Homeland Security Secretary Alejandro Mayorkas indicated the Biden administration was in "possible noncompliance" with a judge's temporary restraining order after the end of Title 42 but indicated the matter is still under investigation.
U.S. District Court Judge T. Kent Wetherell, who issued an order late Thursday blocking the administration from releasing some migrants into the United States without immediate notice to appear before an immigration court, asked the DHS head in court filings to explain whether media outlets were correct to report somewhere around 2,500 immigrants had been released on parole after his order instructed the agency not to do so.
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In court filings Monday afternoon, DHS indicated it appeared Wetherell's "instructions generally were followed," though a further review of U.S. Customs and Border Protection systems "identified some data indicating possible noncompliance with respect to a relatively small number of individuals."
DHS said if there was any noncompliance, it was a matter of procedural listings on paperwork and not a direct refusal of the judge's order.
"When the court issued its TRO, all sectors had ceased releases for the day for any noncitizens who were fully processed, and therefore some noncitizens who had already been fully processed prior to the time the TRO took effect were released on May 12, 2023, consistent with U.S. Border Patrol’s normal release procedures," according to the seven-page response.
The filings indicated that officials identified 167 individuals in CBP systems "who appear to have been processed for Parole with Conditions, but who do not reflect a process complete time prior to 11:59 p.m. on May 11, 2023."
Title 42, a policy that allowed the rapid expulsion of immigrants at the southern border on the basis of a public health emergency, expired just before midnight on Thursday and coincided with Wetherell's order blocking a new Biden administration rule aimed at easing crowding at the southern border.
"Of those [migrants], 130 individuals do not reflect any process completion time, and the remaining 37 individuals have a process completion time that is after 11:59 p.m. on May 11, 2023," the DHS filing added.
DHS said a manual review is "required" to determine whether or not any or all of the individuals were processed for parole after 11:59 p.m. on Thursday.
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Wetherell previously wrote to the agency asking why DHS officials should not be held in contempt if the media was correct about 2,500 immigrants being released on parole after the court order.
"Because the Washington Times article cites an anonymous source for its numbers, Defendants cannot assess where those numbers came from or how they were generated," DHS wrote in response Monday afternoon.