Texas, 19 Other States, Sue Over Biden’s Parole Plan

The Supreme Court likely to get dragged in – again

By Andrew R. Arthur on January 25, 2023

On January 24, Texas and 19 other state plaintiffs filed suit in the U.S. District Court for the Southern District of Texas against DHS and various government officials, seeking to block President Biden’s recently announced plan to parole up to 360,000 nationals of Venezuela, Nicaragua, Cuba, and Haiti into the United States. It was going to happen, and now it has, but at the end of the day, the Supreme Court will likely get dragged into yet another fight that the president has picked over immigration.

“New Border Enforcement Actions”. On January 5, the White House released a fact sheet titled “Biden-⁠Harris Administration Announces New Border Enforcement Actions”. As I noted at the time, the title is inapt “because there’s little ‘enforcement’ in it”.

One aspect of the plan would allow aliens who would have otherwise entered illegally to now access “the CBP One mobile application for scheduling an appointment to present themselves for inspection and to initiate a protection claim instead of coming directly to a port of entry to wait”. My colleague Todd Bensman pulled the cover off this program back in November.

More saliently, however, the Biden-Harris plan would expand the administration’s novel use of DHS’s parole authority for Venezuelans to also include Nicaraguans, Haitians, and Cubans. As the fact sheet explained:

Today, the Biden Administration is announcing it will extend the successful Venezuela parole process and expand it to nationals of Nicaragua, Haiti, and Cuba. 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.

There’s a lot of carrot in that proposal, and as you can see, the only stick is barring nationals of those four countries who illicitly transited Panama or Mexico, or who entered the United States illegally, from eligibility for the parole program.

The “subject to expulsion to Mexico” is a bit of a puzzler, though, because it appears to either presume that CDC orders issued pursuant to Title 42 of the U.S. Code in response to the Covid-19 pandemic, which direct the expulsion of illegal entrants at the Southwest border, will continue; or the creation of a program similar to the Trump-era Migrant Protection Protocols (MPP), better known as “Remain in Mexico”, under which non-Mexican illegal entrants were expelled back across the border to await removal hearings.

Either would be curious because the Biden administration is fighting to end Title 42 in two ongoing cases (CDC v. Louisiana in the Fifth Circuit and Arizona v. Mayorkas, scheduled for argument before the Supreme Court on March 1), and is also vigorously opposing efforts by a group of state plaintiffs to force DHS to reimplement Remain in Mexico (in Texas v. Biden).

In any event, the administration on January 9 published separate notices in the Federal Register on its implementation of this parole program for Venezuela, Nicaragua, Haiti, and Cuba (respectively), none of which mention expulsion as a sanction for nationals of those countries who bypass the parole programs and enter illegally.

Rather, the notice for Venezuelan parole asserts, for example, that those who bypass the parole program and enter illegally will be “permitted a one-time option to voluntarily depart or voluntarily withdraw their application for admission to maintain eligibility to participate in this parole process”. That’s quite the mulligan for a criminal act.

Parole. Section 212(d)(5)(A) of the Immigration and Nationality Act (INA) provides DHS the authority to parole an otherwise inadmissible alien into the United States, but “only on a case-by-case basis for urgent humanitarian reasons or significant public benefit”. Even though the paroled alien is allowed to enter the United States, that entry does not constitute a formal admission.

That language suggests that Congress has tightly limited DHS’s parole authority — with good reason. As my colleague George Fishman has explained, “Congress has unsuccessfully tried to rein in the abuse of parole, even setting up our current refugee admission program in 1980 to prevent the executive branch from setting refugee policy through abuse of the parole power.”

That current cited (and restrictive) language in the parole statute dates from the latest amendment to that provision, in 1996. Prior to that 1996 amendment, section 212(d)(5)(A) of the INA permitted DHS to parole aliens “for emergent reasons or for reasons deemed strictly in the public interest”. “Urgent humanitarian” substituted for “emergent” as a modifier for “reasons” in its first iteration, while Congress struck “reasons deemed strictly in the public interest” and substituted “significant public benefit”.

Why those amendments? As the committee report for the precursor legislation to that final amendment explained:

The text of section 212(d)(5) is clear that the parole authority was intended to be used on a case-by-case basis to meet specific needs, and not as a supplement to Congressionally [] established immigration policy. In recent years, however, parole has been used increasingly to admit entire categories of aliens who do not qualify for admission under any other category in immigration law, with the intent that they will remain permanently in the United States. This contravenes the intent of section 212(d)(5), but also illustrates why further, specific limitations on the Attorney General’s discretion are necessary.

Note that prior to the creation of DHS, the former Immigration and Naturalization Service (INS) with DOJ had jurisdiction over immigration enforcement, which is why that excerpt references the attorney general, as head of DOJ.

The limitations on the parole authority are clear from the INS’s 1982 explanation of the parameters of that authority, even under the pre-1996 amendment language:

The legislative history of the parole provision shows a Congressional intent that parole be used in a restrictive manner. The drafters of the Immigration and Nationality Act of 1952 gave as examples situations where parole was warranted in cases involving the need for immediate medical attention, witnesses, and aliens being brought into the United States for prosecution. ... In 1965, a Congressional committee stated that the parole provisions “were designed to allow the Attorney General to act only in emergent, individual, and isolated situations, such as in the case of an alien who requires immediate medical attention, and not for the immigration of classes or groups outside the limit of the law.”

The administration’s parole program for nationals of those four countries makes no reference to medical treatment (emergent or otherwise) or to a need for beneficiaries to appear in U.S. court proceedings, or for anything of the sort. It is simply a bypass of the other restrictions to entry in the INA.

This is not a simple tug of war between equally matched legislative and executive branches. As the Supreme Court has held:

Policies pertaining to the entry of aliens and their right to remain here are peculiarly concerned with the political conduct of government. In the enforcement of these policies, the Executive Branch of the Government must respect the procedural safeguards of due process. But that the formulation of these policies is entrusted exclusively to Congress has become about as firmly imbedded in the legislative and judicial tissues of our body politic as any aspect of our government. [Emphasis added.]

In other words, the administration may not like the strict limitations Congress has placed on the parole authority, but it has to live with them.

Texas v. Biden. Which brings me back to the state plaintiffs' challenge to the parole program for nationals of the four countries, in Texas v. DHS.

The state plaintiffs admit that while the administration has published notifications in the Federal Register that it would be implementing this parole program, it “did not provide an opportunity for public comment”, nor did it “undertake a formal notice-and-comment rulemaking process”. Nor did it ask the states their opinions about the plan before proceeding.

Moreover, the state plaintiffs assert, 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.

The state plaintiffs further argue that each has standing because each will suffer harms — real and monetary — in dealing with the hundreds of thousands of new aliens who would enter the United States under the administration’s parole program.

Finally, they argue 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 INA and should have been subject to “notice and comment rulemaking”, but wasn’t.

Consequently, the state plaintiffs ask the court first to “stay, postpone, or preliminarily enjoin” the parole program, and then, after a trial on the merits of their claims, “decree that the parole program was issued in violation of the APA and vacate it, set it aside, or in the alternative, permanently enjoin the” administration from implementing it.

Will the Courts Lay Down the Law? The administration has been pushing its luck in its overutilization of DHS’s limited parole authority, almost since day one. Releasing illegal migrants subject to congressional detention mandates under that authority has already spurred two state challenges (Texas v. Biden and Florida v. U.S.). The latest parole program for nationals of the four countries takes that to a whole new level.

The only question is whether the courts will allow the president to keep getting away with abusing parole to funnel aliens into the United States or will finally lay down the law. My money’s on the latter, but at the end of the day, the justices of the Supreme Court will likely — once again — be dragged into yet another political fight over immigration that Biden has picked.