On Friday, January 28, a coalition of states led by Texas (including Florida, Indiana, Missouri, Montana, Oklahoma, Arkansas, and Alaska) filed suit against the Biden administration over its Central American Minors (CAM) Program. This is Texas Attorney General Ken Paxton’s ninth legal challenge to Biden’s immigration policies (and 20th challenge overall). Besides the legal firepower of the attorney general’s offices, the plaintiff states also have Gene Hamilton in their arsenal. Gene, whom I had the pleasure of working with on the Hill and in the Trump administration, is the general counsel of Stephen Miller’s trailblazing America First Legal Foundation.
Paxton and Miller fired off press releases announcing their lawsuit:
- Paxton: “The Biden Administration has sown nothing but disaster for our country through its illegal, unconstitutional immigration policies. Biden’s latest round of flagrant law-breaking includes [CAM], which has contributed significantly to many states being forced to take in even more [illegal] aliens. My fellow attorneys general and I are suing to stop it.”
- Miller: “[CAM] is one of [the administration’s] most outrageous and lawless assaults on American sovereignty. President Biden has launched a program allowing illegal aliens to petition the U.S. government to have their foreign relatives join them here in the United States. It’s a massive government airlift operation for illegal aliens’ relatives living abroad. This lawless madness must be stopped — and we are fighting to stop it.”
What is CAM? Well, the Obama administration created it to “provide children in El Salvador, Guatemala, and Honduras with a safe and orderly alternative to the dangerous, irregular journey that some ... are currently undertaking to the United States.” It allows legal permanent residents or (most often) illegal aliens who have received deferred action (or certain other “relief”) to apply for refugee status for their unmarried minor children living back home.
Is CAM illegal, unconstitutional, and outrageous? In a word, yes. Since the Obama administration knew that very few of the minors it wanted to usher into the U.S. could ever meet the statutory refugee definition (principally, having a well-founded fear of persecution), it tagged a parole program onto CAM. Slipping in parole was (evil) genius — first because the administration could effectively make up whatever standard it wanted to in order to justify parole (we don’t need no stinkin’ refugee definition), and second, because CAM parole represents a pernicious perversion of the parole statute as designed by Congress.
But first, what is parole? Section 212(d)(5) of the Immigration and Nationality Act (INA) grants DHS the authority to in its discretion parole aliens into the U.S. “temporarily under such conditions as ... may [be] prescribe[d] only on a case-by-case basis for urgent humanitarian reasons or significant public benefit”. When Congress created parole in 1952, it made clear that:
[The parole power] should be carefully restricted to those cases where extenuating circumstances clearly require such action and that the discretionary authority should be surrounded with strict limitations. ... in emergency cases, such as the case of an alien who requires immediate medical attention . . . and in cases where it is strictly in the public interest to have an inadmissible alien present in the United States, such as, for instance, a witness or for purposes of prosecution.
The 1st Circuit Court of Appeals has concluded that “The legislative history of the parole statute demonstrates clearly that Congress intended that such largesse be extended infrequently, where exigent circumstances obtained [and] demonstrates beyond cavil that Congress consistently visualized parole as an indulgence to be granted only occasionally”.
Yeah, well, that was the concept. But a few years after its creation, the executive branch started using parole, in the words of the House Judiciary Committee, “to circumvent Congressionally-established immigration policy [and] to admit aliens who do not qualify for admission under established legal immigration categories” — and they have never stopped. Arnold Leibowitz writes in the Annals of the American Academy of Political and Social Science that “[t]he phenomenon of mass parole began in 1956 when [President Eisenhower] interpreted very broadly the parole authority ... to permit [Hungarians] to enter en masse as refugees. [P]rior to 1956 the parole authority had been used only to benefit individual aliens.” Leibowitz goes on to say that “[i]n 1976, 130,000 refugees were evacuated from Indochina, most of whom were paroled and resettled into the United States. ... Using his parole authority, the president effectively avoided the strictures of immigration law and acted without formal congressional authorization.”
The House Judiciary Committee called out Bill Clinton for his misuse of parole:
[The abuse] stemmed from the September 1994 migration agreement negotiated ... with Cuba. To implement [it], the Administration is using the parole authority to admit up to 20,000 Cuban nationals annually [who] will eventually be entitled to adjust to permanent resident status. [T]his ... is a misuse [of parole, admitting] aliens who are not otherwise eligible for immigrant visas. ... Such use of the parole authority has not been authorized by Congress. Indeed, the Clinton Administration did not even attempt to consult with Congress in negotiating the Cuban migration agreement.
And the George W. Bush administration went so far as to justify the creation of a parole program precisely premised on its need to perform an end-run around Congress’s immigration regime. In 2007, DHS implemented the Cuban Family Reunification Parole Program, which provided parole to beneficiaries of approved family-based immigrant visa petitions so they wouldn’t have to remain in Cuba while awaiting the availability of numerically-limited immigrant visas:
In furtherance of the U.S.-Cuba Migration Accords, the United States endeavors to provide a minimum of 20,000 travel documents annually to aspiring Cuban emigrants. ... Two aspects of the existing array of migration programs limit [our] ability [to do so. First,] the number of family-based immigrant visas that are available in any given year is limited by statute. The statutory caps have resulted in long waiting periods before family members remaining in Cuba may [join their relatives] residing in the United States who petitioned for them. ... Under the CFRP Program, USCIS may exercise its discretionary parole authority to permit eligible Cuban nationals to come to the United States to rejoin their family members.
That is a pretty telling admission. The purpose of the program was to evade “statutory caps” — numerical limits deliberately put into place by Congress. I can hardly think of a better poster child for the abuse of parole to deliberately “circumvent Congressionally-established immigration policy”. Lots of people all over the world have to wait a long time for certain family-sponsored immigrant visas to become available. Currently, there are almost four million persons on the waiting lists. Pursuant to the Bush administration’s logic, DHS could on a whim decide to grant parole to all four million.
Congress has by no means timidly accepted this as a fait accompli, trying several times to rein in the abuse of parole. It has modified the statutory definition of parole, most recently in 1996, and even established our modern refugee system in 1980 to prevent the executive branch from using parole to usurp refugee policy. The 1st Circuit has concluded that:
The only conclusion which can sensibly be drawn ... is that [with the Refugee Act of 1980,] Congress was attempting to restore the parole authority to the narrow uses for which it was originally intended, that is, “for emergent reasons or for reasons deemed strictly in the public interest,” and not to perpetuate — or further encourage — its employment as a discretionary floodgate for the admission of an alien tide.
However, up until now, all of Congress’s efforts have been in vain. And, just to rub it in, administrations love justifying their rogue use of parole by citing as precedent previous administrations’ abuses.
Anyway, back to CAM. To its credit, the Trump administration tried on a number of occasions to reign in parole excesses, including its termination of CAM — which was upheld by a federal magistrate judge (except as to aliens who had already been granted conditional parole). The judge revealed that “30% [of CAM beneficiaries as of June 2017] have been approved as refugees [and] 69% have been recommended for parole. ... From its inception [CAM] approved approximately 99% of beneficiaries who were interviewed and considered for parole.” The judge concluded that:
There is “a rational connection between facts found and conclusions made” by DHS. ... [T]he CAM Parole Program was granting parole to virtually all beneficiaries who were interviewed. The conclusion made was that doing so was not in keeping with the new administration’s view of the parole statute and its policies on immigration. Whether the court agrees or disagrees with the government’s conclusion, it is “not empowered to substitute [its] judgment for that of the agency,” ... and it cannot say that the agency’s actions were arbitrary or capricious.
DHS has expressed its view that the better interpretation of the statutory language of the parole statute is that it “appears to strongly counsel in favor of using the parole authority sparingly and only in individual cases where, after careful consideration of the circumstances, parole is necessary because of demonstrated urgent humanitarian reasons or significant public benefit.”
Congress reemphasized this [very] view of parole when [in 1996] it amended the parole statute to restrict the government’s discretion to approve parole “only on a case-by-case basis for urgent humanitarian reasons or significant public benefit.” ... The court cannot say that DHS’s view — that the parole statute counsels in favor of awarding parole sparingly — is legally erroneous, or that its decision to terminate a program that awarded parole broadly was based on a flawed legal analysis.
I should note that the Trump administration did not argue that CAM was ultra vires — beyond what is permitted by law or the Constitution. Maybe this was the most promising argument to make before skeptical federal courts. But it left open the ability of future administrations to simply turn CAM right back on, which the Biden administration was all too happy to do.
The Biden administration has proclaimed that not only is it bringing CAM back, it is bringing it “back better.” On June 15, 2021, DHS Secretary Alejandro Mayorkas and Secretary of State Antony Blinken issued a joint statement proclaiming that:
[W]e are proud to announce the second phase of the CAM reopening. ... Eligibility to petition will now be extended to ... include certain U.S.-based parents or legal guardians who have a pending asylum application or a pending U visa [generally, for illegal aliens who are crime victims] petition filed before May 15, 2021. ... These new changes will dramatically expand access to the CAM program.
The asylum and U visa programs are riddled with abuse and frivolous claims for relief (which are often nevertheless granted). Illegal aliens get to bring in their children merely because they applied?
Anyway, Mayorkas’s and Blinken’s boasts are fighting words in Texas, and Paxton pounced. The plaintiff states are asking the court to “[d]eclare [CAM] unlawful and set it aside to the extent that it provides any benefits outside of the contours of the Refugee Admissions Program[, e]njoin the Defendants’ use of the parole authority under [CAM and e]njoin the Defendants from carrying out the CAM Program until it engages in rulemaking pursuant to the APA’s notice-and-comment rulemaking.”
The states’ complaint argues that:
[I]llegal aliens do not have the right under federal law to petition the federal government for their relatives abroad to join them in residing in the United States. ... It defies common sense. No sovereign nation would reward those who break the law by permitting family members abroad to join them in living in the sovereign territory unlawfully, particularly with the assistance of the government itself. To do so would undermine national sovereignty.
But the Biden Administration has created such a program for certain illegal aliens who are from El Salvador, Guatemala, or Honduras. ... In short, if an illegal alien from one of those three countries is inside the United States and has so much as a pending application for asylum, they can petition the United States Government to bring their minor children into the United States—despite no explicit authority from Congress to do so. And not just the illegal alien’s minor children, but also the in-country parent of a qualifying child, a legal guardian, or a child’s primary caregiver.
To the extent that it provides benefits outside of those provided in law by the Refugee Admissions Program, the CAM Program is an unlawful artifice of the Biden Administration’s imagination, never authorized by Congress. And to the extent that it facilitates the entry into the United States of illegal aliens’ family members based on the mere existence of an application for speculative benefits, it is an extraordinarily disastrous program to employ in the middle of an unprecedented border crisis.
The CAM Program is illegal. The Biden Administration created it without consideration of the effects it will have on the Plaintiff States and the continuing crisis along the Southwest Border. The Administration created it without notice-and-comment rulemaking. And it imposes substantial, irreparable harms on the Plaintiff States.
The CAM Program — to the extent that it uses parole and operates outside of the Refugee Admissions Program — constitutes agency action not in accordance with law: it violates the limited authority given to the executive department to parole individuals for urgent humanitarian reasons or for significant public benefit only, which is to be determined on a case-by-case basis.
The INA does not explicitly or implicitly create any authority in the executive branch that includes the ability to create an entire program that categorically considers applicants for benefits as applicants for parole. ... If it did, there would be no limit on the number of aliens who could be brought into the United States. Any administration could circumvent all caps set on immigration levels by simply determining general categories that constitute a “significant public benefit” or a “urgent humanitarian reason.”
The states are in fact doing what the Trump administration did not — challenging the very legality of categorical parole. And the Fifth Circuit has already found that:
[DHS’s] idea seems to be that [it] can simply parole every alien it lacks the capacity to detain. ... DHS cannot ... parole aliens en masse; that was the whole point of the “case-by-case” requirement that Congress added in IIRIRA. ... So the Government’s ... parole [of] every alien it cannot detain is the opposite of the “case-by-case basis” determinations required by law.
DHS’s pretended power to parole aliens while ignoring the limitations Congress imposed on the parole power [is] ... misenforcement, suspension of the INA, or both.
Texas’s challenge could shake the very foundations of the executive branch’s 65-year appropriation of the power of the legislative branch through the parole power. It is high time for parole abuse to be retired.