Florida v. United States

660 F.Supp.3d 1239

State of FLORIDA, Plaintiff, v. UNITED STATES of America, et al., Defendants.

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

United States District Court, N.D. Florida, Pensacola Division

Signed March 8, 2023

Anita J. Patel, Natalie Christmas, Bilal Ahmed Faruqui, Joseph Edward Hart, Karen Ann Brodeen, James Hamilton Percival, II, Florida Attorney Generals Office Office of the Attorney General, Tallahassee, FL, for Plaintiff.

Elissa Fudim, Joseph Anton Darrow, Erin T. Ryan, DOJ-CIV, Civil Division, Immigration Litigation, Washington, DC, Marie Armstrong Moyle, DOJ-USAO, Tallahassee, FL, for Defendant United States.

Elissa Fudim, Joseph Anton Darrow, Erin T. Ryan, DOJ-CIV, Civil Division, Immigration Litigation, Washington, DC, for Defendants Troy Miller, U.S. Customs and Border Protection, Ur M. Jaddou, U.S. Citizenship and Immigration Services, Alejandro Mayorkas, Department of Homeland Security, Tae D. Johnson, U.S. Immigration And Customs Enforcement.

Matt A. Crapo, Pro Hac Vice, Immigration Reform Law Institute, Washington, DC, for Amicus Immigration Reform Law Institute.

OPINION AND ORDER

T. KENT WETHERELL, II, UNITED STATES DISTRICT JUDGE

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. United States, 567 U.S. 387, 396, 132 S.Ct. 2492, 183 L.Ed.2d 351 (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, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972) (quoting Boutilier v. INS, 387 U.S. 118, 123, 87 S.Ct. 1563, 18 L.Ed.2d 661 (1967)); Oceanic Steam Navigation Co. v. Stranahan, 214 U.S. 320, 343, 29 S.Ct. 671, 53 L.Ed. 1013 (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.

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." 583 U.S. 281, 138 S. Ct. 830, 845, 200 L.Ed.2d 122 (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 597 U.S. 785, 142 S. Ct. 2528, 2542, 213 L.Ed.2d 956 (2022), but the Court left unanswered the question of "whether the 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 "nondetention 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 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 Parole + ATD policy are based on the documents in the supplemental administrative record, see Doc. 55; Doc. 117 at 2; Doc. 180 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.

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, 2022 WL 649261 (C.D. Cal. Jan. 14, 2022), 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" 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...