The U.S. Court of Appeals for the Eleventh Circuit yesterday denied the Biden administration's request to stay blockbuster orders by U.S. district Judge T. Kent Wetherell II that halted two DHS efforts to release massive numbers of illegal migrants into the United States on parole.
DOJ only filed a notice of appeal of the judge's order in Florida I with the 11th Circuit on May 5, and its request for a stay on May 19.
Florida II. Florida II moved on a much quicker track than Florida I. On May 10, the day before Title 42 was scheduled to end, Chief Ortiz issued a memo directing his agents to implement a policy called "Parole with Conditions" once the Border Patrol's processing facilities reached 125 percent of capacity, or whenever agents apprehended more than 7,000 illegal entrants in a 72-hour period, or when Border Patrol was holding migrants for 60 hours or more.
Soon after news of Chief Ortiz' memo started filtering out on May 10, the state of Florida filed its complaint in Florida II. Specifically, and based on what little information at hand, the state argued that the latest policy "May violate" the court's March 8 vacatur of Parole+ATD in Florida I. It continued, arguing: "But it is unquestionably cynical, in bad faith, and contrary to both the [INA] and the. It is also consistent with the game of whack-a-mole DHS has been playing with Florida and this Court for almost two years."
On May 19, the administration filed a "Time sensitive motion" to stay Judge Wetherell's orders in Florida I and Florida II pending appeal, to consolidate its appeals in the two cases, and to expedite its combined appeal.
The panel found these arguments "Ring hollow" when "Considering the department's track record of overstating similar threats in the underlying proceedings", particularly with respect to its ability to function without Parole+ATD - which it had stopped using two months before the judge's order in Florida I. It also noted "DHS's catastrophic predictions" that encounters would surge in the wake of the end of Title 42 had not come to pass, and finally concluded that "The timing of DHS's appeals and motion for stay undermines the department's assertions of irreparable injury".
Given that, the panel concluded that the administration had failed to satisfy one of the most critical factors for a stay and the panel denied the government's request, though Judge Jill Pryor - an Obama appointee - wrote without elaboration that she would have granted the stay with respect to the parole policy at issue in Florida II. SCOTUS Next? The administration could seek a stay from the Supreme Court next, but I question whether it will have any better luck there.
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