Federal judge says Border Patrol can’t waive release notices to facilitate backups

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

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

But it could complicate Border Patrol efforts to manage how many migrants enter the United States.

To expedite processing, Border Patrol had allowed some people to be released without being given formal notice to appear, which can take time to prepare and which in turn can lead to overcrowding in the facilities of the border patrol. But after Florida challenged an earlier version, the Biden administration dropped out.

After the Border Patrol issued a revised policy this week, Florida went to court again to try to prevent release without notice, leading to the temporary restraining order issued Thursday.

In a statement, the border patrol said it will comply with the court order and assess next steps.

“This is a damaging ruling that will lead to unsafe overcrowding at CBP facilities and undermine our ability to efficiently process and remove migrants, risking creating dangerous conditions for border guard agents and migrants. The fact remains that when overcrowding has occurred in Border Patrol facilities, both the Republican and Democratic governments have used this parole to protect the safety and security of migrants and staff.

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

“The big fear is overcrowding due to the fact that it takes 2 to 3 times as long per person to process a court call as opposed to paroling someone, which means you’ve tightened up a bottleneck.”