policy change that is influenced by a change in
Administrations is immune from judicial review because a new
Administration may not simply “choose not to enforce laws of which it
does not approve, or to ignore statutory standards in carrying out its
63
regulatory functions.” State Farm, 463 U.S. at 59 n.* (Rehnquist, C.J.,
concurring in part and dissenting in part); see also Fox Television, 556
U.S. at 515 (explaining that an agency “may not … depart from a prior
policy sub silentio or simply disregard rules that are still on the books”).
2. APA Reviewability
“The APA establishes a basic presumption of judicial review.” DHS
v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1905 (2020) (quotations
omitted); accord Dep’t of Com., 139 S. Ct. at 2567 (“The Administrative
Procedure Act embodies a basic presumption of judicial review.”
(quotations omitted)). To overcome that presumption, DHS argues that
the challenged policies (a) are not “final agency action” under 5 U.S.C.
§704 and (b) are “committed to agency discretion by law” under 5 U.S.C.
§702(a)(1), and that (c) review is barred by §§1252(a)(2)(B)(ii) and
1226(e). Each argument will be addressed in turn.
a. Final Agency Action
DHS presents two arguments as to why the challenged policies are
not final agency action: first, it argues that the challenged policies are
64
not agency action at all; and second, it argues that even the challenged
policies are agency action, they are not final under the APA.
The APA defines “agency action” as “the whole or a part of an
agency rule,[25] order, license, sanction, relief, or the equivalent or denial
thereof, or failure to act.” 5 U.S.C §551(13); see also 5 U.S.C. §701(b)(2)
(explaining that the APA incorporates the definition of “agency action” in
5 U.S.C §551). An agency action is “final” if it “mark[s] the consummation
of the agency’s decisionmaking process” and is “one by which rights or
obligations have been determined, or from which legal consequences will
flow.” Bennett v. Spear, 520 U.S. 154, 177–78 (1997) (quotations
omitted).
i. Non-Detention Policy
Florida characterizes the Non-Detention Policy as Defendants’
decision to replace the “very exigent circumstances” standard for
releasing arriving aliens into the country with the “not a public safety or
flight risk” standard. The evidence undoubtedly shows DHS’s expressed
25 A “rule” is “the whole or a part of an agency statement of general or

particular applicability and future effect designed to implement, interpret, or
prescribe law or policy or describing the organization, procedure, or practice
requirements of an agency.” 5 U.S.C. §551(4).
65
preference for release of arriving aliens over detention. However, the
Non-Detention Policy is not a judicially reviewable agency action because
the policy preference embodied in the policy was not imposed as a blanket
mandate but rather it was implemented through a series of discrete
policies, including the NTR policy and the various iterations of the
Parole+ATD policy. Those discrete policies are (or were) subject to
judicial review under the APA, but the overarching Non-Detention Policy
is not. See Biden v. Texas, 142 S. Ct. at 2545 (holding that the lower court
erred in reviewing an abstract decision instead of each individual
operative agency action); Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 890–
91 (1990) (rejecting a wholesale challenge to an entire “program” under
the APA because that program was not an agency action, but rather was
made up of many individually challengeable agency actions); Whitewater
Draw Nat. Res. Conservation Dist. v. Mayorkas, 5 F.4th 997, 1011–12 (9th
Cir. 2021) (rejecting a broad APA challenge to immigration policies that
the plaintiffs labelled a ”program” to try to challenge them all in “one fell
swoop,” and instead requiring the plaintiffs to either “identify a
particular action … that they wish to challenge under the APA, or …
pursue their remedies before the agency or in Congress”); Brnovich v.
66
Biden, -- F. Supp. 3d --, 2022 WL 4448322, at *10 (D. Ariz. Sept. 23, 2022)
(applying Biden v. Texas to reject a challenge to the defendants’ “policy
of programmatically mass-granting parole to unauthorized aliens”
because the plaintiffs “d[id] not challenge a particular, discrete agency
action, but rather some generalized and amorphous conception of
Defendants’ detention and parole policies”). Thus, the Non-Detention
Policy is not subject to review under the APA.
ii. Parole+ATD Policy
Unlike the Non-Detention Policy, the Parole+ATD policy is a
discrete agency action. The policy is contained in the July Memo, which
is signed by the heads of ICE and CBP, and it instructs agents how to
exercise their discretionary authority under the parole statute and sets
criteria by which aliens are eligible or ineligible for parole. It is also
“final” because it established “new marching orders” by which
immigration officials would determine whether or not to detain arriving
aliens, see City of Dania Beach, Fla. v. FAA, 485 F.3d 1181, 1188 (D.C.
Cir. 2007), and it effectively determined Florida’s obligations with respect
to those aliens—including its constitutional obligation to provide
education and its statutory obligations under Medicaid. The fact that
67
CBP officers retain discretion to detain or parole individuals does not
negate the finality of the agency action embodied in the July Memo. See
Home Builders Ass’n of Greater Chi. v. U.S. Army Corps of Eng’rs, 335
F.3d 607, 614–15 (7th Cir. 2003). Thus, the Parole+ATD Policy is subject
to judicial review under the APA.
b. Committed to Agency Discretion
The “committed to agency discretion” exception is read “quite
narrowly” and applies only where the relevant statute leaves “no
meaningful standard against which to judge the agency’s exercise of
discretion.” Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv., 139 S. Ct.
361, 370 (2018) (quotations omitted); accord Dep’t of Com., 139 S. Ct. at
2568 (explaining that the agency’s discretion must be “unbounded” for
§701(a)(2) to apply). This exception does not apply to either of the
challenged policies. Specifically, with respect to the Parole+ATD policy,
Supreme Court indicated—albeit in dicta—that DHS’s use of the parole
authority in §1182(d)(5) is not categorically exempt from judicial review
because the “exercise of discretion within that statutory framework must
be reasonable and reasonably explained.” Biden v. Texas, 142 S. Ct. at
2543.
68
c. Review Precluded by the INA
Defendants’ argument that judicial review of the challenged
policies is precluded by the INA is essentially the same argument that
they made—and the Court rejected—at the motion to dismiss stage. See
Doc. 45 at 26-27. Defendants’ arguments are no more persuasive now
than they were then, and they are again rejected for the reasons stated
in the Order denying Defendants’ motion to dismiss. See also Jennings,
138 S. Ct. at 841 (rejecting argument that §1226(e) precludes a challenge
to the extent of the Government’s detention authority under the statutory
framework as a whole).
* * *
Having determined that Florida has standing to assert its claims
and that the claims related to the Parole+ATD Policy are justiciable, the
Court will now turn to the merits of the claims. The Court will also
discuss the merits of the Non-Detention Policy—both for sake of
completeness and to avoid a remand if a higher court determines that the
policy is judicially reviewable under the APA.
69
C. Merits
The Court must separately analyze the claims related to the alleged
“non-detention policy” and the claims related to the Parole+ATD policy
because the former is based on the entire evidentiary record whereas the
latter is based on the supplemental administrative record.26
26 The Court anticipated that the claims related to the Parole+ATD policy
would be decided on cross-motions for summary judgment, but only Defendants
sought summary judgment on that policy. This created a procedural quandary
because if the Court determined at the summary judgment stage that the
Parole+ATD policy contravened the law or was not supported by the evidence in the
supplemental administrative record, the Court could only deny Defendants’ motion
and it could not enter summary judgment in Florida’s favor.
The Court sought to address this procedural quandary by scheduling oral
argument on the parties’ motions for summary judgment before trial to “give the
parties an opportunity to address whether the Court could grant summary judgment
for Florida on its challenge to the Parole + ATD policy under Fed. R. Civ. P. 56(f)(1)
if the Court … determines that the record does not support the policy.” Doc. 110 at 1
(footnote omitted). For various reasons, see Doc. 119 at 18-21, the oral argument
could not be scheduled before trial, so the Court deferred review of the Parole+ATD
policy “until at or after trial so all of the issues in this case can be resolved at the
same time,” Doc. 117 at 2.
At the conclusion of the trial, the Court afforded the parties an opportunity to
present oral argument addressing both how the Court should view the evidence
presented at trail and how the Court should assess the Parole+ATD policy based on
the supplemental administrative record. The oral argument lasted for more than five
hours, and the Court extensively questioned both sides about the legality of the
Parole+ATD policy and the evidentiary support for the policy in the supplemental
record. The Court finds that the oral argument (coupled with the opportunity to file
post-trial briefs) afforded Defendants the “reasonable time to respond” contemplated
by Rule 56(f)(1).
Thus, notwithstanding the fact that Florida did not file a motion for summary
judgment with respect to the Parole+ATD policy, the Court can now grant judgment
in favor of Florida on that policy if that is what the law requires. Alternatively, if the
Court determines that Defendants are entitled to summary judgment on the
Parole+ATD motion, the Court can grant their motion. On the latter point, the Court
70
1. Non-Detention Policy27
The evidence establishes that in late January or early February of
2021, DHS made a discrete change in detention policy from “release only
if there is a compelling reason to” to “release unless there is a compelling
reason not to.” Specifically, before January 2021, DHS limited the
release of aliens at the Southwest Border to very exigent circumstances,
but under the new policy—what Florida characterizes as the Non-
Detention Policy—DHS began instructing agents to release aliens at the
Southwest Border unless the alien is a public safety or flight risk.
Florida claims that this Non-Detention Policy is (a) contrary to law
and in excess of statutory authority in violation of 5 U.S.C. §706(2)(A)
and (C); (b) arbitrary and capricious in violation of 5 U.S.C. §706(2)(A);
did not overlook that it previously “denied” Defendants’ motion for summary
judgment, see Doc. 117 at 2 (¶4), but upon reflection, that disposition should have
stated that the motion was “denied in part and deferred in part” because, as the body
of the Order denying the motion explains, the Court was deferring judicial review of
the Parole+ATD policy until at or after trial, id. at 2. That Order is hereby amended
nunc pro tunc to reflect that disposition.
27 The Court recognizes that this discussion of the merits of the Non-Detention
Policy is effectively dicta based on the conclusion that the policy is not “agency action”
subject to judicial review. However, because the “agency action” issue was a close
question in the Court’s mind, the Court elected to include a robust analysis of the
merits of the Non-Detention Policy to avoid the need for a remand in the event that
a higher court determines that the Court erred in concluding that the Non-Detention
Policy was not “agency action.”
71
and (c) promulgated without notice and comment as required by 5 U.S.C
§553. Each claim will be considered in turn.
a. Contrary to Law (Count 1)
Under the APA, a court must “hold unlawful and set aside agency
action” that is “not in accordance with law,” 5 U.S.C. §706(2)(A), or “in
excess of statutory . . . authority, or limitations, or short of statutory
right,” id. at §706(2)(C).
Florida contends that the Non-Detention Policy is contrary to law
because §1225(b) requires DHS to detain aliens apprehended crossing the
Southwest Border, but the Non-Detention Policy instructs DHS’s officials
to release these aliens except under narrow circumstances. DHS
responds that detention under §1225(b) is discretionary, and that even if
detention under that statute is mandatory, it has discretion to release
arriving aliens under either §1226(a) or §1182(d)(5).
Under the INA, certain aliens are “deemed . . . applicant[s] for
admission.” 8 U.S.C. §1225(a)(1). Specifically, applicants for admission
include aliens “who arrive[] in the United States . . . whether or not at a
designated port of arrival” and aliens “present in the United States who
72
ha[ve] not been admitted.” Id. Section 1225 imposes certain duties on
immigration officers to “[i]nspect” applicants for admission, regardless of
whether the aliens are “arriving in the United States” or whether they
are present without having “been admitted or paroled.” 8 U.S.C.
§ 1225(b); see also 8 U.S.C. §1225(a)(3) (explaining that “[a]ll
aliens . . . who are applicants for admission . . . shall be inspected”).
This broad definition of applicants for admission is a relatively
recent addition to the INA. Before 1996, the INA only contemplated
inspection of aliens arriving at ports of entry. See 8 U.S.C. § 1225(a), (b)
(1995). Other aliens, such as those who entered illegally, were not subject
to §1225(b). See 8 U.S.C. §1251(a)(1)(B) (1995) (explaining that an alien
“who entered the United States without inspection . . . is deportable”
rather than being subject to inspection and exclusion).
In 1996, however, Congress expanded §1225 by adding the broad
definition of “applicant for admission” quoted above. Pub. L. No. 104-208
§ 302, 110 Stat. 3009-579 (1996). In doing so, Congress subjected a
broader category of aliens to the inspection regime that applied to aliens
who showed up at a port of entry seeking admission. See Jennings, 138
S. Ct. at 836–37 (“Applicants for admission must be ‘inspected by
73
immigration officers’ to ensure that they may be admitted into the
country consistent with U.S. immigration law.” (quoting 8 U.S.C.
§1225(a)(3)).
All parties agree, and the Court has found, that the aliens at issue
in this case meet the statutory definition for applicants for admission and
are subject to inspection under §1225. See Doc. 87-1 at SAR0001
(explaining that what DHS refers to as “processing” of illegal border
crossers is an “inspect[ion] . . . consistent with 8 U.S.C. §1225(a)”). The
Court therefore turns to the three points of contention relevant to the
lawfulness of the Non-Detention Policy: (1) whether detention of
applicants for admission under §1225(b) is mandatory; (2) whether and
when DHS may release applicants for admission at the Southwest Border
under §1226(a); and (3) whether and when DHS may release these aliens
under §1182(d)(5).
Section 1225(b) governs the inspection process for applicants for
admission. Certain applicants are subject to “expedited removal” under
§1225(b)(1), pursuant to which they are to be removed “without further
hearing” unless they seek asylum or establish a credible fear persecution
in their home country. All other applicants are subject to “standard”
74
removal proceedings under §1225(b)(2). The nuances of each type of
proceeding are immaterial to the issues in the case because, regardless
of the specific proceeding the applicant is subject to, he or she “shall be
detained” pending immigration proceedings, see 8 U.S.C.
§§1225(b)(1)(B)(ii), 1225(b)(1)(B)(iii)(IV), 1225(b)(2)(A), and the detention
mandate continues “until [the applicable removal] proceedings are
complete.” Jennings, 138 S. Ct. at 842.
Notwithstanding the plain text of §1225(b) and the Supreme
Court’s holding in Jennings, DHS argues that detention of applicants for
admission is discretionary. In DHS’s view, §1225(b)’s mandatory
language flows in only one direction—the statute prevents aliens from
obtaining release, but it does not create obligations for DHS. In other
words, DHS interprets the “shall” language in § 1225(b) to limit the rights
of aliens but not to limit its discretion.
The Court rejects DHS’s argument and concludes that §1225(b)’s
“shall be detained” means what it says and that is a mandatory
requirement. This conclusion flows directly from Jennings in which the
Supreme Court explicitly stated that “§1225(b)(1) and (b)(2) … mandate
detention,” 138 S. Ct. at 842 (emphasis added), and explained that “the
75
word ‘shall’ usually connotes a requirement,” id. at 844 (quotations
omitted); see also United States v. Quirante, 486 F.3d 1273, 1275 (11th
Cir. 2007) (explaining that “[t]he word ‘shall’ does not convey discretion”
and that “where Congress uses the word ‘shall’ to describe a party’s
obligation, Congress intends to command rather than suggest”). This
conclusion is confirmed by the heading for §1225(b)(1)(B)(iii)(IV), which
describes that provision as creating “[m]andatory detention.” See Fla.
Dep’t of Revenue v. Piccadilly Cafeterias, Inc., 554 U.S. 33, 47 (2008)
(explaining that “statutory titles and section headings are tools available
for the resolution of a doubt about the meaning of a statute” (quotations
omitted)).
Moreover, Congress’s use of the discretionary the word “may” in
other similar provisions of the INA bolsters the Court’s conclusion that
§1225(b)’s detention requirements are mandatory. See Sosa v. Alvarez-
Machain, 542 U.S. 692, 711 n.9 (2004) (“[W]hen the legislature uses
certain language in one part of the statute and different language in
another, the court assumes different meanings were intended.”
(quotations omitted)). For example, §1226(a) states that certain other
aliens “may be arrested and detained” (emphasis added). And in other
76
provisions of §1225, Congress recognized the difference between a
discretionary option and a mandatory command. See, e.g., 8 U.S.C.
§1225(b)(2)(C) (“[T]he Attorney General may return the alien to [a
contiguous territory] pending” removal. (emphasis added)).
DHS argument that “shall” in the detention statutes actually
means “may” relies primarily on Town of Castle Rock v. Gonzales and the
“deep-rooted nature of law-enforcement discretion.” 545 U.S. 748, 761
(2005).28 But nothing in that case undermines the settled principles that
the concept of law-enforcement discretion does not “set agencies free to
disregard legislative direction” and that Congress is free to cabin
enforcement discretion by providing “guidelines for the agency to follow
in exercising its enforcement powers.” Heckler v. Cheney, 470 U.S. 821,
832-33 (1985); see also Texas v. United States, 40 F.4th 205, 225–26 (5th
Cir. 2022) (distinguishing Castle Rock because it concerned a singular,
individualized instance of nonenforcement, not any agency-wide policy of
nonenforcement in the face of an “incontrovertibly mandatory” statutory
28 DHS also suggests that it has discretion to forego any immigration

enforcement against a particular alien altogether, which in turn, would allow it to
avoid §1225(b)’s detention requirements. See Doc. 156 at 160. However, even if that
is true (and politically feasible), the evidence in this case establishes that DHS is
initiating removal proceedings against the aliens subject to the challenged policies.
77
command to the contrary). Here, as explained above, Congress cabined
DHS’s discretion in §1225(b) when it commanded the agency, in clear and
unambiguous language, to detain applicants for admission pending
removal proceedings.
Having concluded that §1225(b) is mandatory rather than
discretionary, the Court turns to whether either of the release
mechanisms DHS invokes are permissible. As detailed in the findings of
fact, DHS has applied the Non-Detention Policy in some instances by
releasing aliens under §1226(a) and in other instances by releasing aliens
under §1182(d)(5).
The Court begins with § 1226(a). That statute begins by stating
that, “[o]n a warrant issued by the Attorney General, an alien may be
arrested and detained pending a decision on whether the alien is to be
removed.” It then states that, following such arrest, the Attorney
General “may continue to detain the arrested alien” or “may release the
alien” either “on bond” or on “conditional parole.” 8 U.S.C. §1226(a)(2).
DHS contends that §1226(a) applies to aliens arriving at the
Southwest Border once the alien reaches U.S. soil. And because
§1225(a)’s definition of applicants for admission also includes these
78
aliens, DHS contends that Congress gave the agency a choice—if DHS
wants to detain an alien at the Southwest Border, it can apply §1225(b),
but if DHS wants to release the alien, it can apply §1226(a).
The Court rejects DHS’s argument for two reasons. First, §1226(a)
does not apply to applicants for admission apprehended at the Southwest
Border. Second, even if the statute could apply under some
circumstances, the evidence at trial showed that DHS is initially
processing applicants for admission at the Southwest Border under
§1225, and there is nothing in the INA that contemplates that processing
can switch between §1225 and §1226.
Starting with the first point, §1225(a) treats a specific class of aliens
as “applicants for admission,” and §1225(b) mandates detention of these
aliens throughout their removal proceedings. Section 1226(a), by
contrast, states in general terms that detention of aliens pending removal
is discretionary unless the alien is a criminal alien.
As the Supreme Court stated in Jennings, §1226 applies to “certain
aliens already in the country.” 138 S. Ct. at 837–38 (emphasis added).
And even if an alien crossing the Southwest Border fell within §1226(a)’s
general language, §1225(b)’s specific mandatory language would trump
79
§1226(a)’s general permissive language. Indeed, “it is a commonplace of
statutory construction that the specific governs the general.” Morales v.
Trans World Airlines, Inc., 504 U.S. 374, 384 (1992). And this canon
squarely applies to §1225 and §1226, as it is “most frequently applied to
statutes in which a general permission . . . is contradicted by a specific
prohibition.” RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 566
U.S. 639, 645 (2012).
Moreover, DHS’s position would render mandatory detention under
§1225(b) meaningless. Indeed, the 1996 expansion of §1225(b) to include
illegal border crossers would make little sense if DHS retained discretion
to apply §1226(a) and release illegal border crossers whenever the agency
saw fit. Cf. Demore, 538 U.S. at 518 (explaining that “wholesale
failure[s]” by the federal government motivated the 1996 amendments to
the INA). In fact, as the Attorney General has explained, “section [1225]
(under which detention is mandatory) and section [1226(a)] (under which
detention is permissive) can be reconciled only if they apply to different
classes of aliens.” Matter of M-S-, 27 I. & N. Dec. 509, 516 (Att’y Gen.
2019); see also Ortega-Cervantes v. Gonzales, 501 F.3d 1111, 1116 (9th
Cir. 2007) (holding that an alien who was apprehended within the
80
interior of the United States necessarily must have been paroled under
§1226(a), not §1182(d)(5)(A), because he was not apprehended at the
border as a §1225 arriving alien, as is required to be eligible for parole
under §1182(d)(5)(A)).
That brings the Court to the second point. Even if DHS were correct
that §1225(b) and §1226(a) overlap, and even if DHS were correct that it
has discretion to decide which provision to apply, what DHS certainly
may not do is initiate an inspection under §1225 and then, at some later
time, attempt to shift the alien’s detention to §1226(a).
DHS’s initial apprehension and processing of applicants for
admission at the Southwest Border is an “inspection” under §1225.
During that inspection, if DHS decides to release an alien under §1226(a),
it initiates a removal proceeding against the alien under 8 U.S.C. §1229a
by serving a NTA and then relies on those pending removal proceedings
as a basis to shift the alien’s detention from §1225(b) to §1226(a). At
closing argument, counsel for DHS described the agency’s position that
the decision to place an applicant for admission in standard removal
proceedings under §1229a, instead of expedited removal proceedings
under §1225(b)(1), causes §1226(a) to govern the alien’s detention. The
81
problem with this argument (and what makes DHS’s application of
§1226(a) in this manner unlawful) is that §1225(b)(2), not §1226(a),
governs the detention of applicants for admission whom DHS places in
standard removal proceedings following in inspection under §1225. See
8 U.S.C. §1225(b)(2)(A) (explaining that if the immigration officer
determines that the alien is not clearly and beyond a doubt entitled to
admission, “the alien shall be detained for a proceeding under §1229a”).
In Jennings, the plaintiffs made the same basic argument DHS
advances here—i.e., that “for a proceeding” in §1225(b)(2) means “only
until the start of applicable proceedings” and that §1226(a) governs
detention once those proceedings begin. See 138 S. Ct. at 844. The
Supreme Court, however, rejected the plaintiffs’ position that §1226(a)
governs the detention of applicants for admission once removal
proceedings begin, holding that “(b)(2) mandate[s] detention of aliens
throughout the completion of applicable proceedings and not just until the
moment those proceedings begin.” Id. at 845 (emphasis added).
Another problem with DHS’s reliance on §1226 is that the statute
is not even triggered unless an arrest warrant is issued. See 8 U.S.C.
§1226(a) (“On a warrant issued by the Attorney General, an alien may be
82
arrested and detained pending a decision on whether the alien is to be
removed from the United States.”) (emphasis added). If the alien has not
been arrested on a warrant, then the subsequent provisions giving the
Attorney General discretion to detain or release “the arrested alien” are
likewise not triggered. See 8 U.S.C. §1226(a)(1), (a)(2).
Here, the evidence establishes that DHS is not obtaining warrants
for aliens apprehended at the Southwest Border. Instead, it relies on the
warrantless arrest authority in 8 U.S.C. §1357(a)(2) to take the aliens
into custody for inspection and processing. Even if DHS is putting an
“administrative warrant” in the alien’s file when the NTA is issued the
alien is released,29 that is not happening for aliens released under the
Parole+ATD policy until (or if) they report to an ICE office for issuance
of an NTA. But, by that point, the decision to release the alien has
already been made.
Additionally, as the Supreme Court noted in Jennings, what DHS
claims to be doing makes little sense. See 138 S. Ct. at 845 (“If
respondents’ interpretation of § 1225(b) were correct, then the
29 Conflicting evidence on this point was presented at trial, but the Court
credits the testimony of DHS’s Rule 30(b)(6) witness who testified that a warrant
(administrative or otherwise) is not obtained before the alien is released.
83
Government could detain an alien without a warrant at the border, but
once removal proceedings began, the Attorney General would have to
issue an arrest warrant in order to continue detaining the alien. To put
it lightly, that makes little sense.”). The warrants required by §1226(a)
are arrest warrants, but by the time DHS puts the “administrative
warrant” in the alien’s file (if it is even doing so), the alien has already
been arrested under §1357 and the warrant is only being issued to the
alien can be released. This sleight of hand—using an “arrest” warrant as
de facto “release” warrant—is administrative sophistry at its worst.
Having concluded that §1225(b) requires detention of applicants for
admission at the Southwest Border and that DHS may not release these
aliens under §1226(a), the Court must next address whether DHS’s
releases under §1182(d)(5) are lawful. However, because Florida
separately challenges the Parole+ATD policy, and because that policy
explains how DHS is using §1182(d)(5) at the Southwest Border, the
Court will address that question when it discusses the Parole+ATD
policy. Suffice it to say at this point, if the Non-Detention Policy was
“agency action” subject to judicial review, the Court would find that it is
84
unlawful insofar as it allows aliens arriving at the Southwest Border to
be released under §1226(a).
* * *
In sum, although the Non-Detention Policy is “not in accordance
with law” and is “in excess of statutory authority” under 5 U.S.C.
§706(2)(A) and (C), Defendants are entitled to judgment in their favor on
Count 1 of the second amended complaint because the Non-Detention
Policy is not discrete “agency action” that is subject to judicial review.
b. Arbitrary and Capricious (Count 3)
action” that is “arbitrary [or] capricious.” 5 U.S.C. §706(2)(A). This
standard “requires that agency action be reasonable and reasonably
explained.” FCC v. Prometheus Radio Project, 141 S. Ct. 1150, 1158
(2021). Indeed, meaningful judicial review requires an agency to
“disclose the basis of its action.” See Dep’t of Com., 139 S. Ct. at 2573
(quotations omitted).
Here, Florida contends that DHS’s refusal to acknowledge its
change in policy renders the Non-Detention Policy arbitrary and
85
capricious. The Court agrees. As Justice Scalia explained in Fox
Television, “the requirement that an agency provide reasoned
explanation for its action would ordinarily demand that it display
awareness that it is changing position.” 556 U.S at 515. And an agency
may not “depart from a prior policy sub silentio or simply disregard rules
that are still on the books.” Id. DHS’s issuance of the Non-Detention
Policy was a distinct change in detention policy, and DHS’s failure to
acknowledge that change, or to provide a decisional document or
administrative record for this Court to review, is fatal because the Court
has no way to assess whether the agency’s actions are reasonable and
reasonably explained.
Nevertheless, because the policy is not “agency action” subject to
judicial review, Defendants are entitled to judgment in their favor on
Count 3 of the second amended complaint.
c. Notice and Comment (Count 5)
The APA “specifies that an agency shall afford interested persons
general notice of proposed rulemaking and an opportunity to comment
before a substantive rule is promulgated.” Chrysler Corp. v. Brown, 441
U.S. 281, 313 (1979) (discussing 5 U.S.C §553). The APA distinguishes
86
between interpretive rules, which are not subject to notice and comment,
and substantive rules, which are. Id. at 301–03. A rule is substantive
and thus subject to notice and comment if it “affect[s] individual rights
and obligations.” Id. at 302 (quoting Morton v. Ruiz, 415 U.S. 199, 232
(1974)). For similar reasons that the Non-Detention Policy is not final
agency action subject to judicial review, it is not a substantive rule
subject to notice and comment. Accordingly, Defendants are entitled to
judgment in their favor on Count 5 of the second amended complaint.
2. Parole+ATD Policy
The latest iteration of the Parole+ATD Policy is contained in the
July Memo. As with the Non-Detention Policy, Florida claims that the
Parole + ATD Policy is contrary to law, arbitrary and capricious, and
subject to notice and comment. The legal standards that govern each of
these claims are set forth above in the discussion of the Non-Detention
Policy, and for the most part,30 the Court reviews these issues based on
30 The Court can look beyond the administrative record where the absence of
evidence “effectively frustrates judicial review” by failing to present a clear picture of
the agency’s actions. See Preserve Endangered Areas of Cobb’s History, Inc. v. U.S.
Army Corps of Eng’rs, 87 F.3d 1242, 1246 n.1 (11th Cir. 1996). Here, there is
undisputed extra-record evidence showing that DHS has been using Parole+ATD as
its primary processing pathway since April 2022—with almost 89,000 releases under
the policy in November 2022 alone. See Pl. Ex. 3, 4. This evidence blatantly
87
the supplemental administrative record prepared by DHS. See Fla.
Power & Light Co. v. Lorion, 470 U.S. 729, 743–44 (1985).
a. Contrary to Law (Count 2)
Florida argues that the July Memo is contrary to law because it
ignores the plain language of §1182(d)(5). That statute provides in
pertinent part:
The Attorney General may … in his discretion parole into the

United States temporarily under such conditions as he may
prescribe only on a case-by-case basis for urgent
humanitarian reasons or significant public benefit any alien
applying for admission to the United States, … and when the
purposes of such parole shall … have been served the alien
shall forthwith return or be returned to the custody from
which he was paroled and thereafter his case shall continue
to be dealt with in the same manner as that of any other
applicant for admission to the United States.
(emphasis added).
contradicts the statements in the July Memo that “Parole + ATD is a tool that should
be used sparingly” and that it is “not meant to be a primary processing tool.” Doc.
87-1 at SAR003. Without considering this extra-record evidence, judicial review of
the Parole+ATD policy would be frustrated because the Court would not be able to
fairly assess whether the July Memo complies with the case-by-case requirement in
§1182(d)(5). See Biden v. Texas, 142 S. Ct. at 2554 (Alito, J., dissenting) (“But the
number of aliens paroled each month under that provision—more than 27,000 in
April of this year—gives rise to a strong inference that the Government is not really
making these decisions on a case-by-case basis.”).
88
For the reasons that follow, the Court concludes that the July Memo
is contrary to law in three ways: (1) it does not contemplate a return to
custody once the purposes of parole have been served; (2) it does not
comply with the case-by-case requirement; and (3) it does not limit parole
to urgent humanitarian reasons or significant public benefit.
i. Return to Custody Requirement
The July Memo does not even acknowledge the requirement that an
alien be returned to DHS custody when “the purposes of such parole
shall . . . have been served.” 8 U.S.C. §1182(d)(5)(A). As counsel for DHS
conceded during oral argument, the “purpose” of parole contemplated by
the July Memo is moving aliens out of CBP facilities faster than would
occur if the alien were processed consistent with the requirements of
§1225.31 In doing so, the July Memo seeks to shift the inspection
31 DHS argues for the first time in its post-trial brief that decompression of
CBP facilities was not the only purpose of the Parole+ATD policy. See Doc. 156 at
102-04. This argument is refuted by face of the July Memo, which states that
“Parole+ATD is … a safety valve to address overcrowding” and is a “processing
mechanism to address situations in where there is not appropriate detention space
available, and there are operation concerns about the number of people present in …
USBP facilities along the Southwest Border.” Doc. 87-1 at SAR0002. Moreover,
although the ATD component of the policy may help ensure compliance without court
appearances, etc., the supplemental record as a whole leaves no doubt that the sole
purpose of the policy was to relieve overcrowding at CBP border facilities by shifting
the processing of “removal paperwork” to ICE field offices around the country.
89
contemplated by §1225 to an ICE field office in the interior of the country.
That being the case, the purpose of the parole is served when the alien
has his first encounter with ICE. However, nothing in the July Memo or
the supplemental administrative record contemplates a return to custody
at that time or any time thereafter—indeed, the supplemental
administrative record shows that aliens are all-but-guaranteed that they
“will not be taken into custody” when they report to ICE for issuance of
an NTA. See Doc. 87-1 at SAR 0168.
Relatedly, §1182(d)(5) contemplates that the alien would have a
“case” pending because it provides that once the purpose of parole has
been served and the alien is returned to custody, “his case shall continue
to be dealt with in the same manner as that of any other applicant for
admission.” However, the entire purpose of the Parole+ATD policy is to
expedite the processing of aliens at CBP facilities without initiating an
immigration proceeding against them. Thus, at the time the alien is
released under the Parole+ATD policy, he has no immigration “case” that
can “continue to be dealt with” upon a return to custody.
90
ii. Case-by-Case Requirement
With respect to the second point, the “case-by-case” requirement in
§1182(d)(5) requires DHS to conduct an individualized assessment of
each alien to determine whether to grant parole. This requirement was
added to the statute in 1996 “to limit the scope of the parole power and
prevent the executive branch from using it as a programmatic policy
tool.” Texas v. Biden, 20 F.4th at 947; see also Cruz-Miguel v. Holder, 650
F.3d 189, 199 n.15 (2d Cir. 2011) (explaining that the current language
in the §1182(d)(5) was the result of amendments animated by concerns
that the parole authority “was being used by the executive to circumvent
congressionally established immigration policy”).
The process set forth in the July Memo violates the case-by-case
requirement because although the memo pays lip service to assessments
of individual aliens, it is largely focused on DHS’s operational
circumstances rather than an individual alien’s circumstances. See Doc.
87-1 at SAR0002 (explaining that Parole+ATD should only be used “when
justified by an urgent humanitarian reason or because it yields a
significant public benefit in the form of disease mitigation, as a safety
valve to address overcrowding” (emphasis added)). Moreover, any case-
91
by-case consideration of the alien’s circumstances—to the extent it occurs
at all—focuses on whether the alien is a public safety risk or flight risk,
not on whether the alien meets the exceedingly high parole standard.
Additionally, the July Memo turns the parole standard on its head
by providing ineligibility criteria rather than eligibility criteria. In other
words, the July Memo essentially establishes a presumption of parole
when the relevant “triggers” are met.
The time estimates in the supplemental administrative record
confirm that USBP is not conducting meaningful case-by-case analysis
before placing releasing an individual under the Parole+ATD policy. The
supplemental administrative record indicates that the “processing time”
for issuing a NTA is between 2 to 2.5 hours, whereas Parole+ATD only
takes 15 to 30 minutes. It is implausible that USBP could meaningfully
assess an alien’s individual circumstances in 15 to 30 minutes.
On this issue, the Court finds persuasive Justice Alito’s discussion
of the case-by-case requirement in Biden v. Texas, 142 S. Ct. at 2555
(Alito, J., dissenting). There, Justice Alito explained that “simply . . .
going through a brief checklist for each alien” is “inconsistent with the
ordinary meaning of ‘case-by-case’ review.” Id. Further, Justice Alito
92
noted that the number of aliens paroled each month “gives rise to a strong
inference that the [g]overnment is not really making these decisions on a
case-by-case basis.” Id. at 2554. Notably, at the time Justice Alito made
this observation, DHS was paroling 27,000 aliens per month—whereas
DHS released more than three times that number of aliens under the
Parole+ATD policy in November 2022.
iii. Urgent Humanitarian Reasons

or Significant Public Benefit Requirement
The July Memo also violates §1182(d)(5)’s requirement that parole
only be granted “for urgent humanitarian reasons or significant public
benefit.” Before 1996, §1182(d)(5)(A) permitted parole “for emergent
reasons or reasons strictly in the public interest.” 8 U.S.C. §1182(d)(5)(A)
(1995). The addition of “urgent” and “significant” required a higher level
of exigency to justify a grant of parole.
The primary “public benefit” that the Parole+ATD policy sought to
achieve was speeding up the inspection mandated by §1225 to
“decompress” overcrowded CBP facilities. However, even if there may be
circumstances where an individual alien might be eligible for parole
based on overcrowding and health and safety concerns, creating an
93
entirely new “processing pathway” to avoid the process mandated by
§1225 is inconsistent with the narrow language in §1182(d)(5).
DHS argues that the standard in the July Memo conforms to
standard in 8 C.F.R. §212.5, which Florida has not directly challenged
and which provides that parole is “generally justified” for aliens “whose
continued detention is not in the public interest” so long as “the aliens
present neither a security risk nor a risk of absconding.” 8 C.F.R.
§212.5(b)(5). The main problem with this argument is that it flips the
INA on its head. Section §1225(b) requires detention unless parole is
justified based on “urgent humanitarian reasons” or “significant public
benefit” under §1182(d)(5), whereas the regulation effectively allows any
alien to be released on parole whenever continued detention is not “in the
public interest”—whatever that means—and the alien is not a security
or flight risk. Another problem with this argument is that the
supplemental administrative record does not explain how it CBP officers
can make a meaningful determination as to whether the alien is a
security risk (as contemplated by the regulation) if the alien’s home
country does not share its criminal history databases with the United
States.
94
The Court did not overlook Defendants’ argument that the
legislative history of the 1996 amendment to §1182(d)(5) shows that
Congress chose the language that is now in the statute over more narrow
alternative language that would have limited parole to specific
circumstances. Putting aside the limited weight the legislative history is
due, the Court fails to understand how the fact that Congress apparently
rejected more narrow language so DHS had “flexibility to deal with
compelling immigration situations” justifies the creation of an entirely
new processing pathway that has led to the mass release of aliens in the
country with minimal processing merely for sake of administrative
expediency.
* * *
For these reasons, the July Memo is “not in accordance with law”
and is “in excess of statutory authority” under 5 U.S.C. §706(2)(A) and
(C). Accordingly, Florida is entitled to judgment in its favor on Count 2
of the second amended complaint.
95
b. Arbitrary and Capricious (Count 4)
As explained above, the arbitrary and capricious standard “requires
that agency action be reasonable and reasonably explained.” Prometheus,
141 S. Ct. at 1158. The reviewing court must look to see “if the agency
has relied on factors which Congress has not intended it to consider,
entirely failed to consider an important aspect of the problem, offered an
explanation for its decision that runs counter to the evidence before the
agency, or is so implausible that it could not be ascribed to a difference
in view or the product of agency expertise.” State Farm, 463 U.S. at 43.
And “[t]o determine if an agency considered all the relevant factors and
important aspects of the problem, a court may look to the language of the
relevant statutes, regulations, the administrative record, and even
beyond the administrative record.” Bidi Vapor LLC v. U.S. FDA, 47
F.4th 1191, 1202 (11th Cir. 2022) (quotations and citations omitted).
Florida contends that the Parole+ATD policy is arbitrary and
capricious because DHS: (1) failed to adequately consider the ever-
worsening backlog caused by earlier iterations of the policy; (2) failed to
acknowledge the extraordinary expansion of the agency’s use of parole
under §1182(d)(5) as compared to the agency’s historical practice; (3)
96
ignored the evidence when it concluded that Parole + ATD will only be
“used sparingly” and that it is “not meant to be a primary processing
tool”; (4) failed to consider whether the Parole + ATD policy would
increase migration flows; and (5) failed to acknowledge its decision to
expand Parole + ATD to include single adults rather than only family
units, much less explain why it did so. The Court agrees with the first,
third, and fifth points.
With respect to the first point (backlog), the supplemental
administrative record contains estimates regarding the number of
individuals released on Parole+ATD against whom DHS must still
initiate removal proceedings. These projections show that for every 90
days Parole + ATD continues, the policy creates a backlog that takes 5.5
years and $49 million to clear. And this backlog only accounts for the
time needed to begin removal proceedings—not the additional time
required to complete those proceedings and remove aliens. By these
estimates, the backlog created by Parole+ATD will take decades to
overcome.
The July Memo does not expressly discuss the backlog, much less
explain why the problems created by the backlog did not outweigh the
97
perceived benefits of continuing the Parole+ATD program. The fact that
the supplemental administrative record contains information about the
backlog suggests that DHS was at least aware of it, but that does not
satisfy DHS’s obligation to explain its consideration of the problem so the
Court can determine whether the decision to continue the Parole+ATD
program notwithstanding the backlog it was creating was reasonable and
reasonably explained. Indeed, putting aside the fact that the Court
cannot conceive of a reason to continue a program that increased delays
and costs associated with initiating immigration proceedings, the Court
cannot “supply a reasoned basis for the agency’s action that the agency
itself has not given.” State Farm, 463 U.S. at 43 (quoting SEC v. Chenery
Corp., 332 U.S. 194, 196 (1947)).
With respect to the third point (ignoring evidence), the July Memo
asserted that Parole+ATD will only be “used sparingly” and that it is “not
meant to be a primary processing tool.” Those statements turned out to
be untrue, and they were also contrary to “the evidence before the agency”
when the July Memo was issued because in preceding month (June 2022),
CBP released over 40,000 applicants for admission under that policy,
which was more than 40% of total apprehensions at the Southwest
98
Border that month. And that was before the July Memo expanded the
eligibility for Parole+ATD to single adults rather than just family units.
With respect to the fifth point (expansion to single adults), the July
Memo reflected a significant expansion of the Parole+ATD program
because it no longer limited eligibility to family units. The July Memo
does not offer any explanation as to why the program was expanded or
even acknowledge the policy change reflected in the expansion of the
program. Those failures render the July Memo arbitrary and capricious
because “the requirement that an agency provide reasoned explanation
for its action would ordinarily demand that it display awareness that it
is changing position.” Fox Television, 556 U.S. at 515.
Accordingly, the July Memo is arbitrary and capricious, and Florida
is entitled to judgment in its favor on Count 4 of the second amended
complaint.
c. Notice and Comment (Count 6)
Florida claims that the July Memo is an agency rule affecting rights
and obligations that was subject to notice and comment. DHS responds
that the July Memo is not subject to notice and comment because it is
99
merely an interpretive rule, a general statement of policy, or a statement
of agency organization—all of which are excepted from notice and
comment under 5 U.S.C. §553(b)(A).
The July Memo is subject to notice and comment because it
establishes a generally applicable policy to determine whether aliens are
detained or paroled, it instructs agents how to exercise their
discretionary authority under §1182(d)(5), it sets criteria for granting
parole, and it affects Florida’s obligations to paroled aliens. See Jean v.
Nelson, 711 F.2d 1455, 1476–77 (11th Cir. 1983 (rejecting government’s
argument that a new policy concerning detention and parole of Haitian
immigrants was not subject to notice-and-comment rulemaking because
“the fact that an agency need not employ rulemaking in order to exercise
its discretion [under §1182(d)(5)] on a case-by-case basis does not mean
it cannot or has not resorted to a rule of general applicability which limits
its discretionary function”).32
32
The Court did not overlook that this panel opinion was effectively vacated
when the case was reheard en banc. See Jean v. Nelson, 727 F.2d 957 (11th Cir. 1984)
(en banc). However, the en banc opinion did not repudiate the panel’s analysis of the
notice-and-comment issue (the issue was moot at that point, id. at 984), and even if
the panel opinion is not binding precedent, the Court finds its analysis of the notice-
and-comment issue persuasive here.
100
None of the exceptions relied on by DHS exempt the Parole+ATD
policy from notice-and-comment.
First, the July Memo is not an interpretive rule. An interpretive
rule is a “statement[] as to what the administrative officer thinks the
statute or regulation means.” Brown Express, Inc. v. United States, 607
F.2d 695, 700 (5th Cir. 1979)33 (quoting Gibson Wine Co. v. Snyder, 194
F.2d 329, 331 (D.C. Cir. 1952)). The July Memo does not “purport to
interpret a statute or regulation,” id., or try to explain the meaning of
§1182(d)(5), so it cannot be an interpretive rule.
Second, the July Memo is not merely a general statement of policy.
“A general statement of policy . . . is merely an announcement to the
public of the policy which the agency hopes to implement” and “presages
an upcoming rulemaking.” Id. at 701 (quoting Pac. Gas & Elec. Co. v.
Fed. Power Comm’n, 506 F.2d 33, 38 (D.C. Cir. 1974)). The July Memo
does none of these things. It establishes a substantive change in policy
33 Fifth Circuit decisions issued before the close of business on September 30,
1981, are binding in the Eleventh Circuit. Bonner v. City of Prichard, 661 F.2d 1206,
1209 (11th Cir. 1981) (en banc).
101
that took effect immediately by creating a new “processing pathway” for
aliens arriving at the Southwest Border.
Third, the July Memo is not a rule of agency organization. That
exception applies where a rule is “primarily directed toward improving
the efficient and effective operations of an agency, not toward a
determination of the rights [or] interests of affected parties.” Mendoza v.
Perez, 754 F.3d 1002, 1023 (D.C. Cir. 2014) (quotations omitted). Here,
the July Memo “alter[s] the standards imposed” on aliens and the criteria
by which parole may be granted to affected parties. Id. at 1024 (emphasis
removed).
Accordingly, the July Memo is subject to notice and comment and
Florida is entitled to judgment in its favor on Count 6 of the second
amended complaint.
3. Florida’s Remaining Claims
The Court does not consider Florida’s constitutional claim (Count
8) or its claim that the Non-Detention Policy is agency action unlawfully
withheld under 5 U.S.C. §706(1) (Count 7), because Florida concedes (and
Defendants do not dispute) that the Court need not reach those claims.
102
That said, with respect to the constitutional claim, although Florida
makes a compelling political case that the President and DHS leadership
were derelict in their duties by releasing over a million aliens into the
country in contravention of the detention mandates in the INA, Florida
has not made a legal case under the Take Care Clause because (1) as
Defendants persuasively argue in their post-trial brief, it is unclear
whether there is even a private cause of action under the Take Care
Clause, see Doc. 156 at 164-73, and (2) to the extent a private cause of
action exists, Florida would have to show that the executive branch
“completely abdicated” its statutory responsibilities, see Doc. 45 at 33-34
(deriving this standard from cases like Heckler), which it has not done
here. Specifically, although the evidence established that Defendants
have adopted policies that prioritize “alternatives to detention” over
actual detention, they have not “completely abdicated” their detention
responsibilities because the evidence establishes that they continue to
detain a substantial number of arriving aliens each month.
D. Remedy
Having determined that the Parole + ATD Policy violates the APA
on several grounds, the Court must consider the appropriate remedy.
103
Florida asks the Court to vacate the policy and issue declaratory relief.
DHS argues that 8 U.S.C §1252(f)(1) bars both injunctive relief and APA
vacatur and that declaratory relief would have to be narrowly tailored so
as not to circumvent §1252(f)(1) or violate separation of powers
principles. Alternatively, DHS argues that any remedy would need to be
limited to Florida and the harm it suffered and not a “universal
injunction.”
action” that violates the APA. 5 U.S.C. §706(2). In the Eleventh Circuit,
“[v]acatur . . . is the ordinary APA remedy.” Black Warrior Riverkeeper,
781 F.3d at 1290 (quotation omitted). Vacatur typically operates to set
aside a rule generally, not as a partial remedy for the plaintiffs. See Nat’l
Mining Ass’n v. U.S. Army Corps of Eng’rs, 145 F.3d 1399, 1409 (D.C. Cir.
1998) (explaining that “the ordinary result” of a successful APA claim is
that “the rules are vacated” and not that “their application to the
individual petitioners is proscribed” (quotation omitted)).
Even if the party-specific vacatur DHS seeks were a proper remedy
under the APA, complete vacatur is “necessary to grant complete relief
to” Florida here. Health Freedom Def. Fund, Inc. v. Biden, 599 F. Supp.
104
3d 1144, 1177 (M.D. Fla. 2022). Once released at the Southwest Border,
aliens are free to travel throughout the United States. If the Court were
to adopt DHS’s request—which would essentially involve DHS asking
aliens where they are going and applying the challenged policies to aliens
who don’t respond with “Florida”—released aliens would be free to travel
to Florida. See id. at 1178 (denying a request for partial vacatur where
there were “no adequate assurances that the government can provide
that its agents . . . will not violate this Court’s order and deprive
Plaintiffs of their relief”). Moreover, if DHS only detained applicants for
admission who say they are traveling to Florida and released other
aliens, the Court expects that it would not take long for immigration law
violators to figure out how to ensure their own release.
DHS also argues that §1252(f)(1) precludes the Court from vacating
either of the challenged policies. That statute provides in pertinent part
that “no court (other than the Supreme Court) shall have jurisdiction or
authority to enjoin or restrain the operation of the provisions of part IV
of this subchapter.” DHS contends that because vacatur of the policies
would violate this statute because it would effectively enjoin or restrain
the manner in which the referenced provisions of the INA operate.
105
The Supreme Court explained that §1251(f)(1) “generally prohibits
lower courts from entering injunctions that order federal officials to take
or to refrain from taking actions to enforce, implement, or otherwise carry
out the specified statutory provisions.” Aleman Gonzalez, 142 S. Ct. at
2065 (emphasis added); see also Reno v. Am.-Arab Anti-Discrimination
Comm., 525 U.S. 471, 481 (1999) (explaining that §1252(f)(1) is “nothing
more or less than a limit on injunctive relief”). Neither the Supreme
Court nor the Eleventh Circuit has decided whether this statute
precludes vacatur under the APA, although the Supreme Court is poised
to answer that question this Term in United States v. Texas, No. 22-58.
Vacatur is “a less drastic remedy” than an injunction, Monsanto Co.
v. Geertson Seed Farms, 561 U.S. 139, 165–66 (2010), and the Fifth
Circuit concluded in the opinion currently on review at the Supreme
Court that §1252(f)(1) does not preclude vacatur under the APA because
vacatur “does nothing but re-establish the status quo absent the unlawful
agency action” and “neither compels nor restrains further agency
decision-making.” Texas v. United States, 40 F.4th at 220. The Court
finds the Fifth Circuit’s reasoning persuasive. Thus, the Court finds that
106
§1252(f)(1) does not strip it of the authority to vacate either of the
challenged policies under the APA.
Moreover, even if the Supreme Court quashes the Fifth Circuit’s
decision, that will likely34 only impact the availability of vacatur with
respect to the Non-Detention Policy because that policy implicates DHS’s
exercise of its authority under §1225 and §1226, which are both in part
IV of the INA. By contrast, §1182(d)(5), which is the statute on which
the Parole+ATD policy is based, is contained in part II of the INA, not
part IV, and any indirect impact that vacatur of that policy might have
on how DHS exercises its authority under part IV of the INA does not
equate to the Court having “enjoin[ed] or restrain[ed]” the operation of
that part.
Accordingly, vacatur of the Parole+ATD policy is not precluded by
§1252(f)(1) and is the appropriate remedy under the circumstances. A
separate declaration that the Parole+ATD policy is unlawful is
34 The Court says “likely” because it is possible that the Supreme Court might
go along with the Solicitor General’s argument (echoed by Defendants in their post-
trial brief, see Doc. 156 at 186), and hold that 5 U.S.C. §706(2) does not authorize
vacatur. However, based on the Justices’ comments at oral argument, that seems
highly unlikely.
107
unnecessary because that is implicit in the Court’s finding that the policy
violated §706(2)(A) and (C) of the APA.
IV. CONCLUSION
In sum, for the reasons stated above, the Court finds that (1) the
Non-Detention Policy exists but is not discrete “agency action” that is
subject to judicial review under the APA—although if it was, it would be
subject to vacatur because it contravenes the INA; and (2) the
Parole+ATD Policy is unlawful and is due to be vacated under the APA.
Accordingly, it is
ORDERED that:
1. The deferred portion of Defendants’ motion for summary
judgment (Doc. 88) is DENIED.
2. The Parole+ATD Policy is VACATED under the APA, and that
policy is REMANDED to DHS for further proceedings
consistent with this Opinion and Order.
3. The Clerk shall enter a final judgment stating:
Judgment is entered in favor of Plaintiff on Counts

2, 4, and 6 of the second amended complaint, and
the Parole+ATD Policy is vacated and remanded
to the Department of Homeland Security for
further proceedings consistent with the Opinion
108
and Order entered on this date. Judgment is

entered in favor of Defendants on Counts 1, 3, 5, 7
and 8 of the second amended complaint and those
claims are dismissed with prejudice.
4. The Judgment is STAYED for 7 days from this date to allow
Defendants to seek appellate review.
5. The Clerk shall close the case file.
DONE and ORDERED this 8th day of March, 2023.
__________________________________
T. KENT WETHERELL, II
UNITED STATES DISTRICT JUDGE
109

Parole Decision

Uploaded by

Copyright:

Available Formats

Parole Decision

Uploaded by

Document Information

Original Description:

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Parole Decision

Uploaded by

Copyright:

Available Formats

Case 3:21-cv-01066-TKW-ZCB Document 157 Filed 03/08/23 Page 1 of 109

UNITED STATES DISTRICT COURT

v. Case No. 3:21-cv-1066-TKW-ZCB

OPINION AND ORDER

January 9-12, 2023. Based on the testimony and evidence presented at

Alternative to Detention (Parole+ATD) policy (Doc. 87-1), the Court

makes the following findings of fact and conclusions of law in accordance

with Fed. R. Civ. P. 52(a).

There is an immigration “crisis” at the Southwest Border. The

Chief of the U.S. Border Patrol (USBP) candidly admitted it in his

The evidence establishes that the current status quo at the

Southwest Border is unsustainable, but it is not the Court’s job to solve

the immigration crisis—that is the job of the political branches.1 Nor is

it the Court’s job to decide whether the policies challenged by Florida in

only job is to determine based on the evidence presented whether

challenged policies comply with the immigration laws, as written.

The Supreme Court has recognized that immigration officials have

“broad discretion” in carrying out the immigration laws, see Arizona v.

exercised within the confines established by Congress because, as the

Supreme Court has repeatedly held, Congress—not the President or

Executive Branch officials—has the “complete and absolute power” over

Navigation Co. v. Stranahan, 214 U.S. 320, 343 (1909).

Congress exercised that power by enacting the Immigration and

Nationality Act (INA), which is codified as amended in 8 U.S.C. §1101 et

policies and procedures for processing what the statute refers to as

“applicants for admission”—that is, aliens arriving in the United States

at ports of entry or other locations.

Under §1225(b)(1)(A), certain arriving aliens, including those who

lack proper admission documents, are subject to expedited removal

“without further hearing or review.” However, if such an alien indicates

an intention to apply for asylum or a fear of persecution, the alien “shall

be detained” pending a final determination of asylum or credible fear of

persecution. See 8 U.S.C. §1225(b)(1)(B)(ii), (b)(1)(B)(iii)(IV) (emphasis

added). For all other arriving aliens, unless an immigration official

determines that the alien is clearly and beyond a doubt entitled to be

admitted, the alien “shall be detained” for removal proceedings. See 8

U.S.C. §1225(b)(2)(A) (emphasis added).

In 2018, in Jennings v. Rodriguez, the Supreme Court held that

“§§1225(b)(1) and (b)(2) mandate detention of aliens throughout the

year, in Biden v. Texas, the Supreme Court assumed without deciding

that the federal government was violating §1225(b)(2)(A) by not

detention requirement in section 1225(b)(2)(A) is subject to principles of

law enforcement discretion, as the Government argues, or whether the

Government’s current practice simply violates that provision,” id. at 2542

n.5. This case requires that question to be answered.

The State of Florida contends that Defendants3 are violating the

statutory detention mandates in §1225(b)(1) and (b)(2) by releasing

aliens arriving at the Southwest Border into the country en masse

through various “non-detention policies,” including the Parole+ATD

policy and the exercise of “prosecutorial discretion” under 8 U.S.C.

§1226(a). Defendants respond that there is no overarching “non-

notwithstanding the mandatory language in §1225(b)(1) and (b)(2); and

that Florida does not have standing to challenge their discretionary

decisions to release aliens into the country on parole or otherwise.

detailed below, the evidence establishes that Defendants have effectively

prioritizing “alternatives to detention” over actual detention and by

releasing more than a million aliens into the country—on “parole” or

pursuant to the exercise of “prosecutorial discretion” under a wholly

inapplicable statute—without even initiating removal proceedings. The