By Daniel Wiessner
Jan 26 (Reuters) - A U.S. appeals court panel on Friday seemed divided over whether Florida had the right to bring a lawsuit that led a judge to strike down a Biden administration policy of releasing rather than detaining many people who illegally cross the U.S.-Mexican border.
Two 11th U.S. Circuit Court of Appeals judges during oral arguments in Atlanta suggested that Florida had not shown the 2021 policy, which many Republicans and other critics call "catch and release," had a direct impact on the state's costs in providing social services.
A federal judge last March struck down the policy, saying it violated U.S. immigration law by allowing for the release of migrants awaiting deportation proceedings, known as parole, on a widespread rather than case-by-case basis. The 11th Circuit in June declined to stay the ruling pending the Biden administration's appeal.
The district court judge had said Florida had legal standing to sue based on a sharp increase in the number of non-citizen children enrolled in its public schools after the policy was adopted.
But on Friday, the 11th Circuit judges sounded unconvinced that the spike in enrollment by itself established an injury to the state that would give it standing to sue.
“It’s pretty clear there’s an obvious problem here. But … is this a political problem or a legal violation?” Circuit Judge Britt Grant, an appointee of Republican former President Donald Trump, asked James Percival, a lawyer for the state.
Grant and Circuit Judge Charles Wilson also suggested that a June ruling by the U.S. Supreme Court that Texas and Louisiana lacked standing to challenge a different Biden administration immigration policy, which came after the judge's ruling in Friday's case, applied to Florida's claims. Wilson was appointed by former President Bill Clinton, a Democrat.
Percival argued that the Supreme Court in the Texas case specifically said it was not addressing challenges to policies involving the arrest or release of migrants. He said U.S. Department of Homeland Security (DHS) data showed that 80,000 people granted parole under the policy were residing in Florida, so it was reasonable to infer that the increase in school enrollment was related.
Trump-appointed Circuit Judge Barbara Lagoa seemed more sympathetic to the state. She told Joseph Darrow of the U.S. Department of Justice that it was unlikely that none of the influx in students was attributable to the parole policy, suggesting the court could infer an injury to the state.
“You can assume there were some people present,” Darrow replied. But Florida lacked “evidence they were using state services and that use resulted in a net cost to the state.”
There was little discussion of the merits of Florida's claims that the parole policy is invalid. Wilson told Percival that he disagreed with the state's argument that the policy represented a "legislative rule" under the federal Administrative Procedure Act (APA), requiring DHS to invite public comment and take other steps before adopting it.
"These are just general statements of policies," Wilson said, referring to DHS memos outlining the parole program.
Percival countered that the policy amounted to a rule because it imposed new, binding duties on migrants and immigration officers.
The case is Florida v. United States of America, 11th U.S. Circuit Court of Appeals, No. 23-11528.
For Florida: James Percival of the Florida Attorney General's office
For the USA: Joseph Darrow of the U.S. Department of Justice
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(Reporting by Daniel Wiessner in Albany, New York)
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