On April 4, the state of Texas asked U.S. district court Judge Drew Tipton to reconsider his March 8 order dismissing its challenge to a Biden administration parole program that allows up to 30,000 inadmissible nationals of Cuba, Haiti, Nicaragua, and Venezuela to enter the United States each month on two-year periods of parole, known as “CHNV parole”. There is a lot of math involved in both Texas’ claims and Judge Tipton’s judgment, and in assessing the validity of each when it comes to this open-door policy, but it’s strange math, indeed. Simply put — if the administration intends to deter inadmissible aliens from coming, it’s failing.
The White House Fact Sheet and CHNV Parole. The number of migrants apprehended after entering illegally over the Southwest border has surged since President Biden took office in January 2021, from just over 400,000 in FY 2020 to 1.66 million in FY 2021, 2.2 million in FY 2022, 2.045 million in FY 2023, and more than 894,000 in just the first five months of FY 2024. That said, the increase has been considerably more marked among nationals of certain countries.
In FY 2020, Border Patrol agents at the Southwest border apprehended just 1,227 illegal entrants from Venezuela, 9,822 from Cuba, 4,359 from Haiti, and 2,123 from Nicaragua — 17,531 in total. By FY 2021, Border Patrol apprehensions from those four countries increased more than 10-fold, to 181,000-plus, before skyrocketing to more than 600,000 in FY 2022.
In response to that surge of nationals from Cuba, Haiti, Nicaragua, and Venezuela, the administration announced it would expand a limited parole program for 24,000 Venezuelan nationals implemented in October 2022 into CHNV parole. As a January 5, 2023, White House “Fact Sheet” explained:
Up to 30,000 individuals per month from these four countries, who have an eligible sponsor and pass vetting and background checks, can come to the United States for a period of two years and receive work authorization. Individuals who irregularly cross the Panama, Mexico, or U.S. border after the date of this announcement will be ineligible for the parole process and will be subject to expulsion to Mexico, which will accept returns of 30,000 individuals per month from these four countries who fail to use these new pathways. [Emphasis added.]
Keep that highlighted portion of this announcement in mind because it’s crucial to not only this program but also to Judge Tipton’s March 8 judgment.
The “CBP One App Interview Scheme”. In that same fact sheet, the White House also announced it would start allowing would-be illegal migrants to schedule interview appointments at the Southwest border ports of entry using the CBP One app, a policy I have referred to as the “CBP One app interview scheme”.
By the end of February, more than a half million inadmissible aliens took advantage of that scheme, and congressional disclosures have revealed that nearly 96 percent of migrants who used the app to schedule interviews at the ports using the app have been paroled into the United States.
As I’ll explain, that scheme is directly relevant to the claims in the CHNV parole case.
Texas v. DHS. On January 24, 2023, Texas and 19 other plaintiff states filed suit in the U.S. District Court for the Southern District of Texas, in a case captioned Texas v. DHS, to shut down CHNV parole.
Among other claims, the state plaintiffs asserted that the administration failed to “explain or analyze” how it “would remove from the United States aliens paroled through the program after the end of any period of authorized parole, despite admitting general difficulty removing such aliens to their home countries presently”.
I was wondering about that myself, because part of the reason why so many nationals of the CHNV countries had entered illegally of late is that the governments of those countries either refuse to take their nationals back or are extremely hesitant to do so. Consequently, once those aliens are here, they’re here, regardless of whether they’re ultimately ordered removed.
The states also argued that the parole program violates the Administrative Procedure Act (APA) in that it exceeds DHS’s parole authority under section 212(d)(5)(A) of the Immigration and Nationality Act (INA), which in my opinion, it plainly does.
Most importantly for the reconsideration request, the state plaintiffs contended that Texas has standing to challenge CHNV parole because it will suffer harms — real and monetary — in dealing with the hundreds of thousands of new aliens who would enter the United States under the program.
March 8 Opinion and Order. The case was assigned to Judge Tipton, and on March 8, he issued an opinion and order finding Texas lacked standing to bring the case, chiefly because it had failed to show that it had been injured by the CHNV program.
More specifically, he found: “Despite the high approval rate of Program applications, the record reflects that the Program has resulted in a decrease of CHNV nationals entering the United States”.
The Statistics. Regardless of whether aliens are apprehended entering the United States illegally between the ports of entry, are deemed inadmissible at the ports of entry, or come to the United States with parole, they are counted as “encounters” in CBP statistics because they are aliens who sought admission but who have not been admitted to the United States.
They’re not admitted because, by definition, they are all inadmissible to the country, and in nearly all cases inadmissible under section 212(a)(7)(A) of the INA, which states in pertinent part:
Except as otherwise specifically provided in this chapter, any immigrant at the time of application for admission — (I) who is not in possession of a valid unexpired immigrant visa, reentry permit, border crossing identification card, or other valid entry document required by this chapter, and a valid unexpired passport, or other suitable travel document, or document of identity and nationality if such document is required ... or (II) whose visa has been issued without compliance with the provisions of [section 203 of the INA], is inadmissible.
Aliens who have been paroled have been denied admission, a point lost on even many of those who oppose the president’s border policies. Consequently, they’re all removable, even if they have been allowed to enter temporarily on parole.
In FY 2022, before the CBP One interview scheme, CHNV parole, and a Venezuelan parole program, CBP encountered 626,410 CHNV aliens at the Southwest border — 600,163 of whom were apprehended by Border Patrol agents and an additional 26,247 of whom were deemed inadmissible by CBP officers at the ports.
In FY 2023, CBP officers and Border Patrol agents encountered 584,049 CHNV aliens at the Southwest border. Of that total, 416,035 were apprehended between the ports and 168,000 were deemed inadmissible at the ports.
By the end of September 2023 — the last month in FY 2023 — more than 240,000 aliens had been paroled into the country (most not at the border but instead at interior airports) on CHNV parole and the Venezuela parole program. Assuming the Mexican government had, in fact, taken back 30,000 CHNV aliens who entered illegally monthly, total CHNV encounters would have largely been a wash, as Judge Tipton found.
Here’s the problem: In the first five months of FY 2024, CBP officers and agents encountered 294,273 aliens at the Southwest border, 149,407 at the ports and 144,866 others after they entered illegally between the ports.
In three of those five months, fewer than 30,000 CHNV aliens entered illegally — November (29,108), January (10,752), and February (9,646) — which means Mexico could not have taken back 30,000 of them per month. In fact, the maximum number of Mexican CHNV returns this fiscal year would have been 109,506.
At the same time, however, somewhere in the neighborhood of 146,000 additional aliens entered the United States on CHNV parole. In other words, CHNV parole balanced out by CHNV Mexican returns is no longer a wash — instead, the parole program has increased the number of inadmissible aliens in the United States from those four countries by more than 36,000.
While it’s impossible to say exactly why there has been a shift in illegal immigration by CHNV nationals from the border between the ports to the ports themselves, the CBP One app interview scheme coupled with the Mexican return policy is likely key. Simply put, when faced with the possibility of being sent back across the border following an unlawful crossing or waiting for a CBP one appointment, illegal CHNV migrants are choosing the latter, assuming they’re not chosen for CHNV parole.
Smugglers are great at sussing out such loopholes.
Among Texas’ arguments in its reconsideration request is that Judge Tipton impermissibly “evaluated” facts that arose after it filed its complaints, so this post hoc analysis likely won’t support its case on that count.
That said, the state added that “[a]lthough not necessary to satisfy” its standing claim, “border crossing numbers ... show that crossings of aliens from CHNV countries have skyrocketed — and are higher than before the CHNV Program was implemented”, so I am plainly not the only one who noticed.
If the administration’s intent in implementing CHNV parole and the CBP One app interview scheme was to deter inadmissible migrants from entering illegally, each is a failure. But then, DHS Secretary Alejandro Mayorkas long ago admitted that, unlike every prior administration, deterrence is not the focus of the current administration’s border policies.