Federal Judge Says Border Patrol Can’t Forgo Release Notices to Ease Backups

A federal judge in Florida issued an order on Thursday directing the U.S. Border Patrol not to release any migrants without issuing them formal notices to appear in immigration court.

The order does not affect the expiration of the pandemic-era Title 42 immigration restrictions, Lee Gelernt, the American Civil Liberties Union’s lead attorney in Title 42 litigation, said.

But it could complicate the Border Patrol’s efforts to manage how many migrants cross into the United States.

To expedite processing, the Border Patrol had allowed some people to be released without the being given a formal notice to appear, which can take time to prepare and which in turns can fuel overcrowding in Border Patrol facilities. But after Florida challenged an earlier version, the Biden administration stopped.

After the Border Patrol issued a revised policy this week, Florida once again went to court to try to prevent any releases without notices to appear, leading to the temporary restraining order issued on Thursday.

In a statement, the Border Patrol said it will comply with the court order and is assessing next steps.

“This is a harmful ruling that will result in unsafe overcrowding at C.B.P. facilities and undercut our ability to efficiently process and remove migrants, and risks creating dangerous conditions for Border Patrol agents and migrants. The fact remains that when overcrowding has occurred in Border Patrol facilities, Republican and Democratic Administrations alike have used this parole authority to protect the safety and security of migrants and the workforce.”

Aaron Reichlin-Melnick, policy director for the American Immigration Council, said he is concerned about the effects of the judge’s order.

“The big fear is overcrowding due to the fact that it takes 2-3x as long per person to process a notice to appear on court versus issuing someone parole, which means you’ve tightened a bottleneck.”