660 F.Supp.3d 1239
N.D. Fla.2023Background
- Florida challenged DHS/CBP/ICE practices at the Southwest Border, alleging an administrative "Non‑Detention Policy" and the formal Parole+ATD program unlawfully released arriving "applicants for admission" instead of detaining them under 8 U.S.C. §1225.
- Bench trial held Jan. 9–12, 2023; Court considered trial evidence, post‑trial briefs, and a supplemental administrative record for Parole+ATD.
- Record showed a surge in southwest border encounters beginning 2021 and >1.16 million releases under NTA/OR and Parole+ATD categories (Mar 2021–Nov 2022); DHS shifted from detention toward alternatives to detention (ATD).
- Court found (as fact) a change in practice: officials released most arriving aliens unless deemed public‑safety or flight risks (the asserted Non‑Detention Policy), and that CBP implemented a discrete Parole+ATD policy (July memo) expanding parole + ATD use.
- Legal dispute: whether §1225’s “shall be detained” mandate is discretionary or mandatory, whether DHS lawfully used §1226(a) or §1182(d)(5) parole to release arriving aliens, and whether Parole+ATD and the broader practice are reviewable and lawful under the APA.
- Court concluded Parole+ATD (July memo) is final agency action, violated the APA (contrary to law; arbitrary and capricious; subject to notice‑and‑comment), and VACATED Parole+ATD; the broader Non‑Detention Policy existed but was not a discrete, reviewable agency action (so not vacated), though the court stated it would be unlawful if reviewable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Article III & statutory standing | Florida: state fisc (education, incarceration, Medicaid, etc.) harmed by >100,000 parolees in Florida; special solicitude applies | DHS: injuries speculative, revenues may offset costs | Florida has Article III and APA standing (special solicitude); evidence sufficient to show concrete, traceable, redressable harm |
| Reviewability: Is there reviewable agency action? (Non‑Detention Policy vs Parole+ATD) | Florida: both are agency actions subject to APA review | DHS: no discrete final action; general enforcement discretion; some claims committed to agency | Non‑Detention Policy: exists factually but is not a discrete final agency action subject to APA review. Parole+ATD (July memo): is final agency action and reviewable under APA |
| Statutory meaning: Does §1225 mandate detention; may DHS release via §1226(a) or parole §1182(d)(5)? | Florida: §1225’s "shall be detained" is mandatory; DHS may not evade it by using §1226(a) or programmatic parole | DHS: detention discretionary; may choose §1226(a) or parole; law‑enforcement discretion | §1225 detention mandate is mandatory per Jennings; DHS may not use §1226(a) to evade §1225 when processing under §1225; parole under §1182(d)(5) may be used but must comply with case‑by‑case, urgent humanitarian or significant public benefit limits |
| APA merits & procedure for Parole+ATD: contrary to law, arbitrary & capricious, notice‑and‑comment | Florida: July memo violates §1182(d)(5) (no return to custody, not case‑by‑case, not limited to urgent humanitarian/significant public benefit); failed reasoned explanation; required notice‑and‑comment | DHS: memo is interpretive/general policy, consistent with regs and discretion, not subject to notice‑and‑comment; pandemic/capacity justified program | Court: July memo violates §1182(d)(5) (doesn't require return to custody, not true case‑by‑case, too broad), is arbitrary and capricious (failed to address backlog, expansion to adults, contrary evidence), and is subject to notice‑and‑comment; Parole+ATD vacated and remanded |
Key Cases Cited
- Jennings v. Rodriguez, 138 S. Ct. 830 (2018) (held §1225(b)(1) and (b)(2) "mandate detention" throughout applicable proceedings)
- Biden v. Texas, 142 S. Ct. 2528 (2022) (addressed parole authority; noted parole must be case‑by‑case for urgent humanitarian reasons or significant public benefit; discussed reviewability limits)
- Arizona v. United States, 567 U.S. 387 (2012) (recognized broad executive immigration discretion but emphasized congressional primacy and state harms)
- Bennett v. Spear, 520 U.S. 154 (1997) (final agency action test: consummation and legal consequences)
- Motor Vehicle Mfrs. Ass'n v. State Farm, 463 U.S. 29 (1983) (arbitrary and capricious standard; requirement to supply reasoned explanation for agency changes)
- FCC v. Fox Television Stations, 556 U.S. 502 (2009) (agency must display awareness when changing policy; cannot depart sub silentio)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (Article III standing framework)
- Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv., 139 S. Ct. 361 (2018) (narrow scope of "committed to agency discretion" exception)