Florida AG sues Biden admin to stop planned mass release of migrants as Title 42 ends

Florida Attorney General Ashley Moody is seeking a temporary restraining order to stop the mass release of migrants into the U.S. coinciding with the end of the Title 42 public health order -- arguing that it is "materially identical" to a policy that was blocked by a federal judge earlier this year.

Moody, in a filing in the U.S. District Court Northern District of Florida, is arguing that a plan by the Department of Homeland Security to release migrants onto the streets if Customs and Border Protection (CBP) and NGOs are overcapacity is unlawful as it is too similar to the "Parole + ATD" policy enjoined by a federal judge in March

That policy saw migrants paroled into the U.S. and enrolled into Alternatives to Detention. The federal judge accused the government of "effectively turned the Southwest Border into a meaningless line in the sand and little more than a speedbump for aliens flooding into the country."

But now, with the Title 42 public health order -- which allows for the rapid expulsion of migrants at the southern border due to the COVID-19 pandemic -- due to expire, there has been a fresh surge in migration which has overwhelmed authorities.

Fox News reported this week that officials in D.C. have authorized all Border Patrol sectors to begin "safe" mass releases of migrants to city streets if non-governmental organizations don't have the capacity to hold them.

A DHS spokesperson later confirmed the policy.

"As Republican and Democratic administrations alike have done in the past to protect the safety and security of Border Patrol agents and migrants in the event of severe overcrowding conditions, U.S. Border Patrol sectors may consider releasing certain migrants who have undergone strict national security and public safety vetting to continue their immigration processes," a spokesperson said. "This may include processing migrants for parole to reduce the amount of time they spend in custody."

"Each parole will be considered on an individualized case-by-case basis, and individuals who are released will be required to check in with Immigration and Customs Enforcement and undergo removal proceedings in immigration court. Individuals may be placed into an Alternatives to Detention program to ensure compliance, if deemed appropriate. The targeted use of parole will allow Border Patrol to focus its resources most effectively to quickly process and remove individuals who do not have a legal basis to remain in the country," the spokesperson said.

In the request for a temporary restraining order, Moody’s office argues that the new policy "is materially identical to Parole + ATD."

"Florida seeks a temporary restraining order to preserve the status quo until the parties can brief motions for a preliminary injunction or to postpone the effective date of the new policy," the lawsuit states. "The Biden Administration’s behavior, if left unchecked, makes a mockery of our system of justice and our Constitution."

In a related complaint Florida argues that "rather than seek a stay of the Court’s judgment in good faith, the Biden Administration plans to continue its game of whack-a-mole with Florida and with this Court by promulgating yet another unlawful policy." 

In a statement to Fox News Digital, AG Moody said the plan by the Biden administration is "unlawful" and "dangerous."

"The gall of Biden to thumb his nose at a federal court order and proceed with an unlawful plan to allow what amounts to an invasion at our Southwest Border is not only unprecedented, it is dangerous," she said. "We have blown the whistle on Biden every step along his path to illegally dismantle our nation’s border security system—and even as the clock ticks down to the end of Title 42 we are taking action to force this administration to follow the law, secure the border and protect the American people."

The state argues that tens of thousands of migrants will be released until the new policy and some will likely make their way to Florida, meaning the state is affected by the move and has standing to challenge it.

"Florida will continue to expend funds on illegal aliens present in the State in the form of public education, incarceration costs for aliens who commit crimes, unemployment benefits, and emergency Medicaid," it argues.

The lawsuit also argues that the agency did not conduct a notice-and-comment period, which it says would be required for a new policy of this kind, and that it also violates statutory limits on parole which is granted only "for urgent humanitarian reasons or significant public benefit."

Judge T. Kent Wetherell, who blocked the Parole + ATD policy, said in an order responding to the request that the motion "needs to be resolved sooner rather than later" as the policy is to go into effect soon.

"If the allegations in the complaint and motion are true, then it appears that DHS is preparing to flout the Court’s order in Florida v. United States by implementing a new 'parole' policy that, based on the DHS spokesperson’s description of the policy, sounds virtually identical to the Parole+ATD policy the Court vacated in Florida." he said, giving the administration until 4pm ET to respond.

Officials have been bracing for the end of Title 42 for months, fearing a fresh wave of migrants at the border once it ends Thursday evening. DHS Secretary Alejandro Mayorkas has been touting a plan that includes regional cooperation, stiffer Title 8 penalties and a new rule limiting asylum claims. But he said this week that the result of that plan may not be seen right away.

"Even after nearly two years of preparation, we expect to see large numbers of encounters at our southern border in the days and weeks after May 11th," he said. "We are already seeing high numbers of encounters in certain sectors. This places an incredible strain on our personnel, our facilities and our communities with whom we partner closely." 

"Our plan will deliver results, but it will take time for those results to be fully realized. And it is essential that we all take this into account," he said.

Fox News' Bill Melugin and Aubrie Spady contributed to this report.