The Biden administration will defend a key migration program in a Texas federal court starting this week, in a case that could upend operations at the border and curb the executive branch’s immigration authorities.
A bench trial set to begin Thursday will focus on a program rolled out in January that allows tens of thousands of migrants from Nicaragua, Cuba, Venezuela and Haiti with willing American sponsors to come to the U.S. legally under an immigration authority known as parole.
The parole program is part of the Biden administration’s carrot-and-stick approach to migration policies, which aims to disincentive migrants from crossing the border without authorization and instead encourage them to take advantage of this newly opened lawful migration pathway.
Texas and 20 other Republican-led states have challenged the “carrot” half of that approach in the U.S. District Court for the Southern District of Texas, arguing that the administration has exceeded its parole authorities.
If the program is struck down in court, the administration could be forced to manage the border without half of its strategy. And migrants from those four countries, including those with U.S.-based relatives ready to support them, would be left with limited options to migrate legally to the country, advocates said.
“The parole program has served as a lifeline for the people who’ve been able to access it,” Michelle Lapointe, deputy legal director at the National Immigration Law Center, said. “It is, of course, not a substitute for a functional asylum system. But for individuals fleeing islands and instability in Cuba, Haiti, Nicaragua and Venezuela, it’s been critically important.”
Dylan Corbett, the founding executive director of the Hope Border Institute in El Paso, said while the parole program isn’t perfect, a ruling against it could increase pressure at the U.S.-Mexico border.
“It’s a good thing when there are legal channels for people to migrate,” Corbett said. “If these were struck down, all it’s going to do is intensify arrivals at the border for people who need to migrate. That will be the downstream effect of an injunction against these programs.”
Litigation history
Under the program, each month 30,000 migrants from Haiti, Cuba, Nicaragua and Venezuela may enter the U.S. and stay for up to two years if they have an American sponsor. The program was announced in January alongside other asylum restrictions that make it harder for migrants who cross the border without authorization to qualify for asylum protections.
More than 181,000 Cuban, Haitian, Venezuelan and Nicaraguan migrants have entered the country under the program through July, according to Customs and Border Protection.
The states argued in court filings that this program did not admit migrants on a “case-by-case” basis as required under parole authorities. Instead, it “amounts to the creation of a new visa program that allows hundreds of thousands of aliens to enter the United States who otherwise have no basis for doing so,” the lawsuit states.
Congressional Republicans have raised concerns that the program exceeds legal authority and prioritizes certain migrants over those awaiting visas through other legal immigration channels. House Homeland Security Committee Chair Mark E. Green, R-Tenn., announced Monday that the panel served a subpoena to Homeland Security Secretary Alejandro Mayorkas to force the department to turn over documents related to the migration parole program.
The Biden administration has contended that the parole programs have reduced the number of migrants caught crossing in between ports of entry. The government also argues that the court should defer to the Department of Homeland Security’s discretion in how best to manage what it described as foreign affairs and national security matters, and that the states do not have the legal right to challenge the program.
The case was assigned to Judge Drew B. Tipton, a Trump appointee who has frequently ruled against the Biden administration in immigration challenges.
The Justice Department previously sought to transfer the case to a different federal court in Texas. The government argued that the case has no connection to Victoria, Texas, where the case was filed, and accused the states of “blatant forum shopping,” which is the practice of filing lawsuits in courts believed to be friendly to the cause. Tipton denied that request.
Tipton did, however, approve a request by a group of American citizens who want to sponsor migrants to join the case in defense of the program.
The Americans, represented by attorneys with the Justice Action Center and other advocacy groups, include a Florida teacher who wants to bring over her brother and nephew from Haiti, a Texas businessman and devout Christian who felt moved by his religion to sponsor a family he met in Cuba, and a Washington, D.C., doctor who wants to sponsor a patient’s family.
Esther Sung, legal director at the Justice Action Center, said the presence of the intervenors could help Tipton “understand the human cost that an injunction of the program would impose.”
“That just seems bonkers that a court could block an entire program that is helping thousands of real human beings without hearing from any of them, without considering the stories of any of them,” Sung said.
Ukraine, Afghan implications
If Tipton rules that the program is illegal, the decision could implicate other country-specific immigration programs that rely on the same legal authorities, including existing parole programs for those who fled Ukraine and Afghanistan.
“It would be a really drastic, unprecedented thing for this judge to say that this use of parole is unlawful,” Sung said.
The Legal Information Network for Ukraine, a legal resources organization, filed a brief in the case arguing it would be inconsistent to support the Uniting for Ukraine program, or U4U, for displaced Ukrainians, but challenge the similar program for other migrants.
“Because of the significant similarities between the structure of these two programs, any challenge to [the Cuba, Haiti, Nicaragua and Venezuela parole program] — the more restrictive of the two programs — is inconsistent with the continued existence of the U4U program,” the brief says.
Corbett noted that when the Ukrainian parole program was rolled out, no one challenged it in court.
“It was only when we extended it to people south of the border, into the Caribbean, that it became problematic for the Republicans,” Corbett said.
Supreme Court precedent
A recent Supreme Court ruling in separate litigation over the Biden administration’s immigration enforcement priorities could further guide how Tipton rules in the case.
In that case, Texas and Louisiana had filed a lawsuit against the administration’s guidance for immigration agents to focus resources on arresting immigrants who threaten public and national security. Tipton sided with the states and blocked the guidance last year.
But in June, the high court ruled 8-1 to reverse Tipton’s ruling, finding that Texas and Louisiana did not have the legal right to bring the lawsuit, known as standing.
The Supreme Court found that the litigation infringed on the executive branch’s prosecutorial discretion authorities, and that allowing the states’ lawsuit would spur future legal challenges to the federal government’s enforcement of other laws.
Though the cases tackle different legal and policy issues, the June Supreme Court ruling “shows that there’s at least some skepticism now at the Supreme Court about a state like Texas arguing that it has standing to challenge these types of programs,” Lapointe said.
“The Supreme Court will not just rubber stamp a state’s arguments in supposed injury or harm when they’re seeking to shut down a nationwide program,” Lapointe said.
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